Legal Case Summary

We'll hear argument first this morning in case 12, 6.96, the town of Greece versus Galilee. Mr. Hungar? Thank you, Mr. Chief Justice, and may it please the Court. The Court of Appeals correctly held that the legislative prayers that issue in this case were not offensive in the way identified as problematic in Marsh. But the Court then committed legal error by engrossing the endorsement test on to 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 the case of legislative prayer and 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 of the Constitution. If I may get a distinction just between the legislature and any other official proceeding, is that correct? Well, clearly, Marsh involves legislative prayer, the tradition that we rely on involves legislative prayer, and this case involves legislative prayer. Whether what rule might apply in other contexts would define the same kind of Well, 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 closer question because of the congressional history, but of course, as far as I'm aware, this history 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 have held to attend and testify under oath, which is a different situation from the one here. We should assume 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 orthodoxy, you. I mean, it makes a difference whether it's a, just one, one denomination that is being used as Chaplin or open to various denominations

. That's correct, General. That's why we believe this case is actually an easier case than Marsh, because in Marsh, there was a paid Chaplin from the same denomination for six years. That's a place that has been hungry for 11 years. The prayer 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 Wikan, 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, most of the prayers. Kagan, your position is that that wouldn't matter as I understand, because you have, you have two limitations, proselytizing and disparaging. But I think just as Kagan's question gets at place, place limitations. One could read your brief and say, well, it doesn't matter, it could be an executive body. It could be a court. It could be a town meeting, a school board, a zoning board, a utilities board. That's, is this case about prayer at the beginning of a legislative session, or is it about prayer in all three branches of government? This case is about prayer at the beginning of a legislative session. That's exactly what the meetings that issue here are about. That's what the board of the town of Greece is. In fact, respondents try to argue that this is somehow what they call coercive because there are public hearings that are held, but the public hearings are held at least 30 minutes after the prayer, and anyone coming for the purpose of the public hearing can easily show up after the prayer if they don't want to. Kagan, why was it that Jews so promptly answer Justice Kagan's question to the effect that this would be a violation? Why would there be a violation in the instance she put? I'm sorry, which instance is it about? The first question, Justice Kagan asked you, the hypothetical, about the prayer in this court. You've seen readily to agree that that would be a first amendment violation. Why? Well, perhaps I can see the too much, but I think the important distinction is between both the judicial context and the legislative context on the one hand and the absence of a comparable history. What does it show? Is it simply history that makes it, if there's no rational explanation, it's just a historical aberration? No, it's not a question of historical aberration. What's the justification for the distinction? It's the question of what the establishment clause was 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. But you have no problem, Mr. Hungar, with the Marshall's announcement at the beginning of this session, God saved the United States in this honorable court there. There are many people who don't believe in God. That's correct, Your Honor, and clearly that's okay. Yes. Why is it, why is it, whether, if, perhaps I misunderstood the hypothetical, if the hypothetical is, as you described with a different minister, with an open process, a non-discriminatory 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 in 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 it, if the trial is just, 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, just as Kagan posed, were the same, except people weren't told to rise or invited to rise, or in fact, maybe we're told to stay seated, something like that, so there would be no indication of who was participating in the prayer. 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 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 also was doing, and he needed to have dealings with these people as a fellow legislator, the Court, nonetheless, held that he's an adult, and he is expected to be able to disagree with things that he disagrees with, and that is not a constitutional violation. I wonder how far you can carry the 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? But- Wouldn't we look at it differently if there were suddenly, if there were a proposal today for the first time to say, let's adopt a motto in God we trust? Would we view that the same way simply because it's, in other words, the history doesn't make it clear that a particular practice is okay going on in the future. It means, well, this is what they've done, they have done, so we're not going to go back and revisit it, just like we're not going to go back and take the cross out of every city seal that's been there since 1800. But it doesn't mean that it would be okay to adopt a seal today that would have a cross in it, doesn't- Not necessarily, 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 a 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 March, the fact that at the very time the First Congress was writing and just- and sending 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 to find that word. So I don't really understand your answer. How can it be that if the practice existed in the past, it was constitutional, was it constitutional in the past? Yes, Your Honor. If it was constitutional in the past, why would it be unconstitutional if the same thing is done today, even without any past parallel practice? That's a nice whole iteration. And that is past parallel practice essential. I think this Court's precedence have also indicated, at least in some cases, that 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, and other practices that have no greater impact, no greater tendency to establish religion are equally constitutional. We believe that it is an appropriate doctrine. Is there any constitutional historical practice with respect to this hybrid body? It's not simply a legislator. It has a number of administrative functions. Sometimes it convenes as a town meeting. Sometimes it entertains zoning applications. Is there a history for that kind of hybrid body as there is for the kind of legislature we had in Nebraska or our Congress? Yes, Your Honor. For interior respects, first of all, the Beckett Front fund Amicus Brief identifies various examples of municipal government prayer over the course of our founding, which is not surprising, given the legislative practice at the state and federal level as well. And secondly, Congress, of much of our history, entertain private bills, which would be the equivalent in terms of the legislative or quite non-purely legislative functions you're talking about with what the town of Greece does here. And if we had a series of cases, what is a utility rate-breaking making board? We come to the Supreme Court. And we say, well, it's enough like a legislative that is like Mars. I don't think the public would understand that. Well, Your Honor, whatever line might be drawn between non-legislative bodies and legislative bodies, what we're talking about here is a legislative meeting of a legislative body. And it would be incongruous, as this Court said in March, if Congress could have legislative prayers and the states couldn't, it would be equally incongruous. Well, the essence of the argument is we've always done it this way, which has some force to it

. But it seems to me that your argument begins and ends there. No, Your Honor. I mean, 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 what's going on. And may I ask you about the individual plaintiffs here? And what do we know about them? And they obviously have a, a, a period 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? No, Your Honor. There's no evidence of that. There's no, the, the respondents have no standing to assert the interests of children or police officers or award recipients or, or, or, or, or permit applicants. They don't even claim to be in, in any of those categories. And what about the public forum part? They did speak occasionally then. Yes, you're right, right. Do we know what they spoke about? Well, on, at least one occasion, one of them spoke about the prayer or 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 the, she, 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, to, doing one thing that was suggested in the Circuit Court opinion, which is to publicize, rather thoroughly, in, in the area, those who are 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. They're, they're really, 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, it's, Greece is a small town, very near Rochester. And they're at least in Rochester, lots of people of different religions, including quite a few of no religion. So, could you work that out, do you think, if that were the only objecting point? 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 is a practical matter, since the, no, no, I'm not saying it's a constitutional problem I got from the opinion of doing the opposite, of, of not making an effort to make people who are not Christian feel, although they live in or near the town or are affected thereby participants. But you're on every time. 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 and- It's not. I want to know if you have any objection. I, I, I, I don't much mention- I, I certainly don't think it is constitutionally required, although I would note that as a practical matter that has happened here in 2007. Would 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, I don't know what the town's position is on that. I, 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

. 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. Does that say- I don't know what, 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, in the rubin, in the rubin in the rubin case, a non-religious person delivered invocations on multiple occasions? Perhaps he's asking me that question and I can answer it later. I'd like to reserve the remainder of my time. No, yeah. Thank you, counsel. Mr. Gorshin, going? Mr. Chief Justice, and may I 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 givers' own religious idiom. And second, it invites exactly the sort of parsing of prayer that Marsh sought to avoid and that federal courts are going to have purpose of Marsh saying that Prostola Tysine or damming another religion would be a constitutional violation. So unless you parse the prayers, you can't determine whether there's Prostola Tysine or damn nation. That was Judge Wilkinson's point when he was faced with this question, which is you have to do some parsing. So, Your Honor, you have to look at the prayer for the determined Prostola Tysine, 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 Councillor. 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. It's a sectarian. We agree that these are sectarian, but the kinds of debates that you're seeing among the parties, whether, for example, 15%, 50%, 60% of the congressional prayers are sectarian, those are debates about whether Holy Spirit is sectarian. So let's call this that kind of text instead of prayer. If the Chief Justice got up at the beginning of this session and said all rise for a prayer, would you succumb? You're on a, whether I would sit there now, we don't think that that would be too difficult. You think how many people in this room do you think would sit? I don't think truthfully. I don't think many would sit, Your Honor, but we don't think that that has- 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 it's 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, though, and Your Honor has pointed to one, and that's 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, the meeting starts at 6, which is in the prayer, when the prayer is, but the board meetings to adjudicate those types of issues are at 630 or 632. 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. So, you think that if the legislature, you know, excuse me, if the town board here just, you know, started it off with a prayer and then kept on going, you think that that would be a significantly different case and you would switch sides? I don't know that we would switch sides, Your Honor, but I do think it mitigates the coercion that the, that the respondents have identified. And we think it does, that that is one of the significant differences between the town, the town legislature and a, and Mr. Grinchley. You agree that coercion is the test, however? We don't agree that coercion is the test. If it is the test. If it is the test. We think that 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 is 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. Grinchley, could you respond to this? Here's what 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 non-believer, only as an American. And what troubles me about this case is that here a citizen is going to a local community board, supposed to be the closest, the most responsive institution of government that exists, and is immediately being asked, being forced, to identify. Whether she believes in the things that most of the people in the room believe in, whether she belongs to the same religious 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 non-believers. So Justice Kagan, I think we agree with much of what you say, but 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 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 deity and the language of the prayer giver. And the Matthew court text was going to go brief, it's the one who brought up a group

. It's quite candid about the hybrid nature of that body. I think at some 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, and form the people in town of the tradition, so there 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, 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 the town can point to things such as such as public criteria and things like that, that is helpful. With respect to 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 being ruled on, that the separation of 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 there are things that have analogues 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 elements that the response is pointed to for coercion, we think are not ones that the court should adopt. Of course, you are at your test, whether or not it is part of your test, whether or not it advances religion. If you ask a chaplain for the State Assembly in Sacramento, California, who is going to go to this assembly to deliver a prayer, are you going to advance your religion today? Would he say, oh no? So you are on, I think it is a much narrower test. What this court said in March was that the limit on legislative prayer is proselyt, as it proselytized 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 non-believers, does it belittle a particular... So you use the word advance only as modified by proselytized? What Marcia was proselytized advance or denigrate? That is not what you are briefed at, proselytized or advance. That is the language from Marcia, honours, to proselytize or proselytized advance or denigrate. If that test you want us to adopt and I am at your service. It is, sir. 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 the religion

. So, Your Honor, I don't think that that is what... You are not quite sure why they are there. You are not quite sure why, the advance is there. Or why the rabbi is there. We don't think that the mere presence of the rabbi, that is what Marsh held. What Marsh says is advance does not mean having a single 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, Council. Mr. Lackock? 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 of parents of Down syndrome, child. There are many personal petitions presented to this body in the media wake of the prayer. That is during the public forum part. That is in the public forum. That is not the same thing as the hearing. It is not the same thing as the hearing and that is the point, Your Honor. It is not separate in terms. There is another part of the proceeding that is the hearing. Yes. That is when somebody has a specific proposal they want to something specifically before the board and they want relief. They want a variance

. The hearing is a particular kind of proposal. And that variance is separated in time. 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 is clearly a legislative body. The only difference is it is a town rather than Congress or a state legislature where you have more formalized procedures. This is more direct democracy. It is a town. When a citizen appears and says, this is a traffic problem in my corner, this nuisance family that commits a lot of crimes in my block, that is not asking for legislation or policy making. That is 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 is not what we are saying. How can you do it? We are saying you cannot have a kind of thing that always comes up at town meetings. We are saying you cannot have sectarian prayer. The town should have a policy in the first place, which it does not. Instruct the chaplains. Keep your prayer non-sectarian. Do not address points. I will give you 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, M.I. and atheists. Had atheists throw an atheist too

. We take March to imply that atheists cannot get full relief in this context. And McCree, the Center, said that explicitly. So points on which believers are known to disagree is a set that is in the American context, the American Civil Religion, the Judeo-Christian tradition. Well, 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, you honor, are acceptable. Give me an example. Can I have the joint pendants? The prayers to the Almighty, prayers to the Creator. To the Almighty? Yes. So if a particular religion believes in more than one God, that's acceptable to them. Well, some of the religions that believe in more than one God believe that all there are many gods are manifestations of the one God. But the true polytheist, I think we're also excluded from the McCree dissent. Who's that devil worshippers? Well, if devil worshippers believe that the devil is the Almighty, they might be okay, but they're probably out of that. Who is going to make this determination? Is it an ex-anti-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, the joint appendix, the prayer from August 19, 2003. I'm sorry, that instant grace name. There are... The count was about two thirds, one thirds, so there are plenty of them in here. 74a, Heavenly Father. Yes, acceptable to all religions. Heavenly Father is very broadly acceptable. And the test cannot be unanimity because that's impossible, right? That's why the atheist are excluded. I'm sorry, Justice Scalia. Could you repeat your question? Well, I'll repeat mine. It was, who is 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

. Now, principally, the clergy make this determination. There's a 200-year tradition of this kind of civic prayer. The clergy know how to do it. And if the city has a policy, then an occasional violation by one clergy is not the city's responsibility. 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. So there's an official in the town council that is to instruct clergy about what kind of 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 that official, and I think a prayer was over the top for being proselytizing a particular sectarian, I'd say you'd rather not come back next week. I'm going to look for somebody else. Well, you might have a conversation with him first, and give them a second. In other words, the government is now editing the content of prayers. They're 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. They delegate the task of 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 in the board. And if there is coerce- 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 an 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 this test for the free exercise clause. Well, it seems to me unlikely as well. Coerce- is one test for the establishment clause, but there's also a broad agreement on the court. There has been that sectarian endorsements are prohibited by the establishment clause. What exactly since you're adopting the coercion test, what exactly is coercive? Are there coercive in this environment having to sit and listen to the prayer? Well, there are many coercive aspects here of varying degrees of importance. Citizens are asked to participate, to join in the prayer. They're often asked to participate, but not in any tangible way. They say, well, I'm not going to participate and everybody's just sitting there. They're often asked to physically participate, to stand, or to bow their heads. The testimony is 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 coercive. What says, you know, what says, may we pray? And somebody doesn't want to pray, so we stay seated. What's coercive about 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. And 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 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 proceeding 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's acceptable to everybody. Is there any other problem with what I've just outlined? Well, if the separation in time really works, that's part of the reme that we've suggested as possible here. We still believe the prayer should be non-sicarian. Now, on the remedy, in 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. Would just to be clear to it, clear to it, 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 clear. Well, my question was to be clear. 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

. They say, well, I'm not going to participate and everybody's just sitting there. They're often asked to physically participate, to stand, or to bow their heads. The testimony is 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 coercive. What says, you know, what says, may we pray? And somebody doesn't want to pray, so we stay seated. What's coercive about 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. And 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 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 proceeding 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's acceptable to everybody. Is there any other problem with what I've just outlined? Well, if the separation in time really works, that's part of the reme that we've suggested as possible here. We still believe the prayer should be non-sicarian. Now, on the remedy, in 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. Would just to be clear to it, clear to it, 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 clear. Well, my question was to be clear. 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. You're doing 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 on 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 the prayer before the call 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. Lightcock, it seems to be that what 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 here as citizens. And as citizens, 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 people who have religious beliefs ought to be able to invoke the deity when they are acting as citizens, and 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, it seems to me, and in position upon them, to stifle the manner in which 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, is very different from what this Court does. Maybe the closest analogy is, I just say, of committee hearings with Citizens Interact, we don't have a tradition of prayer there. What the town board is doing here is very different from anything in the tradition that they appeal to. I know what you've, I would like you to take into account an aspect of this

. You're doing 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 on 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 the prayer before the call 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. Lightcock, it seems to be that what 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 here as citizens. And as citizens, 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 people who have religious beliefs ought to be able to invoke the deity when they are acting as citizens, and 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, it seems to me, and in position upon them, to stifle the manner in which 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, is very different from what this Court does. Maybe the closest analogy is, I just say, of committee hearings with Citizens Interact, we don't have a tradition of prayer there. What the town board is doing here is very different from anything in the tradition that they appeal to. I know what you've, I would like you to take into account an aspect of this. I mean, in my own opinion, I don't know if anyone else is not talking for others, but what the 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, 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 make 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're afraid of. I mean, even in this town or in the area, there are significant numbers as well as Christians, Jews, Muslims, the highs 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 saved the United States, and you want to win your case. I didn't see people sitting down. All right. And the fourth approach, which is the other that 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, and even with the non-religious, 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 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, 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 their rotation scheme. Any rotation scheme will be dominated by the local majority, maybe even disproportionate to its numbers, religious minorities. An unfamiliar minorities give the prayer. They're often political protests. They're often threats and hate mails. They don't want to give the prayer. And many city councils won't stand up for the political pressure and enable those people to give the prayer

. I mean, in my own opinion, I don't know if anyone else is not talking for others, but what the 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, 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 make 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're afraid of. I mean, even in this town or in the area, there are significant numbers as well as Christians, Jews, Muslims, the highs 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 saved the United States, and you want to win your case. I didn't see people sitting down. All right. And the fourth approach, which is the other that 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, and even with the non-religious, 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 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, 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 their rotation scheme. Any rotation scheme will be dominated by the local majority, maybe even disproportionate to its numbers, religious minorities. An unfamiliar minorities give the prayer. They're often political protests. They're often threats and hate mails. They don't want to give the prayer. And many city councils won't stand up for 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 non-saccharianism has a very long tradition. Government is not a competent judge of religious truth, medicine said. That was not a controversial proposition in the founding. And even in the first Congress and the prayers they point to, there were no prayers there that violate our principle. And vote in details in which believers disagree. Because then, 98.5% of the population was Protestant. Christ was not yet a point of that. But that gets exactly the same. That gets exactly to the problem with your argument about non-saccharian prayer. Yes, when at the beginning of the country, the population was 98% plus Protestant. Then it became predominantly Christian. Then it became predominantly, almost exclusively Christian and Jewish. But now 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 Buddhists, there are the highs, there are all sorts of other religions. And they all should be treated equally. But 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. And you haven't given me an example. We cannot treat, 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 a tradition of prayer to the Almighty, the governor of the universe, the creator of the world. I want to pick the groups we're going to exclude. I think you picked them, you're not honoring them. They're the people behind who else? These groups are too small. We've already excluded the atheists, right? We've excluded the atheists. I don't think the Bahá'í are excluded by none. So who else? I mean you suggest

. So there are multiple reasons why rotation does not solve the problem here. We think non-saccharianism has a very long tradition. Government is not a competent judge of religious truth, medicine said. That was not a controversial proposition in the founding. And even in the first Congress and the prayers they point to, there were no prayers there that violate our principle. And vote in details in which believers disagree. Because then, 98.5% of the population was Protestant. Christ was not yet a point of that. But that gets exactly the same. That gets exactly to the problem with your argument about non-saccharian prayer. Yes, when at the beginning of the country, the population was 98% plus Protestant. Then it became predominantly Christian. Then it became predominantly, almost exclusively Christian and Jewish. But now 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 Buddhists, there are the highs, there are all sorts of other religions. And they all should be treated equally. But 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. And you haven't given me an example. We cannot treat, 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 a tradition of prayer to the Almighty, the governor of the universe, the creator of the world. I want to pick the groups we're going to exclude. I think you picked them, you're not honoring them. They're the people behind who else? These groups are too small. We've already excluded the atheists, right? We've excluded the atheists. I don't think the Bahá'í are excluded by none. So who else? I mean you suggest. You say just the best majority is all that we have to cater to. Well, I think the atheists are inevitably excluded. We can't help. Okay. Okay. Number one, atheists. True polytheists who don't understand their gods as manifestations of the one god are probably excluded. I'm not sure many others are. We 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. But in Greece, no one has told them that's what we want you to do. 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 burning, some people dead in the streets. We've already separated out, I thought, in our jurisprudence children and adults. Well, Leavers' wiseman twice reserves the question of whether adults might be subject to similar pressures. Well, you mean that 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 no doubt that before you stand up to ask for relief from a governing body, you don't want to offend that body. The adults are subject to coercion here. And no competent attorney would tell his client it doesn't matter whether you visibly dissent from the prayer or not. Try to have your client make a good impression. I just want to make sure what you're presenting. Your position is that town councils like Greece can have prayers if they are non-privocative, modest, decent, quiet, non-possible-tizing. That's your position. And wouldn't use all those adjectives, but yes. And we don't think that's difficult to do. Well, the Congress has a set of guidelines which you've read and are here in the papers and so forth. Are those satisfactory to you? We'd like to be a little more explicit, but those are vastly better than what? If those are satisfactory to you, then I wonder, are they satisfactory to everyone? 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 in 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's, 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

. You say just the best majority is all that we have to cater to. Well, I think the atheists are inevitably excluded. We can't help. Okay. Okay. Number one, atheists. True polytheists who don't understand their gods as manifestations of the one god are probably excluded. I'm not sure many others are. We 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. But in Greece, no one has told them that's what we want you to do. 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 burning, some people dead in the streets. We've already separated out, I thought, in our jurisprudence children and adults. Well, Leavers' wiseman twice reserves the question of whether adults might be subject to similar pressures. Well, you mean that 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 no doubt that before you stand up to ask for relief from a governing body, you don't want to offend that body. The adults are subject to coercion here. And no competent attorney would tell his client it doesn't matter whether you visibly dissent from the prayer or not. Try to have your client make a good impression. I just want to make sure what you're presenting. Your position is that town councils like Greece can have prayers if they are non-privocative, modest, decent, quiet, non-possible-tizing. That's your position. And wouldn't use all those adjectives, but yes. And we don't think that's difficult to do. Well, the Congress has a set of guidelines which you've read and are here in the papers and so forth. Are those satisfactory to you? We'd like to be a little more explicit, but those are vastly better than what? If those are satisfactory to you, then I wonder, are they satisfactory to everyone? 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 in 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's, 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. Latefair. 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 to that their own personal beliefs. I think the average person who participates in a legislative prayer does not think that this is a governmental function. It's a personal function, and that's why we separate out the legislative prayer from other kinds of prayers. They're not praying for their congregation. They're 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 an only one person time on the agenda to pray. This is clearly governmental as you held in Santa Fe. You had an atheist board, you would not have any prayer. I guarantee you, because it is a personal prayer that the members of the legislature desire to make. Mr. Latefair, we don't. Justice Sotomayor. Assuming you hear the resistance of some members of the court to sitting as arbiters of what sectarian and non-sectarian, and I joined some skepticism as to knowing exactly where to join that line, assuming you accept that, what would be the test that you would prefer? Taking out your preferred announcement that this prayer has to be non-sectarian. Well, the test that we have offered is the test of the McCurrie descent, points in 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 secluded. It is seen to me that enforcing that standard that is in the standard I suggested involves the state very heavily in the censorship and the approval or disapproval of prayers. But it is not censored when it is in government. That may play ultimately in your position if we say that that is why there shouldn't be any prayer at all. But then if you had 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 attorneys 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 will personally in need of prayer? There are no women if you can't draw lines. That is not a prayer. Well, you know, it was how he introduced- How many of you have been saved? That is 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. Laker, sort of all hypotheticals aside, or 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 is 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

. They're taking on a government function when they agree to give the invocation for the town board. Mr. Latefair. 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 to that their own personal beliefs. I think the average person who participates in a legislative prayer does not think that this is a governmental function. It's a personal function, and that's why we separate out the legislative prayer from other kinds of prayers. They're not praying for their congregation. They're 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 an only one person time on the agenda to pray. This is clearly governmental as you held in Santa Fe. You had an atheist board, you would not have any prayer. I guarantee you, because it is a personal prayer that the members of the legislature desire to make. Mr. Latefair, we don't. Justice Sotomayor. Assuming you hear the resistance of some members of the court to sitting as arbiters of what sectarian and non-sectarian, and I joined some skepticism as to knowing exactly where to join that line, assuming you accept that, what would be the test that you would prefer? Taking out your preferred announcement that this prayer has to be non-sectarian. Well, the test that we have offered is the test of the McCurrie descent, points in 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 secluded. It is seen to me that enforcing that standard that is in the standard I suggested involves the state very heavily in the censorship and the approval or disapproval of prayers. But it is not censored when it is in government. That may play ultimately in your position if we say that that is why there shouldn't be any prayer at all. But then if you had 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 attorneys 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 will personally in need of prayer? There are no women if you can't draw lines. That is not a prayer. Well, you know, it was how he introduced- How many of you have been saved? That is 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. Laker, sort of all hypotheticals aside, or 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 is 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 question. 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. The part of what we're 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 think that's true. I mean, there are people who distort your decisions or people who misunderstand your decisions honestly 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 explicitly Christian prayers in the fourth circuit. And they've been able to mostly enforce that. And there hasn't been litigation at the margins because all the prayers were clearly one way or two. As you did this, you had combined your two approaches. That 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'd say whatever relevant 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

. That's really the question, isn't it? That's the issue that actually arises in the question. 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. The part of what we're 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 think that's true. I mean, there are people who distort your decisions or people who misunderstand your decisions honestly 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 explicitly Christian prayers in the fourth circuit. And they've been able to mostly enforce that. And there hasn't been litigation at the margins because all the prayers were clearly one way or two. As you did this, you had combined your two approaches. That 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'd say whatever relevant 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. Well, Marsh is not the source of the government involvement in 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's correct. And it had prayers that did not address predestination or having to accept Jesus or any other point of word. Many of them were very explicitly Christian. Very explicitly Christian, but that was not a point of disagreement at the time. They stayed away from any issue that Protestants disagreed with. In a way, it sounds quite elitist to say, well, now we can do this in Washington and Sacramento and Austin, but you people up there in Greece can't do that. Well, it's not that the people in Greece can't do it. This is this board is functioning in a fundamentally different way from what Congress or the state legislature functions. And also, my understanding is that the first chapter of the Senate was the Episcopal Bishop of New York. Isn't that correct? And 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 if he talked about the choice between bishops and presbyteries and congregations as a way of governing the Church, they had 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. There's changes that we have, a wider range of religious disagreements today. There are no further questions. We ask you to refer. Thank you, Mr. Lakehawk. Mr. Hungar, you have three minutes remaining. Thank you, Mr

. And now the question is how to manage the problems that arise. Well, Marsh is not the source of the government involvement in 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's correct. And it had prayers that did not address predestination or having to accept Jesus or any other point of word. Many of them were very explicitly Christian. Very explicitly Christian, but that was not a point of disagreement at the time. They stayed away from any issue that Protestants disagreed with. In a way, it sounds quite elitist to say, well, now we can do this in Washington and Sacramento and Austin, but you people up there in Greece can't do that. Well, it's not that the people in Greece can't do it. This is this board is functioning in a fundamentally different way from what Congress or the state legislature functions. And also, my understanding is that the first chapter of the Senate was the Episcopal Bishop of New York. Isn't that correct? And 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 if he talked about the choice between bishops and presbyteries and congregations as a way of governing the Church, they had 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. There's changes that we have, a wider range of religious disagreements today. There are no further questions. We ask you to refer. Thank you, Mr. Lakehawk. Mr. Hungar, you have three minutes remaining. Thank you, Mr. Chief Justice. First, I'd like to correct the 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 website of the town agrees shows that at least four non-Christian prayer givers delivered prayers thereafter in 2009, 10, 11, and 13. On the sectarian point, clearly this is the line. I'm sorry? One of you. 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, just like the point, the Court, is the Senate brief, the Amicus brief filed by Senators pages 8 to 17, which shows the extensive history from the beginning of the Republic 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 argument, 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 coercive 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. And 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 don't agree with. That is the tradition in this country, and that is 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 federal government that can't possibly make a difference as an establishment clause matter, it makes no sense to suggest that the, 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 preventative purpose of the establishment clause to suggest that there are greater restrictions on municipalities and makes no sense at all. We think that the dangerously overbroad theories advanced by respondents are an odds of our history and traditions, which we reflect this tradition of tolerance for religious views that we don't agree with in the legislative context. Respondents, there is 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, Council. Case is submitted.

We'll hear argument first this morning in case 12, 6.96, the town of Greece versus Galilee. Mr. Hungar? Thank you, Mr. Chief Justice, and may it please the Court. The Court of Appeals correctly held that the legislative prayers that issue in this case were not offensive in the way identified as problematic in Marsh. But the Court then committed legal error by engrossing the endorsement test on to 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 the case of legislative prayer and 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 of the Constitution. If I may get a distinction just between the legislature and any other official proceeding, is that correct? Well, clearly, Marsh involves legislative prayer, the tradition that we rely on involves legislative prayer, and this case involves legislative prayer. Whether what rule might apply in other contexts would define the same kind of Well, 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 closer question because of the congressional history, but of course, as far as I'm aware, this history 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 have held to attend and testify under oath, which is a different situation from the one here. We should assume 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 orthodoxy, you. I mean, it makes a difference whether it's a, just one, one denomination that is being used as Chaplin or open to various denominations. That's correct, General. That's why we believe this case is actually an easier case than Marsh, because in Marsh, there was a paid Chaplin from the same denomination for six years. That's a place that has been hungry for 11 years. The prayer 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 Wikan, 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, most of the prayers. Kagan, your position is that that wouldn't matter as I understand, because you have, you have two limitations, proselytizing and disparaging. But I think just as Kagan's question gets at place, place limitations. One could read your brief and say, well, it doesn't matter, it could be an executive body. It could be a court. It could be a town meeting, a school board, a zoning board, a utilities board. That's, is this case about prayer at the beginning of a legislative session, or is it about prayer in all three branches of government? This case is about prayer at the beginning of a legislative session. That's exactly what the meetings that issue here are about. That's what the board of the town of Greece is. In fact, respondents try to argue that this is somehow what they call coercive because there are public hearings that are held, but the public hearings are held at least 30 minutes after the prayer, and anyone coming for the purpose of the public hearing can easily show up after the prayer if they don't want to. Kagan, why was it that Jews so promptly answer Justice Kagan's question to the effect that this would be a violation? Why would there be a violation in the instance she put? I'm sorry, which instance is it about? The first question, Justice Kagan asked you, the hypothetical, about the prayer in this court. You've seen readily to agree that that would be a first amendment violation. Why? Well, perhaps I can see the too much, but I think the important distinction is between both the judicial context and the legislative context on the one hand and the absence of a comparable history. What does it show? Is it simply history that makes it, if there's no rational explanation, it's just a historical aberration? No, it's not a question of historical aberration. What's the justification for the distinction? It's the question of what the establishment clause was 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. But you have no problem, Mr. Hungar, with the Marshall's announcement at the beginning of this session, God saved the United States in this honorable court there. There are many people who don't believe in God. That's correct, Your Honor, and clearly that's okay. Yes. Why is it, why is it, whether, if, perhaps I misunderstood the hypothetical, if the hypothetical is, as you described with a different minister, with an open process, a non-discriminatory 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 in 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 it, if the trial is just, 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, just as Kagan posed, were the same, except people weren't told to rise or invited to rise, or in fact, maybe we're told to stay seated, something like that, so there would be no indication of who was participating in the prayer. 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 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 also was doing, and he needed to have dealings with these people as a fellow legislator, the Court, nonetheless, held that he's an adult, and he is expected to be able to disagree with things that he disagrees with, and that is not a constitutional violation. I wonder how far you can carry the 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? But- Wouldn't we look at it differently if there were suddenly, if there were a proposal today for the first time to say, let's adopt a motto in God we trust? Would we view that the same way simply because it's, in other words, the history doesn't make it clear that a particular practice is okay going on in the future. It means, well, this is what they've done, they have done, so we're not going to go back and revisit it, just like we're not going to go back and take the cross out of every city seal that's been there since 1800. But it doesn't mean that it would be okay to adopt a seal today that would have a cross in it, doesn't- Not necessarily, 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 a 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 March, the fact that at the very time the First Congress was writing and just- and sending 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 to find that word. So I don't really understand your answer. How can it be that if the practice existed in the past, it was constitutional, was it constitutional in the past? Yes, Your Honor. If it was constitutional in the past, why would it be unconstitutional if the same thing is done today, even without any past parallel practice? That's a nice whole iteration. And that is past parallel practice essential. I think this Court's precedence have also indicated, at least in some cases, that 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, and other practices that have no greater impact, no greater tendency to establish religion are equally constitutional. We believe that it is an appropriate doctrine. Is there any constitutional historical practice with respect to this hybrid body? It's not simply a legislator. It has a number of administrative functions. Sometimes it convenes as a town meeting. Sometimes it entertains zoning applications. Is there a history for that kind of hybrid body as there is for the kind of legislature we had in Nebraska or our Congress? Yes, Your Honor. For interior respects, first of all, the Beckett Front fund Amicus Brief identifies various examples of municipal government prayer over the course of our founding, which is not surprising, given the legislative practice at the state and federal level as well. And secondly, Congress, of much of our history, entertain private bills, which would be the equivalent in terms of the legislative or quite non-purely legislative functions you're talking about with what the town of Greece does here. And if we had a series of cases, what is a utility rate-breaking making board? We come to the Supreme Court. And we say, well, it's enough like a legislative that is like Mars. I don't think the public would understand that. Well, Your Honor, whatever line might be drawn between non-legislative bodies and legislative bodies, what we're talking about here is a legislative meeting of a legislative body. And it would be incongruous, as this Court said in March, if Congress could have legislative prayers and the states couldn't, it would be equally incongruous. Well, the essence of the argument is we've always done it this way, which has some force to it. But it seems to me that your argument begins and ends there. No, Your Honor. I mean, 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 what's going on. And may I ask you about the individual plaintiffs here? And what do we know about them? And they obviously have a, a, a period 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? No, Your Honor. There's no evidence of that. There's no, the, the respondents have no standing to assert the interests of children or police officers or award recipients or, or, or, or, or permit applicants. They don't even claim to be in, in any of those categories. And what about the public forum part? They did speak occasionally then. Yes, you're right, right. Do we know what they spoke about? Well, on, at least one occasion, one of them spoke about the prayer or 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 the, she, 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, to, doing one thing that was suggested in the Circuit Court opinion, which is to publicize, rather thoroughly, in, in the area, those who are 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. They're, they're really, 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, it's, Greece is a small town, very near Rochester. And they're at least in Rochester, lots of people of different religions, including quite a few of no religion. So, could you work that out, do you think, if that were the only objecting point? 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 is a practical matter, since the, no, no, I'm not saying it's a constitutional problem I got from the opinion of doing the opposite, of, of not making an effort to make people who are not Christian feel, although they live in or near the town or are affected thereby participants. But you're on every time. 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 and- It's not. I want to know if you have any objection. I, I, I, I don't much mention- I, I certainly don't think it is constitutionally required, although I would note that as a practical matter that has happened here in 2007. Would 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, I don't know what the town's position is on that. I, 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. 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. Does that say- I don't know what, 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, in the rubin, in the rubin in the rubin case, a non-religious person delivered invocations on multiple occasions? Perhaps he's asking me that question and I can answer it later. I'd like to reserve the remainder of my time. No, yeah. Thank you, counsel. Mr. Gorshin, going? Mr. Chief Justice, and may I 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 givers' own religious idiom. And second, it invites exactly the sort of parsing of prayer that Marsh sought to avoid and that federal courts are going to have purpose of Marsh saying that Prostola Tysine or damming another religion would be a constitutional violation. So unless you parse the prayers, you can't determine whether there's Prostola Tysine or damn nation. That was Judge Wilkinson's point when he was faced with this question, which is you have to do some parsing. So, Your Honor, you have to look at the prayer for the determined Prostola Tysine, 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 Councillor. 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. It's a sectarian. We agree that these are sectarian, but the kinds of debates that you're seeing among the parties, whether, for example, 15%, 50%, 60% of the congressional prayers are sectarian, those are debates about whether Holy Spirit is sectarian. So let's call this that kind of text instead of prayer. If the Chief Justice got up at the beginning of this session and said all rise for a prayer, would you succumb? You're on a, whether I would sit there now, we don't think that that would be too difficult. You think how many people in this room do you think would sit? I don't think truthfully. I don't think many would sit, Your Honor, but we don't think that that has- 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 it's 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, though, and Your Honor has pointed to one, and that's 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, the meeting starts at 6, which is in the prayer, when the prayer is, but the board meetings to adjudicate those types of issues are at 630 or 632. 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. So, you think that if the legislature, you know, excuse me, if the town board here just, you know, started it off with a prayer and then kept on going, you think that that would be a significantly different case and you would switch sides? I don't know that we would switch sides, Your Honor, but I do think it mitigates the coercion that the, that the respondents have identified. And we think it does, that that is one of the significant differences between the town, the town legislature and a, and Mr. Grinchley. You agree that coercion is the test, however? We don't agree that coercion is the test. If it is the test. If it is the test. We think that 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 is 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. Grinchley, could you respond to this? Here's what 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 non-believer, only as an American. And what troubles me about this case is that here a citizen is going to a local community board, supposed to be the closest, the most responsive institution of government that exists, and is immediately being asked, being forced, to identify. Whether she believes in the things that most of the people in the room believe in, whether she belongs to the same religious 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 non-believers. So Justice Kagan, I think we agree with much of what you say, but 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 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 deity and the language of the prayer giver. And the Matthew court text was going to go brief, it's the one who brought up a group. It's quite candid about the hybrid nature of that body. I think at some 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, and form the people in town of the tradition, so there 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, 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 the town can point to things such as such as public criteria and things like that, that is helpful. With respect to 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 being ruled on, that the separation of 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 there are things that have analogues 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 elements that the response is pointed to for coercion, we think are not ones that the court should adopt. Of course, you are at your test, whether or not it is part of your test, whether or not it advances religion. If you ask a chaplain for the State Assembly in Sacramento, California, who is going to go to this assembly to deliver a prayer, are you going to advance your religion today? Would he say, oh no? So you are on, I think it is a much narrower test. What this court said in March was that the limit on legislative prayer is proselyt, as it proselytized 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 non-believers, does it belittle a particular... So you use the word advance only as modified by proselytized? What Marcia was proselytized advance or denigrate? That is not what you are briefed at, proselytized or advance. That is the language from Marcia, honours, to proselytize or proselytized advance or denigrate. If that test you want us to adopt and I am at your service. It is, sir. 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 the religion. So, Your Honor, I don't think that that is what... You are not quite sure why they are there. You are not quite sure why, the advance is there. Or why the rabbi is there. We don't think that the mere presence of the rabbi, that is what Marsh held. What Marsh says is advance does not mean having a single 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, Council. Mr. Lackock? 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 of parents of Down syndrome, child. There are many personal petitions presented to this body in the media wake of the prayer. That is during the public forum part. That is in the public forum. That is not the same thing as the hearing. It is not the same thing as the hearing and that is the point, Your Honor. It is not separate in terms. There is another part of the proceeding that is the hearing. Yes. That is when somebody has a specific proposal they want to something specifically before the board and they want relief. They want a variance. The hearing is a particular kind of proposal. And that variance is separated in time. 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 is clearly a legislative body. The only difference is it is a town rather than Congress or a state legislature where you have more formalized procedures. This is more direct democracy. It is a town. When a citizen appears and says, this is a traffic problem in my corner, this nuisance family that commits a lot of crimes in my block, that is not asking for legislation or policy making. That is 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 is not what we are saying. How can you do it? We are saying you cannot have a kind of thing that always comes up at town meetings. We are saying you cannot have sectarian prayer. The town should have a policy in the first place, which it does not. Instruct the chaplains. Keep your prayer non-sectarian. Do not address points. I will give you 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, M.I. and atheists. Had atheists throw an atheist too. We take March to imply that atheists cannot get full relief in this context. And McCree, the Center, said that explicitly. So points on which believers are known to disagree is a set that is in the American context, the American Civil Religion, the Judeo-Christian tradition. Well, 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, you honor, are acceptable. Give me an example. Can I have the joint pendants? The prayers to the Almighty, prayers to the Creator. To the Almighty? Yes. So if a particular religion believes in more than one God, that's acceptable to them. Well, some of the religions that believe in more than one God believe that all there are many gods are manifestations of the one God. But the true polytheist, I think we're also excluded from the McCree dissent. Who's that devil worshippers? Well, if devil worshippers believe that the devil is the Almighty, they might be okay, but they're probably out of that. Who is going to make this determination? Is it an ex-anti-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, the joint appendix, the prayer from August 19, 2003. I'm sorry, that instant grace name. There are... The count was about two thirds, one thirds, so there are plenty of them in here. 74a, Heavenly Father. Yes, acceptable to all religions. Heavenly Father is very broadly acceptable. And the test cannot be unanimity because that's impossible, right? That's why the atheist are excluded. I'm sorry, Justice Scalia. Could you repeat your question? Well, I'll repeat mine. It was, who is 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. Now, principally, the clergy make this determination. There's a 200-year tradition of this kind of civic prayer. The clergy know how to do it. And if the city has a policy, then an occasional violation by one clergy is not the city's responsibility. 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. So there's an official in the town council that is to instruct clergy about what kind of 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 that official, and I think a prayer was over the top for being proselytizing a particular sectarian, I'd say you'd rather not come back next week. I'm going to look for somebody else. Well, you might have a conversation with him first, and give them a second. In other words, the government is now editing the content of prayers. They're 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. They delegate the task of 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 in the board. And if there is coerce- 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 an 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 this test for the free exercise clause. Well, it seems to me unlikely as well. Coerce- is one test for the establishment clause, but there's also a broad agreement on the court. There has been that sectarian endorsements are prohibited by the establishment clause. What exactly since you're adopting the coercion test, what exactly is coercive? Are there coercive in this environment having to sit and listen to the prayer? Well, there are many coercive aspects here of varying degrees of importance. Citizens are asked to participate, to join in the prayer. They're often asked to participate, but not in any tangible way. They say, well, I'm not going to participate and everybody's just sitting there. They're often asked to physically participate, to stand, or to bow their heads. The testimony is 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 coercive. What says, you know, what says, may we pray? And somebody doesn't want to pray, so we stay seated. What's coercive about 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. And 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 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 proceeding 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's acceptable to everybody. Is there any other problem with what I've just outlined? Well, if the separation in time really works, that's part of the reme that we've suggested as possible here. We still believe the prayer should be non-sicarian. Now, on the remedy, in 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. Would just to be clear to it, clear to it, 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 clear. Well, my question was to be clear. 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. You're doing 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 on 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 the prayer before the call 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. Lightcock, it seems to be that what 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 here as citizens. And as citizens, 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 people who have religious beliefs ought to be able to invoke the deity when they are acting as citizens, and 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, it seems to me, and in position upon them, to stifle the manner in which 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, is very different from what this Court does. Maybe the closest analogy is, I just say, of committee hearings with Citizens Interact, we don't have a tradition of prayer there. What the town board is doing here is very different from anything in the tradition that they appeal to. I know what you've, I would like you to take into account an aspect of this. I mean, in my own opinion, I don't know if anyone else is not talking for others, but what the 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, 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 make 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're afraid of. I mean, even in this town or in the area, there are significant numbers as well as Christians, Jews, Muslims, the highs 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 saved the United States, and you want to win your case. I didn't see people sitting down. All right. And the fourth approach, which is the other that 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, and even with the non-religious, 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 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, 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 their rotation scheme. Any rotation scheme will be dominated by the local majority, maybe even disproportionate to its numbers, religious minorities. An unfamiliar minorities give the prayer. They're often political protests. They're often threats and hate mails. They don't want to give the prayer. And many city councils won't stand up for 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 non-saccharianism has a very long tradition. Government is not a competent judge of religious truth, medicine said. That was not a controversial proposition in the founding. And even in the first Congress and the prayers they point to, there were no prayers there that violate our principle. And vote in details in which believers disagree. Because then, 98.5% of the population was Protestant. Christ was not yet a point of that. But that gets exactly the same. That gets exactly to the problem with your argument about non-saccharian prayer. Yes, when at the beginning of the country, the population was 98% plus Protestant. Then it became predominantly Christian. Then it became predominantly, almost exclusively Christian and Jewish. But now 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 Buddhists, there are the highs, there are all sorts of other religions. And they all should be treated equally. But 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. And you haven't given me an example. We cannot treat, 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 a tradition of prayer to the Almighty, the governor of the universe, the creator of the world. I want to pick the groups we're going to exclude. I think you picked them, you're not honoring them. They're the people behind who else? These groups are too small. We've already excluded the atheists, right? We've excluded the atheists. I don't think the Bahá'í are excluded by none. So who else? I mean you suggest. You say just the best majority is all that we have to cater to. Well, I think the atheists are inevitably excluded. We can't help. Okay. Okay. Number one, atheists. True polytheists who don't understand their gods as manifestations of the one god are probably excluded. I'm not sure many others are. We 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. But in Greece, no one has told them that's what we want you to do. 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 burning, some people dead in the streets. We've already separated out, I thought, in our jurisprudence children and adults. Well, Leavers' wiseman twice reserves the question of whether adults might be subject to similar pressures. Well, you mean that 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 no doubt that before you stand up to ask for relief from a governing body, you don't want to offend that body. The adults are subject to coercion here. And no competent attorney would tell his client it doesn't matter whether you visibly dissent from the prayer or not. Try to have your client make a good impression. I just want to make sure what you're presenting. Your position is that town councils like Greece can have prayers if they are non-privocative, modest, decent, quiet, non-possible-tizing. That's your position. And wouldn't use all those adjectives, but yes. And we don't think that's difficult to do. Well, the Congress has a set of guidelines which you've read and are here in the papers and so forth. Are those satisfactory to you? We'd like to be a little more explicit, but those are vastly better than what? If those are satisfactory to you, then I wonder, are they satisfactory to everyone? 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 in 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's, 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. Latefair. 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 to that their own personal beliefs. I think the average person who participates in a legislative prayer does not think that this is a governmental function. It's a personal function, and that's why we separate out the legislative prayer from other kinds of prayers. They're not praying for their congregation. They're 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 an only one person time on the agenda to pray. This is clearly governmental as you held in Santa Fe. You had an atheist board, you would not have any prayer. I guarantee you, because it is a personal prayer that the members of the legislature desire to make. Mr. Latefair, we don't. Justice Sotomayor. Assuming you hear the resistance of some members of the court to sitting as arbiters of what sectarian and non-sectarian, and I joined some skepticism as to knowing exactly where to join that line, assuming you accept that, what would be the test that you would prefer? Taking out your preferred announcement that this prayer has to be non-sectarian. Well, the test that we have offered is the test of the McCurrie descent, points in 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 secluded. It is seen to me that enforcing that standard that is in the standard I suggested involves the state very heavily in the censorship and the approval or disapproval of prayers. But it is not censored when it is in government. That may play ultimately in your position if we say that that is why there shouldn't be any prayer at all. But then if you had 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 attorneys 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 will personally in need of prayer? There are no women if you can't draw lines. That is not a prayer. Well, you know, it was how he introduced- How many of you have been saved? That is 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. Laker, sort of all hypotheticals aside, or 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 is 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 question. 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. The part of what we're 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 think that's true. I mean, there are people who distort your decisions or people who misunderstand your decisions honestly 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 explicitly Christian prayers in the fourth circuit. And they've been able to mostly enforce that. And there hasn't been litigation at the margins because all the prayers were clearly one way or two. As you did this, you had combined your two approaches. That 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'd say whatever relevant 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. Well, Marsh is not the source of the government involvement in 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's correct. And it had prayers that did not address predestination or having to accept Jesus or any other point of word. Many of them were very explicitly Christian. Very explicitly Christian, but that was not a point of disagreement at the time. They stayed away from any issue that Protestants disagreed with. In a way, it sounds quite elitist to say, well, now we can do this in Washington and Sacramento and Austin, but you people up there in Greece can't do that. Well, it's not that the people in Greece can't do it. This is this board is functioning in a fundamentally different way from what Congress or the state legislature functions. And also, my understanding is that the first chapter of the Senate was the Episcopal Bishop of New York. Isn't that correct? And 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 if he talked about the choice between bishops and presbyteries and congregations as a way of governing the Church, they had 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. There's changes that we have, a wider range of religious disagreements today. There are no further questions. We ask you to refer. Thank you, Mr. Lakehawk. Mr. Hungar, you have three minutes remaining. Thank you, Mr. Chief Justice. First, I'd like to correct the 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 website of the town agrees shows that at least four non-Christian prayer givers delivered prayers thereafter in 2009, 10, 11, and 13. On the sectarian point, clearly this is the line. I'm sorry? One of you. 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, just like the point, the Court, is the Senate brief, the Amicus brief filed by Senators pages 8 to 17, which shows the extensive history from the beginning of the Republic 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 argument, 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 coercive 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. And 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 don't agree with. That is the tradition in this country, and that is 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 federal government that can't possibly make a difference as an establishment clause matter, it makes no sense to suggest that the, 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 preventative purpose of the establishment clause to suggest that there are greater restrictions on municipalities and makes no sense at all. We think that the dangerously overbroad theories advanced by respondents are an odds of our history and traditions, which we reflect this tradition of tolerance for religious views that we don't agree with in the legislative context. Respondents, there is 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, Council. Case is submitted