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, 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 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. >> 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? [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 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; could 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 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 19 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 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 -- >> your theory, and you say existing situation violates the constitution. so what changes do you think would need to be made -- >> we think -- >> 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 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 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 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 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%-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 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 seems 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. [captions copyright national cable satellite corp. 2013] [captioning performed by national captioning institute] >> 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 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 and 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