to confidence, but it seems me there are more problems of underconfidence than there are of overconfidence. it will be a while -- quite a while -- before we have financial the nordics in the early 90s, japan at the end of the 1980s, thinkpression, 1907 -- i those kinds of crises are a long time off. i think in the world of near zero interest rates various kinds of borrowing can gone go on for a fairly long time. unless, and i think this is another way of thinking about my remarks, unless you think the fact that the global economy is

$2 trillion to $3 trillion less out of it that may be regarded as its capacity, every single year. that there are more kids living at home because they can't get jobs as a graduate from school in the industrialized world than there have been in decades. you can regard that as a kind of continuing crisis is with us today. i guess that would appear to be the crisis that ought to be the preoccupation. >> questions? come to the microphone. people inre enough the room. there should be a few questions. >> i'm going to be greedy and questions. the shock that

has given us a new equilibrium? for all the others, there's a lot of talk about liquidity and it's hard to tell liquidity versus the solvency and the importance of acting quickly. when you act quickly and do the stress tests, doesn't really matter if you sort out which is liquidity and which is solvency or is important thing just to divide the banks into two piles like maybe roosevelt turned the bank holiday? andou recapitalize some wipeout others that is all that is required, that should keep you occupied for the next -- >> i don't think it was thought that fiscal audit was conspicuously austere in the. prior to 2007 and 2008. i think it is hard to construct

a counterfactual for the. 2007 with no -- 2003- 2007 with no bubbles and reasonably rapid growth. since the bubbles are now seen as having been the cause of significant fraction of the growth that there was, what shock could drive equilibrium and low interest rates down. the me mention two. the first, your sphere of expertise, something ben wrote about some years ago when he spoke about the savings glut, the substantial flow of capital nations tosurplus desire for some reason to accumulate reserves on a substantial scale.

that is one answer. second answer, which i am inclined to think is more important is this -- the canonical capital good of our and isthe computer information technology. the relative price of information technology relative to everything else goes down 20% every year. is same amount of savings producing vastly more capital than it used to. whatever the right savings investment balance was before, you need a different savings investment balance now precisely because capital goods are becoming substantially cheaper. anotherway to view -- way of looking at what i have said is to look at the balance of the private sector or the balance of the corporate sector where what you see is a very substantial deterioration in

investment relative to savings. quite extraordinary monetary policy that would be true to an even greater extent. part of the reason for that is that capital goods are cheaper. i read is that the most important reason the stress test theyeded was that convinced everybody that something was going to be done at no banks are going to fail in a disorderly way. there wasn't going to be any generalized regime of creditors stiffing. people didn't know just how that was going to play out, but they knew was going to play out, therefore they felt better and things got better. >> van? >> it is not a clean distinction between liquidity and solvency because in a panic the fire sales resulted in depressed asset prices which make some firms insolvent at current prices, so liquidity is a first

step. if you restore stability and and the fire sales and let prices find a more sustainable level, then you can find out who is really insolvent and then that has to be addressed by private or public capital injections which of course are beyond the scope of the central bank am a which is why central bank alone cannot be responsible for ending crises. >> it does make a difference if you're problems are liquidity problems. i assume there are banks which have their assets in banks which .ave worse assets if they have worse assets, you are supposed to do these tests -- as well, which makes it kosher, completely. you're supposed to do these evaluations at more or less normal conditions, not at crisis conditions.

if you find banks are broke him it would be better to close those another once. better to close those thanone other ones. dear, i wonder where the 35 years after world war ii had to do with the fact that financial liberalization happened. that had something to do with the stability of the financial system. >> it surely did. the fact that the stock market 20% perwent up 15 to

year every year through the 50s even though economic performance was kind of lousy getting worse had something to do with a growing sense that the world some revert to normal and decreases in the risk premiums. no doubt, what you're describing story asion of the well. it is an interesting question mixer towards worker go back to >> i have a question in terms of a lesson learned from the last episode of the recession of the u.s.. the u.s.d say that

policymakers attention went to strengthening the financial center of wall street and that there was considerable success there. too little was done to prop up main street, meaning the mortgage holders, those who were underwater. for various reasons, that was left aside. it took sometime for the housing markets to the cover, hence the delayed recovery. so while we can except as mr. summers just explained the importance of the financial sector in terms of providing electricity to system, the other might of been neglected and might've been a reason for the delayed recovery. i was wondering whether any of you or all of you have any thoughts on that. thank you. i was in the administration that was involved in those policies.

think anybody involved feels fully satisfied with the way it played out. i think the pace at which resources were distributed was , morehan was anticipated than was desired. but i think much of the commentary does miss the mark. everyone understood that housing was at the center of the crisis. everyone understood that there were opportunities where you had a house is worth $200,000, a mortgage that was worth $240,000 who was about to get foreclosed anyway that was going to turn the house to be dollarsndred thousand if he goes mortgage reduced to hundred $50,000 would be able to pay it, he would be happy, the community would be happy, everybody would be happy.

everybody involved in making policy at 100% understood that. the reason for any error, nor was it air out of any kind of excessive loyalty to wall street. everyone would have liked to have done fantastic things for millions of voting americans. so that is the wrong. . you go was the issue about saying it was doubled correctly, but here's the problem. the problem was that there were a set of households like the one i just described for which if you came along and reduce the to thee it would do improvement for everyone. for every one of those households there were six who were paying the mortgage through their institution every week and they were just paying it. there were a lot of others who didn't buy a house because they thought they couldn't afford a

house and they didn't want to go excessively into debt. , what doe question was you do? what you want to do is do something for the first group and not do something that turns the six other people into people who are going into default and needing to be bailed out by taxpayers or putting a major burden on already undercapitalized financial institution. program was designed and quite complex ways to target the place where the system -- where the assistance would be affectations and to avoid setting off an epidemic of defaults that would either be very expensive for taxpayers or the major problem for the financial institutions. i think relative to the expectations of the people who designed them, they probably committed more of the error of not reaching people who

should've been reached and virtually none of the error of reaching people who shouldn't have been reached and setting off a set of defaults, but that is easy to say with the benefit of hindsight. if you had created a situation where all over america people were deciding that they needed to stop making payments so that they could qualify for mortgage relief programs, you could have easily substantially exacerbated the financial crisis. if you have said that the government was going to take on a liability that for any close to resemblance to the magnitude of the total underwater quantity of equity in the economy, you would have been taking on a fast expenditure. there may well have been better ways of having done it with hindsight, certainly the programs evolved to be more

active and they didn't set off an epidemic and it may well be that they should have been that way much earlier, but the series that it was either stupidity or venality that caused more resources to flow to housing, i guess i would fairly firmly insist are wrong. >> we have time for one more question. >> do think that europe will be a banking unit? >> yes, but it is going to take a bit longer, maybe quite a bit longer than the present schedule. >> ok. i had a question in regards

to student loan debts and this being a potential cause of the next crisis because i recently had a conversation with one of the major banking associations departments and it appears that the massive amount of's student loan debt out there and the lack of good paying jobs. larry, student >> s? >> you raise the student debt issue and you raise the job that, let mehink just start by saying that larry, you talked about the employment , i think thetio unemployment rate, but he understates the degree of the slack in labor market. i think the employment

population ratio overstates it somewhat because there are important downward trends in . with that being said i think there is a lot of slack in the labor market and a lot of students living with her parents. that is why the federal reserve is taking strong actions to try to support job creation. that is a very important issue. are in the first place, i think it is a good thing that we have student loans, obviously. it wouldn't be good if people can invest in their own human capital and make that unfortunately, student loans are not underwritten in any way and so relying pretty much on the borrower to make the judgment about whether this is a good investment or not and it is not always a good judgment.

crisis, if financial think it is the case that a student loan debt which is not dischargeable in bankruptcy is a affecting, for example, the ability of many young people to buy a first home , affecting other purchasing decisions they might make, affecting their overall financial condition. in that respect it is yet one more drag to the extent that there is a lot of student debt peopleople -- held by who are not working. it is obviously another drag on recovery. i don't see it as a source of financial crisis or say, and we per se -- financial crisis se, but what it could be is ultimately another fiscal cost.

i don't see it affecting the stability of the financial system anytime soon. but it is a serious issue and i think more thought needs to be people makeping better choices when they borrow to make sure that they are making good investments with the money that they borrow. >> we have come to the end of the panel. is there anything else that you want to add? let me thank all the people that have made this conference a success. thanknelists, i want to some of the organizers. , finally,ng list

stanford giving us an excuse to putting this conference together and from which we learned a lot. thank you very much. [applause] [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2013] >> on the next "washington journal" we will discuss the latest employment numbers and the 7.3% unemployment rate with "u.s. news & world report's" daniel kurt slaven. about a treaty that

aims to establish minimum international standards for people with disabilities. our guest is the national disability rights networks aaron human. eric >> watchdog program saturday at 7 p.m. eastern on c- span. live monday night, our series continues. >> mrs. kennedy is very well .nown as a style icon mrs. kennedy put off a lot of thought into her wardrobe when she was representing the country come both at the white house and while traveling abroad she would think about what colors would mean something to the country i am about to visit. for her visit to canada she

chose this red suit by peter cardin as a gesture of respect for the red of the canadian maple leaf. i really admire the thought that this is kennedy put into her wardrobe and she also knew the advantage of choosing a color or style that would make her stand out in a crowd. >> first lady jacqueline on c-y, monday night live span or >> the bureau of labor statistics release numbers today that showed 200-4000 jobs were added in october. the and implement rate moved up to 7.3%. president obama travel to new orleans in talked about the u.s. economy, the impact of the government shutdown and investment in infrastructure and education. this is about half an hour.

>> hello, big easy. everybody give it up for nancy for the great introduction. back in newo be orleans. this is what passes for winter here in new orleans,? come on. you need to go to chicago to know what it's like to be cold. it is great to be here. it is especially happy for my staff. they love coming to new orleans, but we did schedule the event early because i figure there's a limit to how much trouble they could get into. they can't get over to bourbon street fast enough if we did a daytime event. probably a they are couple of my staff that are lsu fans.

i wouldn't mind staying for the game tomorrow night. i know we have the president here. i disarm a minute ago. i wished him all the best. to acknowledge a couple of other people who are here. you've got your governor, bobby jindal is here. [applause] we have got the secretary of transportation anthony fox who is here. [applause] frederick richmond, your outstanding congressman [applause] . brought down a bunch of his colleagues from the congressional caucus for some important work that they're doing. not that they're going to enjoy themselves at all while they're here, but we are thrilled to see them all here. you have one of the best mayors in the country in mitch landrieu. [applause] i just flew down with your

senator, who by coincidence has .he same name, mary landrieu she is traveling around the state today and doing unbelievable work on behalf of the people of louisiana. i just want to say nobody is a tougher advocate on the half of the working people of louisiana the mary landrieu. so we are very proud of the work that she does. [applause] thank mr. want to keith lummus otto who has away, anybody seat, feel free. i noticed a few folks that are standing up.

this is one of the busiest port complex is in the entire world. tons of millions of steel and chemicals and fuel and food every single year. handlefound out you also a lot of the countries coffee, each means you all responsible for keeping the white house awake at all times. we have some coffee folks here. in some anyways this port is representative of what ports all around the country do. they help keep our economy going , moving products, moving people come making sure that businesses are working. you've got corn and wheat that is coming down from my home state of illinois down the river , ended up here and then going all around the world. it is part of the reason why we have been able to increase exports so rapidly is because we have got one of the best natural resources and waterways and

facilities in the world. our economy, creating new jobs, helping middle-class families regain a sense of stability and security so they can find good jobs and make sure that their kids are doing even better than they did. that is always been one america has been about. but for too many people, that sense that you can make it here if you try, that sense has been slipping away. my driving focus has been to restore that sense of security. it should be washington's focus, regardless of party. that is what everybody in washington should be thinking about everyday. to offer awant couple of ideas about what we can do right now together that would help our economy, right now. the pastnews is over 44 months are businesses have created 7.8 million new jobs since i took office we cut the

deficit in half. [applause] that is right, by the way wouldn't know this sometimes listening to folks on tv, but the deficits are going down, they're not going up. they have been cut in half [applause] -- and they keep on going down. over the past three years healthcare costs have risen at the slowest pace on record. exports are up. the housing market is up. the american auto industry is rowing back -- is roaring back. so we have some good things to build on the we have a lot more work to do. what we should start doing, the first thing we should do is stop doing things that undermine our businesses and our economy over the past two years. this constant cycle of manufactured crises and self- inflicted wounds that have been coming out of washington. example, we learned

yesterday that over the summer our economy grew at its fastest pace in a year. that is a good news. that the verys day the economic court ended some folks in washington decided to shut down the government and threaten to default on america's obligations for the first time in more than 200 years. it is like the gears of our economy, every time they're just about to take off, suddenly somebody taps the brakes and says not so fast. now, our businesses are resilient, we've got great workers and so as a consequence we added about 200,000 new jobs last month, but there's no question that the shutdown harmed our jobs market. the unemployment rate still and we don't yet know all the data for this final

quarter of the year, but it could be down because of what happened in washington. now that makes no sense. the self-inflicted wounds don't have to happen, they should not happen again. we should not be injuring ourselves every few months, we should be investing in ourselves. we should be building, not tearing things down. rather than refighting the same old battles again and again and again we should be fighting to make sure everybody who works hard in america and hard right here in new orleans, that they have a chance to get ahead and that is what we should be focusing on. [applause] brings me to one of the reasons i'm here at this port. one of the things we should be focused on is helping more businesses sell more products to the rest of the world. the only way this products get out is to facilities like this. right now, exports are one of the bright spots in our economy. thanks in part to new trade deals and we signed with countries like panama and colombia and south korea.

now export more goods and the than ever before. and that means jobs right here in the united states of america. last year, everyone billion dollars in exports supported nearly 5000 jobs, including jobs are here at this port. so we are working on new trade deals that will mean more jobs for our workers and more business for ports like this one. way, when i travel around the world, i'm not there selling, i will go anywhere in the world to make sure that those products stand those words "made in america" that we could open up those markets and sell them anywhere. [applause] american businesses grow, creating more jobs, these are not democratic or republican priorities, they are priorities that everybody, regardless of party, should be able to get behind. that is why in addition to working with congress to grow

our exports, i have looked forward additional ideas where i believe democrats and republicans can join together to make progress right now. number one, congress needs to pass a farm bill that helps rural communities grow and protects vulnerable americans. thomas found a way to compromise ad pass farm bills without fuss. for some reason now congress can't get that done. this is not something that just benefits farmers. ports like this one depend on all the products coming down the mississippi. so let's do the right thing, pass a farm bill and we can start selling more roderick's or does more business for the sport, that means more jobs right here. >> thank you, thank you. should fix ourwe broken immigration system. this would be good for our national security, but it would

also be good for our economic security. over the next two decades, it would grow our economy by $1.4 trillion. it would trigger deficits by nearly $1 trillion. this should not be a part of an issue. when i was in the senate, i joined 23 of my republican colleagues to back those reforms. this year, the senate has artie passed a bill with broad bipartisan support. all we're doing now is waiting for the house to act. , butw what the holdup is if there is good reason not to do it i haven't heard it. there is no reason both parties can come together and get this done this year. get it done this year. [applause] democrats and republicans should work together

on a responsible budget that sets america on a stronger course for the future. we shouldn't get caught up in the same old fights and we shouldn't just cut things for the sake of cutting things. remember, i want to remind you, was happy with the deficit? they're going down, they're shrinking, they're falling faster than they have in 60 years. so what we have to do now is to it america has always done, make some wise investments in our people and in our country. that will help us grow over the long term. we should close wasteful tax loopholes that don't help our jobs, the grow our economy and then invest that money and things that actually do create jobs and grow our economy. one of those things is building new roads and bridges and schools and ports. that creates jobs. it puts people to work during the construction phase and then it creates an infrastructure for our economy to succeed moving forward.

educating our kids, preparing workers so that we can grow our economy. mary landrieu has been doing a great job in improving education here in new orleans. [applause] investing in science and research and technology. that keeps our businesses and our military at a cutting edge. that is the kind of investment we should be making. think about our infrastructure. in today's global economy, businesses are going to take root and grow wherever there is the fastest most reliable transportation and communications networks. they can go anywhere. china is investing a whole lot europe is investing a lot in infrastructure, brazil is investing in infrastructure. what are we doing? we are doing some good things locally here in the state and city are trying to do some work, but nationally we are falling

behind. we are relying on old stuff. alsonk we should have called for new stuff. that is going to help us grow and keep faith with global competition. pace with global competition. consider that just a couple years from now we're going to have new supertankers that are going to start coming through the panama canal. these tankers can hold three times as much cargo as today's. if a port can handle the supertankers, they will go load and unload cargo somewhere else. there is work that we can start doing in terms of dredging and making the passageways deeper, which means he supertankers can have more stuff on them which means they can load and unload more stuff which makes this port

more competitive. so why wouldn't we put people to work upgrading them? why would we do that? dn't we do that?'t we do tha our highways are congested and so is our airspace. everybody who is sitting on a tarmac wondering why it is that you're not taking off, getting aggravated when you go fly someplace, part of the reason is that we have this antiquated air traffic control system. we need the next generation air traffic control system. it would reduce time travel and reduce fuel costs for airlines and reduce pollution in the sky. we know how to do it, we just haven't done it. that shouldn't be a democratic or republican issue. that is just smart to go ahead and do it.

across thehat people political spectrum should be able to agree on. here's the thing. all these opportunities and challenges are not going to magically fix himself. we have got to do it. anybody who says we can't afford to pay for these things needs to realize we are already paying an them. i will give you example. a lot of trucking companies now reroute their shipments to avoid traffic and unsafe bridges. they are going longer than they need to. that costs them money. .ou're paying for it those costs then get passed on to consumers. more these companies are making much of a prophet and they have fewer employees. so directly or indirectly, we are paying for it are the longer we delay, the more we will pay. the sooner we take care of business, the better. i know if there's one thing that members of congress from both parties want, it's smart

infrastructure project that creates good jobs in the district. that is why last year i took the step, without congress, to speed up the permitting process for big infrastructure projects like upgrading our ports. cut through the red tape. get it done faster. this year, rebuilding our infrastructure could be part of a bipartisan budget deal. in a couple months that put forth ideas to try to break through some of the old arguments heard a grand bargain for middle-class jobs. lisette was we will simplify our corporate tax code, close some wasteful tax loopholes and incentives to ship jobs overseas, lower tax rates for businesses that create jobs here in the united states and use some of the money we save by switching to a smarter tax system to create good construction jobs building the things that are businesses need right here in america. it is a pretty sensible deal. if we took that step, we could modernize our air traffic

control system and keep planes running on time, modernize our power grids and pipelines so they survive storms, modernize our schools to prepare our kids for jobs of the future, modernize our ports so they can .ccommodate the new ships the point is, rebuilding our infrastructure, educating our are and funding research american issues. these are broad issues that benefit our economy and we need to get back to that mindset heard that does mean there aren't going to be disagreements on a whole bunch of things, but let's work on things we can agree on. i'm going to make one last point. one area where we have not made much bipartisan progress, at least as much as i'd like, is fixing our broken health care system. [applause] i took up his cause knowing it was hard. does a reason why nor the president had done it.

to make sure every american has access to quality affordable health care and to make sure that no american ever again has to fear one illness is going to bankrupt him. the work we have artie done has resulted in over the past three years healthcare costs rising at the slowest pace on record. health care costs for businesses are growing about one third of the rate they were a decade ago. we want those trends to continue. this problemad with the website. i'm not happy about that. overtime toorking make sure that it gets fixed because right now we have put in place a system, a marketplace where people can get affordable health care plans. i promise you, nobody has been more frustrated -- i wanted to go in and fix it myself, but i but torite code, so --

every american with a pre- existing condition is been waiting for the day they could be covered just like everybody else, for folks who couldn't afford to buy their own insurance because they don't get it on the job, we are going to fix his website because insurance plans are there. they're good and millions of americans are already finding that they will gain better coverage for less cost and it is the right thing to do. [applause] know health care is controversial, so there's only going to be so much support do we get on that on a bipartisan basis until it is working really well and then they're going to stop calling it obamacare. [laughter] [applause] they're going to call it something else. one thing, though, i was talking to your governor about is a separate issue heard one thing

that affordable care act act medicaid toort cover more citizens. here in louisiana, that benefits about 265,000 people. already you have seen states and arkansas taking this up their covering almost 14% of their uninsured. republican governors of states like ohio, nevada, arizona are doing it to. oregon has artie reduced the number of uninsured by about 10%. opposedthese folks obamacare, but they did support helping the citizens who can't get coverage. so we want to work with , mayors, governors, whoever does is that wants to work with us here in louisiana to make sure that even if you don't support the overall plan, let's at least go ahead and make

sure that the folks who don't have health insurance right now and get it through next that it medicaid. let's make sure we do that. [applause] it is the right thing to do. [applause] and one of the reasons to do it is, i've said it before, sometimes people don't fully appreciate it. we already pay for the people who don't have healthcare. we pay for the most expensive version which is when people go to the emergency room. the hospital is not going to let them stem the streets. people who are sick will wait till the very last minute. it is much more expensive to treat them at hospitals have to figure out how to get the money they jack upeans costs for but he does have health insurance by about a thousand dollars per family, so as a consequence what happens is

you are artie paying a hidden tax for broken health care system. to meet it hospitals struggle to care for the uninsured who can't pay for the bills and they get sick or its it is right thing to do for the health of our economies as a whole. it is a practical, pragmatic reason to do it. it has nothing to do with how six ideology. the more states that are working together, democrats and republicans, the better off we will be. the bottom line is, new orleans, we can work together to do these things. we have done them before. we did not become the greatest nation on earth just by chance, just by accident. we had some advantages. really nice real estate here in the united states. havd were we also different come from places and have different looks and traditions.

we understand this country works best for we working together. we decided to do what is necessary for businesses and families to succeed trade if we did in the past we can do it again. let's make it easier for more businesses to expand and grow and sell more goods made in america in the rest of the world. let's make sure we have the best ports and roads and bridges and schools. let's make sure our young people are getting a great education. that's give everybody a chance to get ahead. not just a few at the top, but everybody. that, if wee do help our business grow and our communities thrive in our children reach a little higher, the economy is going to grow faster. we will rebuild our middle class, stronger. the american dream will be real and achievable not just for a few but for everybody. not just today but for decades to come. is what we are fighting for, that is what we are all about here at the sport and in new orleans and i'm looking forward to working with you to make sure we keep that up, all right?

thank you. god bless you. and god bless america. levelt is your confidence that health care.gov, the website, will be working after november or the? remember, the website in and of itself is a symptom of bigger problems. it kind of obscure his is bigger problems. there's a lot of problems beyond that that even if they do get the website working, they're

going to find out that they're not going to get the number of young people and that they want. they're going to find people turned off from the promise that if you like it you can keep it, your health insurance or dr.. they're going to see the premiums go up and all those things are going to be a major problem for obamacare. that was best reflected by the fact that this week you at 14, 15, 16 democrats up for election go down to the white house complained to the white house about it. but they didn't get much sympathy from the white house because the white house is so sold on obamacare being the answer to everything that they aren't willing to admit that there's anything wrong. you don't find very much admittance of something wrong. all you hear is the president give a speech last week that he accepted possibility for it, but not much admittance that other than a computer is working, that there's anything wrong with that or there is a lot wrong with it third >> what happens if the

website is working, if it is december the first, what do you and other lawmakers do next? >> have done a lot to the house of representatives, but reid never brings any of it up in the united states senate. the president, by his own ruling, ignore the law. he takes a nose to uphold the law. he ignored the law and said employer mandates get a year's delay. but when individuals? well, since he doesn't have the authority to do it for employer mandates, the house passed a bill to legalize what he did and they don't even bring it up in the united states senate trade so we're going to have to -- when the stuff piles up in piles up all along, eventually they're going to have to deal with it in the united states senate. >> you can watch more with iowa's senator chuck grassley, the top republican on the senate judiciary committee, on newsmakers, sunday at 10 a.m. and 6 p.m. eastern here on c- span.

>> tonight on c-span, the u.s. supreme court oral argument examining prayers before government meetings followed by discussion on iran and negotiations in geneva to limit the country's nuclear activities. later, federal reserve chairman ben bernanke, former treasury secretary lawrence summers and others examined the policy after economic crises. >> c-span, we bring public affairs events from washington directly to you, putting you in the room at congressional events,, white house briefings and conferences and offering complete gavel to gavel coverage of the u.s. house, all as a public service of private industry. we are c-span, created by the cable tv industry 34 years ago and funded by your local cable or satellite provider. now you can watch us in hd. >> on wednesday, the u.s. supreme court heard oral argument on the practice of

opening government meetings with a prayer. town of greece versus galloway. the court will decide whether the law file its the first amendment ban on the government law against government and religion. this case examines whether there should be different rules for local council meetings. this oral argument is about an hour. >> we'll hear argument first this morning in case 12-696, the town of greece v. galloway. mr. hungar. >> thank you, mr. chief justice, and may it please the court -- the court of appeals correctly held that the legislative prayers at issue in this case were not offensive in the way identified as problematic in marsh, but the court then committed legal error by engrafting the endorsement test onto marsh as a new barrier to the practice of legislative prayer. >> mr. hungar, i'm wondering what you would think of the following: suppose that as we began this session of the court,

the chief justice had called a minister up to the front of the courtroom, facing the lawyers, maybe the parties, maybe the spectators. and the minister had asked everyone to stand and to bow their heads in prayer and the minister said the following: he said, we acknowledge the saving sacrifice of jesus christ on the cross. we draw strength from his resurrection. blessed are you who has raised up the lord jesus. you who will raise us in our turn and put us by his side. the members of the court who had stood responded amen, made the sign of the cross, and the chief justice then called your case. would that be permissible? >> i don't think so, your honor. and, obviously, this case doesn't present that question because what we have here is a case of legislative prayer in the marsh doctrine, which recognizes that the history of this country from its very foundations and founding, recognize the propriety of legislative prayer of the type that was conducted here. >> well, the question

>> the extension just between the legislature and any other official proceeding; is that correct? >> well, clearly, marsh involves legislative prayer, the tradition that we rely on 20 involves legislative prayer, and this case involves legislative prayer. whether -- what rule might apply in other contexts would depend on the context. >> suppose i ask the exact same question, same kinds of statements, same sort of context, except it's not in a courtroom. instead, it's in a congressional hearing room. maybe it's a confirmation hearing, maybe it's an investigatory hearing of some kind, and that a person is sitting at a table in front of the members of a committee, ready to testify, ready to give his testimony in support of his nomination. the minister says the exact same thing. >> i think that's a -- that's a closer question because of the congressional history, but, of course, at least as far as i'm aware, they have 0 this history

as it applies to the legislative body as a whole, not to committees, but it would be a different question. one, obviously, important distinguishing factor there, in addition to the fact that it's not the legislative body as a whole -- >> we should -- we should >> is that people are compelled to attend and testify under oath, which is a different situation from the one here. >> well, why >> we should assume -- to, to make it parallel to what occurred here that the next day before the same committee a muslim would lead the invocation and the day after that an orthodox jew. i mean >> yes, your honor. >> it makes a difference whether it's just one -- one denomination that is being used as -- as chaplain or open to various denominations. >> that's correct, your honor. that's why we believe this case is actually an easier case than marsh because in marsh, there was a paid chaplain from the

same denomination for 16 years. >> but the question, mr. hungar >> suppose you are correct, mr. hungar, for 11 years the prayers sounded almost exclusively like the ones that i read, and one year on four occasions, there was some attempts to vary it up, to have a baha'i minister or a a wiccan, but for the most part, not out of any malice or anything like that, but because this is what the people in this community knew and were familiar with and what most of the ministers were, most of the prayers sounded like this. >> well, no. i mean, it's clearly not correct that most of the prayers sounded like the one you just read. >> but your position is that wouldn't matter, as i understand, because you have you have -- you have two limitations, proselytizing and disparaging. and -- but i think justice kagan's question just set place

place limitations. one could read your brief and say, well, it doesn't matter; it could be an executive body, it could be a court, it could be a town meeting, a school board, a zoning board, a utilities board. that's -- is this case about prayer at the beginning of a legislative session or is it about prayer in all three branches of government? >> this case is about prayer at the beginning of a legislative session. that's exactly what the meetings at issue here are -- are about. that's what the board of the town of greece is. in fact, respondents try to argue that this is somehow what they call coercive because there are public hearings that are held. but the public hearings are held at least 30 minutes after the prayer and anyone coming for the purpose of the public hearing can easily show up after the prayer if they don't want to be there. >> why -- why was it that you so promptly answered justice kagan's question to the effect that this would be a violation?

what -- why would there be a violation in the instance she put? >> i'm sorry. which instance, your honor? >> the first question justice kagan asked you, the hypothetical about the prayer in this court. you seemed readily to agree that that would be a first amendment violation. why? >> well, perhaps i conceded too much, but i think the important distinction is between the -- both the judicial context and the legislative context on the one hand and the -- the absence of a of a comparable history that shows that it did not >> well, is it -- is it simply history that makes -- there's no rational explanation? it's just a historical aberration? >> no, it's not -- it's not a question of historical aberration. it's a question of -- >> well, what's -- what's the justification for the distinction? >> it's a question of what the establishment clause has understood, both at the time and throughout history, to forbid and not to forbid. the judiciary is different than a legislature. legislatures can be partisan, the judiciary should not be. people are compelled to testify under oath. >> but you -- but you -- you had no problem, mr. hungar, with the

marshal's announcement at the -- at the beginning of this session. god save the united states and this honorable court. there -- there are many people who don't believe in god. >> that's correct, your honor. and clearly >> so that's ok? >> yes. >> why -- why is that ok? >> whether -- if -- perhaps i misunderstood the hypothetical. if the hypothetical is as you described with a different minister, with -- with an open process, a nondiscriminatory process like the one we have here, i think it would be a much closer case than this one, but it might be constitutional. but whether that case is constitutional or not, this case is far from the constitutional line, further from the constitutional line than the state legislature's practice in marsh. because there, nebraska had one chaplain from one denomination for 16 years and yet, that was constitutionally permissible, and his prayers were not distinguishable in content from the prayers at issue here during the time that was relevant to the case. >> would it make a difference in your analysis if instead of, as i understand the hypothetical, there was a point of saying, all rise or something of that sort? would it make a difference if

the hypothetical justice kagan posed were the same except people weren't told to rise or invited to rise or, in fact, were told to stay seated, something like that, so there would be no indication of who was participating in the prayer? is that a -- is that a ground of distinction that you're willing to accept or not? >> i don't think that is constitutionally significant, unless -- i mean, it might 0 be different if people are compelled to stand, but whether they are or not -- i mean, in the marsh case itself, senator chambers testified that the practice in the nebraska legislature was for people to stand and he felt coerced to stand. because when he was there -- he tried to avoid it -- but when he was there, he felt he needed to stand because everybody else was doing it and he needed to have dealings with these people as a fellow legislator. the court, nonetheless, held that he's an adult and he -- he is expected to be able to disagree with things that he disagrees with and that is not a constitutional violation.

>> i wonder how far you can carry the -- your historical argument and whether some of these things are properly regarded as more historical artifacts, right? i mean, our motto is "in god we trust," right? that's the motto. it's been that for a long time, right? >> yes, sir. >> but wouldn't we look at it differently if there were -- suddenly if there were a proposal today for the first time, to say let's adopt a motto "in god we trust"? would we view that the same way simply because it's -- in other words, the history doesn't make it clear that a particular practice is ok going on in the future. it means, well, this is what they've done -- they have done, so we're not going to go back and revisit it. just like we're not going to go back and take the cross out of every city seal that's been there since, you know, 1800. but it doesn't mean that it would be ok to adopt a seal today that would have a cross in it, does it? >> not necessarily. but -- but i think history is clearly important to the establishment clause analysis under this court's precedence in two significant respects, both

of which apply here, one of which might not apply in your -- with respect to your hypothetical. the first being the history shows us that the practice of legislative prayer, just like the motto, has not, in fact, led to an establishment and, therefore, we can be confident it is not in danger of doing so. and secondly, the history of legislative prayer, unlike your hypothetical, goes back to the very framing of the first amendment. the fact that -- then this is what the court said in marsh -- the fact that at the very time the first congress was writing and sending the -- the first amendment out to the states to be ratified, they adopted the practice of having a congressional chaplain. and the congressional chaplain the record -- the historical record is clear -- gave prayers that were almost exclusively sectarian, as respondents define that word. >> i don't really understand your -- your answer. how can it be that if the practice existed in the past, it was constitutional? was it constitutional in the past? >> yes, your honor.

>> if it was constitutional in the past, why -- why would it be unconstitutional if the same thing is done today, even without any past parallel practice. that's a nice alliteration. is past parallel practice essential? >> i think this court's precedents have also indicated, at least in some cases, that if if a practice is constitutional, as we know it to be the case because of the fact that it has been understood to be constitutional and consistent with our religion clauses from the founding, other practices that have no greater impact, no greater tendency to establish religion, are equally constitutional. and we believe that is an appropriate doctrine. >> is there -- is there any constitutional historical practice with respect to this 0 hybrid body? it's not simply a legislature. it has a number of administrative functions. sometimes it convenes as a town

meeting. sometimes it entertains zoning applications. is there a history for that kind of hybrid body, as there is for the kind of legislature we had in nebraska or our congress? >> yes, your honor, in two respects. first of all, the becket fund amicus brief identifies various examples of -- of municipal government prayer over the course of our founding, which is over the course of our history, which is not surprising given this -- the legislative practice at the state and federal level as well. and secondly, congress for much of its -- of much of our history entertained private bills, which would be the equivalent in terms of legislative or non-purely legislative functions you're talking about, with what the town of greece does here. >> well, if we had a -- if we

had a series of cases, what -- what is a -- a utility rate- making board would come to the supreme court. we say, well, it's enough like a legislative that it's like marsh. but i don't think the public would understand that. >> well, your honor, whatever whatever line might be drawn between non-legislative bodies and legislative bodies, what we are talking about here is a legislative meeting of a legislative body, and it would be -- it would be incongruous, as this court said in marsh, if congress could have legislative prayers and the states couldn't. it would be equally incongruous >> well, the essence of the argument is we've always done it this way, which has some -- some force to it. but it seems to me that your argument begins and ends there. >> no, your honor. i mean, as we -- as we said in our brief, the principles that undergird the establishment clause are equally consistent with the position we're advancing here. as the -- as your opinion in the county of allegheny case indicates, the fundamental -- the core of establishment clause concern is coercion or conduct that is so extreme that it leads to the establishment of a religion because it is putting the government squarely behind

one faith to the exclusion of others, and that's clearly not not what's going on here. >> may i ask you about the individual plaintiffs here. and what do we know about them? they obviously have appeared at proceedings and they object to the proceedings. does the record show that they had matters before the town council during the hearings part of the proceeding? >> no, your honor. there is there's no evidence of that. there's no -- the respondents have no standing to assert the interests of children or police officers or award recipients or or permit applicants. they don't even claim to be in in any of those categories. >> well, what about the public forum part? they did speak occasionally then; isn't that right? >> yes, your honor. >> do we know what they spoke about? >> well, on at least one occasion one of them spoke about the prayer -- or on one or two occasions; and then on multiple occasions spoke about a cable access channel issue. >> and what did they -- what was the issue there? >> something about -- she was expressing vehement disagreement with the town's decision to award a cable access channel to

one entity as opposed to another. >> do you have any objection to to doing one thing that was suggested in the circuit court opinion, which is to publicize rather thoroughly in -- in the area that those who were not christians, and perhaps not even religious, are also welcome to appear and to have either a prayer or the equivalent if they're not religious? do you have an objection to that? >> certainly not. there'd be >> well, then -- then there is there a disagreement on that point, because certainly, that was one of the concerns. it wasn't on anyone's website. there are -- greece is a small town very near rochester, and there are, at least in rochester, lots of people of different religions, including quite a few of no religion. so -- so could you work that out, do you think, if that were the only objecting point?

>> i -- i don't know what the town's position would be on that, but it -- certainly, there would be no constitutional problem with doing that. i mean, here as a practical matter, since >> no, no. i'm not saying it's a constitutional problem i got from the opinion of doing the opposite, of -- of not making an effort to 0 make people who are not christian feel, although they live near in or near the town or are affected thereby, participants over time. >> but, your honor, it's a perfectly rational approach when when any legislative body is going to have a practice of legislative prayer, to go to the houses of worship in the community. >> i'm not saying it's not. i want to know if you have any objection. >> well, i certainly don't think it is constitutionally required, although i would note that as a practical matter that has happened here in 2007. >> do you -- would you have if all that were left in the case were the question of you're making a good faith effort to try to include others, would you object to doing it?

>> i don't know what the town's position is on that. as i said, as a practical matter, that has already happened here. the town deputy supervisor was quoted in the newspaper saying anyone can come in prayer, anyone can >> yes. that's different from putting it on a website. that's different from making an organized effort to see that people get the word. >> as i say -- >> mr. hungar, what -- what is the equivalent of prayer for somebody who is not religious? >> i would >> what would somebody who is not religious >> in the rubin >> what is the equivalent of prayer? >> it would be some invocation of guidance and wisdom from >> from what? >> i don't know. in -- in the rubin case -- >> in the rubin case, a nonreligious person delivered invocations on multiple occasions. >> i suppose a moment >> perhaps he's asking me that question and i can answer it later. >> i'd like to reserve the remainder of my time. >> yes. thank you, counsel. mr. gershengorn.

>> mr. chief justice, and may it please the court: the second circuit's decision here requires courts to determine when a legislature has permitted too many sectarian references in its prayers or has invited too many christian prayer-givers. that approach is flawed for two reasons. first, it cannot be squared with our nation's long history of opening legislative sessions not only with a prayer, but a prayer given in the prayer-giver's own religion idiom. and second, it invites exactly the sort of parsing of prayer that marsh sought to avoid and that federal courts are ill- equipped to handle. >> and what was the purpose of marsh saying that proselytizing or damning another religion would be a constitutional violation? >> so we agree with >> so unless you parse the 0 prayers, you can't determine whether there's proselytizing or damnation. that is judge wilkinson's point when he was faced with this question, which is, you have to, to do some parsing.

>> so, your honor, you have to look at -- at the prayer to determine proselytizing. but it's a very different series of judgments, we submit, than determining whether something is sectarian. the kinds of debates we're having, i think, are reflected in the differences >> now, seriously, counselor. you can't argue that the quote that justice kagan read is not a sectarian. it invokes jesus christ as the savior of the world. there are many religions who don't believe that. let's get past that. >> so, your honor -- >> this is sectarian. >> we agree that these are sectarian. but the kinds of debates that you're seeing among the parties, whether, for example, 15 percent, 50 percent, 60% of the congressional prayers are sectarian. those are debates about whether "holy spirit" is sectarian. a court -- a district court has held that "allah" is not sectarian. >> so let's talk about the 0 context instead of prayer.

if the chief justice got up at the beginning of this session and said "all rise for a prayer," would you sit down? >> your honor, whether i would sit or not, we don't think that that would be constitutional. >> do you think -- how many people in this room do you think would sit, talking truthfully? >> i don't think -- i don't think many would sit, your honor. >> all right. >> but we don't think that that >> so why do you think that someone who is sitting in a small room where hearings of this nature are being held, when the guy who's about, the chairman of this legislative body, is about to rule on an application you're bringing to him or her, why do you think any of those people wouldn't feel coerced to stand? >> so, your honor, i'd like to address the coercion point this way: with respect to town councils, it's our view that as a general matter that the a municipal legislatures can invoke the same 0 tradition of solemnizing and invoking divine guidance as federal and state

legislatures. we recognize there are differences, however, and your honor has pointed to one and that's the -- what was called the public forum here. and we think it's very -- because those are the ones where the -- is adjudicated license applications, liquor applications. and we do think it is important on this record that those are separated in time. it's at the court of appeals appendix 929 and 1120. so that the meeting starts at 6:00, which is in the prayer -- when the prayer is, but the board meetings to adjudicate those types of issues are at 6:30 or 6:32. and so the type of concern that your honor has raised is not presented on this record and we think that's significant. we think some of the other factors -- >> mr. gershengorn, do you think that if the legislature -- excuse me -- if the town board here just, you know, started it off with a prayer and then kept on going, do you think that that would be a significantly different case and you would switch sides? >> i don't know that we would switch sides, your honor. but i do think it mitigates the coercion that the -- that the respondents have 0 identified.

and we think it -- that that is one of the significant differences between the town, the -- the town legislature and a -- and the legislature >> you agree that coercion is the test, however? >> we don't agree that coercion is the test, your honor. >> if it is the test >> we think it's the history -- we think the history is the -- the principal guidance of marsh is -- we think there are three pillars in marsh: first of all, that the history is what the court looks to first. and here there was a long history of legislative prayer. second, that the court should be very wary of parsing prayer to make sectarian judgments. and third, what marsh said is that adults are less susceptible to religious doctrine -- indoctrination and peer pressure. >> mr. gershengorn, could you respond to this? here's what our -- our country promises, our constitution promises. it's that, however we worship, we're all equal and full citizens. and i think we can all agree on that. and that means that when we approach the government, when we petition the government, we do

so not as a christian, not as a jew, not as a muslim, not as a nonbeliever, only as an american. and what troubles me about this case is that here a citizen is going to a local community board, supposed to be the closest, the most responsive institution of government that exists, and is immediately being asked, being forced to identify whether she believes in the things that most of the people in the room believe in, whether she belongs to the same religious idiom as most of the people in the room do. and it strikes me that that might be inconsistent with this understanding that when we relate to our government, we all do so as americans, and not as jews and not as christians and not as nonbelievers. >> so, justice kagan, i think we agree with much of what you say. but -- but with the difference here is that this approaching of the government body occurs against the backdrop of 240 years of history, which makes this different. from the very beginning of our

legislature, from the first continental congress, and then from the -- from the first congress, there have been legislative prayers given in the religious idiom of either the official chaplain or a guest chaplain, that have regularly invoked the -- the deity and the the 0 language of the prayer- giver. and that >> mr. gershengorn, your your brief is the one who brought up and you were quite candid about it -- the hybrid nature of that body. i think it's on pages 22 to 24 of your brief. and you say it would be proper to have certain checks in that setting. so for one, make sure that the entrance and the exit is easy. for another, inform the people in town of the tradition so they won't be confused. but you recognize on the one hand that this isn't like congress or the nebraska legislature, and then you say these would be nice things to do. are you saying just that it would be good and proper or are

you saying it would be necessary given the hybrid nature of this body? >> so, your honor, with respect to some of the things we identify which are similar to the ones that justice breyer recommended, i think our view is they're more akin to safe harbors, that there are undoubtedly advancement challenges that could be brought. and to the extent that the town can point to things such as -- such as public criteria and things like that, that is helpful. with respect to the -- the public forum aspect, i don't think we have a position as to whether 0 it is required, but we do think that that makes this case the much easier case, because of that separation of the one part that is the strongest argument for the other

side, that there is an element of coercion, that your application is -- is being ruled on, that the separation the town has adopted makes that much less persuasive. we think the other elements that the respondents have pointed to for coercion are ones that trouble us because they are things that have analogs in our history. so, for example, they point to the presence of children. but, of course, on the senate floor are the senate pages, who are all high school juniors. and as the reply brief points out, there are often children in the galleries at state legislatures being acknowledged. and so some of those -- those elements that the respondents have pointed to for coercion we think are not ones that the court should should adopt. >> of course, your -- your test is whether or not -- part of your test -- is whether or not it advances religion. if you ask a chaplain for the state assembly in sacramento, california, who's going to go to the assembly to deliver a prayer, are you going to advance your religion today, 0 would he say oh, no? >> so, your honor, i think it's a much narrower test. what this court said in marsh was that the limit on legislative prayers is prosle -- does it proselytize, advance, or denigrate any one religion.

we think with respect to the content of the prayer, that the second circuit got it just about right, that the question is does it preach conversion, does it threaten damnation to nonbelievers, does it belittle a particular >> so -- so you -- you use the word "advance" only as modified by "proselytize"? >> what marsh said was "proselytize, advance, or denigrate." >> because that's -- that's not what your -- your brief says "does not proselytize or advance." >> that -- that's the language from marsh, your honor, is to proselytize or "proselytize, advance, or denigrate." >> but that's that the test you want us to adopt and >> it is, your honor. >> i'm asking whether or not it is, in fact, honest and candid and fair to ask 0 the minister or -- or the priest or the chaplain or the rabbi if by appearing there, he or she seeks to advance their religion? >> so, your honor, i don't think that's what marsh meant by advance. >> if not, i'm not quite sure why they're there. >> you're not quite sure why

"advance" is there, or why the rabbi is there. we don't think that the mere presence of the rabbi -- that's what marsh held, that marsh -- what marsh says is "advance" 21 does not mean having a single -- a single chaplain -- a chaplain of a single denomination or looking at the content of the sectarian prayer in light of that history. thank you, your honor. >> thank you, counsel. mr. laycock. >> mr. chief justice, and may it please the court: petitioner's answer to justice kagan's opening question is entirely formalistic. there is no separation in time between the public hearing and the invocation. people appear before this town board to ask for personal and specific things. our clients put shows on the cable channel. they were concerned the cable channel was about to be abolished or made much less usable. people appear to ask for a group home, parents of a down syndrome child. there are many personal

petitions presented at this -- in the immediate wake of the prayer. >> but that's during the public that's during the public forum part. >> that's in the public forum. >> which is not really -- it's not the same thing as the hearing. >> it's not the same thing as the hearing and that's the point, your honor. >> there's another -- there's another part of the proceeding that is the hearing. >> yes. >> and that's when somebody has a specific proposal. they want to -- something specifically before the board and they want relief. they want a variance. >> the -- the hearing is a particular kind of proposal. >> and that is separated in 0 time. >> that is -- that is somewhat separated in time. the forum is not. and people make quite personal proposals there. they ask for board action. they often get board action. >> but that is a legislative body at that point. it's clearly a legislative body,

is it not? the only -- the difference is it's a town rather than -- than congress or a state legislature where you have more formalized procedures. this is this is more direct democracy. or it's like a -- it's a town meeting. >> it is -- it is direct democracy. when a citizen appears and says, solve the traffic problem at my corner, solve this nuisance family that commits a lot of crimes in my block, that's not asking for legislation or policymaking. that's asking for administrative action. this board has legislative, administrative, and executive functions. >> well, if that is your argument, then you are really saying you can never have prayer at a town meeting. >> that's -- that's not what we're saying. we're saying >> how could you do it? because that's the kind of thing that always comes up at town meetings. >> we're saying you cannot have sectarian prayer. the town should instruct -- should have a policy in the first place, which it doesn't, instruct the chaplains keep your prayer nonsectarian, do not address points of >> all right. give me an example. give me an example of a prayer that would be acceptable to christians, jews, muslims, buddhists, hindus. give me an example of a prayer.

wiccans, baha'i. >> and atheists. >> and atheists. throw in atheists, too. >> we -- we take marsh to -- to imply that atheists cannot get full relief in this context, and the mccreary dissenters said that explicitly. so points on which believers are known to disagree is a -- is a set that's in the american context, the american civil religion, the judeo-christian tradition >> give me an example then. i think the point about atheists is a good point. but exclude them for present purposes and give me an example of a prayer that is acceptable to all of the groups that i mentioned. >> about a third of the prayers in this record, your honor, are acceptable. >> give me an example. >> can i have the joint appendix? the prayers to the almighty, prayers to the creator. >> to "the almighty." >> yes. >> so if -- if a particular religion believes in more than one god, that's acceptable to them? >> well, some religions that believe in more than one god believe that all their many gods are manifestations of the one god. but the true polytheists i think are also excluded from the mccreary dissent. >> what about devil worshippers?

>> well, if devil worshippers believe the devil is the almighty, they might be ok. but they're probably out. >> who is going to make this determination? is it -- is it an ex ante determination? you have to review the proposed prayer? >> i'm just flipping through. there are a number of examples, but if you look at page 74a of the joint appendix, the prayer from august 13, 2003 -- no i'm sorry. that ends "in christ's name." but there are -- the count was about, about two-thirds, one- third. so there are plenty of them in here. >> 74a, "heavenly father," that's acceptable to all religions? >> "heavenly father" is very broadly acceptable. and you know, the test cannot be

unanimity, because that's impossible, right? that's why the atheists are -- that's why the atheists are excluded. i'm sorry, justice scalia; would you repeat your question? >> well, i'll repeat mine. it was: who was supposed to make these determinations? is there supposed to be an officer of the town council that will review? do prayers have to be reviewed for his approval in advance? >> no. principally the clergy make this determination. there is a 200-year tradition of this kind of civic prayer. the clergy know how to do it. if the city has a policy, then an occasional violation by one clergy is not the city's responsibility. so -- so this is left principally to the clergy by simply giving them instructions. they receive no instruction of any kind about the purpose of this prayer or >> so there is an official in the town council that is to instruct clergy about what kind of prayer they can say? >> that's right. state legislative bodies, the house of representatives have

these kinds of guidelines. they issue them to the guest clergy before they appear. >> and if i'm -- if i'm that official and i think a prayer was over the top for being proselytizing and particularly sectarian, i would say i rather not -- you not come back next week; i am going to look for somebody else? >> well, you might have a conversation with him first and >> well, so in other words 0 the government is now editing the content of prayers? >> editing the content of government-sponsored prayers. of course these clergy can pray any way they want on their own time with their own audience. but this is an official government event. and it's part of the board's meeting. it's sponsored by the government. and they delegate the task to these clergy and they can define the scope of that >> your point is that it coerces, it's bad because it coerces? >> it coerces the people who are about to stand up and ask for things from the board and >> if there is -- if coercion is the test of the free exercise

clause, why do we need a free exercise clause? if there's coercion -- i'm sorry of the establishment clause, why do we need the establishment clause? if there's coercion, i assume it would violate the free exercise clause, wouldn't it? >> well, i think that's right. and that's why >> so it seems to me very unlikely that the test for the establishment clause is identical to the test for the free exercise clause. >> well, it seems to me unlikely as well. coercion is one test for the establishment clause, but there is also broad agreement on the court, and there has been, that sectarian endorsements are prohibited by the establishment clause. >> what exactly since you are adopting the coercion test, what exactly is coercive in this environment? having to sit and listen to the prayer? >> there are many coercive aspects here of varying degrees of importance. citizens are asked to participate, to join in the prayer. they're often asked to >> they are asked to participate, and -- but not in

any tangible way. they say, "well, i'm not going to participate, and everybody's just sitting there." >> they are often asked to physically participate, to stand or to bow their heads. the testimony is most of the citizens bow -- most of the citizens bow their heads whether they are asked to or not. so people who are not participating are immediately visible. the pastors typically say: "please join me in prayer." they offer the prayer on behalf of everyone there. they talk about "our christian faith." >> this is coercion? he says, you know -- he says, "may we pray," and somebody doesn't want to pray, so he stays seated. >> what's coercive about it is it is impossible not to participate without attracting attention to yourself, and moments later you stand up to ask for a group home for your down syndrome child or for continued use of the public access channel or whatever your petition is, having just, so far as you can tell, irritated the people that you were trying to persuade. >> let me give you an example of a practice that's a little bit different. maybe you'll say it's a lot

different from what the town of greece does. first of all, this town starts out by making -- by proceeding in a more systematic and comprehensive way in recruiting chaplains for the month or whatever it is. so instead of just looking to all the houses of worship within the town, it identifies places of worship that may be outside the town boundaries that people within the town who adhere to a minority religion may attend. and it makes it clear that it's open to chaplains of any religious -- of any religion on a rotating basis. and then they have -- they structure their proceedings so that you have the prayer, and then 0 the legislative part of the town meeting. and then there's a clear separation in time and access between that part of the proceeding and the hearing where variances and things of that nature are held. now, you would still say that's unconstitutional because you have to add on that a prayer that is acceptable to everybody;

is that it? is there any other problem with what i've just outlined? >> well, if the separation in time really works, that's part of the remedy that we've suggested that is possible here. we still believe that prayers should be nonsectarian. >> on the remedy, this case was remanded by the second circuit for the parties together with the court to work out appropriate relief. and if you could tell us what you think that relief would be, because then that is a measure of the constitutional infraction. so what would -- you put yourself before the district judge and propose the changes that you think would be necessary to bring this practice within the constitutional boundary. >> well, we think the town has to have a policy. >> well, just to be clear, are you talking about what would be

satisfactory to the second circuit or satisfactory to you? because you don't accept the second circuit's approach. >> well, we've tried to sort out the totality of the circumstances to make it clearer. >> what my question was >> i'm talking about what would be-19 >> your theory, and you say existing situation violates the constitution. so what changes do you think would need to be made that would bring this within the constitutional boundary? >> we think the town needs a policy. the policy should give guidelines to chaplains that say: stay away from points in which believers are known to disagree. and we think the town should do what it can to ameliorate coercion. it should tell the clergy: don't ask people to physically participate. that's the most important thing. the government suggests

disclaimers might help. we think that's right. the government suggests separating the prayer a bit more in time. some states put their prayer before the call to order. the prayer could even be five minutes before the beginning of the meeting. the coercion can't be entirely eliminated, but the gratuitous coercion, the things that are done that don't have to be done in order to have a prayer could be eliminated. and we think those two pieces are the components of a remedy. >> mr. laycock, it seems to me that you're missing here is -- and this is what distinguishes legislative prayer from other kinds -- the people who are on the town board or the representatives who are in congress, they're citizens. they are there as citizens. the judges here are not -- we're not here as citizens. and as citizens, they bring, they bring to their job all of all of the predispositions that citizens have.

and these people perhaps invoke the deity at meals. they should not be able to invoke it before they undertake a serious governmental task such as enacting laws or ordinances? there is a serious religious interest on the other side of this thing that -- that -- that people who have religious beliefs ought to be able to invoke the deity when they are acting as citizens, and not -- not as judges or as experts in in the executive branch. and it seems to me that when they do that, so long as all groups are allowed to be in, there seems to me -- it seems to me an imposition upon them to -- to stifle the manner in which they -- they invoke their deity. >> we haven't said they can't

invoke the deity or have a prayer, and they can certainly pray any way they want silently or just before the meeting. we've said they cannot impose sectarian prayer on the citizenry, and that is very different from what congress does, it is very different from what this court does. maybe the closest analogy is legislative committee hearings where the citizens interact. we don't have a tradition of prayer there. what -- what -- what the town board is doing here is very different from anything in the tradition that they appeal to. >> are you -- i would like you to take into account an aspect of this. i mean, in my own opinion, i don't know of anyone else's, i'm not talking for others. but one -- a major purpose of the religion clauses is to allow people in this country of different religion, including those of no religion, to live harmoniously together. now, given that basic purpose, what do we do 0 about the

problem of prayer in these kinds of legislative sessions? one possibility is say, you just can't do it, it's secular. but that is not our tradition. >> that's correct. >> all right. the second possibility is the one that you are advocating. and it has much to recommend it, try to keep non-denominational, try to keep it as inoffensive to the others as possible. that's the upside. the downside is seeing supervised by a judge dozens of groups, and today, there are 60 or 70 groups of different religions coming in and saying, no, that doesn't work for us, this doesn't work for us, and that's the nightmare that they are afraid of. i mean, even in this town or in the area, there are significant numbers, as well as christians, of jews, of muslims, of baha'is, of hindus, and others. all right. so there's a third approach, and that is say, well, you can't have them if there's any aspect

of coercion. but we just saw people walking into this room, "god save the united states" and you want to win your case. i didn't see people sitting down. all right. then the fourth approach, which is the other that has -- makes its appearance here, is 0 to say let's try to be inclusive. now, was enough -- in other words, so you didn't get the right prayer today, but you -- and even with the nonreligious, you know many believe in the better angels of our nature and the spiritual side of humankind; it's not impossible to appeal to them. so you say, you'll have your chance. and that's the thing i -- i would like you to explore. i mean, is there a way of doing that or is that preferable to the other ways or do we get into trouble? >> we think that rotation does not work. first of all, because -- for several reasons, but most citizens come for a single issue to one or two meetings. they get the prayer they get that night.

they don't benefit from the rotation scheme. any rotation scheme will be dominated by the local majority, maybe even disproportionate to its numbers. religious minorities -- unfamiliar minorities give the prayer. there are often political protests; there are often threats and hate mail. they don't want to give the prayer. and many city councils won't stand up to the political pressure and enable those people to give the prayer. so there are multiple reasons why rotation does not solve the problem here. we think nonsectarianism has a very long tradition. the government is not a competent judge of religious truth, madison said, that was not a controversial proposition in the founding. and even in the first congress, in the prayers they point to, there were no prayers there that violate our principle, 16 invoking details in which believers disagree. because then, 98.5% of the population was protestant, christ was not yet a point that disbelievers disagreed. >> well, that gets exactly to

the -- that gets exactly to the problem with your argument about nonsectarian prayer. yes, when -- at the beginning of the country, the population was 98 percent-plus protestant. then it became predominantly christian. then it became predominant almost exclusively christian and jewish. and it -- but now, it's not that it's it's gone much further than that. so we have a very religiously diverse country. there are a lot of muslims, there are a lot of hindus, there are buddhists, 5 there are baha'is, there are all sorts of other adherents to all sorts of other religions. and they all should be treated equally, and -- but i don't -- i just don't see how it is possible to compose anything that you could call a prayer that is acceptable to all of these groups. >> we >> and you haven't given me an example. >> we -- we cannot treat -- i'm not a pastor -- we cannot treat everybody, literally everybody equally without eliminating prayer altogether. we can treat the great majority of the people equally with the tradition of prayer to the almighty, the governor of the universe, the creator of the

world >> you want to pick the groups we're going to exclude? >> i think you picked them, your honor. >> the baha'i, who else? these -- these groups are too small to -- >> we've already excluded the atheists, right? >> yeah, the atheists are out already. >> we've excluded the atheists. i don't think the baha'i are excluded, but i'm not certain. >> ok. so who else? i mean, you suggest -- you say just the vast majority is 0 all that we have to cater to. >> well, i -- i think the -- the atheists are inevitably excluded. we can't help >> ok. good. got that. number 1, atheists. who else? >> true poly -- true polytheists who don't understand their gods as manifestations of the one god are probably excluded. i'm not sure many others are. and you have all these lawyerly hypotheticals, but the fact is we've done this kind of prayer in this country for 200 years. there's a long tradition of civic prayer and the clergy know how to do it. when in greece, no one has told them that's what we want you to

do. and -- and i would say the one time the country in a major way got involved in government-sponsored, sectarian prayers that people disagreed about was when we imposed protestant religious exercises on catholic children in the 19th century. and that produced mob violence, church burnings, and people dead in the streets. >> mr. -- >> we've already separated out, i thought, in our jurisprudence, children and adults. >> well, lee v. weisman twice reserves the question of whether adults might be subject to similar pressures. >> well, you do accept the fact that children may be subject to subtle coercion in a way that adults are not, right? >> in some ways that adults are not. but there's -- there's no doubt that before you stand up to ask for relief from a governing body, you don't want to offend that body. adults are subject to coercion here. and -- and no competent attorney would tell his client, it doesn't matter whether you visibly dissent from the prayer or not.

you try to have your client make a good impression. >> well, i just want to make sure what your position -- your position is that town councils like greece can have prayers if they are non- provocative, modest, decent, quiet, non-proselytizing. that's your position? >> i wouldn't use all those adjectives, but yes. and we don't think that's difficult to do. >> mr. -- >> congress has a set of guidelines which you've read and are here in the papers 0 and so forth. are those satisfactory to you? >> we'd like to be a little more explicit, but those are vastly better than >> if those are satisfactory to you, then i wonder, are they satisfactory to everyone. and -- and you will find all kinds of different beliefs and thoughts in this country, and there will be people who say, but i cannot give such a prayer if i am a priest in that particular -- or a minister or whatever in that particular religion. i must refer to the god -- to god as i know that god by name.

and what do we do with them? that's what -- i mean, we can recommend it, but can we say that the constitution of the united states requires it? >> you know, there are such people and i respect that and they should not be giving government prayers. they're taking on a government function when they agree to give the invocation for the town board. >> mr. laycock -- >> well, that's -- that's that's really part of the issue, whether they're undertaking a government function or whether they're acting as citizens in a legislative body, representative of the people who bring -- who bring to that their their own personal beliefs. i think the average person who who -- who participates in a legislative prayer does not think that this is a governmental function. it's a personal function. and -- and that's why we separate out the legislative prayer from other kinds of prayers. >> they're -- they're not praying for their congregation. they are -- they are invited by the board, the prayer-giver is selected by the board, the board

decides to have the prayer, the \board gives this one person and only one person time on the agenda to pray. this is clearly governmental as you held in santa fe >> if you had an atheist board, you would not have any prayer. >> precisely. >> i guarantee you, because it is a personal prayer that the members of the legislature desire to make. >> counsel, assuming that we don't >> mr. laycock, would you >> justice sotomayor. >> assuming -- you hear the 0 resistance of some members of the court to sitting as arbiters of what's sectarian and nonsectarian, and i join some skepticism as to knowing exactly where to join that line. assuming you accept that, what would be the test that you would proffer, taking out your preferred announcement that this prayer has to be nonsectarian? >> well, the test that we have proffered is the test from the

mccreary dissent, points on which believers are known to disagree. so you don't have to be a theologian. points on which people are commonly known to disagree, and the fourth circuit has had no difficulty administering this rule. the cases that come to it are clearly sectarian or clearly nonsectarian. >> it just see to me that enforcing that standard and the standard i suggested involves the state very heavily in the censorship and and the approval or disapproval of prayers. >> but it's not censorship when it's the governmental >> that may play ultimately in your position if we say that that's why there shouldn't be any prayer at all. but then you have the problem mentioned by justice scalia that we are misrepresenting who we really are. >> if you really believe government can't draw lines here, then your alternatives are either prohibit the prayer entirely or permit absolutely anything, including the prayer at the end of our brief, where they ask for a show of hands, how many of you believe in prayer? how many of you feel personally

in need of prayer? if there are no limits, you can't draw lines. >> that's not a prayer. that's not a prayer. >> well, it was how >> "how many of you have been saved? " that's not a prayer. >> it was how he introduced his prayer, and if you can't draw lines i don't know why he can't say that. >> mr. laycock, sort of, all hypotheticals aside, isn't the question mostly here in most communities whether the kind of language that i began with, which refers repeatedly to jesus christ, which is language that is accepted and admired and incredibly important to the majority members of a community, but is not accepted by a minority, whether that language will be allowed in a public town session like this one. that's really the question, isn't it? >> that's the issue that actually arises in the case. >> that's the issue that actually arises. here's what -- i don't think that this is an easy question. i think it's hard, because of this. i think it's hard because the court lays down these rules and everybody thinks that the court

is being hostile to religion and people get unhappy and angry and agitated in various kinds of ways. this goes back to what justice breyer suggested. part of what we are trying to do here is to maintain a multi- religious society in a peaceful and harmonious way. and every time the court gets involved in things like this, it seems to make the problem worse rather than better. what do you think? >> well, i don't -- i don't think that's true. there are people who distort your decisions. there are people who misunderstand your decisions honestly and -- and innocently. but keeping government neutral as between religions has not been a controversial proposition in this court. and i don't think the fourth circuit has made it worse. they've got a workable rule and the prayers are no longer exclusively christian prayers in the fourth circuit and they have been able to mostly enforce that and there 0 hasn't been

litigation at the margins because all the prayers were clearly >> suppose you did this. you combined your two approaches. the town has to -- it cannot -- it must make a good faith effort to appeal to other religions who are in that area. and then you have these words from the house: "the chaplain should keep in mind that the house of representatives, or you would say whatever relative group, "is comprised of members of many different faith traditions," period, end of matter. is that sufficient, those two things? >> that would help immensely. we think some of the clergy need more detailed explanation of what that means, but yes, that would help immensely. >> should we write that in a concurring opinion? >> i mean, i'm serious about this. this involves government very heavily in religion. >> well, government became very heavily involved in religion when we decided there could be prayers to open legislative

sessions. marsh is the source of government involvement in religion. and now the question is how to manage the problems that arise 0 from that. >> well, marsh is not the source of government involvement religion in this respect. the first congress is the source. >> fair enough. the tradition to which marsh points. >> the first congress that also adopted the first amendment. >> that -- that's correct, and that had prayers that did not address predestination or having to accept jesus as your savior or any point on which listeners disagree. >> many of them were very explicitly christian, were they not? >> they were very explicitly christian, but that was not a point of disagreement at the time. they stayed away from any issue that protestants disagreed on. >> in a way it sounds quite elitist to say, well, now, we can do this in washington and sacramento and austin, texas, but you people up there in greece can't do that. >> well, it's not that the people in greece can't do it. it's just that this board is functioning in a fundamentally different way from what 0 congress or the state legislature functions.

and also >> my understanding is that the first chaplain of the senate was the episcopal bishop of new york; isn't that correct? and he used to read -- he took his prayers from the book of common prayer. that was acceptable to baptists at the time, quakers? >> well, it wouldn't have been their choice. but did he talk about the choice between bishops and presbyters and congregations as a way of governing the church? they have not offered a single example of a prayer in the founding era that addressed points on which protestants were known to disagree. and i don't think there is one. the founding generation kept government out of religious disagreements. and what has changed is not the principle. what has changed is that we have a wider range of religious disagreements today. if there are no further questions, we ask you to affirm. >> thank you, mr. laycock. mr. hungar, you have 3 minutes remaining. >> thank you, mr. chief justice. first i would like to correct one factual misimpression, the assertion that only non- christian prayer-givers

delivered the prayer after 2008. it's not in the record, but the official web site of the town of greece shows that at least four non-christian prayer-givers delivered prayers thereafter in 2009, '10, '11 and '13. on the sectarian points, clearly the line >> counsel. >> i'm sorry? >> one a year. >> i'm sorry, your honor? >> four additional people after the suit was filed. >> yes, your honor. >> one a year. >> approximately. >> how often does the legislature meet? >> once a month. and on the sectarian line, i just like to point the court to the senate brief, the amicus brief filed by senators, pages 8 to 17 which shows the extensive history from the beginning of the republic 0 until today of prayer in congress. that would be sectarian and unconstitutional under respondent's position. with respect to coercion, it's unquestionably true that there is less basis for claiming coercion here than there was in marsh.

in marsh, senator chambers was required to be on the senate floor by rule, he had to be there to do his job and the practice was to stand every single time, which he did because he felt coerced to do it; whereas, here, the record suggests that there were three times when somebody requested people to stand out of 121 occasions. the idea that this is more coercive than marsh is absurd. in marsh the court expressly rejected a coercion argument saying, "we expect adults to be able to deal with this." with respect to the history, as well, i think the debate in the continental congress, when this issue was first raised, shows what the american tradition has been. that is americans are not bigots and we can stand to hear a prayer delivered in a legislative forum by someone whose views we do not agree with. that is the tradition in this country, and that's why it doesn't violate the establishment clause. and finally, with respect to the fact that this is a municipality rather than a state or local federal government. that can't possibly make a difference as an establishment clause matter. it makes no sense to suggest that a prayer at the local level

is more dangerous for establishment clause purposes than what congress is doing. only congress could establish a religion for the entire nation, which is the core preventive purpose of the establishment clause. to suggest that there are greater restrictions on municipalities makes no sense at all. we think that the dangerously overbroad theories advanced by respondents are at odds with our history and traditions, which we reflect this tradition of tolerance for religious views that we don't agree with in the legislative context. respondent's theories also conflict with the religion clauses mandate, that it's not the business of government to be regulating the content of prayer and regulating theological orthodoxy. thank you. >> thank you, counsel. the case is submitted.

>> about 30 seconds and i will begin. rob schenck. with me today is pastor pat madeiros, of greece, new york, who has offered many of the prayers before the greece town council and that are at issue in this case. what we heard this morning in the courtroom was a very vigorous exchange between the justices and the attorneys representing the two sides of this debate.

we also heard more than a few justices who are quite skeptical about the government dictating how or when clergy or any citizen is allowed to pray. this court has consistently found that prayers offered at legislative sessions are, indeed, constitutional. we argued that legislative prayers are wholely consistent with both the declaration of independence and with the constitution. if they weren't, as some of the justices alluded to in their comments from the bench today, the court would be in trouble with itself because the court began its session today with a

form of prayer when the marshall declared, "god save the united states and this honorable court." furthermore, as a number of the justices indicated in their remarks today, among them justice kennedy, the government has a dubious role in dictating the content of any prayer. it is our position that the government has no authority to instruct anyone in the form or content of prayer. for the government to tell a citizen when he or she is to pray or not to pray is a flagrant violation of the first amendment, free exercise clause, that expressly prohibits the government from interfering with religious exercise.

i felt that we heard the justices say very clearly that a government official is in no position to dictate how a prayer should be worded. none of us want the government telling us what a good prayer is d what a bad prayer is. should this court ban prayer at town council meetings or anywhere else, the government would, in fact, do precisely what the original plaintiffs in this case don't want, and that is to establish a religion, a religion that requires innocuous, meaningless prayers to an unknown god. now, with that i'll yield to the pastor who is at the center of all of this activity in greece, new york. pastor, please. >> good morning. my name is patrick medeiros.

i serve at greece assembly of god in the town of greece. and i have offered prayers before our town council many, many times over the last 14 years. in my prayers i have asked god to bless our community, to bless our leaders, to grant them divine wisdom as they do the people's business there in our community. and when i've been asked to pray, i've said yes, to serve our community. i see this as part of my civic duty and civic responsibility as a citizen. so as a minister, it's my prayer that the justices will uphold my constitutional right. and the ministers in our community's right to continue this great tradition to pray during these meetings.

thank you. >> i've been professor of constitutional law focusing on issues, religion and law, and am currently distinguished research professor of law and theology of faith evangelical college. before i make my comments, i should say i'med with the probing question i'm pleased with the questions of the court today. we would assert the courts are not invested by the constitution. as justice suitor said, i can hardly imagine a subject less amenable to the confidence of the federal judiciary are deliberately to be avoided when possible than comparative theology. following, we would agree with the guidance of the marsh and lee opinions that the courts are not to parse the content of public prayers and that regulating a prayers content violates the establishment clause by imposing a civic

orthodoxy of neutrality. this opposed neutrality would define what theological terms may be used in this prayer, an impossible task, and would have the courts imposing official prayers. secondly, it is not possible to have a religiously neutral prayer. there's a guaranteed right of voluntary public prayer to a deity in a civic setting already confirmed within the history of our people, its documents, and affirmed by the supreme court in previous rulings. religions only share some points in common, however, and are quite divergent in others. for example, some religions such as christianity, judaism and islam believe in one god whereas some forms of hinduism believe in many gods. islam recovers prayers in the name of allah and jewsies respect jesus respectively whereas others to a supreme being. rick a nonsectarian prayer is to impose a burden on free exercise

of religion in the name of no establishment which flies in the face of the words and practices of those who wrote the first amendment religion clauses. to demand some supposed neutral prayer is to strike at the core of religion itself. as was made plain in the court today, i believe, the only way that one may avoid violation of the establishment clause and uphold the free exercise of religion clause is to hold that the state will not interfere with the right of a person to pray in a civic context according to the dictates of conscious and not to define the theological content of this prayer. thank you.

>> good morning, ladies and gentlemen. my name is greg scott, senior director of media relations at alliance defending freedom. alliance defending freedom defended the town of greece since the suit was filed against them in 2008. we've got a couple of key members of the legal team defending the town of greece who would be delivering a short statement short statements. and after that, if you want oneonone interviews, you can track me down and i'd be happy to facilitate that. tom? >> i'm happy to answer questions. i don't have a statement to give. thomas hung yar. >> the justice's remarks you and the questions they had, overall up there today. >> sure. as is always the case, the court was very active. they had lots of questions for both sides. they explored lots of challenging hypotheticals. i never make predictions about how the court is going to rule

because it's very hard to know. >> can you restate your position can you restate your position? >> sure, the town of greece has a legislative prayer practice that is consistent with this country from the very founding congress from the very beginning of history has a legislative practice that is comparable to ha the town of greece is doing. it invokes blessing on the legislators thaze begin their work. yet each session does nothing unconstitutional about it. prayers to decree what is orthodox and what is not when prayer givers are giving public prayer. that would be contrary to our traditions of religious liberty. >> where does it end? is there no limit to your position? >> the supreme court in the prior case in 1983 upholding legislative prayer at the state level said that as long as the prayer is not being exploited by