[00:00:00] Speaker 04:
Good morning, everyone, and welcome to the Ninth Circuit.

[00:00:03] Speaker 04:
I apologize for my ghoulish look on the screen, but there's a very bright light that shines through this time of day.

[00:00:10] Speaker 04:
But trust me, I'm not normally this pale.

[00:00:14] Speaker 04:
And with that, like I said, we have the one matter of the day, 20 minutes each side, Oregon right to life.

[00:00:21] Speaker 04:
Council, we did send out the supplemental briefing.

[00:00:25] Speaker 04:
I wanna thank you both for turning that around quickly.

[00:00:28] Speaker 04:
And with that, counsel for appellant, you may proceed when ready.

[00:00:35] Speaker 01:
Thank you, Your Honor, and may it please the court.

[00:00:38] Speaker 01:
My name is Jim Bopp.

[00:00:39] Speaker 01:
I represent Oregon Right to Life, the plaintiff and appellant in this matter.

[00:00:45] Speaker 01:
First, I'd like to thank you for postponing the argument from Thursday as I was appointed an IU trustee, which is a huge honor, but an awesome responsibility.

[00:00:57] Speaker 01:
We approved a $4.5 billion budget, never quite spent that much money before.

[00:01:04] Speaker 01:
But I appreciate you accommodating me on that.

[00:01:08] Speaker 01:
I would appreciate reserving five minutes for rebuttal.

[00:01:12] Speaker 01:
Very well.

[00:01:14] Speaker 01:
This is a free exercise challenge to Oregon's abortion insurance coverage mandate as applied to Oregon Right to Life.

[00:01:23] Speaker 01:
The district court upheld the mandate, refusing a preliminary injunction and dismissing the case from which we have appealed.

[00:01:33] Speaker 01:
We believe the district court's analysis was erroneous in numerous respects, beginning with the district court's doubting that organ right to life subjections were sincerely religious.

[00:01:49] Speaker 01:
The court, I think, misapplied the standards for judging sincerely religious beliefs with respect to their sincerity.

[00:02:01] Speaker 01:
First, the Supreme Court's been very clear that a person's assertion that a belief is based upon religious, has a religious basis is to be given, quote, great weight, end of quote, quote, quote.

[00:02:18] Speaker 01:
And these religious beliefs include moral or ethical beliefs of right and wrong, but does not include purely philosophical beliefs.

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There are numerous assertions in the record by Oregon Right to Life that their belief in the sanctity of individual human life and opposition to abortion is based upon religious tenets.

[00:02:43] Speaker 01:
Complaint paragraphs 14, 16 through 19, 30 through 34 are examples of those assertions.

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Furthermore, the bylaws of Oregon Right to Life specifically deal are based upon and their activities are based upon traditional Judeo-Christian ethics.

[00:03:07] Speaker 01:
And finally, they use religious terminology when they talk about

[00:03:12] Speaker 01:
their view on human life and it's by using the phrase sanctity rather than a secular term such as inherent value.

[00:03:24] Speaker 04:
So council, let me jump in because let's say for just the purposes of argument, let's say we agree with you on this point that the district court missed this issue and that you're correct.

[00:03:37] Speaker 04:
What do we do next?

[00:03:39] Speaker 04:
Do we have to reach the other issues in this case?

[00:03:42] Speaker 04:
Or is that enough to say, time out, we got to start this whole thing over because you started off on the wrong lane effectively.

[00:03:51] Speaker 01:
I understand you have a lot of discretion in how you deal with issues that are raised on appeal.

[00:03:59] Speaker 01:
The district court did reach the question of whether or not rational basis applies to the mandate and found that the

[00:04:09] Speaker 01:
uh, mandate was, uh, was neutral and generally applicable and, uh, and passed, uh, rational basis scrutiny.

[00:04:19] Speaker 01:
Uh, there's a matter of course, judicial economy here.

[00:04:23] Speaker 01:
Uh, district courts already considered the next step as you correctly described it.

[00:04:29] Speaker 01:
And, uh, and we believe got it wrong and to preserve both your time and the district court's time, it seems

[00:04:37] Speaker 01:
uh, appropriate, but you know, that's your decision, uh, to reach that issue.

[00:04:42] Speaker 01:
And we would urge you to do that.

[00:04:44] Speaker 04:
So fair enough.

[00:04:46] Speaker 04:
So you're thinking is that in some respects, the second issue, I'll call it the Catholic charities issue.

[00:04:54] Speaker 04:
Second issue is more central to this case in the first issue.

[00:04:58] Speaker 04:
I take it is what you're saying.

[00:05:00] Speaker 01:
I think it is.

[00:05:01] Speaker 01:
And I think, uh, uh,

[00:05:05] Speaker 01:
I respect the district court, but I think respectfully they got that quite wrong, that it's really a preliminary issue.

[00:05:17] Speaker 01:
And the central issue is whether or not it is entitled to rational basis review.

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And we would appreciate if you'd agree to that.

[00:05:30] Speaker 01:
Now, going to that issue,

[00:05:33] Speaker 01:
There are three bedrock principles.

[00:05:36] Speaker 01:
The measure cannot allow for individualized exceptions to the rule, and the federal funds preservation exception does that.

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Secondly, it cannot treat comparable secular activities more favorably than comparable religious activity.

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And both the grandfather

[00:06:01] Speaker 01:
exception and the federal funds exception does that because both are based on secular reasons.

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And the third is it cannot show hostility to some religious beliefs.

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And of course, that's the religious employer exception, which the state, the director correctly characterizes as principally involving churches.

[00:06:25] Speaker 01:
Now,

[00:06:26] Speaker 01:
looking at the grandfather accept grandfathered exception and that is for plans in effect during 2017 which excluded abortion of course that in our view is not either neutral or general it is based on that exception is based on purely a secular reason or basis that it was in the plan was in effect in

[00:06:56] Speaker 01:
17, it then treats those plans based upon secular conduct more favorably than comparable religious conduct, which is the exception, the exact similar exception that Oregon Right to Life believes they're entitled to based upon their religious beliefs.

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And finally,

[00:07:21] Speaker 01:
It does not just benefit a religiously based organization, which would be Providence's healthcare plan.

[00:07:29] Speaker 01:
In fact, as conceded by the state, there was a Samaritan healthcare plan that was also in effect in 2017.

[00:07:39] Speaker 01:
It is also exempt, but there is nothing in the record that the Samaritan exception, that is it didn't cover abortion, was based on any religious

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exemption or purposes or reasons.

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So, you know, that was a purely secular decision based by Samaritan, but it benefits from the grandfather exception.

[00:08:06] Speaker 01:
The next is the religious employer exception.

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And of course, to see what that means, the statute cites a definition of religious employer,

[00:08:19] Speaker 01:
which had the following criteria, whose purpose is the inculcation of religious values.

[00:08:27] Speaker 01:
Well, if you look at that generally, that's not what Oregon Right to Life does.

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It doesn't talk about immaculate conception and all the different things that could be involved in religious values.

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But it does focus on protecting innocent human life, which they do believe is

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as is based upon their religious beliefs.

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And so if you narrow this to just their view on the sanctity of individual human life, I guess you would say they didn't meet this purpose.

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The second is, but it's big, we don't know.

[00:09:07] Speaker 01:
The second is that it primarily employs persons who share the religious tenets of the employer.

[00:09:14] Speaker 01:
That is of course not the case.

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They do not give any kind of religious test to any of their employees.

[00:09:24] Speaker 01:
They do require adherence to their pro-life ethic.

[00:09:28] Speaker 01:
The third is primarily service persons who share the religious tenets of the employer.

[00:09:35] Speaker 01:
And of course, that's not at all applicable.

[00:09:40] Speaker 01:
They are willing to provide pro-life education and other services to absolutely anybody

[00:09:47] Speaker 01:
that seeks those services or education.

[00:09:54] Speaker 01:
So that clearly and unquestionably, the Oregon right to life does not meet.

[00:10:02] Speaker 01:
Now, as I mentioned on page one of the brief and actually several places, the director concedes that this is quote, a narrow class of religious organizations

[00:10:16] Speaker 01:
like churches.

[00:10:18] Speaker 01:
So the question is now, can we distinguish between various types of religious organizations?

[00:10:27] Speaker 01:
And certainly the Catholic Charities Bureau case just a few days ago and conclusively established that it renders an exception to be not neutral regarding religious beliefs if

[00:10:44] Speaker 01:
if it distinguishes between different types of religious organization.

[00:10:50] Speaker 01:
Now, Oregon, in the Oregon definition of religious employer, of course, as I mentioned, they mentioned the religious employer is a not-for-profit employer whose purpose is the inculcation of religious values and that primarily employs and serves persons who share

[00:11:13] Speaker 01:
the religious tenants of the employer.

[00:11:15] Speaker 01:
Now, the definition of a protected religious entity in Wisconsin, it was considered in the Catholic Charities case, involved the requirement that the organization proselytize or serve only coal religionists, really identical to organs,

[00:11:42] Speaker 01:
and to limit services to church members, which is also identical to Oregon's requirements.

[00:11:50] Speaker 01:
Well, in Catholic charities, the unanimous US Supreme Court said that this is, quote, that this consideration is inherently, that these are inherently religious choices, which renders the mandate non-neutral because it, quote, facially

[00:12:11] Speaker 01:
discrete differentiates between religions based upon theological choices, end of quote.

[00:12:19] Speaker 01:
So it seems pretty conclusively established in our opinion that limiting the religious employer exception to only basically churches renders that exception to be not neutral, not generally applicable, and therefore renders the entire

[00:12:41] Speaker 01:
mandate unconstitutional.

[00:12:45] Speaker 01:
And of course, the other point raised by the states about that language in Catholic charities is whether or not that rationales limit only to establishment cases, but also would apply to free exercise cases.

[00:13:02] Speaker 01:
Well, that is addressed on page 890 of the Catholic Charities case, where the court said the establishment clauses

[00:13:12] Speaker 01:
prohibition of denominational preferences is intrinsically connected with the continuing vitality of the free exercise cloth.

[00:13:26] Speaker 01:
So they said, in our view, quite clearly that this notion that you cannot discriminate between

[00:13:40] Speaker 01:
religious organizations based upon their theological choices and what kind of theological activities they wish to engage in is applicable to the religious clauses generally, both the establishment and free exercise clause.

[00:14:01] Speaker 01:
The final exception is the federal funds exception.

[00:14:05] Speaker 01:
And this is an exception granted

[00:14:09] Speaker 01:
when it is necessary to preserve federal funds, they will give an exception to the mandate.

[00:14:19] Speaker 01:
Well, this is a case, you know, this problem with this is number one, that is a secular reason, whether or not you're gonna preserve federal funds.

[00:14:30] Speaker 01:
And of course, to organizations that, you know, they wanna preserve the federal funds, which is a secular reason will be granted

[00:14:39] Speaker 01:
exception from the mandate, but not people based upon their religious objection.

[00:14:45] Speaker 01:
Secondly, it provides for an individualized exception, because there has to be a case-by-case determination of the following items.

[00:14:56] Speaker 01:
First, whether the mandate may affect the availability of the federal funds.

[00:15:02] Speaker 01:
And secondly, whether or not to grant

[00:15:07] Speaker 01:
to actually grant the exception.

[00:15:09] Speaker 01:
And of course, there are no criteria established to make that individualized determination in the statute.

[00:15:19] Speaker 01:
So it fails on the basis of this standardless individualized exception.

[00:15:30] Speaker 01:
So really all three exceptions are wanting

[00:15:36] Speaker 01:
And we only have to demonstrate one of them.

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And certainly we view all of them to be such.

[00:15:44] Speaker 01:
The final thing which you might, I think you must reach is the fact that the case was dismissed.

[00:15:53] Speaker 01:
So it's not just, so that seems like maybe the real threshold decision.

[00:16:00] Speaker 01:
It wasn't proper to dismiss the case.

[00:16:03] Speaker 01:
and then you would turn to the issues surrounding the preliminary injunction.

[00:16:08] Speaker 01:
And in that one, it's pretty short and pretty simple, it seems to us.

[00:16:15] Speaker 01:
The district court dismissed the case based upon the determinations that were made in consideration of the preliminary injunction.

[00:16:25] Speaker 01:
And however, there are different standards in preliminary injunction determinations from dismissal determination.

[00:16:33] Speaker 01:
The district court focused on whether any facts were disputed, which is something you would consider in a preliminary injunction.

[00:16:43] Speaker 01:
But with respect to the dismissal, it's whether the claims are plausibly suggested by the facts alleged.

[00:16:53] Speaker 01:
In other words, you look at the complaint, you don't look at other facts in the record that would contradict these assertions, you just look

[00:17:02] Speaker 01:
purely at the assertions to determine whether a plausible claim has been suggested by the facts alleged.

[00:17:10] Speaker 01:
So you can't bootstrap a dismissal on preliminary injunction findings.

[00:17:19] Speaker 01:
There's separate legal standard and you could lose a preliminary injunction without having a case dismissed because the standards are different and I thought that should

[00:17:31] Speaker 01:
certainly have been the result in our opinion here.

[00:17:34] Speaker 01:
Well, I thank you for permitting me to argue remotely and not last Thursday.

[00:17:42] Speaker 01:
And I look forward to any rebuttal I might have.

[00:17:45] Speaker 04:
Unless my colleagues have any questions, it doesn't look like it.

[00:17:48] Speaker 04:
Okay, we'll go ahead and reserve the remainder of the time for rebuttal.

[00:17:51] Speaker 04:
Thank you, Mr. Price.

[00:17:53] Speaker 04:
Mr. Whitehead, you may proceed when ready.

[00:17:58] Speaker 02:
May it please the Court, Council, Carson Whitehead for defendant Andrew Stolfi, Director of the Oregon Department of Consumer and Business Services.

[00:18:08] Speaker 02:
So I'd like to start out with the procedural posture of this case, because I think that does matter.

[00:18:13] Speaker 02:
And the first issue to resolve is whether the district court correctly granted defendants motion to dismiss.

[00:18:23] Speaker 02:
So we're not here primarily on the preliminary injunction.

[00:18:26] Speaker 02:
We're here first

[00:18:27] Speaker 02:
On the motion to dismiss and I think only if this court determines that the district court aired in granting the motion to dismiss.

[00:18:35] Speaker 02:
Does it need to get to any of the issues.

[00:18:37] Speaker 02:
raised by the preliminary injunction appeal.

[00:18:42] Speaker 02:
And we very much dispute that the district court applied an incorrect legal standard.

[00:18:49] Speaker 02:
We filed a motion to dismiss based on the complaints failure to state a claim purely on legal grounds that the Reproductive Health Equity Act

[00:18:59] Speaker 02:
is a neutral law of general applicability, which is a legal question, and that it does survive rational basis review on the facts as alleged in the complaint.

[00:19:10] Speaker 02:
So there are no disputes of fact here.

[00:19:12] Speaker 02:
The issue is whether as a matter of law, the RHEA is a neutral law of general applicability under Smith, and then whether it survives rational basis review, which we think it easily does.

[00:19:31] Speaker 02:
So in this as applied challenge, plaintiff Oregon right to life argues for an extraordinarily broad construction of the free exercise clause, one that effectively requires a religious exemption for anyone who objects to a state policy whenever the law includes exemptions, including exemptions that accommodate religious belief.

[00:19:52] Speaker 02:
The free exercise clause does not require that result.

[00:19:56] Speaker 02:
Here, the RHEA contains exemptions that operate to accommodate religious belief.

[00:20:02] Speaker 02:
First, the exception for religious employers permits an insurer to offer plans that exclude coverage for abortion and contraception to a narrow class of religious employers such as churches.

[00:20:13] Speaker 02:
As we said in the brief and we agree with the plaintiff's characterization that it is a narrow class.

[00:20:20] Speaker 02:
closely to entities like churches, perhaps seminaries, those that train individuals.

[00:20:25] Speaker 03:
Council, assuming that we're going to write to life as religious, so that's a whole separate question, but let's assume that, which I think that's what you're doing right now.

[00:20:35] Speaker 03:
I'm not asking you to concede that, but asking you to assume it.

[00:20:41] Speaker 03:
Your argument that Oregon does give some religious exemptions, but if they're not giving it to this religious organization, then

[00:20:52] Speaker 03:
then the obvious inference that follows from that is, well, you're discriminating between, or Oregon is discriminating between religions, maybe not invidiously, often that doesn't happen.

[00:21:06] Speaker 03:
When I used to, when I worked for the state of Nevada and we did prisoner cases involving religious claims, oftentimes the prison wasn't trying to discriminate invidiously, they were trying to actually accommodate a religion, but as soon as they'd accommodate one religion, then some other religions said, we need to accommodate, if you're gonna give

[00:21:22] Speaker 03:
the Jewish inmates kosher food, you need to give the Muslim inmates halal food, you know, that, that sort.

[00:21:27] Speaker 03:
So where is the line?

[00:21:29] Speaker 03:
I mean, I, in your briefing and, and, and this morning you, you, you emphasize that, you know, we are trying to accommodate some religions, but where is, but then if you assume that Oregon right to life is religious, um, at religious entity, you're not accommodating their religious concerns.

[00:21:48] Speaker 03:
And so how do we,

[00:21:50] Speaker 03:
What is the line that you're proposing that it is where you can accommodate some but not others and it doesn't cross over into the type of discrimination that I think recently the Supreme Court in the Catholic Charities case was concerned about?

[00:22:03] Speaker 02:
So your honor, I have a preliminary answer to that is that one is that as I pointed out in the supplemental briefing plaintiffs conceded in their complaint or they alleged in their complaint that this very accommodation was an appropriate one under the establishment.

[00:22:22] Speaker 02:
clause and Catholic charities.

[00:22:25] Speaker 02:
The religious employer accommodation specifically.

[00:22:30] Speaker 02:
So the religious employer exemption that narrowly applies to churches.

[00:22:35] Speaker 03:
I was so confused by that because, let's say I'm a Muslim prisoner and I could say, no, I think it's appropriate to accommodate the Jewish prisoners and give them kosher food.

[00:22:48] Speaker 03:
I don't think it's inappropriate for you to have done that.

[00:22:51] Speaker 03:
I just think that

[00:22:52] Speaker 03:
you should also give me my halal food.

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And if you don't, then that's inappropriate.

[00:22:58] Speaker 03:
So I don't understand where it's necessarily a concession on their part that affects their case to say, yeah, we're really glad you gave this accommodation.

[00:23:08] Speaker 03:
We just think that if you did that, you also need to do this too.

[00:23:12] Speaker 02:
So I think that matters because I think neutrality under

[00:23:18] Speaker 02:
the Free Exercise Clause cases and neutrality under the Establishment Clause cases have meant somewhat different things.

[00:23:29] Speaker 02:
Of course, those two clauses in the First Amendment are related, but the Free Exercise Clause is

[00:23:38] Speaker 02:
is concerned with the state disfavoring religious practice.

[00:23:42] Speaker 02:
And the Establishment Clause is concerned, as Catholic Charities just discussed, is about the state expressing denominational preference between religions.

[00:23:53] Speaker 03:
And so I think the emphasis- I assume, yeah, I saw your supplemental brief kind of lay that out.

[00:24:00] Speaker 03:
The challenge with that is if you actually, you know, at first I read Catholic Charities, the majority opinion, and

[00:24:06] Speaker 03:
you know, it was notable that they tend to refer to it as the religion clauses, plural, right?

[00:24:12] Speaker 03:
That's how they refer to it.

[00:24:14] Speaker 03:
And so that got me thinking, well, which is it?

[00:24:17] Speaker 03:
You know, because you had said in your supplemental brief that it was establishment clause.

[00:24:20] Speaker 03:
So then I went and looked at Catholic Charities merits briefs to the Supreme Court, and Catholic Charities at least made

[00:24:28] Speaker 03:
the argument at length that this is not a free exercise.

[00:24:31] Speaker 03:
This is not establishment clause.

[00:24:32] Speaker 03:
It's both, you know, and they actually go through and they say, these are your free exercise cases.

[00:24:37] Speaker 03:
These are your establishment.

[00:24:38] Speaker 03:
These are your both cases.

[00:24:39] Speaker 03:
And they, so I'm not in a Supreme Court.

[00:24:41] Speaker 03:
There seems to be language in Catholic Charities that says that.

[00:24:44] Speaker 03:
So your, your, your attempt to sort of parse it off in the two different worlds.

[00:24:49] Speaker 03:
Don't you feel like that kind of runs into the language in Catholic Charities that, that itself says that, well, it kind of both.

[00:24:56] Speaker 02:
Well, respectfully, Your Honor, I think the wording of Catholic Charities focuses very much on the Establishment Clause, and that it does say, of course, the two clauses are related to the extent that if the government is showing

[00:25:10] Speaker 02:
preference for one religion under the Establishment Clause.

[00:25:14] Speaker 02:
It's, you know, kind of subtly maybe, or to some degree showing a preference.

[00:25:19] Speaker 03:
Shining Parsons says the Establishment Clause's prohibition of the nominal preferences is inextricably connected with the continuing vitality of the Free Exercise Clause too.

[00:25:30] Speaker 03:
I mean, and so that seems to cut directly against your, you trying to put it in these two boxes.

[00:25:36] Speaker 02:
I think at a very high level of generality, of course, the two clauses are connected.

[00:25:41] Speaker 02:
But I think if you take the notion that Catholic Charities is saying that if an accommodation for religious practice that draws some potential distinction on establishment clause grounds, then that can show a lack of neutrality under the free exercise case law.

[00:26:04] Speaker 02:
I think that would be a very

[00:26:05] Speaker 02:
a subtle way for the Supreme Court to undermine the entire framework of her exercise cases, and I don't think that was intended in Catholic Charities.

[00:26:14] Speaker 03:
I understand that, but why is that?

[00:26:18] Speaker 03:
Why does taking this anti-discrimination principle, not just between religion and the secular, but also between religions,

[00:26:26] Speaker 03:
And seeing it under free exercise, why does that hurt the free exercise class?

[00:26:31] Speaker 02:
I think it makes it very difficult because if the law is going to have accommodations for religious belief, there has to be some way of determining what a religious belief is or what

[00:26:41] Speaker 02:
groups qualify under that exception.

[00:26:44] Speaker 02:
And this is something I think the courts have struggled with going back to the cases in the late 19th century all the way up through incorporation of the protections of the First Amendment to the states of how you draw that line where a law is an appropriate accommodation for religious free exercise and maybe even some cases required by the First Amendment

[00:27:05] Speaker 02:
and then, but not tip over into the realm of the law being an inappropriate preference for religion.

[00:27:14] Speaker 02:
And so I think there has to be, it can't just be saying, well, this, the law talks about religion and provides an accommodation, therefore you jump to strict scrutiny.

[00:27:23] Speaker 02:
And so I'm not sure where the line would be for Oregon Right to Life because, you know, in this case we have, it's an as applied

[00:27:33] Speaker 02:
Pre exercise challenge for a group that meets none of the requirements for the religious employer exceptions.

[00:27:40] Speaker 02:
So they're not they don't seek to inculcate religious values.

[00:27:44] Speaker 02:
They are not one of the nonprofit organizations set out in the Internal Revenue Code.

[00:27:50] Speaker 02:
So they're not a church or an auxiliary of a church and they're not

[00:27:55] Speaker 02:
and a religious order organized for exclusively religious purposes.

[00:27:59] Speaker 02:
So they don't meet any of those requirements.

[00:28:02] Speaker 02:
And I think what their supplemental brief suggests is that any of those requirements standing alone is enough to subject a lot of strict scrutiny under the free exercise clause.

[00:28:11] Speaker 02:
And I think that's enormously problematic because it would suggest that say that the long standing clauses in the Internal Revenue Code facially discriminate based on

[00:28:22] Speaker 03:
If I understood correctly, when I looked at all the briefing in the Catholic Charities case, I mean, that was something that people were conducting the government, the federal government filed briefs and stuff.

[00:28:34] Speaker 03:
I think that was their concern was that in the Catholic Charities case, that may be a real concern, but I'm just struggling to see

[00:28:46] Speaker 03:
I mean, if you were to say just fundamentally, if you are an evangelical, I'm not using the capital E, but you are a type of religion that evangelizes, then you get the exception.

[00:28:59] Speaker 03:
If you are a type of religion that does not evangelize, you don't get the exception.

[00:29:05] Speaker 03:
Is that problematic in your view or not?

[00:29:07] Speaker 02:
I think that would be very problematic under Catholic charities, but again, I don't think we get there on this case because it's, I mean, Oregon Right to Life does none of those things and we're in the posture of an as-applied challenge.

[00:29:19] Speaker 03:
So that's an argument on the first issue that we were kind of assuming that, you know, whether they're actually a religious entity.

[00:29:28] Speaker 02:
respectfully, your honor, I think that only you can only assume that they have and what the state acknowledges for purposes of the motion to dismiss is that yes, they have a religious belief and that religious belief is burdened by this law.

[00:29:41] Speaker 02:
I mean, we did we dispute their PI showing on that point.

[00:29:44] Speaker 02:
But I don't think we can as you can't assume that they meet any of

[00:29:49] Speaker 02:
the organizational requirements for their religious employer exception.

[00:29:52] Speaker 02:
In fact, they, they stand their complaint that they didn't apply because they don't meet those.

[00:29:56] Speaker 02:
And so I, I, I think that, you know, maybe I, maybe I misspoke.

[00:30:01] Speaker 03:
I meant that you, we were, I was assuming that they would meet whatever the standard is to be religious for purposes of the free exercise class, the first of them, not, not right.

[00:30:12] Speaker 03:
So I think everybody agrees they don't meet.

[00:30:16] Speaker 03:
organs religious entity exception.

[00:30:20] Speaker 02:
So what I think that I think that means for this case is that it makes it very that they're not

[00:30:26] Speaker 02:
facts to kind of talk about those nuanced distinctions.

[00:30:30] Speaker 02:
Like the Catholic Charities, I think, again, was an as-applied challenge with a very developed record about that the Catholic Charities organization in that group was doctrinally prohibited from proselytizing in their provision of services.

[00:30:45] Speaker 02:
They could evangelize during those services, during those provision of services, meaning they would kind of tell their personal stories, but they couldn't actively try to make converts.

[00:30:54] Speaker 02:
And those sorts of distinctions that were about

[00:30:56] Speaker 02:
the very specific religious beliefs of Catholic charities as opposed to other religious groups that would qualify under the exception.

[00:31:05] Speaker 02:
I think those facts really mattered for the development of the case below and they also really mattered to the unanimous decision from the Supreme Court because

[00:31:16] Speaker 02:
you know, that record, I think quite clearly showed that if you had say a, a traditional, you know, a, a, a church that, that engaged in more proselytizing, whatever that, that church might be, say a Protestant denomination that always proselytized when it, you know, handed out, when it, when it operated a soup kitchen and you had Catholic charities who did not proselytize when it operated a soup kitchen, that the,

[00:31:41] Speaker 02:
the Protestant denomination would get the exception and the Catholic one would not.

[00:31:46] Speaker 02:
And we don't have any facts like that in this case to suggest that.

[00:31:51] Speaker 03:
I guess I'm struggling with that because I thought that a fact in this case is that Oregon Right to Life says that they, for instance, that they'll hire non-religious people.

[00:32:03] Speaker 03:
But as I understand your religious exemption requirements, it would, you'd have to,

[00:32:09] Speaker 03:
basically hire your own adherence, right?

[00:32:12] Speaker 03:
And then you'd have to serve your own adherence, whereas Oregon Right to Life, kind of like Catholic Charities, goal is to sort of serve anybody.

[00:32:19] Speaker 03:
It's to take and sort of, so I, isn't there some, some similarity there?

[00:32:24] Speaker 03:
Or is your argument that there's similarity, but it's not defined enough?

[00:32:29] Speaker 03:
But if that's the case, then how can you win it at motion dismiss stage?

[00:32:34] Speaker 02:
Well, I think it's,

[00:32:36] Speaker 02:
it's not just that there's, there's not enough similarity there.

[00:32:39] Speaker 02:
It's that they wouldn't like, I don't think potentially that this court or any court should reach that question because they obviously don't qualify like under the internal revenue provisions because they're, they're not as closely associated with another church.

[00:32:52] Speaker 02:
And so it's in terms of like getting to a, a theological or doctrinal difference that shows discrimination in this case.

[00:33:03] Speaker 03:
That is it.

[00:33:04] Speaker 03:
Hobby lobby.

[00:33:05] Speaker 03:
You know, it wasn't affiliated with a church, right?

[00:33:08] Speaker 03:
You know, it wasn't but yeah, it was still religious enough to be and so then if you were somehow to to discriminate against a religious organization like Hobby Lobby was determined to be by the Supreme Court because of its

[00:33:24] Speaker 03:
because Hobby Lobby didn't evangelize when you go in to buy whatever it is my wife buys at Hobby Lobby.

[00:33:30] Speaker 03:
They didn't try to evangelize you, whereas if that was the basis, then it seems like that's Catholic Charities, right?

[00:33:41] Speaker 02:
doesn't have much play here because that was a riffra case of understanding that that wasn't an establishment cause case.

[00:33:47] Speaker 02:
It's not constitutional.

[00:33:48] Speaker 02:
And so that case jumped straight to effectively, you know, the statutory version of strict scrutiny under federal law.

[00:33:56] Speaker 02:
And so we don't have that overlay here.

[00:33:58] Speaker 02:
And we're squarely in the world of under Employment Division versus Smith, which is the applicable framework and under, you know, this court's discussion of Smith in Fellowship of Christian Athletes and in Tingley,

[00:34:12] Speaker 02:
How did those requirements for neutrality and general applicability play out when you have exceptions built in to a law?

[00:34:22] Speaker 02:
And I think what those cases all get to is the neutrality requirement.

[00:34:28] Speaker 02:
Are there departures for neutrality that suggest hostility, even I think subtle departures of neutrality?

[00:34:34] Speaker 02:
That's enough under Fulton.

[00:34:37] Speaker 02:
Are there, I mean, sorry, under Masterpiece Cake Shop?

[00:34:41] Speaker 02:
Are there, you know, individualized exceptions that are discretionary in a way that undermines the state's, the general applicability?

[00:34:51] Speaker 02:
You know, are there requirements ultimately that suggest the government is disfavoring religion?

[00:34:59] Speaker 02:
And as for these exceptions, we just don't have that.

[00:35:03] Speaker 02:
You know, they are fundamental.

[00:35:05] Speaker 00:
Council, excuse me.

[00:35:06] Speaker 00:
This is Judge Schroeder.

[00:35:07] Speaker 00:
I just wanted to ask you a question.

[00:35:09] Speaker 00:
I think I understand your answer there, but I was wondering if you could comment on our decision in Stormans versus Weisman and whether you think it applies in any way or whether it has been affected by Catholic charities.

[00:35:25] Speaker 02:
We talk about storesmen extensively in our briefing.

[00:35:29] Speaker 02:
I don't see that Catholic charities overrules any portion of storemen.

[00:35:35] Speaker 02:
So I think that decision is certainly still binding circuit precedent.

[00:35:41] Speaker 02:
And so all the discussion of that case in our brief is still good law.

[00:35:46] Speaker 02:
And I think ultimately this case presents similar questions to Stormans and Stormans hasn't been affected by subsequent free exercise cases from this court either.

[00:35:58] Speaker 04:
Council, let me follow up on a question to there.

[00:36:02] Speaker 04:
So opposing council yesterday filed a 28 J letter showing the Supreme Court has been GVRing a number of these cases.

[00:36:13] Speaker 04:
Seeing that's what they're doing,

[00:36:16] Speaker 04:
shouldn't we effectively do that in this case to the district court to allow the district court and to the parties to fully consider what relevance of any this new case Catholic Charities has on our case here?

[00:36:29] Speaker 02:
Well, I'm not aware of a Ninth Circuit practice that's that's that analogous to a GVR.

[00:36:36] Speaker 02:
I mean, I think it is very common for the Supreme Court to GVR a case, but that's not a decision on the merits.

[00:36:41] Speaker 02:
And I don't think that

[00:36:43] Speaker 02:
that it's appropriate for the court to look at the GVR?

[00:36:47] Speaker 04:
I don't mean that we look at it to say, oh, they're holding this, they're holding that.

[00:36:54] Speaker 04:
Look, fair point.

[00:36:55] Speaker 04:
I think in the 28 J letter, they state we should read in a certain holding in the GVR.

[00:37:00] Speaker 04:
I'm not sure that I agree with that.

[00:37:02] Speaker 04:
But the Supreme Court is effectively saying do these over.

[00:37:06] Speaker 04:
And if they're saying do it over, shouldn't we do it over?

[00:37:11] Speaker 02:
Well, you know, I'm not sure.

[00:37:13] Speaker 02:
I mean, I'm trying to think of how you would overturn to say to the district court, you got it wrong on your motion to dismiss and do this over based on Catholic charities again, because I think this case just doesn't really raise the Catholic charities.

[00:37:33] Speaker 02:
issue, so not notwithstanding the Supreme Court's practice in GVR in cases, maybe a bit expansively, I don't think that would be appropriate here when you have a ruling teed up on the motion to dismiss that I think is that this court can exercise de novo review and say yes or no.

[00:37:52] Speaker 02:
I mean, it could certainly consider the effect of Catholic charities on that, but I don't know that kicking it back, you know, with

[00:38:01] Speaker 02:
reversing kind of in the same way as a GVR would be appropriate and the state would ask that you not do that.

[00:38:07] Speaker 04:
Let me ask a question I asked opposing counsel at the beginning.

[00:38:11] Speaker 04:
I know we're over time and that's my fault.

[00:38:14] Speaker 04:
I'm not yours.

[00:38:16] Speaker 04:
So he began by talking about the district court's assertion that this was not a sufficiently religious organization.

[00:38:26] Speaker 04:
I'm not getting the terminology quite right, but effectively that's what they said.

[00:38:29] Speaker 04:
If we disagree with that,

[00:38:32] Speaker 04:
What happens in this case?

[00:38:33] Speaker 04:
Let's say that's the issue we start with and we say this report got off on the wrong track from the beginning.

[00:38:40] Speaker 02:
What should we do?

[00:38:43] Speaker 02:
So there are two rulings from the district court in front of you, the motion to dismiss, and that does not depend on the ruling about the religious nature of the beliefs.

[00:38:53] Speaker 02:
And then on the preliminary injunction ruling, we argued below that their preliminary injunction showing just wasn't sufficient on the facts, and we walked through those facts in the brief.

[00:39:04] Speaker 02:
And that this court would review for abuse of discretion, the PI ruling, and would look at the fact findings that are contained in the PI ruling to see if they're clearly erroneous.

[00:39:13] Speaker 02:
But ultimately the court I think has to reach the motion to dismiss issues because those don't depend on the preliminary injunction.

[00:39:21] Speaker 04:
So similar actually to what opposing counsel said.

[00:39:24] Speaker 04:
At the end of the day, we gotta take on the big issue in this case.

[00:39:28] Speaker 02:
I think that's right.

[00:39:29] Speaker 02:
I think this court demands that this decision below requires this court to consider the motion to dismiss.

[00:39:37] Speaker 03:
Judge Owens, I know we're over time.

[00:39:39] Speaker 03:
Yeah, go for it.

[00:39:41] Speaker 03:
Consistent with what we were just talking about,

[00:39:44] Speaker 03:
The issue of whether or not Oregon Right to Life is a religious organization, what is the evidence that cut against that?

[00:39:56] Speaker 03:
What I saw, and I'll say what I just did,

[00:39:59] Speaker 03:
One thing to try to speed things up, what I saw, one of the main things to rely on was the, I think it was the director, some leader saying during a deposition that it couldn't think of times when it had presented itself as a religious organization or something like that.

[00:40:18] Speaker 03:
What struck me about that was that that's not really evidence that

[00:40:21] Speaker 03:
against as much as it's not evidence for, right?

[00:40:25] Speaker 03:
Like, you know, you're not conceding that there weren't times or just, and even if they weren't holding themselves out, it wouldn't necessarily be.

[00:40:31] Speaker 03:
So putting that to the side, because as I understood it, that seemed like a pretty big thing that the lower court was relying on.

[00:40:39] Speaker 03:
What other evidence was there that this entity is not a religious organization?

[00:40:47] Speaker 02:
So, again, I think on the PI, I think it's their burden to show that their beliefs are religious in nature, to then show that they have that the law, you know, imposes a constitutionally significant burden.

[00:40:59] Speaker 03:
Well, they have a little bit, you know, they have sanctity of life.

[00:41:03] Speaker 03:
Sanctity sounds religious to me.

[00:41:06] Speaker 03:
Certainly.

[00:41:07] Speaker 03:
they have the Judeo-Christian stuff in there.

[00:41:09] Speaker 03:
So, let's say that that's some, but what is weighing against that?

[00:41:12] Speaker 03:
I'm trying to figure out.

[00:41:13] Speaker 02:
So, I think their notion that they're a membership organization that has no religious test for membership, that they don't have a religious, like a requirement for any specific religious belief for their directors.

[00:41:24] Speaker 03:
Isn't that kind of true?

[00:41:24] Speaker 03:
I thought in Catholic Charities, I saw somewhere that that was true actually of even Catholic, you know, it sounds funny because their name was Catholic Charities, but that to be a

[00:41:34] Speaker 03:
to be either an employee of Catholic Charities, you don't have to be Catholic.

[00:41:39] Speaker 02:
So there are two aspects of the exception at issue in Catholic Charities, two prongs, and the first prong wasn't an issue, and that was that the nonprofit was affiliated with a religion.

[00:41:53] Speaker 02:
And so plainly like that was under control of the Catholic Diocese.

[00:41:57] Speaker 03:
So plainly Catholic Charities.

[00:42:00] Speaker 03:
So maybe that's an argument is that

[00:42:03] Speaker 03:
Oregon right to life is not has no affiliation with any religion that we would commonly like Catholic name your denomination, Muslim, Jewish, whatever it doesn't it just doesn't behind.

[00:42:15] Speaker 03:
So that's one argument is that it doesn't have.

[00:42:18] Speaker 03:
Okay.

[00:42:19] Speaker 02:
I think that's right.

[00:42:19] Speaker 02:
And I think also the nature of it as a membership organization, I believe what the their bylaws and

[00:42:25] Speaker 02:
deposition testimony bears out that anyone, you know, you can anyone with people without religious beliefs at all could be members.

[00:42:32] Speaker 03:
Let me ask you about that because it occurred to me like I was kind of again looking back at Hobby Lobby.

[00:42:37] Speaker 03:
It seemed like Hobby Lobby was was considered to be a religious type organization.

[00:42:42] Speaker 03:
I realized it was RFRA but RFRA protects religion like it does and so but it was considered to be that because the owners you could almost say happen to be the Green family.

[00:42:52] Speaker 03:
I think they were happen to be religious right like if

[00:42:55] Speaker 03:
If somebody else came in and bought Hobby Lobby, it could immediately, I guess, become non-religious.

[00:43:04] Speaker 03:
And so, does that mean much that they don't have written down that you have to be religious?

[00:43:11] Speaker 03:
If in fact, they are religious, which if I recall correctly, they've given affidavits and stuff saying, we're all religious and religion is what animates us or something.

[00:43:20] Speaker 02:
So Your Honor, the district court opinion helpfully talks about Hobby Lobby and we talk about it some in the brief and kind of pointing out kind of the differences in the evidence in Hobby Lobby, which was quite extensive and it was a closely held corporation that really had to, you know, impose like these beliefs as like as a requirement for I think the members of the board in ways that just aren't present here.

[00:43:43] Speaker 02:
So I think this case is pretty readily distinguishable from Hobby Lobby in the ways that we talk about it.

[00:43:48] Speaker 03:
It seems like your argument is

[00:43:50] Speaker 03:
that they don't require it as some sort of like criteria, like a written criteria, like you can't, to be a member of our leadership in Oregon Right to Life, you have to be religious.

[00:44:00] Speaker 03:
But if it turns out that everybody is, or the majority is, or the vast majority is, which I think is kind of their allegations, does it matter that they don't have an explicit requirement?

[00:44:09] Speaker 03:
In other words, is it possible that Oregon Right to Life could not be a religious organization, but this Oregon Right to Life is a religious organization?

[00:44:17] Speaker 03:
Or is that, does it have to be some sort of written criteria?

[00:44:20] Speaker 02:
I don't know that it has to be a written criteria, but it is a factual showing that they have to make.

[00:44:28] Speaker 02:
And so on the combination of facts that they brought forth on the PI, and that's what we think wasn't enough and what the district court marched through that evidence pretty extensively.

[00:44:39] Speaker 02:
And that kind of the key, I think, allegation and the key document was either their charter or bylaws that said they adhere to Judeo-Christian ethics.

[00:44:47] Speaker 02:
And that was kind of a broad-based

[00:44:49] Speaker 02:
ethical notion that the court didn't think and we don't think gets them to a showing of religious belief, particularly when you add in the fact that members don't have to adhere to any particular religion.

[00:45:00] Speaker 02:
There's no particular religious affiliation and there's no religious requirement for leadership.

[00:45:05] Speaker 00:
And the Jewish religion doesn't share this belief anyway.

[00:45:10] Speaker 02:
But I think if someone of Jewish heritage who had a secular opposition to abortion, they could certainly join this organization.

[00:45:20] Speaker 02:
So I'm happy to answer any other questions that the panel might have.

[00:45:24] Speaker 02:
I say I'm well over time.

[00:45:26] Speaker 04:
Yeah, and that's because you had a lot of questions.

[00:45:28] Speaker 04:
You were not slow to the draw.

[00:45:30] Speaker 04:
You were quick to the draw.

[00:45:31] Speaker 04:
You just had a lot of shots coming your way.

[00:45:33] Speaker 04:
So thank you very much, Mr. Whitehead.

[00:45:36] Speaker 04:
We'll hear from opposing counsel.

[00:45:40] Speaker 04:
Microphone, sir.

[00:45:46] Speaker 01:
There you go.

[00:45:47] Speaker 01:
You'd think this was my first Zoom call.

[00:45:50] Speaker 01:
Anyway, thank you for that.

[00:45:52] Speaker 01:
I want to look at this from the big picture.

[00:45:55] Speaker 01:
The Free Exercise Clause protects individuals to freely engage in the activities that they believe their religion requires.

[00:46:09] Speaker 01:
And the government, if they want to prohibit this, you know, there are certain tests demanded under the First Amendment.

[00:46:18] Speaker 01:
So if somebody goes to baptize someone in the Wabash River right down the street here, the Wabash River, the government can't say no baptisms in the Wabash River.

[00:46:31] Speaker 01:
Yes, you can go fishing, you can go swimming.

[00:46:34] Speaker 01:
That would be discrimination based upon religious beliefs.

[00:46:40] Speaker 01:
It does not require you to be an organization.

[00:46:43] Speaker 01:
It does not require you to be a church

[00:46:47] Speaker 01:
that passes certain theological tests, because that's exactly what the state of Oregon is doing.

[00:46:56] Speaker 01:
They are saying, well, you're not religious because you're not affiliated with some religious organization, or you don't proselytize, or you don't limit your activities to benefiting only members of your church.

[00:47:12] Speaker 01:
You know, they are establishing, and they're very candid, and I appreciate that candor, that this is a church.

[00:47:22] Speaker 01:
The gulf between that argument and the First Amendment could not be greater.

[00:47:27] Speaker 01:
And so that's a big picture.

[00:47:30] Speaker 01:
Second, Hobby Lobby.

[00:47:32] Speaker 01:
Surely that shuts the door on you have to be a church.

[00:47:37] Speaker 01:
Hobby Lobby in no way or form was a church.

[00:47:42] Speaker 01:
It, however, was made up of people that had a religious belief that they wanted to freely exercise, and that was to not be required to provide abortion insurance for their employees.

[00:48:00] Speaker 01:
And that belief of those individuals in that organization was then recognized and upheld by the United States Supreme Court.

[00:48:11] Speaker 01:
So, and furthermore, it's perfectly logical.

[00:48:14] Speaker 01:
How can something be neutral and generally applicable?

[00:48:18] Speaker 01:
If there are people with certain religious beliefs, like they don't proselytize, or maybe they don't do the Eucharist or whatever, that they can be prohibited.

[00:48:31] Speaker 01:
But people that do approve things that the government thinks is okay for religious groups to do,

[00:48:39] Speaker 01:
Well, if they do those, then we'll give them the exception.

[00:48:43] Speaker 01:
I mean, how in any world is that neutral or generally applicable when there are people with religious beliefs that are not protected because they don't pass some theological test that the state of Oregon is imposing upon them in order to benefit the exception?

[00:49:02] Speaker 01:
So I think if you look at it from the big picture, I know

[00:49:05] Speaker 01:
There is always ambiguities in various opinions, and maybe they don't address things we would like for them to do in the clearest possible, whatever.

[00:49:14] Speaker 01:
But in the big picture, this just makes no sense under the general understanding of the pre-exercise clause in my opinion.

[00:49:25] Speaker 01:
So thank you, Your Honors, for allowing us to participate.

[00:49:31] Speaker 04:
Not seeing any further questions from my colleagues.

[00:49:33] Speaker 04:
I want to thank both of you for your argument, your briefing, your 28 J's.

[00:49:39] Speaker 04:
This is an evolving area of law and I appreciate you both of you staying on top of it.

[00:49:45] Speaker 04:
This matter is submitted and this panel from last week is now adjourned and we'll move into conference.

[00:49:51] Speaker 04:
Thank you everybody.

[00:49:52] Speaker 04:
Thank you.

[00:49:53] Speaker 01:
Thank you.

[00:49:54] Speaker 01:
This court for this session stands adjourned.