.

[captions copyright national cable satellite corp. 2013] [captioning performed by national captioning institute] 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 vast 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 ay much earlier, but the theories that it was either stupidity or venality that caused more resources to flow to housing, i guess i would fairly firmly insist are wrong. [laughter] >> good. we have time for probably one more question. >> my question, do you think that europe will be able to achieve a banking nit? >> are you asking me?

>> yes. >> yes, but it is going to take a bit longer, maybe quite a bit longer than the present schedule. >> ok. [laughter] >> 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 economics departments and it appears that the massive amount of's student loan debt out there and the lack of good paying jobs. >> probably larry, student loans? >> i was thinking the chairman of the federal reserve would be qualified to address that question. >> you raise the student debt issue and you raise the job issue and i think that, let me

just start by saying that larry, you talked about the employment population ratio, i think the unemployment rate, probably 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 participation. with that being said i think there is a lot of slack in the labor market and a a lot of young people living with their parents and the like and that is a very important imperative and why the federal reserve in particular is taking strong actions to try to support job creation. that is a very important issue. student loans 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 couldn't invest in their own

human capital and make that investment. 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. in terms of financial crisis, i think it is the case that a student loan debt which is not dischargeable in bankruptcy is a burden which is 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 with people -- held by people who are not working. it is obviously another drag on recovery. don't see it as a source of

crisis per se, simply because it is primarily an asset of the federal government and not frnl institutions. -- financial institutions. what it could be is 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 given to helping people make 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? good. let me thank all the people that have made this conference a success. the office. the panelists, i want to thank

some of the organizers. t is a long list, finally, stan for giving us an excuse for putting this conference together and we learned a lot. thank you very much, stan. [applause] >> today on spnch span, texas governor rick perry speaking at a fundraiser in iowa. and examining prayers before

government meetings and your calls and the newspaper deadlines live on washington journal. on the next "washington journal, we'll discuss the latest employment numbers and the 7.3% unemployment rate. followed by a look at what's next for the affordable care act. 're joined by "wall street ournal" reporter louise radnofsky. our guest is the national disability acts network. "washington journal" live at 7:00 a.m. every morning on c-span. >> on thursday, texas governor rick perry gave his first major speech in iowa. the event was a fundraiser hosted by the polk county republican party. it is about 15 minutes.

>> [applause] > thank you. i have some really fond memories of campaigning here. competing in the iowa caucuses. the only thing i regret is taking that really big white out of that vedge i have corny dog at the state fair. i will probably see that one again sometime. as the son of a farmer, i feel very comfortable coming here. i think it is your midwestern values, your sense of community, your love of country, and your deep and abiding faith that remind me of the place i grew up in. called paint creek. the only difference is we rarely had any snow. we specialize in cattle instead of hogs and we grew cotton instead of corn.

i speak tonight out of a love of deep concern for our country. we have lost our way. our national debt is approximately the size of our national g.d.p. and best i can tell, there is no serious plan for us to address that. the number of americans on foods has more than doubled over the last decade. secretary mill sack once called the food stamp program called it an economic stimulus. food stamps are not the solution to economic problems. they are a symptom of the problem. [applause] eople can't find work. they can't find good work. they are confined to government dependency. today, we are watching this national healthcare law literally unravel before our eyes.

the president said no one would ose their health plan. except of course the millions of americans who'll. to quote rush limbaugh, next he will be saying if you like your guns, you will be able to keep them. [laughter] instead of solving problems, the leaders shut down government. it is amazing the obama administration is capable of barricading a war memorial despite government being shut down but they can't operate a website when it gets up and running. it is not just that the political parties disagree. but they are so disagreeable. there is discord and distrust. our leaders have forgotten how

the govern. believe me. i know a few things about forgetting. [applause] when millions of americans can't trust the president about omething so fundamental as their healthcare, health insurance, the damage is far greater than when a president parses the words and tries to ll us what the definition of "is" is. if i can be so bold as to quote a t-shirt maker in minnesota in a crowd full of iowans. the n.s.a. is the only part of government that is actually listening. [applause] washington is so determined to enact their theological agenda, they refuse to listen to the plight of americans.

they don't care if people lose their health insurance. because in their estimation, the american people can't determine the level of coverage that they need. they don't care that treating carbon dioxide as a pollutant will destroy jobs because they are pandering to environmental extremists. they don't care that every child born into america today will inherit more than $54,000 in national debt because their experiment in big government is too important. we're losing the country we love to a government that is too big and too arrogant. too controlling of our everyday lives. it is incumbent upon us to take ur country back.

i believe that what heals our nation will not be found in washington dc. i think those answers are going to be found in the states. the only hope for america is that the common sense found on main street america emerges into a movement that sweeps across the country. we have to turn away from washington to find answers. look to red states that are outperforming blue states. states that are cutting taxes, controlling spending, balancing budgets and are creating jobs. the change we're looking for is not a speech with a lofty rhetoric. what we are looking for can be found in the record of government. rick scott. terry brandstead. onservative governors that are

controlling spending and investing in jobs. governor branstad signed the largest tax cut in iowa history. no wonder iowa has added 160,000 jobs and 7.3 billion dollars in economic development rojects under his watch. [applause] i get up every day and go to ork. because i know, if i don't, carrie will be there. or he will send kim. he is a serious governor making a real difference. iowa's future is bright. he has assembled an incredible team. i will suggest to you his

strongest asset is here with you see tonight. lieutenant government kim registered is part of that administration. [applause] she deserves our thanks. she is dedicated to this state. there are states like iowa that are succeeding. and there are states that are sinking. states in trouble like california, illinois, california. [laughter] there are states that are on he rise. debts exploding. capital and personal income are fleeing those states. if you live in california and you rent a u-haul to move your ompany, it costs twice as much to go from san francisco to

austin, texas than the other way around because you cannot find a truck big enough that you can afford to flee california. that is a fact. my own state is creating more jobs than any others in the nation. we're rated as the best business climate nine years in a row. the reason for that is not rocket science. we cut taxes, we didn't spend all the money. we created fair and predictable regulations. we put legal reforms in place so that you would not be sued frivolously. then we got out of the way. because of that, we have an abundance of jobs and revenue. we're demonstrating that while you can't spend your way to prosperity, you can grow yourself there. there are two visions playing out in our country. there is this washington blue

state vision and one enacted in red states. the vision that wins out whether the big government protectionist offered by democratic leaders, or the limited government and freedom loving states offered up by republican governors, they will determine the future of our nation. america cannot sustain its current fiscal course. we can't borrow trillions from bankers in beijing and brazil and tokyo. he downgrading of our credit for the first time two years ago, shouldn't have surprised anyone. our leaders were fighting over a few billion in spending cuts while our debt soared by

trillions in the last five years. long before our president presided over our downgrading of our credit, he was downgrading our standing in the world. he alienated israel. he emboldened iran and muddled through the arab spring without any coherent foreign policy. his latest gambit in syria with a demonstration of weakness in a world that needs a strong america. as dennis miller put it, we have got to be the only country in the world that sends out a save the day attack card. [laughter] [applause] it is not in our interest to given advance warning to an enemy.

as an old air force pilot, i will tell you, we want the first sign of our coming to be craters in their soil. [applause] we have to reestablish america's primacy in the world that starts with the foreign policy that ronald reagan referred to as peace through strength. [applause] it is not too late for america to lead in the world. we can do it again. but only if we get our house in order first. our national debt is a national security issue. and nationalization of our health-care system will further erode our economy. borders left unenforced will leave us subject to future attacks. it is time for washington to focus on the few things that the constitution establishes

as a federal government role, like securing the borders, defending the country and delivering a cogent foreign policy. get out of the health-care business. a get out of the education business. stop hammering our industry. let the sleeping giant of american industry create prosperity again. that is the code that we have to put into place. that is the code we have to stand by. those of you with this renewed sense of purpose in this country can lead america back to greatness again. i stand ready to work with you o create that. god bless you and thank you for letting me come tonight to be a part of it. thank you. good to see you, brother. how are you?

>> iowa's senator chuck grassly is a guest on news makers. ere's the preview. >> what is your confidence level that healthcare.gov will be working after november 30? >> it won't be. remember, that the website is a symptom of bigger problems. and it kind of obscures these bigger problems. but there is a lot of problems beyond that that even if they do get the website working, they are going to find out that they are not going to get the number of young people in that they want. they are going to find people turned off from the promise that if you like it, you can keep it, your health insurance or your doctor. they are going to see their premiums go up and all of those things are going to be major problems for obamacare. that was best reflected by the fact that this week, you have 14, 15, 16 democrats up

for-election. complaining to the white house about it. they didn't get much sympathy from the white house because he white house is so sold on obamacare being the answer to everything that they are not willing to admit there is anything wrong. you don't find very much admitance that something is wrong. all you hear is the president give a speech last week that he accepted responsibilities for but not much admitance that other than a computer is not working that there is anything wrong with it and there is a lot wrong with it. >> what happens if the website is not working and it is december 1, what do you and other lawmakers do next? >> we have done a lot through the house of representatives but reid never brings any of it up in the united states senate. for instance, the president by his own ruling, ignored the law. he takes an oath to uphold the law. ignored the law and said employer mandates were a years

delay. why not individuals? the house passed a bill to legalize what he did and they don't even bring it up in the united states senate. so we're going to have to get -- when this stuff piles up and piles up and piles up, eventually they are going to have to dealing with it in the united states senate. >> you can watch more with iowa senator chuck grassley on news makers sunday at 10:00 a.m. and 6:00 p.m. eastern here on -span. >> i think regardless of where you are in the political spectrum, we all feel fortunate and grateful that we live in america. it is a unique place. we try to sell our product overseas, what sour brand? and i think our brand is the constitution, the rule of law and our value system.

under that brand and under that value system, there is that notion of equal under the eyes of the law. none of that brand alvalue system is trying to elevate the rights of americans with disabilities. >> this is a treaty. a treaty of the law. the emotional and political arguments that are -- no one can disagree with these arguments. but the question is will the treaty actually have the legal effect that is being propered by the opponents of the treaty. we don't hear consideration of the reports, the concluding observations by the committee on the persons with disability. the legal analysis that would be appropriate. >> this weekend on c-span, more than 130 countries have ratified the u.s. inspired united nations disabilities treaty, which failed to win senate approval in 2012.

this week the senate foreign relations committee took up the treaty again. watch this morning at 10 eastern. y c-span 2's book tv, how the can use that status to their advantage. tonight at 11:00. on crmp span 3's american history tv, on a crowded sacramento street two feet from then president ford, lynette squeaky fromme pulled the trigger. >> on wednesday, the u.s. supreme court heard oral argument on the practice of opening government meetings with a prayer. it is case town of greece versus galloway. the court decided in 1938 that legislatures can -- 1983 that legislatures can begin their sessions with prayer. citizens come to ask for official action. 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 ranches 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 ant 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 berration? >> 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 0 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 rayer? 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 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 0 history doesn't make it clear that a particular practice is ok going on in the uture. 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 efine 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 ast? >> 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 ongress?

>> 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 ouldn'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 pposite, of -- of not making an effort to 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. hank 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 o, 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 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 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 municipal legislatures can invoke the same 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 oercion that the -- that the respondents have 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, hether she belongs to the same religious team 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 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 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 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 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. [laughter] >> 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 he mccreary dissent. >> what about devil worshippers? [laughter] >> well, if devil worshippers believe the devil is the almighty, they might be ok. but they're probably out. [laughter] >> 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 19, 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 f prayer they can say? >> that's right. 37 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 onversation with him first and

the in other words, 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 exee