our county in the limited context of legislative prayer can require that ceremonial invocations which are given at the beginning of the public meetings  jurisdiction that the court expressly recognizes that legislative prayer while inherently religious is compatible with the establishment clause and the practice of alleged little prayer has coexisted with the principles of this and religious freedom importantly i think your honor for this particular case the supreme court has recognized several theistic lee connected purposes for legislat prayer and i think it's worth while reciting for the record those what those are and one to request divine guidance for the legislative body to acknowledgment of a belief in a higher power three acknowledgment of the central place which religion and religious institutions hold in the life of those present respect for the divine and acknowledgment of religious leaders and the institution i think  abundantly clear that in the area of legislative prayer it is historically rooted and it goes back an awfully long time the question that i have goes to the methodology by which they proceeded in bridgeport county that is to say the commissioners and my question is a specific one in that regard i take it you would agree that could say it we looked at who the speakers were we looked at how they were selected and if we were required to we might actually look at the prayer itself but i want to ask you about the selection process i take it you would agree that the county could not exclude religious groups simply because they didn't or i come didn't want him didn't agree with them the selection process is done on a rotation basis by the commissioners and two it says for a variety of reasons we're excluding atheist secular humanists that's what it says but they basically otherwise incorporate the practice as it had evolved by custom and tradition in the in the county when i looked at the depositions of the commissioners it looked to me like some of them flatly barred religions because they just didn't want them for example they seemed to borrow some of them seem to bar polytheist can you do that where there's a belief in a supreme being it just happens to be not my will see as that but multiple let's say we're talking about hindus or something like that sikhs can you just bar you're on the  county would agree that that would not be appropriate forget whether would be appropriate would it run afoul of the establishment clause if you did that yes you would wouldn't you didn't we have let's say we looked at they were them who said no or probably no we wouldn't let them speak warfield says that fischer says probably no smith says no but i'm not too familiar with it how could you do that consistent with the that unlike a number of the circumstances let's say you took the cobb county we had unrefuted testimony from an administrator who said this is what i did i went to the phone book i will look to congregations and i once thought of the top went to the bottom and invited them all i didn't look at the nature of the organization that was listed and they were invited we said that was ok it was nothing wrong with that process but then there was also a process by which the planning commission in cobb county proceeded and the planning commission in cobb county proceeded in a different way the planning commission the evidence was so at least the district court found had certain religions w put through it moslems were out seventh day adventists were out your hope as witnesses were outed cetera and we said that runs afoul of the what we have here is basically no standards other than that the commissioners on a rotating basis get to decide and some of them are more inclusive some of them are less inclusive and some of them have created for some religion that seems to me to be the state of the record have i misunderstood that i think your honor contrasts the situation in cobb county were there was a  presbyterian cleric and you paid him one hundred bucks to appear and do it you could do that constitutionally marsh couldn't be clearer on the point there was a single presbyterian minister he was paid a sum of money it was a salary he wasn't a full time employee and that necessarily excluded everybody else and the supreme court of the united states said that's ok so we're not questioning whether you can do that we're simply questioning the process employed here and when i looked at the depositions to find some meaning because there was nothing written other than the resolution in two thousand and fifteen which told me that they rotated among the commissioners that they reopened that was how they were doing it and then i looked at the testimony they struck people or said they would strike people or not consider them on account of the nature of the religion and i think my my my response that your honor is that there are certainly was testimony to that effect from some of the individual commissioners but don't i think that's right if you looked at for example at handor soon he had a very  nical approach and was look at all of them but if you look at the yacht some of the others want to put it this way if you look at d s i my count there are at least four who said they wouldn't invite by that account thomas jefferson came back to life and walked in and said to the provided county folks would you let me give an invocation i'd love to do it they would say no you're a deist even though a deist has a belief in a supreme being a model for us to be in a singular creator but basically says and there are natural laws that govern the operations of human endeavor but i think what the testimony really shows that there was a quite a bit of confusion amongst the commissioners as to the specific i but you see the problem we have is we have the only record we have of the selection process requires us to ask the commissioners you prefer to have some written statement here's what we do and then you look at what they did do and we would be far less impressed with you probing their mind than which is a very unattractive way to proceed but it's all you have here well i don't know that the resolution also is particularly helpful to your cause in that respect well your honor i would suggest that what we have and what the supreme court has suggested that the court look at is how the invocation practice has been applied in the past and there's absolutely no no evidence in the record other than with respect to the exclusion of atheists non theist that the invocation practice has ever been  practiced in broward county to exclude atheist or how do we look ahead because ton of greece specifically notes that the case notes that the town indicated that an atheist would be welcome to offer an invocation and i case why doesn't that suggest that you're running afoul of the establishment caused by offering that prohibition the factual recitation in the town of greece did include reference to the fact that the town of greece had indicated that it would allow an atheist to provide a invocation however that the court's opinion did not extend to requiring an atheist to be included in the court's opinion dressed in terms of individuals either clergy or lay people that would provide a is it still the record here that three or four of the seven commissioners who were questioned but flat exclusions on some religions that they just wouldn't consider they said no when for example and some of them say i don't know i'd have to look further i look have to look harder into the nature of their religion because i just don't know enough about it that might even be suggesting that there's a heightened kind of scrutiny for some religions and not others i haven't said a word about atheists holding that issue aside for a moment but i'm just asking don't you have a problem with the selection process here because you're commissioners say they would bar some religions once again your honor in terms of the specific testimony of individual commissions are you saying we can't consider that not so you can't consider your own i just don't think it's the most relevant well then what else  look for i don't have anything else other than the resolution in fifteen which basically says atheist you're out and secular humanists you're out other than that and they say and here's how we do it we rotate but it doesn't tell me anything about what informs the selection process and the commissioners who do the selection tell me they would keep a out or b or c or d the record should that is the before the court is the way in which the invocation process has been applied in the past and the absence of any evidence that that has that what they should practice or policy has with it anyway applied to exclude give an invocation answer no barfield would you allow a diest to give a prayer answer no louis would you allow a deist answer no second question what about a polytheist would you allow any of them smith no fish here i don't know off field no lewis i don't know i would have to see what's presented  native americans anderson certainly possible smith i don't know i'd have to see what they have to say fish you're not sure what a native american shaman is off eel i don't know i'd have to think about it i'd have to look look further and so on let's suppose the resolution they passed in fifteen embodied just that that it said four of the seven commission is would keep out a b c d and e would that run afoul of the establishment clause and your honor if i were we were here today i don't know i just want an answer to that question would that run afoul of the establishment clause if it reflected what i just read to you would be improper for them to exclude other theistic religions  so if i were in front of you today on that type of a case that i would literally could see we have a problem the issue here is whether or not the county can properly differentiate within the context of legislate prayer between you understand the thrust of my question is not asking whether you could discriminate between religion and your religion we'll get to that in a minute my question is can you discriminate between religions and you keep  americans out and the south and still comply with the establishment clause that's the problem i have with what you what this record reflects at least that's the first problem and i think i've answered that i only just can't do that judge but i can nobody's doing anything other than a moment of silence that's great you're ok and i understand that you probably the other judges want to move on but i want to make sure i understand your position on the discrimination between religions point are you saying that they're on official policy that said we will not permit a b c d then that would be impermissible but if individual commissioners for whatever their own reasons and officially operate under that standard that is acceptable i don't say it's an acceptable i think that what is in the record is the confusion and the concern that some of the commissioners might have about the different no no no no with respect to a b c d and that's the record i have but not with respect to with respect to as i said before your honor if we were here on it before you on that have a case i would concede that we have a problem with the issue his is whether we can treat for purposes of this legislate prayer issue we can treat atheism and non theism differently than  outcome clause prohibits government all bodies from discriminating based on religion in selecting speakers to deliver opening invocations in the supreme court says watkins that humanism is a religion protected by this tap from clauses shield against religious discrimination in this court held the same with respect to atheism in glass wrath really any of of reality was that atheists were permitted and that may have been wise that was the state of the record that the supreme court had the supreme court was not asked to decide that question that sort of  argument about how what they did was constitutional but nowhere does that case say that answered this particular question whether you're obliged to provide that opportunity to an atheist just that they did the supreme court in marsh talks about a long line of history more than two hundred years suggesting in light of the unambiguous and  broken history of more than two hundred years there can be no doubt that the practice of opening legislative sessions with prayer has become part of the fabric of our society as majority opinion to invoke divine guidance on a public body entrusted with making laws is not in the circumstances and establishment of religion or indeed a step toward the establishment of religion it is simply a tolerable acknowledgment of beliefs widely held among the people of this country as just the stock was observed we are religious people whose institutions presuppose a supreme gain be the focal point though of march was on invoking divine guidance on a public body entrusted with making a law why couldn't they say that if you were going to speak we'll let you speak but just not at the invocation marshall that it's permissible to have theistic prayers but greece and pelfrey hold that it's impermissible to discriminate based on religion when you open up the opportunity to members of the public you cannot discriminate based on steps in the clauses prohibition against religious discrimination and mr i think you need to look at the one plate if he doesn't call himself a secular humanism you have to look at his particular beliefs and he believes that there's only one there's no the video eaters only this life and therefore this life is what matters and you need to live this life to its fullest you need to treat people well do the best you can for society so his beliefs are actually very similar to the secular humanist beliefs of the other plaintiffs if you look at how to give directions he a factual question during the relevant time frame i think it was six years there were more than one hundred prayers given in vocations maybe a hundred sixty or something like that was there any claim in this record that any of those were fell into the category of either proselytizing or denigrating  religion i get few of them did but there was no pattern or practice of proselytisation we are not right when you're not making the claim that the prayer itself suggested a fake a fatal flaw which it was proselytizing or denigrating no or not but healthy sense that even if the content of the prayers is acceptable if the selection process is discriminatory that by it's no question the holding is clear is about and we have clearly discriminatory but interestingly enough what was knocked out in our free was an administrator who just put a red line through the yellow pages and said seventh day adventists around  mormons are out muslims are out that kind of thing that's what you had there was no explication of the issue that you have here about secular humanists or atheists right yeah here you have your head in face this beliefs so not only do you have expressed religious discrimination you have integument here you have a county that's getting into the details of particular religious beliefs judging which ones it deems unacceptable and excluding those that it deems unacceptable is it your view that you that the county could never look at anything about the message to determine whether it is religious in nature the cowards suppose for example that a feminist group came along and said we want to give an invocation our views on feminism are basic to our being and our identity and we want to be h could the commissions say wow that just doesn't quite fit with what we're doing you can be heard in the course of the meeting and make a public comment but we're not going to let you give an invocation one could they do that and who could they make any determination about that without looking somehow behind the label to see what the group was about yes so they could exclude from school a feminist group is not a religious group how do they know that without looking at what they believe they have to make some or all i'm saying is you've got to make at least some preliminary look don't you sure that's right but here the plaintiffs in your international demand letter the plaintiffs explain that humanism is a minority religion interest case law that humanism is a religion so once once you have that it's not proper to look further certain cases of recognise and certain contexts that pasta feria in as a religion would the commission be able to i don't think you can do you can't judge what you cannot do is judge whether the views are acceptable to to you that's easy but that's not the question yeah i mean to the question is can you look at it in order to determine whether it falls in some general sense into the category of religious i think you can look at sincerity i mean the case law says you can look at you know does this person believe that or their beliefs with the key k the key test is does the claimant himself consider is beliefs a religion and here all the plaintiffs do they all testified in their declarations that they consider humanistic lot of money lawyers are expensive we want out of all this litigation we're simply going to hire a cleric and we're going to pay him one hundred bucks or fifty bucks and he's going to give the player all the time they could do that couldn't thang that's i think that's dicey dicey if it's based on a motive to exclude other belief systems no i said the motive was i didn't want to spend any more it violated the establishment clause because it discriminated between religious groups or let's face it is clear that the county turns around and says ok we're go and we're going to pay him and that's it we're not going to that's the end of that could they constitutionally do that in your view also a classic yes they could do it if it's not motivated by a desire to exclude non theists or other religious minorities and that's not what they've done it's not this case once you open up the opportunity to members of the public then discrimination i understand that i'm just asking a different question i'm asking whether they could do in this case what the legislature in nebraska did in that case yes if it's not motivated by the improper motive and if it doesn't run afoul of the agreed upon gesture we have which allows each which requires each point of to be given an opportunity to deliberate invocation once with a fifteen month ok then let me ask you second question is there anything let's assume the judgment was vacated the injunction that was struck down as overbroad by this court could they turn around and say we're just going to the phone book we're going to the yellow pages and we're going online and we're going to pick out congregation just the way they did in health hop county and we're going to go from the first to the last there are two hundred thirty six of them there in the county or whatever the number may be could they do that you know i want to say typed in regard county religious organizations religious institutions religious congregations when i find the secular humanist and it's any record evidence on  they serve the same roles in their members lives that a traditional theistic congregation serves in their members lives in the county in fact stipulated that the leaders of the organization please which are four of the individual plaintiffs serve the same roles for their organizations that a congregational leader of a traditional model theistic congregation serves for their organization i'm not suggesting by my question they have to have one  said that the true goal of the plaintiffs here is to and legislative prayer perhaps by offering offensive or nonsense prayers or things like that again i know that you disputed that for the purposes of  hypothetical though if your clients or any other party gave this hyper prayer that or the type of invocation that the county has it has suggested they fear would that run afoul of marsh's statement that but our clients are not going to do that they've sworn twice under penalty of perjury that they will not do that in the county has in fact stipulated that the purpose of a of the plaintiffs in giving hi having officially this group very policy here in addition to having a policy in practice that involves the county an improper entanglement improper lidge judgments an improperly prescribing the kind of prayer you have a b this evidence of the in the record of an improper purpose and also in terms of the history question that your honor asked earlier you know for a long time this country there were no muslim non protestant religious minority this is a discriminatory policy it treats atheists and humanists as second class citizens to tell them to go back to the back of the bus into a public comment period it's offensive to numerous constitutional clauses and the fundamental principles of that against religious discrimination at the heart of our constitution and it should be struck down in the district court's opinion should be affirmed thank your honour's final question if we were to agree that what they did here violated the establishment clause if for no other reason than they discriminated against sikhs in whatever broke down the regime that they that they had in in this case do we have to address the first amendment questions county can in fact treat them differently than a person who would be offering a theistic invocation and are what you would concede that you can't treat buddhists sikhs american native religion recognize the divinity recognize a higher power and would in vocal that blessing for the benefit of the county commission we could not do that why then would we even get to the question of whether they can or cannot keep it whether you can or cannot keep atheists because they i mean if we were to conclude the whole regime here is tainted with a correlation of the establishment cla you see what they do one round to put why would we have to go any further well your honor i said before the there is no record evidence and before you that that the county actually discriminated against any of those other religions that you have mentioned the only evidence is that with respect to atheism the county has chosen within its discretion and within the county acted through its commissioners and its commission authority on a rotating basis that's the problem you had the county didn't choose to come up with like a written description of its policies that bound all of them except with respect to atheists and secular humanists then you put it down in writing but with respect to the others you left it basically standardless for the commissioner to decide when it was his turn and i think and then some of them said we'd keep these folks out and in fact there's no record evidence that any of those folks were in so one could draw some pretty clear inferences from that couldn't or i think you're out of the evidence is that there's no evidence in the record of that any of those religions were excluded i mean that's never been contended that was in the was in the contention in this lawsuit at all the question is whether or not atheists and secular humanists could be treated different you think that's the only question we have in front of us i think that's i think it's just dispositive issue that you have in front of your honor in terms of the fact that that evidence is not relevant to the question of whether or not the county can treat an atheist or a non theist differently than it treats people who have a  believe in a higher power in the context of the supreme court decisions i mean essentially that the argument here judges that the the the apple e's do not intend to use this opportunity to offer prayer in fact they intend to use it to exercise their right not to pray so it's outside of the confines of what the supreme court has recognized as the appropriate purpose for a ceremonial  r legislative prayer prior to the commencement of the of the county's business but doesn't doesn't paragraph thirty six of the resolution actually categorize as atheist and secular human as those who are pitted against monotheist so doesn't that all the polytheists are not specifically named in that in that paragraph doesn't that put atheists agnostic and other persons represented by or associated with f f r f n a u s c s as a group that has hostility toward monotheistic religions i'm sorry your honor i was i was trying to read the resolution source of graph thirty six addresses the hostility of the groups that i assume you agree are associated with the plaintiffs toward monotheistic religions what do you say about the humanism cases he's citing i mean he's saying it's been recognized as a religion you seem to say a religion has to have a monotheistic viewpoint no you're on if i  if i have that impression you're not saying that you're just saying it's not a religion is that what you're saying it's not a religion first of all your honor i don't think the court has to reach that point to decide this case but i don't think any of the cases are cited by by counsel for happily in this legislative prayer context and what i'm saying is that even given the purposes for letters to the prayer which have been recognized by the supreme court knesset you necessarily have the same for sake of argument humanism as a form of a religion ok so can you exclude them if it takes form of religion i think to the extent that they that they do not believe in a higher power and would not seek divine intervention or divine blessing on the governmental body of the issue here those are the factors of why is that recognized religion when it be discrimination between religions not to include them i don't believe it would your honor because of the limited context just of prayer exception which a court has recognized in the purposes for that you have to put you're saying there's exception is you have terms of what the acceptable purposes of legislate prayer and what it's what it's intended to serve is it your understanding that the supreme court's recognition of legislative prayer is limited to monotheistic religions so you would say that thanks very much and thank you all for your efforts it's an interesting case this court will be adjourned until nine am tomorrow morning thank you