On May 5th 2014, the Supreme Court decided Greece v. Galloway, a landmark case about the right of prayer in government assemblies. Both sides of the argument invoked the First Amendment to make their case, but who is right and why? On this episode of Lawyer 2 Lawyer, host Bob Ambrogi brings this issue to...
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David Cortman serves as senior counsel and vice-president of Religious Liberty with Alliance Defending Freedom at its Atlanta Regional...
Professor Douglas Laycock is a Robert E. Scott Distinguished Professor of Law Professor of Religious Studies at University of Virginia...
On May 5th 2014, the Supreme Court decided Greece v. Galloway, a landmark case about the right of prayer in government assemblies. Both sides of the argument invoked the First Amendment to make their case, but who is right and why? On this episode of Lawyer 2 Lawyer, host Bob Ambrogi brings this issue to the forefront with opposing counsels Douglas Laycock, for the respondents, and David Cortman, for the petitioner. Together, they discuss the relative merits of their cases, the endorsement test, and the coercion test. Tune in to hear more about the future of legislative prayer and your First Amendment rights.
Professor Douglas Laycock is a Robert E. Scott Distinguished Professor of Law Professor of Religious Studies at University of Virginia School of Law and one of the nation’s leading authorities on the law of religious liberty. In addition to teaching for over 30 years, Professor Laycock has testified frequently before Congress and has argued many cases in the courts, including the U.S. Supreme Court. Professor Laycock is an accomplished author on the subject at hand and the 2nd Vice President of the American Law Institute. Especially pertinent to today’s episode, Professor Laycock argued for Susan Galloway and Linda Stephens, the respondents, in the Supreme Court.
David Cortman serves as senior counsel and vice-president of Religious Liberty with Alliance Defending Freedom at its Atlanta Regional Service Center in Georgia. He also heads litigation efforts to defend and reclaim the First Amendment rights of public school students across the country. Among his many media appearances, Mr. Cortman has been on CNN, MSNBC, and Fox News. Especially pertinent to today’s episode, he served as counsel for the Town of Greece, the petitioner, in the Supreme Court.
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Douglas Laycock: People should be entirely free to pray however they like, and I’ve done a lot of religious free-speech and free-exercise litigation for churches and conservative believers, but the government is to be neutral among religions, and as Justice Kagan said, when we go to our city council to petition for redress of grievances, we don’t go as a Christian or a Jew or a Muslim or a Sikh, we go as Americans.
Speaker 2: Welcome to the award-winning podcast, Lawyer 2 Lawyer, with J. Craig Williams and Robert Ambrogi, bringing you the latest legal news and observations with the leading experts in the legal profession. You’re listening to Legal Talk Network.
Bob Ambrogi: Hello, and welcome to Lawyer 2 Lawyer on the Legal Talk Network. This is Bob Ambrogi coming to you from just outside of Boston, Massachusetts, where I write a blog called LawSites and also another blog called Media Law. My co-host, J. Craig Williams, traditionally comes to us from his office in southern California. He is tied up in court today and is going to be unable to join us, so we’re going to plod ahead without him on today’s show.
Before we introduce today’s topic, I just want to take a brief moment to mention our sponsor, Clio. Clio is the online practice-management solution for lawyers. You can find out more about them at www.goclio.com.
Today we’re going to be talking about the May 5th Supreme Court decision in Greece v. Galloway, the case in which the justices voted five to four that it is not a violation of the Establishment Clause of the First Amendment for the town of Greece, New York to allow volunteer chaplains to open each legislative session with a prayer. We are going to discuss the case with two guests representing, perhaps, I guess, opposing sides of the arguments of the case. Let me introduce them, and then we will get into the discussion of the case.
First off, let me welcome to the program Professor Douglas Laycock. Doug is the Robert E. Scott Distinguished Professor of Law and a professor of Religious Studies at the University of Virginia School of Law, and one of the nation’s leading authorities on the law of religious liberty. In addition to teaching for more than 30 years, Doug has testified frequently before Congress, and has argued many cases in the courts, including the US Supreme Court. He has written extensively on religious liberty, and he is Vice-President of the American Law Institute. With particular relevance to today’s case, Doug represented the respondents, Susan Galloway and Linda Stephens, in the Supreme Court and presented the arguments on their behalf. Welcome to Lawyer 2 Lawyer, Douglas Laycock.
Douglas: Happy to be here.
Bob: Also joining us today is David A. Cortman. David is Senior Counsel and Vice-President for Litigation of the Alliance Defending Freedom. He is based out of Atlanta, where on behalf of the Alliance, he heads all direct litigation efforts to protect religious freedom, the sanctity of human life, and marriage, and the family. He has been practicing constitutional law for more than 17 years and has successfully litigated some 200 cases at every level of the courts, including recent victories in the US Supreme Court and Federal Circuit Courts of Appeal. He’s a regular commentator on CNN and MSNBC and Fox News, and he was part of the legal team at the Alliance Defending Freedom that represented the town of Greece, New York, in this case. Welcome to Lawyer 2 Lawyer, David Cortman.
David Cortman: Thank you for having me.
Bob: Doug Laycock, let me start with you. An op-ed in the New York Times last week called this case a big win for the prayer lobby. Others have characterized it as really no big deal, pointing to Justice Kennedy’s language in the opinion, in which he talked about the fact that the very first Congress had an official chaplain, and that that office has continued ever since. Where do you place this case in the spectrum of significance?
Douglas: I think it’s a pretty big deal. It’s not the most important case of the term, but it’s a pretty big deal. City councils function in a very different way from the first Congress, and these prayers were radically different from the prayers that are delivered in Congress. You get some explicitly sectarian things from the guest chaplains in Congress, but the House and Senate chaplains are carefully interfaith, non-sectarian, inclusive, and citizens don’t participate there.
What happened in Greece is citizens do participate, they come to petition the council for various things, and these prayers were very heavy-handedly Christian, talking about the saving sacrifice of Christ on the cross, so this broke new ground. This is not what Congress does, and it’s not what the court decided 30 years ago in Marsh v. Chambers. This is a green light to impose Christian prayer practice on any citizen who tries to participate in civic affairs.
Bob: David Cortman, how about you? Where do you place this case in terms of its significance?
David: Well, I do agree with Doug that the case is a very big deal, and that’s probably where the agreement ends. I think this is just another tolerable acknowledgement of prayer, as the court said, and we don’t necessarily even look at Congress as it stands now. What we look at first of all, is the fact that this practice has gone on for over 200 years in our history.
I think one of the most interesting points, at least to me, is that the framers of our Constitution, who actually drafted and passed the First Amendment which includes the Establishment Clause, put this practice in place. It’s a little bit difficult to argue that for some reason, 200 years later, it violates that same clause.
I think what’s interesting here is the policy was neutral and open to everybody in the town. The fact that the town was demographically weighted heavily in favor of Christians, and so that reflected what the prayer practice was. Obviously, that practice changes if you go to New York or California or somewhere else. I don’t think the constitutionality of a prayer practice should be dependent on the city or town where it happens to be located.
Bob: Doug Laycock, take us back to why Susan Galloway and Linda Stephens brought this legal action in the first place. Were they trying to end the practice of opening the session with prayer, or were they trying to make it more ecumenical?
Douglas: At least once they got some legal advice, they were trying to make it more ecumenical. Linda Stephens and Susan Galloway were both local citizens concerned about various public issues. They were concerned about the local cable contract. One of them was concerned about some conflicting uses of the parks.
They didn’t come trying to stir up a fight about prayer. They came to their Town Board, which is what the city council is called there, they came to their Town Board to pursue certain local issues, and then they found when they got there, that they had to sit through a Christian prayer every time they attended. Sometimes the pastor would ask the audience to stand, and they described in great detail the pressure to go through the motions to participate and so forth.
I think they would have rather had no prayer at all, but once they went to the local ACLU and then the ACLU brought in Americans United for the Separation of Church and State, and the legal advice they got was, the courts are not going to say there can’t be any prayer at all, because there is this tradition of prayer in legislatures. This body has some legislative functions, it also has a lot of other functions. It’s the executive of the town, it has some things that are nearly quasi-adjudicatory. It hold hearings on zoning permits, and business permits, but it has some legislative function, and none of the lawyers thought the courts would say no prayer. That’s probably what the plaintiffs would have preferred.
What they asked the courts for at every stage was require these prayers to be non-sectarian. Make them like the prayers that the House and Senate chaplains offer, and don’t give a green light to local pastors to pray for the citizenry the same way they pray for their own congregation.
Bob: How did the Supreme Court come down on that issue, of making them non-sectarian?
Douglas: The court said, we can’t tell what’s non-sectarian and what isn’t, which is kind of silly. The pastors know how to pray in non-sectarian ways, and do it with some frequency. More fundamentally they said, we can’t tell these pastors how to pray. It was almost as though they had a free-speech right to pray however they want when they’re praying for the government.
Now, I would vigorously defend their free-speech right to pray however they want when they’re in their private capacity, but when they come to give the opening prayer at the meeting of the Town Board, they become government agents. They’re subject to the Establishment Clause the same way the members of the Board are. These are government prayers, and they need to be more inclusive, but the court treated them as though they were no different from private prayers.
Bob: David Cortman of the Alliance Defending Freedom represented, played a major role in representing the town of Greece, or the city of Greece in this matter. What was your interest in this case, and how did you get involved in it?
David: Alliance Defending Freedom got involved because once the town of Greece was threatened with litigation if they didn’t stop these prayers, they contacted us, and asked us for assistance in this case, and we’ve been helping out for many years with these types of cases, all across the country. In fact, there have been hundreds of challenges to these type of prayer practices over the last several years, from threats to demand letters to actual lawsuits.
One of the reasons it went up to the court was because there was different opinions by different Circuit Courts of Appeals, which is one of the ways that they decide on taking this. One of the reasons we got involved, because what we do here is we look to protect our religious liberties and our first freedoms, including freedom of speech, as Doug mentioned, and so this is an area that we deem important for many reasons, because we think one of our first freedoms is religious liberty, and without that true freedom, I think all other freedoms crumble underneath it.
Bob: The District Court here ruled in favor of the town, and then the Second Circuit reversed that. David, in taking this to the Supreme Court, what were the major points of argument that you raised in your appeal?
David: The first thing we raised is, what I mentioned, was that there’s a conflict at the Court of Appeals level. One of the main factors that the Supreme Court looks at in deciding whether they should take a case: are there different rulings in different parts of the country that need to be unified by the Supreme Court chiming in? That was the first issue, of course, that there was several circuits, including this one at the Second, and the Fourth Circuit, that struck down similar practices, and then we had the Ninth Circuit and the Eleventh Circuit uphold them. That was the law itself.
We basically argued a couple of things. The first thing was if you look at the case of Marsh that was mentioned, it already upheld the historical practice of what’s called legislative prayer, and the first argument was, we fit under Marsh and therefore, because there was a prior Supreme Court precedent, we win. In examining that out, it’s not just because Marsh said so, but it’s also because in that case, what they did is, they looked back to the historical test and said, the founders were engaging in this practice at the time the First Amendment as passed; it doesn’t make any sense for it to suddenly become unconstitutional 200 years later.
We looked under Marsh, and then one of the other things we addressed, which I think was important, which Doug kind of alluded to, there was a case called Allegheny where the court said, well, what Marsh was talking about was these non-sectarian prayers, and the fact that the prayer chaplain there eliminated references to Christ after they were sued, then that makes prayers okay. We said, look, the court needs to address that, we don’t think that was a proper interpretation, and in ruling that sectarian prayers were okay, the court clearly said that that’s not what Allegheny stood for, because it disputed what was originally found. There were several issues on several different layers.
Bob: Doug Laycock, what about you? What were your positions on these arguments, given the precedent of Marsh? What were the points that you were making in your appeal to the Supreme Court, I mean, in your case?
Douglas: We had two principal points. One was, the court left to right had always agreed, government is to be neutral as between different religions. It’s a huge fight in the court about whether government is to be neutral between religion and non-religion, but as among religions, government has to be neutral. There were a couple of very strong statements by Justice Scalia, of all people, about government speech has to be neutral and cannot endorse any, at least, has to be neutral as between monotheistic religions.
Those statements disappear without a trace. We had tied ourselves to them. Neutrality as among religions requires that the prayer be non-sectarian, and the prayers the court had actually upheld in Marsh were pretty non-sectarian, because after a Jewish legislator complained, he dropped the Christian references.
Second, we said, these prayers are coercive. The way a town board functions is fundamentally different from the way Congress or a state legislature functions. Congress or a state legislature, citizens are in the gallery if they’re there at all. They’re observers; they can’t speak; they don’t have any business to conduct. Meetings of this Town Board and most city councils are organized around citizen participation. Citizens come, there’s a public forum period where they can ask the council to do whatever they want it, solve whatever problem’s bothering them within the town. There’s a public hearing period, which is more formal, where they actually seek zoning variances or business permits.
The people who come to the meeting have to be there, and at least in Greece, there typically aren’t very many of them. There’s no anonymity; the typical attendance is around ten. Just before you stand up to ask the council for whatever you’re going to ask for, you have to either participate in this Christian prayer, or visibly out yourself by refusing to participate in the Christian prayer. We thought those two things, the coercive environment and the sectarian nature of the prayers, made this case very different from Marsh.
I want to say just a word about the tradition back to the first Congress. The founders agreed the government should stay out of religious controversies. If anything was controversial among Protestants in their time, they wanted governance of it. But when the country was 98½ percent Protestant, prayers in Congress weren’t particularly controversial. Now the country’s only 73 percent Christian; we’ve got 80 million non-Christians.
The founding principle of ‘what’s controversial, government should stay out of,’ still applies, and we can’t treat the First Amendment like a regulatory agency captured by the people it regulates. We didn’t write into the First Amendment that anything Protestants did among themselves, we could do forever, no matter how much the religious demography of the country changed. We think the court has to take account of the religious diversity in the country today, and it largely refused to do that.
Bob: Douglas Laycock and David Cortman, stay with us. I need to just take a short break here, and I will be back in just a few moments to continue our discussion of the Supreme Court’s recent ruling of Greece v. Galloway.
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Bob: Welcome back to Lawyer 2 Lawyer. This is Bob Ambrogi, and with us today are Professor Douglas Laycock from the University of Virginia School of Law and Mr. David Cortman from the Alliance Defending Freedom, talking about the Supreme Court decision in Greece v. Galloway, allowing chaplains to open legislative session with a prayer.
David Cortman, I wanted to ask you: I read on your organization’s web site a statement that came out after the decision last week, saying that the Supreme Court has, quote, “strongly affirmed the freedom of Americans to pray according to their own beliefs at public meetings.” Given the way this case was decided, is it fair to say that this is a strong affirmation of it- of the five justices who joined Justice Kennedy’s opinion, two of them did so only in part, and there were two different concurring opinions, and then two separate dissenting opinions. Is it fair to say that this case represents a strong affirmation of anything?
David: It is, if you read the opinion and why there was a concurrence, and what’s interesting about it is, one of the things we presented to the court was, if you want to re-examine the tests that are used to examine the Establishment Clause, the fact that Doug was talking about the coercion test that he was putting forth at the Supreme Court, originally his clients were pushing what’s called the endorsement test, is that this endorses religion, and a reasonable observer would think so, and that’s why it should be struck down.
We said, first of all, that’s the wrong test that’s being used here, especially because Marsh already upheld this practice under historical test. If you feel as if you should revisit those tests, we think the endorsement test is wrong, and it should be a coercion test.
Interestingly enough, on those two concurrences, you had agreement on the whole opinion for five justices except for one part. That one part, the difference, the way I read it, was there was what I call a light coercion and then maybe a heavy coercion, but all five justices said yes, it should be coercion. The two concurring opinions said it should be a stronger, a legal coercion.
The reason I think that’s important, because you have five justices now saying or introducing more strongly than ever this principle of having a coercion test and more than they’ve ever done so before. I think that carries on.
If I could respond just to one thing, talking about neutrality of faith and religion. This policy, we have to keep in mind, allows anyone to participate in this invocation. In fact, even the plaintiffs were invited to participate in this process, and so no one has ever been denied. Everyone’s allowed to participate, so this is why there are some free-speech principles, as Doug mentioned, kind of imbued in here.
On the non-sectarian issue, there’s several problems with that. The first one is, prayers going back to the founding were very sectarian, were prayed in Jesus Christ, were very similar to the prayers that were prayed here. That ability to pray sectarian prayers according to the prayer-giver, has been established since the very beginning. Someone taking offense to that shouldn’t result in censorship of the person praying, even though we have a more diverse country, which everyone agrees to that, the response, and the court stated this, was, the growing diversity, the way you respond to that is, you don’t censor sectarian content. What you do is, you welcome ministers of different creeds, and that’s exactly what the town did here.
Bob: The practice was, as I understood it, although the policy was to allow any creed, the practice was that it was almost exclusively Christian. Does the government entity have any obligation to take steps to see that that diversity is carried through in practice in some way?
David: I think it does, and what’s interesting here, the question is, whether it did enough, and does that rise to an Establishment Clause violation, or the fact that they should have done more, and here’s what I mean. They looked at their Community Guide in the town and said okay, whatever houses of worship are listed here, we’ll include everybody. That’s what they did. Then when people stated complaining, they said, look, we’re open to anyone, anyone who wants to come. That’s when you see people coming in who are Jewish, and Wiccan, and Baha’i, and so it was always open to everyone, but the demographics of the town show that I think almost all of the houses of worship, maybe except for one, were Christian houses of worship.
Bob: Doug Laycock, what’s your thought on that? Does the government bear any responsibility here?
Douglas: The equal-access policy was a total sham. It was never, ever written down. It was never, ever adopted. It was never, ever announced. It was never, ever publicized. It’s not in the web site. The new town supervisor says, “We’re not going to change any of that. We’re not going to announce it.” It was adopted orally only after they were threatened with litigation. It produced four non-Christian prayer-givers in the first year of the lawsuit, and then it stopped. They couldn’t even keep up the pretense until the litigation was over.
The bet they’re making is, this sham will work. We can say it’s open to everybody, and we’ll still get overwhelmingly Christian prayers, and only occasionally will we have to submit to somebody else’s prayer. The court took it seriously, and the court did seem to say that it’s required, and anybody has to be allowed to volunteer. We’ll see if they’re actually willing to enforce that, and we’ll see if people have the courage to volunteer.
People who are neither Christian nor Jewish who give prayers in many of these towns wind up with death threats and vandalism and other kinds of problems. One of our plaintiffs had vandalism. Whether or not there will ever genuinely be equal access remains to be seen, but I am not at all optimistic. This is about Christians imposing their practices on their fellow citizens as a condition of civic participation. That is what’s going on here, and that’s what five justices said is just hunky-dory.
Bob: Are you suggesting that the court said that- are you saying that you could read into the court’s opinion, though, some sort of an obligation on the part of the government entity to seek out some sort of diversity in these- if there’s going to be prayer?
Douglas: They said, you don’t have to reach outside the city limits as long as there is non-discrimination within the limits. At another point, they described the facts as, anyone could volunteer to give the prayer. That does seem to be a requirement of this opinion. Implementing it is more difficult, and I fear that getting a court to enforce it will be more difficult, but we’ll find out as events unfold.
Bob: David Cortman, what are the implications of this case now going forward, as you see it? Will this case have implications for other cases that are now pending in the courts? Does it affect litigation of cases coming down the pike?
David: It does, and I think it has implications, several, both narrow and both broad. What I mean by that is, the initial implications are for these prayer practices that have gone on since the founding of our country.
What’s interesting about Doug’s response regarding the sham, according to him then, our history is a sham, because if you look at the prayers going back hundreds of years. Here, we had several non-Christian prayers. At the beginning of our country, there were probably none. In fact, record is there were none for decades and decades and decades. I guess that was a sham, too. I certainly take issue with that [crosstalk 00:24:33]. I’ll let you talk, Doug, it’s my turn to talk now.
I think what’s more important, though, here, is that this same policy, regardless of what Doug thinks was going on, if you put it in place in New York City, you’re going to get way more diversity than you’ll get in Greece, New York. That’s the point. The policy has to go across state lines, county lines, and apply constitutionally wherever it is. Sure, some areas you may get 99, 100 percent Christians. Some areas you may get 20 percent. That’s the great thing about this policy, because everyone’s allowed in. The facts are, no one’s ever been denied. You’re going to get that equilibrium or that equal treatment wherever you go, and that’s important.
Going back to the question, I think there are implications, not only for legislative prayer, because it’s been under challenge for decades now, not only beginning with the Marsh opinion, but all the challenges that have come, to try to impose this so-called non-sectarian requirement.
I appreciate Doug’s honesty when he said what the plaintiffs really wanted was no prayer at all. Because when you go to a non-sectarian prayer, you end up with no prayer at all. There is no such thing as praying to a generic god, or praying to a secular prayer. In fact, Doug was asked at the oral arguments, “Is there a prayer that would be acceptable to all?” His response was very candid. He said, “No, in fact you’d have to leave out the atheists,” which was one of his clients. “You’d have to leave out the polytheists.” So there is no such thing as a non-sectarian prayer that would please everyone, and I think that’s what the court noticed in its opinion.
I think the case will have implications, too, for general Establishment Clause proceedings. I think the coercion test has now gained a little bit of strength, and I think that the endorsement test has been a little bit weaker, based on the majority and concurring opinions here.
Bob: Okay. Doug, I didn’t know if you wanted to get in a response there, you were starting to say something.
Douglas: There was no pretense that the opportunity to give prayers was open to the whole public until quite recently, when it emerged as a response to court decisions that said government is to be neutral as between different religious faiths. Yeah, there was no sham 200 years ago in the first Congress; they never claimed that it was open to everybody. But the claim that it was open to everybody in Greece was largely a sham, invented for the litigation, and it existed only through 2008. We’ll see if anything can be made of it, going forward, if anyone else actually gets to have the prayer.
There is something to the point about local variation, but what that means is, local minorities will be oppressed. Local minorities will not be able to participate in government without participating in the majority’s prayer exercise, and that majority is nearly always going to be Christian, and either it will be tolerant or it won’t be, but religious minorities will have to submit to whatever it imposes at government meetings, and we think that’s a problem.
Bob: We’re just about out of time for today’s show, but I want to give each of you an opportunity to give us your closing thoughts on Greece v. Galloway, and also invite you to let our listeners know how they can follow up with you, or find out more about your work. Doug Laycock, let’s start with you.
Douglas: I think we’ve covered the most important points. City council meetings are a coercive environment, where citizens are actively participating or about to stand up and ask their government to do something for them. They’re not in a position to visibly refuse to participate in a prayer, and they’re not in a position to walk out during the prayer and walk back in.
People should be entirely free to pray however they like, and I’ve done a lot of religious free-speech and free-exercise litigation for churches and conservative believers, but the government is to be neutral among religions, and as Justice Kagan said, when we go to our city council to petition for redress of grievances, we don’t go as a Christian or a Jew or Muslim or a Sikh, we go as Americans, and they should not have somebody else’s religion stuffed down their throat just before they ask the city council to solve their problem for them.
Bob: Thank you very much. Is there a good way for our listeners to follow up with you, or find out more about what you’re up to?
Douglas: You can always go to the University of Virginia web site and find me there if you forget the email, but the email is dlaycock, D-L-A-Y-C-O-C-K, @Virginia.edu.
Bob: Thank you very much. David Cortman, your final thoughts?
David: I think, of course, we’re thrilled at the court’s decision that they’ve affirmed this 200-year-old practice of public prayer, and importantly, that the prayer-givers cannot be censored in those prayers and remain free to pray according to their beliefs, whatever they happen to be, and the principle that mere offense by someone does not create a constitutional crisis.
As the court said, and I think this is important, we think that adults can tolerate, and perhaps even appreciate, a prayer delivered by a person of a different faith. I think that’s the main theme is, we need to learn better how to tolerate diversity and to make sure that when we hear something we disagree with, we follow it up with more speech and not censorship.
Bob: Thanks. Any follow-up information, contact information you’d like to provide our listeners?
David: Sure, absolutely. They can reach us at alliancedefendingfreedom.org, and there’s a specific web site to this case called freetopray.com, and they can get all the history and what’s gone on in the case. Or they can contact us at 1-800-TELLADS, that’s T-E-L-L-A-D-S.
Bob: All right. Well, Douglas Laycock, University of Virginia School of Law, and David Cortman, Alliance Defending Freedom, thank you both very much for your time and sharing your thoughts with us today. Thanks for being with us, and we will be back in two weeks with another edition of Lawyer 2 Lawyer, and my co, Craig Williams, will be back with us at that time. Thanks for listening, and remember, when you want legal think, Lawyer 2 Lawyer.
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