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 prayers, you can't determine whether there's proselytizing or damnation. that is judge wilkinson's point when he was faced with this question, which is, you have to, to do some parsing. >> so, your honor, you have to look at -- at t

mr. gershengorn. >> mr. chief justice, and may it please the court -- the ninth circuit held that individual secret service agents could be held personally liable for their onthespot decision to reposition a group of about to demonstrators who were within weapon's range of president bush as he made an unscheduled as he made an unscheduled stop for dinner at an outdoor restaurant patio. >> may i ask a question? so were the pro-bush demonstrators. in fact, the pro-bush demonstrators were across the street pretty much at a diagonal to the president, and they were permitted to remain there the entire time. he they had a throwing distance of a bomb or a shooting distance as well. >> so, your honor, the pro-bush demonstrators were differently situated from the anti-bush demonstrators in several fundamental respects. with respect to the weapons range, there was a two-story building between the pro-bush protestors and the where the president was dining. it's in stark contrast to the open alley that led down precisel

mr. gershengorn, you have minutes remaining. >> thank you, mr. chief justice. a couple of points. first, i think, justice kagan, in response to your hypothetical, the concession that in hindsight there may have been a valid security rationale ends this case, because if it was true in hindsight, it was certainly true at the time in the kind of rapid in the kind of rapid decisionmaking that was called for, as the chief justice alluded to. i think at that point the case is over in our favor. second, the kinds of discovery that my friend on the other side -- >> could i just clarify a factual matter. there are two alleyways. there was one on third street that the president went into, and then there is one by the patio dining room. what access was there between fourth street and the patio? because i thought that the alley was on california street, the entrance to the alley was on california street. >> the entry to the alley is on california street. that's the one where the anti-bush demonstrators were. the alley that the motorcade went through, which is on third street, which is neither