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Case number 22-5234.

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Jaskier Eddall, at balance.

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Sudhir Singh Dorr, versus David H. Berger, in his official capacity as the Commandant of the Marine Corps, at out.

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Mr. Baxter, for the balance.

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Mr. Springer, for the votes.

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Good morning.

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And this is Eric Baxter on behalf of plaintiffs, Deskira Singh, Malav Singh, Shahal, and Akash Singh.

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May it please the court.

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Your honor, heightened or not, under the legal standard, as shown in this case, plaintiffs are entitled to preliminary injunction.

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Just last week, for the fourth time this year, the Marine Corps again relaxed the screening standards in the name of diversity and inclusion.

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The MI clients are still left being told they are not welcome to serve.

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unless they are willing to get out their religious standards that they have kept since their birth.

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And how are we to review this case under the heightened standard?

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There are several circuits who have gone with that, but I don't know that there's been much clarity on what the actual test is with respect to the standard.

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Thank you, Your Honor.

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This court has rejected a heightened standard.

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Other courts in circumstances where there's a mandatory injunction or an obstruction of the status quo

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or where all of the relief is being granted a permanent injunction stage and called for a heightened standard.

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This court and the women voters, for example, rejected that premise and would not get into the business of deciding what's mandatory or prohibitory because there's always a way to re-describe mandatory.

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injunction is prohibitory.

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But doesn't it also look to whether or not there's going to be a full granting on the merits of the case?

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Because we're talking about just the basic training period of time for which if we grant that there's no way to undo that.

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And that is another reason when courts have done that this court has not done that.

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There are numerous cases involving prior restraints on speech, election procedure cases,

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Even administrative cases are, for example, in the Soterra case where the FDA was trying to stop adulterated e-cigarettes from coming to the country.

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And this court said on a preliminary injunction that the FDA did not have authority to do that and allow all of those cigarettes to come in a way that can never be recovered.

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And even if the Heinz standard applies... It can be stopped going forward.

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They don't have to continue to allow it.

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The difference here is

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injunctive relief and a preliminary injunctive relief would be irreversible and that they will have entered in an all likelihood completed basic training before the district court and resolve the case on the merits and we will have even gone into further development of their careers within the Marines.

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And that can't be undone if the court gets it wrong at this preliminary stage.

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There's three reasons, Your Honor, why that's, um, I don't think applicable here.

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The first is that plaintiff, it kind of stings or indicated that he's now decided he will not undo his recruit training until at least next summer.

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So at least one plaintiff will still have the case before then, before this work.

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That doesn't help your claim for emergency relief.

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The other clients have, do have an emergency situation where they, they need, they are waiting now and they need immediate relief.

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I would also note that in the KKK versus DC case, this court held that

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For example, in a prior restraint case where preliminary injunction mooted the case, that the case could still be reviewed because it was capable of a repetition and evading review.

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That case is at 972 F.3.65.

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Also in the Mahoney versus Babbitt cases, this court held that even though everything was going to be moot after a prior restraint preliminary injunction granting a petition to protest, that there was

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that the case was even though it was becoming the court went ahead and granted preliminary injunction in the follow up case.

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The Mahoney versus about it two case.

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The court refused to vacate and allowed the preliminary injunction to stand and those cases are 105 after 1452 and 113 after 219.

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Are those in your brief?

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I'm sorry.

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Yes, the the KKK versus DC cases.

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I believe the Mahoney versus about it cases are as well.

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So there's

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this case all the time, grand state, grand preliminary junctions.

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And even though the high state- Yeah, but speech is one thing, but people entering in careers in the military, in the military, they can't be undone, right?

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It's, you know, speech can be stopped and not continued going forward.

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But once they're in and have completed basic training, which is the foundational claim in your case,

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Once the KKK had marched through the violence that was anticipated, that cannot be undone either.

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No, but it doesn't keep going and going and going.

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In this case it would need to review it again, based on the mootness factor of people with repetition.

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The point is that they will be in and will complete basic training.

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And that will never be undone.

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It will exist.

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It will exist as a fact going forward in the future permanently.

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Your Honor, even under the heightened standard, the heightened standard is just to review all of the factors.

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That is what the court said in winter, that you just have to have a strong showing.

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All of the cases of the government sites, all they say is that you apply all of the standards.

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You don't get any shortcuts.

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You look at all of the prompts.

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But winter, they could have done, they could have then at the end, after the NEPA review was done, made a final decision, yes or no, to do something.

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But here the final decision will be made as to boot camp training.

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And what's the heightened standard?

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That's right.

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So the heightened standard is just look at the standard and hear all of the problems, all four problems of the pulmonary energizer way overwhelmingly.

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But Winner didn't address the heightened standard.

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I'm sorry.

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Did Winner address the heightened standard?

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Winner said that that case, even though that case

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It did not expressly apply a Heinz standard.

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It said that even though that involved a preliminary injunction that involved a whole ball game in the court's language, it just applied the normal standards.

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It said you have to have a clear showing.

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It said there was no sliding scale approach.

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But again, the court doesn't need to decide that here because the all four cons were overwhelmingly in the plaintiff's favor.

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And the government hardly disputes that.

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It continually goes just to this argument of deference.

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But again, deference to what?

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To Congress?

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Congress has already said twice to generously accommodate the religious needs of service members.

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To the executive?

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The executive has already said that a diverse military is an important part of our national security interests.

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There's no conflict here between what our clients are asking and what

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and national security.

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And that's where the district court got this terribly wrong.

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The judge said that... What worries me is you have discovery ongoing in district court that we haven't seen.

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And you must have thought, because you have, by your own admission at least in the prior argument, you submitted large amounts of discovery requests to the government.

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So you must think

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that further factual development is necessary to the merits of this case.

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That's incorrect, Your Honor.

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We think that the evidence before the court is more than sufficient, and there's always discovery undergoing underneath the preliminary injunction.

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And here, the government for two years has had this, the government was required to meet the RFRA standard and the 3-HSI standard two years ago, over two years ago in September,

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2020, when it first denied plaintiffs a cash and accommodation.

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That's when the standard was required to be met.

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And all that time, they never come up with any evidence to show how, I mean, there's at least four gaps in the evidence where they can't show how the exemptions that we're seeking are different from the thousands of secular exemptions that they grant every day.

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They can't show how the

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These minor exceptions overwhelm the overwhelming regimentation that takes place at Bookey.

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And what happens in the bathroom is a very minuscule portion of what happens in the squad bay.

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What happens in the squad bay is a very small part of what happens in the field.

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The government has allowed thousands and thousands of exceptions and said that they don't override this formation of a Marine, and yet they claim that our clients can't be exempted.

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They can't show how the other military is going to accommodate.

[00:08:39] Speaker 02:
Mr. Baxter, can you speak a little bit to the irreparable harm

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because so here, even if we assume that you have a strong likelihood of success on the merits, what's the irreparable harm in waiting for the proceedings to play out?

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You're sure you're under several layers.

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First, this court has repeatedly held that whenever there is any violation of a constitutional harm for any amount of time, that's automatically irreparable.

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This is a little bit different, though, because here the harm is arguably a kind of unconstitutional condition.

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The plaintiffs here are not prevented from free exercise of their religious beliefs, but they are being prevented from joining the Marines, you know, and

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Um, maintaining their religious observance.

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So that is, um, I mean, what's irreparable about having to wait to join the Marines at a somewhat later.

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I'm going to point to at least four cases, two from this court, Archer versus Pritzker, which is a 740 F third, 176.

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Where the court said denying someone lobbies the opportunity to send the government advisory board was irreparable harm.

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The denial of the opportunity to serve in the government for any amount of time was irreparable.

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Sorry, what case is that?

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Archer AUTOR versus Pritzker.

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That's 740 F-3176.

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Also the Karen versus Trump case, a reporter was denied access to the White House reporter pool for unprofessional conduct at 12 days left.

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And this court granted a preliminary injunction saying that the denial of access was an irreparable unconstitutional harm.

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And there was no lack of notice that your unprofessional conduct could get you kicked out of the reporter pool, arguably a much less egregious harm.

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The Supreme Court unleashed two cases as far back as 1977 in the Daniel versus Patty case.

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held that a restriction on someone's ability to stir the Constitutional Convention was irreparable harm, even though they could continue being a pastor.

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And then most recently in Trinity Lutheran case, a church was being kept out of the entire recycling program.

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And the court held that that was irreparable harm because basing conditioning government benefits on religious status is odious

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to our Constitution and should not be tolerated for any length of time.

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And help me with distinguishing the three appellants, because you've got one who we talked about the delayed entry program earlier, and that there is a specific statutory deadline there, but then another who is essentially foregoing the career.

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Are they equal in terms of how we would grant relief?

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They are equal because all three of them are suffering the same harm at the same time.

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And the Akash Sting incident is perfectly illustrated by what happened here.

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He was eager and willing right out of high school.

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to join the military.

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He got told no and he figured it would take a little while to be enrolled in community college and he was ready at any moment to go to boot camp.

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So the irreparable harm comes in the fact of not being able to exercise the same rights that everybody else in this country can exercise simply because of their faith.

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He, it took two years to the point before we could even file a motion for plenary injunction.

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That can be transferred to a university.

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And now he's looking at other options.

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He just found out, we just found out last week that he could join, for example, next summer, the platoon leadership class, which he didn't even know about because his recruiter has stopped talking to him.

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So these young men, these are 18 to 20 year old men who are trying to make their careers, trying to serve their country.

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The ground is constantly shifting between them.

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They're trying to make decisions about where to go to school, what to do with their careers.

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They want to serve in the military.

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Why?

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Because they love the ethos of the Marine Corps.

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They love the work, the warfare ethos.

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They are six who are taught in their faith.

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to be the same soldiers, to fight to preserve the rights of other people, to defend freedom.

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And yet for the Marine Corps, that's not enough.

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And that harm is irreparable on multiple levels.

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It goes on to disrupting their career, their opportunities for advancement, their opportunities for retirement.

[00:12:45] Speaker 02:
Is it irreparable if they are, if they join the Marines, say, six months from now, as opposed to, you know, in the summer as opposed to in January?

[00:12:54] Speaker 06:
Absolutely, Your Honor.

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It's that inability to access... So they're able to serve, they're able to begin, you know, if the litigation goes in their favor, they're able to begin military careers.

[00:13:04] Speaker 02:
It just takes some time as litigation.

[00:13:06] Speaker 06:
Yeah, and it makes it worse.

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They are being told that unlike every other person, you have to wait and make a court decide whether you're worthy to be served, even though you meet every qualification,

[00:13:14] Speaker 06:
the army makes the exact same accommodations for thousands of other people there's no reason for this to happen it's really it's really shameful and inexcusable and i'm saying the mills versus dc case is another wonderful example involved vehicle checkpoints which had happened one time

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The DC chief of police said that she would not, there were no current plans to do it, but it was still an option for future use.

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The court said that that alone was sufficient constitutional harm because you have a right to drive without being stopped and without reasonable suspicion.

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That even though there was no checkpoints in place, there was no immediate plans for checkpoints, that harm was immediately sufficient to grant a preliminary injunction.

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Does 10 USC 774 factor into the analysis?

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Absolutely.

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I mean, Goldman versus Weinberg was the case where the Supreme Court deferred to the military on an exact same mission here, whether a Jew could wear a yarmulke while in uniform.

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And the Supreme Court said you had to defer to the military.

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And Congress said, no, that's not right.

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It enacted 10 USC 774.

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It said that the

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You can only restrict religious guard if the secretary actually passes regulations.

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If you look at subsection C of 774, you have to do this by regulation.

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That's not been done.

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This is someone far down the chain of Parris Island who's setting standards for Marines that are inconsistent with what Congress has said.

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Congress specifically anticipated Sikh religious wear

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when it passed that statute, and the military is ignorant of it.

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Riffer reinforces that.

[00:14:47] Speaker 03:
Okay, so help me balance that if you grant a religious accommodation, but you then still have the military who is able to put forward reasonable regulations, how do you balance granting an accommodation, but then also later on there's the issue about the military putting forward its own regulations?

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First of all, the military has already put forth regulations that said, subject us to strict security.

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Now, if they want down the road for some reason that I can't imagine what it would be, but they think that they're going to restrict a sick religious star for some reason that I've never raised here in the two years they've had this issue, well, the secretary can do that.

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And then we would, those, those regulations could be challenged just like any other set of regulations.

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But they haven't even bothered to do that.

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So they're ignoring Congress.

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They're ignoring the rules.

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They don't even, their own rules say, we can hold your appeal for endlessly.

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I mean, the government admitted that in a brief.

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But the current appeals have never been resolved.

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They said we have no deadline on these appeals.

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You want a medical beard?

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You go to the doctor.

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The doctor has authority to grant an unlimited accommodation for an unlimited period of time.

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It doesn't even have to go to your commandant.

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You want a religious beard?

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You have to,

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spend years waiting for the note and they said we don't have to act on this.

[00:15:58] Speaker 03:
What's the precedent that's being set here too?

[00:16:00] Speaker 03:
I mean obviously these particular individuals are in front of us, the Sikh religion is in front of us, but we've got a meekie brief talking about other religions that may have similar comparisons in terms of their articles of faith.

[00:16:12] Speaker 06:
Under RFRA the test is always a case-by-case basis.

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Every religious accommodation might be different and so the court would have to weigh these standard factors

[00:16:21] Speaker 03:
for each combination so there's the only the only precedent that's being said is a precedent the military already accepts and that that is they are subject to RFRA and and and the combined government interest standard now do we have to go so far as being granular with respect to the particular articles of faith requested here in terms of the bracelet the turban the beard

[00:16:46] Speaker 03:
Do we need to make reference to those particular articles?

[00:16:49] Speaker 06:
Yes.

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The military has denied all of those articles of faith.

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They have not defended any of their denials in this court except for the Beard & Turbin case.

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They've made no arguments about why they're excluding

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the kata, the ring, the undergarment, the others will not be shown.

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There's no argument, there's been no argument about their lack of safety or anything like that.

[00:17:10] Speaker 06:
And with regard to the beards and turbans, they've already admitted that they granted thousands and thousands of exemptions for other Marines to serve with comparable exemptions.

[00:17:20] Speaker 06:
And so that should be an easy... What comparable?

[00:17:23] Speaker 05:
I'm curious, because

[00:17:26] Speaker 05:
You're right, the government doesn't talk about it, but you have a burden on appeal here and for PI as well.

[00:17:32] Speaker 05:
What is your argument as to the bracelet, the undergarments and the dagger or ceremonial dagger?

[00:17:42] Speaker 05:
I don't want to characterize it.

[00:17:46] Speaker 05:
I haven't seen anything in your brief about that.

[00:17:49] Speaker 05:
I don't see anything on this record that suggests that the government is making

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selective exceptions for bracelets, the underwear or wearing of daggers or other external religious indicia.

[00:18:07] Speaker 05:
And so I'm not sure you have the same argument as to that that you've been making with respect to hair and beards.

[00:18:14] Speaker 06:
Your Honor, the argument is the exact same.

[00:18:16] Speaker 06:
Our burden is to show a sincere religious belief that that belief is being substantially burdened.

[00:18:22] Speaker 06:
The government's already conceded those arguments for purposes of this proceeding.

[00:18:26] Speaker 05:
So the full burden is... Where's your likelihood of success if you haven't shown... I mean, you hinge your likelihood of success as to the beards and the turban or the shaving of hair on the fact that they make other exceptions.

[00:18:40] Speaker 05:
Do they make exceptions for external jewelry?

[00:18:43] Speaker 06:
Well, it's the government's burden.

[00:18:45] Speaker 06:
There are dog tags.

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Dog tags are different.

[00:18:49] Speaker 05:
That's uniform.

[00:18:50] Speaker 06:
The regulations allow for personal religious items to be carried.

[00:18:54] Speaker 05:
Are people allowed to wear external jewelry?

[00:18:59] Speaker 06:
Your honor, it's the government's burden to show that they have a compelling interest to bar that.

[00:19:04] Speaker 05:
What is your argument that you're likely to succeed?

[00:19:06] Speaker 06:
Argument that we're likely to succeed that the government has not shown a compelling government interest that cannot be met in some less restrictive ways.

[00:19:11] Speaker 06:
They've waived that argument by not raising here.

[00:19:14] Speaker 05:
The compelling government interest will be the same when they argue here, but they won't have the exception issue that you raise.

[00:19:19] Speaker 05:
That is that there's a vital interest in stripping away indicia of individuality.

[00:19:27] Speaker 05:
Um, and that there's a, you know, a vital interest in, um, commonality in ritual and clothing through bootcamp.

[00:19:36] Speaker 05:
And the bracelet would be an exception to that.

[00:19:39] Speaker 05:
It would not be consistent with those compelling interests.

[00:19:42] Speaker 06:
Sure.

[00:19:42] Speaker 06:
It would be the same thing as an exemption for a tattoo that you can have anywhere on your body, including on your face, hands, and external jewelry is different than your body.

[00:19:50] Speaker 05:
When the underlying interest is... You haven't argued this in your brief and I'm not sure what are we supposed to do with that?

[00:19:57] Speaker 06:
The burden is not ours.

[00:19:58] Speaker 05:
You have a burden on appeal to establish error in the district court's decision.

[00:20:03] Speaker 05:
You have a burden to establish your entitlement to a preliminary injunction.

[00:20:07] Speaker 05:
You can't simply say First Amendment freedoms have been violated here because we were here as could be in full gospel.

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that just asserting a First Amendment violation of free exercise is not enough.

[00:20:19] Speaker 05:
So I'm going to ask you again, if I'm under the assumption that you have some burden here and you haven't briefed the issue, and I know nothing about whether there are, except a similar pattern of exemptions or not, as to the bracelet, the underwear, and the dagger,

[00:20:40] Speaker 05:
Do you lose on those issues?

[00:20:42] Speaker 06:
No, Your Honor, because we have argued about that burden.

[00:20:44] Speaker 06:
Our argument is that the government makes exceptions.

[00:20:49] Speaker 06:
The underlying interest that is claimed is uniformity.

[00:20:52] Speaker 06:
It's made all kinds of exceptions, including for tattoos.

[00:20:55] Speaker 06:
You could have a bracelet tattoo, and there's no question about that.

[00:20:58] Speaker 06:
And they've never even argued anything against that.

[00:21:00] Speaker 06:
So the way you look at what they're comparable is whether they undermine the interest in the same way.

[00:21:05] Speaker 06:
And if the interest is uniform... Tell me about the dagger.

[00:21:08] Speaker 05:
What exception are you?

[00:21:09] Speaker 05:
What are they doing there?

[00:21:11] Speaker 06:
Certainly the military allows service members to carry weapons and this is a ceremony.

[00:21:15] Speaker 06:
This is not a government issued weapon.

[00:21:19] Speaker 06:
All of these articles, the other articles of faith,

[00:21:23] Speaker 06:
are not visible while our clients are in uniform.

[00:21:26] Speaker 06:
They're worn, the comb and the kanga is worn underneath the turban.

[00:21:30] Speaker 06:
The bracelet is worn underneath the sleeve.

[00:21:33] Speaker 05:
Well, it's not worn underneath the sleeve if you're in short sleeves, which people often don't wear.

[00:21:37] Speaker 06:
And neither would a bracelet tattoo, Your Honor.

[00:21:39] Speaker 06:
So the interests are the same.

[00:21:40] Speaker 06:
And the district court erred by not even saying that we would win.

[00:21:44] Speaker 06:
The district court assumed

[00:21:45] Speaker 06:
that we win on on on all the standards except harm and then just adopted out of nowhere you can't have a ruling that says there's no compelling government interest which is what the judge assumed and then say that there's national security harm that's so great well how could a national security harm not do all three of your clients because there was some

[00:22:05] Speaker 05:
I'm not totally clear from what limited discussion there was in the briefing.

[00:22:08] Speaker 05:
Do all three of them claim desire or need, religious need to wear the bracelet and dagger and underwear during basic training or my understanding was that only one of them had gone through

[00:22:27] Speaker 05:
a certain stage in his religious development that that was necessary.

[00:22:30] Speaker 05:
So is it applied to all three of them or not?

[00:22:32] Speaker 06:
All three of them wear the bracelet, and one of them wears the other Articles of Faith as well.

[00:22:38] Speaker 05:
Which one wears the other Articles of Faith?

[00:22:40] Speaker 06:
Malach, Saint Jehovah wears all five, Akash, and Jaskirat wear the bracelet in addition to Akash and the turban.

[00:22:47] Speaker 02:
Mr. Bester, so what is the relationship between your view, your burden to demonstrate you're entitled into a preliminary injunction and the government's, if the government has forfeited making arguments about any of these other articles of faith, what is the relationship between those two standards?

[00:23:07] Speaker 06:
If I understand you correctly, Your Honor, again, our burden is to show us sincere religious belief and a substantial burden.

[00:23:13] Speaker 06:
We've met that, we've alleged that in the complaint, our clients have stated that,

[00:23:17] Speaker 06:
I'm in their declarations and the government has conceded both of those points.

[00:23:22] Speaker 06:
It's not arguing those points.

[00:23:23] Speaker 06:
The burden then shifts to the government to show a compelling government interest, and it hasn't made any argument about that.

[00:23:28] Speaker 06:
And we share articles, I'm sorry about the other articles, even about the other visit.

[00:23:34] Speaker 06:
They just dropped a footnote just saying that they're that they're at issue.

[00:23:37] Speaker 06:
And the same exemptions of the military grants for tattoos, for medical beers, for diverse styles of hair, all in the name of increased diversity and inclusion, are the same exemptions that undermine their reasoning on the other articles of faith.

[00:23:53] Speaker 06:
You know, as I said, I'm out of time.

[00:23:54] Speaker 03:
Well, I was asking you earlier about us making specific mention of each article of faith.

[00:24:02] Speaker 03:
But then it occurred to me that if this is the Sikh religion, to incorporate all of it, can we separate it?

[00:24:13] Speaker 03:
Meaning that if we didn't allow the bracelet in, does that then prohibit the Sikh from going into the military because they're not being accommodated on one of the articles?

[00:24:23] Speaker 06:
Yes.

[00:24:23] Speaker 06:
So for any of them, if the bracelet were not included, they would be barred from entering.

[00:24:27] Speaker 06:
For Malap, if any of the others were not, they would be prohibited from entering.

[00:24:31] Speaker 06:
Beliefs that are deeply held of their entire lives.

[00:24:34] Speaker 06:
They follow these beliefs and and they can't just give them up any more than you can Give up a tattoo This is a part of who they are and their identity.

[00:24:43] Speaker 06:
And so we would ask the court to rule on all on all of the arts of faith So for the questions, I'll take the reminder right?

[00:24:50] Speaker 01:
Thank you

[00:25:13] Speaker 01:
Good morning.

[00:25:13] Speaker 07:
Good morning, Your Honors, and may I please support Ryan Springer on behalf of the federal government.

[00:25:19] Speaker 07:
I'd like to start by emphasizing a point that's been discussed in great detail this morning, that this appeal arises in a highly preliminary posture where plaintiffs sought effectively full relief at the outset.

[00:25:30] Speaker 07:
While plaintiffs did not carry the burden on any of the preliminary injunction factors,

[00:25:35] Speaker 07:
The request for this exceptional remedy must fail because they did not show that they will suffer irreparable harm.

[00:25:41] Speaker 03:
But weren't there a couple of factors that weren't really discussed in the district court order?

[00:25:46] Speaker 07:
Your honor, the irreparable harm was discussed in counterbalance to the public interest in national defense here.

[00:25:54] Speaker 07:
And the district court concluded that that was the irreparable harm that plaintiffs were asserting was outweighed by the strong public interest in national defense that would be upset

[00:26:05] Speaker 07:
should the district court enter a preliminary injunction that would alter the way that the Marine Corps conducts its training and has conducted its training for many years.

[00:26:15] Speaker 03:
And what's your position on, in discussing the factors, which ones are more prevalent?

[00:26:20] Speaker 07:
Your Honor, so I think in particular what's important here, particularly because plaintiffs are asking for something that looks like full relief at the end of the day, that the factors that are particularly important are the exigencies here, the equities,

[00:26:35] Speaker 07:
and balancing the claimed irreparable harm against the strong public interest on the other side is where the focus should be in conducting this analysis.

[00:26:46] Speaker 07:
And do you agree with the heightened standard?

[00:26:48] Speaker 07:
Your Honor, I do think that a heightened standard applies here.

[00:26:52] Speaker 03:
And how would that be defined?

[00:26:53] Speaker 07:
Your Honor, I think the way that courts have discussed it is they've said that the formulation is that it's a strong showing on each of the factors.

[00:27:03] Speaker 07:
Some of the cases also discuss, as I just mentioned, a particular focus on the exigencies and the idea of kind of giving close scrutiny to the exigencies in a particular case to ensure that equitable relief should issue.

[00:27:16] Speaker 02:
How is this court supposed to parse what is a strong likelihood versus a substantial likelihood?

[00:27:23] Speaker 02:
I mean, I've looked at the other circuits that apply a so-called heightened standard, and I'm not really sure how to operationalize those distinctions.

[00:27:32] Speaker 07:
So, Your Honor,

[00:27:33] Speaker 07:
I think in some ways there, you know, some of it may be a little bit semantic and here we don't necessarily need to even get to the merits because the plaintiffs have not made a strong showing on the other factors.

[00:27:46] Speaker 07:
But, you know, I think we're doing a predictive judgment in a case like this.

[00:27:51] Speaker 07:
And it's just a question of if there are things that, you know, places where maybe further factual development would be helpful, which I think in this case, there are many instances in which

[00:28:03] Speaker 07:
the ongoing factual discovery in district court is something that would inform the analysis and, you know, essentially lose if we don't apply a heightened standard.

[00:28:14] Speaker 02:
Are you saying the heightened standard is what makes the difference here?

[00:28:17] Speaker 02:
So that they might prevail on the ordinary preliminary injunction standards, but they lose on a heightened standard?

[00:28:24] Speaker 07:
No, your honor, the plaintiffs lose under any standard because they have not shown this,

[00:28:29] Speaker 07:
They will suffer irreparable harm as the case proceeds that would outweigh the strong public interest in national defense.

[00:28:35] Speaker 07:
We think the case is even easier because this heightened standard applies in this situation, particularly because plaintiffs are both asking for something that looks like full relief on the merits and are asking this court to alter the status quo not to.

[00:28:49] Speaker 02:
I mean, I'm interested in this idea that we should apply a different standard.

[00:28:54] Speaker 02:
I mean, perhaps the fact that plaintiffs would effectively get full relief means that there are some greater equities on the side of the government.

[00:29:02] Speaker 02:
But can't that be accommodated in the ordinary preliminary injunction standard?

[00:29:10] Speaker 07:
I'm not sure if it entirely can be accommodated because, again, there's not a clear definition as to how to balance the factors

[00:29:20] Speaker 02:
um, under the normal standards and everything as a whole, right?

[00:29:24] Speaker 02:
I mean, winter is very clear about that.

[00:29:28] Speaker 07:
Yes, your honor.

[00:29:29] Speaker 07:
I think winter is clear that that plaintiffs need to show that each of these factors are present in it in order to get this exceptional relief or preliminary injunction.

[00:29:40] Speaker 07:
Um, and these things are considered together and weighed against each other.

[00:29:42] Speaker 07:
And here the plaintiffs haven't shown that the district court abuses discretion in weighing these factors.

[00:29:49] Speaker 07:
particularly looking at the harm that the plaintiff's claim would result here against the harm that would result to the Marine Corps in the public interest.

[00:29:58] Speaker 02:
Well, we apply abusive discretion in the weighing of the factors, but we have de novo review over any legal conclusions, such as about the likelihood of success and the merits.

[00:30:08] Speaker 07:
Your Honor, it is the case that there's de novo review of legal conclusions, however, you know, things that relate to facts and things that are discretionary, like the weighing of the factors are reviewed for abuse of discretion.

[00:30:20] Speaker 07:
And it's really what the heartland of what we have here in this particular situation.

[00:30:26] Speaker 05:
And you mentioned that you mentioned the need to await development of a fuller record in the district.

[00:30:36] Speaker 05:
What exactly does the government expect to establish in the district court that isn't already in this record?

[00:30:50] Speaker 07:
The government expects to elaborate more on some of the rationales that we have in the record.

[00:30:56] Speaker 07:
We have Colonel Jeppi's declaration that summarizes the compelling interests at stake here.

[00:31:02] Speaker 07:
and how this is the least restrictive means.

[00:31:04] Speaker 07:
But we expect that Marine Corps officials will testify either as fact or expert witnesses to explain why recruit training is critical, why the challenge standards are critical to developing this necessary team mindset, and to discuss how in the day-to-day operations of a Marine,

[00:31:26] Speaker 07:
this team mindset carries with them and is necessary in order to accomplish the Marine Corps' national defense mission.

[00:31:33] Speaker 07:
And those are some of the things that are in development and we expect.

[00:31:39] Speaker 05:
So it's just, it's nothing new.

[00:31:41] Speaker 05:
It is just, sounds like more detailed elaboration on the rationale's given in the JAPI declaration.

[00:31:51] Speaker 07:
Your Honor, I wouldn't characterize anything as being, it's not like the- You don't have new reasons.

[00:31:57] Speaker 07:
Correct, Your Honor.

[00:31:57] Speaker 07:
The government won't change its reasons.

[00:31:59] Speaker 07:
However, we haven't yet had the opportunity to enter evidence into the record because we're still at such a preliminary stage.

[00:32:06] Speaker 07:
There's no requirement that the government put in all of the evidence that supports its decision when we're still at a very early stage.

[00:32:14] Speaker 05:
No, maybe not in court, but I should have thought under the Religious Freedom Restoration Act, if not also the First Amendment, you were obligated to show

[00:32:23] Speaker 05:
in the Marines' initial decision making denying the accommodations, both of that denial is consistent with the demands of the First Amendment in this context.

[00:32:38] Speaker 05:
And so this is an unusual confluence of difficult standards here for both sides that come together in this case.

[00:32:47] Speaker 05:
And so if you didn't make that showing in denying their accommodation,

[00:32:54] Speaker 05:
If the Marines hadn't gathered that record at the time, they told them initially, no, we will not let you in.

[00:33:05] Speaker 05:
Why should you get to wait to develop that?

[00:33:07] Speaker 05:
In district court, you made your first amendment decision.

[00:33:13] Speaker 07:
Well, Your Honor, here the government did explain its rationales and explain the compelling interest here.

[00:33:18] Speaker 05:
In the Jeppy Declaration?

[00:33:20] Speaker 07:
No, in the original decision by the Deputy Commandant, and then it's elaborated on the interest here in Colonel Jeppy's declaration.

[00:33:31] Speaker 04:
It's pretty skeletal.

[00:33:32] Speaker 07:
Your Honor, I would disagree.

[00:33:34] Speaker 07:
I think it builds out some of the details here.

[00:33:37] Speaker 07:
But also, again, I would just emphasize that this is still a very early stage of the case, and the government needs the opportunity to enter all of the evidence supporting its decision into the record here.

[00:33:50] Speaker 05:
Colonel Jeppi, who is somebody who is... Sorry, this other evidence you're developing in district court was also relied upon in denying them accommodations, because it's certainly not anything you've discussed here reflected in the decisions.

[00:34:03] Speaker 05:
So, Your Honor, Colonel Jeppi... No, no, I'm talking about the initial...

[00:34:07] Speaker 05:
call it an agency decision, the initial decision by the Marines to deny them entry.

[00:34:12] Speaker 07:
General, this evidence is expanding on that decision and explaining the things that support that decision.

[00:34:18] Speaker 05:
Right, but you were saying we don't have to do that, we don't have to have an elaboration preliminary injunction stage, but I'm still asking you why you don't have to have

[00:34:25] Speaker 05:
That elaborate explanation why you don't have to show when you initially is when the Marines initially decided on their own outside court to deny them accommodations that they had considered whether there were other less restrictive means of accommodating their needs or whether there was truly a compelling interest.

[00:34:45] Speaker 05:
given all of the exemptions that are already made, and neither of those are reflected in my reading, and tell me if I'm wrong, of the decisions by the Marines to deny their accommodations.

[00:34:57] Speaker 07:
General, the Deputy Commandant's decisions discuss the compelling interest here and why these are the least restrictive means.

[00:35:03] Speaker 07:
There's no requirement that the Deputy Commandant issue some very, very long decision instead

[00:35:10] Speaker 07:
the Deputy Commandant told us exactly what the Marine Corps' compelling interests are here.

[00:35:15] Speaker 05:
And in fact... Where did they explain why the same accommodations made by every other branch of the military aren't sufficient here?

[00:35:25] Speaker 03:
And I would just add on that it seems like these are goals versus kind of some evidence-based, you know, theories in terms of how you're laying out uniformity, commonality,

[00:35:38] Speaker 03:
I'm trying not to have particular identities, things of that nature.

[00:35:42] Speaker 07:
So you're right.

[00:35:43] Speaker 07:
I wouldn't call these goals.

[00:35:45] Speaker 07:
I think that this is the Marine Corps has explained that this is the baseline that's necessary for everyone to meet and that these are the standards.

[00:35:51] Speaker 03:
But is there anything that the other branches have shown or that the Marines have been able to show that somehow not allowing this or allowing this rather undermines goals of even the other branches.

[00:36:06] Speaker 07:
So, Your Honor, I think that's something that Colonel Jeppe addressed in his declaration, and it's something that is continuing to be developed.

[00:36:15] Speaker 05:
Tell me what he said there.

[00:36:16] Speaker 05:
Are you just referring to the fact that the Marines are an expeditionary force?

[00:36:22] Speaker 05:
Is that the explanation you're relying on, or was there something else he said about why they don't make the accommodations that every other branch does?

[00:36:30] Speaker 07:
In terms of recruit training, the difference that the Marine Corps has identified is that the Marine Corps has this expeditionary service on a service-wide level.

[00:36:41] Speaker 05:
I don't get why the service-wide level matters for training each individual, but they're an expeditionary force.

[00:36:48] Speaker 07:
That's correct.

[00:36:49] Speaker 07:
They are an expeditionary force.

[00:36:50] Speaker 05:
Why does that mean they can't make the same accommodations as the Navy?

[00:36:54] Speaker 07:
So, your honor, the Marine Corps has explained that it is differently situated than these other branches.

[00:37:00] Speaker 07:
Because?

[00:37:01] Speaker 07:
Because their folks are the ones who are typically sent out first to respond to military accidents.

[00:37:07] Speaker 05:
Well, the Army has Ready Regrades, the 81st Air War, and they have plenty of teams that are in charge of being deployable in 18 hours, wheels up in 18 hours.

[00:37:21] Speaker 05:
The Army has that.

[00:37:22] Speaker 05:
Correct.

[00:37:23] Speaker 07:
Your honor, the critical distinction, that's correct.

[00:37:26] Speaker 07:
But the critical distinction is that the army has these small teams that are capable of doing that.

[00:37:31] Speaker 05:
Whereas here, those teams can be filled with anybody who comes through bootcamp.

[00:37:34] Speaker 05:
Anyone who goes through bootcamp could qualify for one of those teams.

[00:37:37] Speaker 07:
Your honor.

[00:37:38] Speaker 07:
So many of them, some of them it's rotating.

[00:37:40] Speaker 05:
You're not constantly on that team.

[00:37:42] Speaker 05:
It rotates through members of army members.

[00:37:47] Speaker 05:
They could, at any time, they could be part of that team.

[00:37:49] Speaker 07:
General, I'm not sure that I know the specifics of these army teams.

[00:37:53] Speaker 05:
And that's also something that that seems like that would have been important thing for the Marines to have thought about before insisting the fact that they have to deploy.

[00:38:02] Speaker 05:
They may have to deploy quickly makes a difference because surely the Marines are aware.

[00:38:07] Speaker 05:
The Marines must be aware.

[00:38:11] Speaker 05:
That other branches of the military have rapid deployment forces as well.

[00:38:15] Speaker 07:
Your honor, I think the important thing to return to is that what the standard is here under Holt v Hobbs is that the Marine Corps has explained why it believes that... No, part of its least restrictive means and undergirding its assertion of a compelling interest has to be coming to grips with the reality.

[00:38:30] Speaker 05:
As Holt talked about, other prisons made accommodations and that was important to have been thought about in the RFRA analysis and the same thing here.

[00:38:42] Speaker 05:
When the Marines go off on their expeditions,

[00:38:44] Speaker 05:
How do they get there?

[00:38:47] Speaker 05:
Who takes them?

[00:38:50] Speaker 05:
The Navy, which makes accommodations.

[00:38:54] Speaker 03:
And how come the report didn't have to grapple with this?

[00:38:57] Speaker 03:
I was gonna say particularly as to the Sikh religion to not just exactly.

[00:39:01] Speaker 07:
Thank you, Your Honor.

[00:39:04] Speaker 05:
Again, they're gonna be driven.

[00:39:05] Speaker 05:
It could be driven on a boat staffed by Sikh members of the Navy.

[00:39:10] Speaker 05:
One of the ways they conduct their expeditionary assignments is by being forward deployed on Navy ships, which could be filled with members of the Sikh religion, beautifully serving their nation and following their faith at the same time.

[00:39:29] Speaker 05:
I fail to understand how the Marine Corps wasn't responsible for addressing, certainly at the administrative stage,

[00:39:39] Speaker 05:
But at a minimum in the Jeppy declaration, what they mean when they say we're an expeditionary force that somehow means they have to train differently.

[00:39:52] Speaker 07:
Colonel Jeppy did address this.

[00:39:54] Speaker 07:
And I think one important thing here as well is that- He didn't address this.

[00:39:59] Speaker 05:
He did not address, other than that sort of blank statement, I'm sorry, it's not your statement, but you're defending it here.

[00:40:06] Speaker 05:
The statement is,

[00:40:08] Speaker 05:
that all he said is we're an expeditionary force.

[00:40:11] Speaker 05:
And that doesn't hold water.

[00:40:13] Speaker 05:
If you pause for a minute and say, what does that mean?

[00:40:19] Speaker 05:
Do the other branches that make accommodations have to sometimes deploy rapidly?

[00:40:26] Speaker 05:
Do the other branches that make accommodations get the Marines where they need to go on this fast expeditionary basis?

[00:40:34] Speaker 05:
Those just seem to me

[00:40:36] Speaker 05:
of elemental matters that would have to be considered to make that statement.

[00:40:42] Speaker 07:
Your honor, I think Colonel Jeppi was also, I mean, even if he didn't directly cite to these things, he was think he had in his mind some of the documents and manuals and other things that explain in more detail what it means for the Marine Corps to be, to have this expeditionary mindset.

[00:41:01] Speaker 07:
I would also just note that we anticipate there will be testimony entered into the record about... An expeditionary mindset means what?

[00:41:12] Speaker 07:
Your Honor, I think generally the way that it has been described is that Marines, every Marine must be in general ready to deploy at a moment's notice.

[00:41:23] Speaker 07:
Including their officers?

[00:41:25] Speaker 07:
Yes, Your Honor.

[00:41:26] Speaker 05:
Who go through the Naval Academy.

[00:41:28] Speaker 07:
Your honor, they go through the Naval Academy, but after they come out of the Naval Academy, they also go through the basic school where they learn.

[00:41:34] Speaker 05:
But you didn't say in your brief that they then, having been accommodated in their religious exercise through the Naval Academy, they are stripped of that in their school?

[00:41:43] Speaker 07:
Your honor, I think it's a different comparison because the Naval Academy has a four-year program that's also followed by a six-month program.

[00:41:51] Speaker 05:
They must be able to get that, yes, but they must somehow be able to get that Marine Corps mindset without being stripped of their faith.

[00:41:59] Speaker 05:
And the Jeppy Declaration says, and the Marine Corps manual, you cite, all members of the Marine Corps must have this expeditionary mindset, including those officers whose faith has been accommodated.

[00:42:12] Speaker 07:
Your Honor, I think it's right to say that all, you know, in general, Marines need to have the expeditionary mindset.

[00:42:18] Speaker 07:
Of course, officers serve in a different role because they're the leaders who are giving the orders rather than the ones who are following the orders.

[00:42:25] Speaker 05:
Okay, so is the Marine Corps of the view that officers' religion can be accommodated, including Sikh officers' religion can be accommodated?

[00:42:34] Speaker 05:
So now we're only talking about boot camp recruits.

[00:42:38] Speaker 05:
Enlisted individuals cannot be accommodated.

[00:42:41] Speaker 05:
Is that the line that has been drawn here?

[00:42:44] Speaker 05:
Just so I understand what it has been a little confusing.

[00:42:47] Speaker 07:
I don't think that's the line that's been drawn here.

[00:42:49] Speaker 07:
Of course, here we're talking about the recruit training.

[00:42:52] Speaker 07:
The Marine Corps has explained that officers who go through officer candidate school are subject to similar standards at the beginning of their training.

[00:43:02] Speaker 07:
office or candidate school candidacy, and that they will undergo necessary information.

[00:43:09] Speaker 05:
This may just be my misunderstanding.

[00:43:12] Speaker 05:
So we have a Sikh individual who has been accepted and gone through four years of the Naval Academy.

[00:43:19] Speaker 05:
Incredibly rigorous, especially that first summer.

[00:43:23] Speaker 05:
Incredibly rigorous training and has been accommodated the full time and has chosen the Marines.

[00:43:30] Speaker 05:
and has presumably worked with Marines over the summers beforehand, presumably still being accommodated.

[00:43:36] Speaker 05:
Tell me if I'm wrong.

[00:43:37] Speaker 05:
And then goes off to, I think you call it the basic school.

[00:43:42] Speaker 05:
And I didn't hear you say that all those accommodations fall away at the basic school.

[00:43:46] Speaker 05:
Am I incorrect about that?

[00:43:48] Speaker 07:
Your honor, so I don't know the specifics of the basic school, but I believe that accommodations can sometimes be granted at the basic school.

[00:43:56] Speaker 05:
Okay.

[00:43:56] Speaker 05:
You're not aware that they're stripped away, haven't been granted for four years, including summers working with the Marines.

[00:44:01] Speaker 07:
I'm not aware of that, Your Honor.

[00:44:04] Speaker 02:
So even if we were to grant this idea that the Marines have this special expeditionary purpose, which I certainly certainly understand.

[00:44:14] Speaker 02:
I mean, the government still has to explain under the Supreme Court's precedence why it's grooming policy

[00:44:22] Speaker 02:
is a compelling interest with respect to these particular plaintiffs.

[00:44:28] Speaker 02:
And that's where, I mean, even if they have this general interest in uniformity and being an expeditionary force, they have to show why there's a compelling interest in imposing that requirement on these plaintiffs, especially when there are so many exceptions for other grooming standards for other reasons.

[00:44:46] Speaker 02:
So where has the government met that burden?

[00:44:50] Speaker 07:
Your honor, I think there's a couple of places where the government has met that burden.

[00:44:53] Speaker 07:
I think one thing that Colonel Jeffy's declaration explains is that like ranting by allowing plaintiffs to go through the process without having to comply with these uniform and grooming policies, it could affect the necessary transformation of everybody else.

[00:45:08] Speaker 02:
Even assuming that's a general interest that the Marines have, how can that be a compelling interest given all of the other tens of thousands of people who are given grooming exceptions?

[00:45:20] Speaker 02:
I mean, it's just, you can say the general interest, but if there are so many exemptions, why can't an accommodation be made for these?

[00:45:31] Speaker 07:
Your honor, I think the exemptions in particular present a different circumstance than what plaintiffs are asking, the accommodation that plaintiffs are asking for here.

[00:45:39] Speaker 07:
For example, with respect to medical beards, people who are granted this waiver, first of all, have to shave when they show up at recruit training.

[00:45:48] Speaker 07:
They're not allowed to start recruit training without shaving.

[00:45:50] Speaker 07:
If the skin condition presents during the recruit training, then they're granted a temporary no-shave waiver.

[00:45:58] Speaker 07:
where they have to continue to shave as much as possible and possibly all the way down to their face.

[00:46:03] Speaker 02:
I mean, the government relies very heavily on military expertise, right?

[00:46:07] Speaker 02:
So what is the expert reason why medical beards do not undermine the government's interests, but a religious beard worn by an observant Sikh would undermine its interests?

[00:46:21] Speaker 02:
So Your Honor, I just don't see anything, I just don't see any argument that the government has made with respect to that.

[00:46:27] Speaker 07:
Your honor, I think part of what the difference is here is what I just explained of the medical situation is obviously a medical treatment, a set of steps in order to address a medical condition.

[00:46:39] Speaker 07:
And it still requires the recruits who are granted this temporary waiver

[00:46:45] Speaker 07:
to do as much shaving as they can, whereas the plaintiffs here are asking for the ability to keep- That's consistent with that medical condition, right?

[00:46:54] Speaker 02:
But for Sikhs, their faith requires them not to shave at all.

[00:46:58] Speaker 02:
Why is that something that cannot be accommodated in light of the government's interest?

[00:47:04] Speaker 07:
Again, I think the difference is that

[00:47:07] Speaker 07:
This is one piece among many of ways in which the Marine Corps is ensuring that each of these recruits is stripped of their individuality and that.

[00:47:18] Speaker 02:
So for secular medical reasons, you're allowed to, you know, stand out or have a beard, but not for religious reasons.

[00:47:25] Speaker 02:
I mean, isn't that, isn't that different treatment between secular and religious reasons directly contrary to the Supreme court's decisions in this area?

[00:47:34] Speaker 07:
Yeah, I don't think it is because again that they're what is being required of the folks who receive a medical waiver, which again is happening during the recruit training.

[00:47:44] Speaker 07:
They're they're required to shave when they arrive.

[00:47:46] Speaker 07:
Is that they are still required to everyday use slippers or chemicals to shave their beard as much as possible.

[00:47:55] Speaker 07:
So they don't have

[00:47:56] Speaker 07:
the same set of choices of what they're able to do.

[00:47:59] Speaker 02:
So the government's interest in uniformity turns on what specifically people are doing to groom themselves in the morning?

[00:48:06] Speaker 07:
I don't think it's just a question of exactly what people are doing in terms of grooming.

[00:48:15] Speaker 07:
It's the idea of restricting the choices and stripping people of their individuality to ensure that they will comply with orders unquestioningly and that that's advanced by

[00:48:26] Speaker 07:
the folks who have to use flippers and use chemicals to shave rather than use a razor.

[00:48:34] Speaker 05:
Why can't that same?

[00:48:36] Speaker 05:
So first of all, the chemicals aren't used until the beard has grown in, correct?

[00:48:42] Speaker 05:
Until what, Your Honor?

[00:48:43] Speaker 05:
The beard has grown in some extent.

[00:48:45] Speaker 07:
I believe that's true, Your Honor.

[00:48:47] Speaker 05:
So if they can't shave, they commonly, I think on this record, go without shaving from four to eight weeks.

[00:48:53] Speaker 05:
The boot camp is only 13 weeks.

[00:48:55] Speaker 05:
Your Honor, my understanding is that in general, they are shaving during that time using clippers instead of using chemicals, and they're sort of a... It depends on... I mean, this record has a whole stages of mild, moderate, severe cases and some things that aren't responsive.

[00:49:10] Speaker 05:
Some people may have adverse responses to clipping as well, and it has to be a certain length before you can clip it, doesn't it?

[00:49:18] Speaker 05:
Otherwise, you're just going to be doing the same thing as shaving.

[00:49:21] Speaker 07:
Your Honor, it is correct that there are these stages and that

[00:49:24] Speaker 07:
you're attempting to address the problem sort of depending on how severe the condition is and shaving as much as possible, which may not always require shaving.

[00:49:35] Speaker 05:
And so your point is that they still orders from on high have said, get as much of that facial hair off your face as you can.

[00:49:43] Speaker 05:
And that's part of the training and the obligation to not make your own choices about that, but to follow these orders.

[00:49:51] Speaker 05:
but they can be, the order can be executed in different ways.

[00:49:55] Speaker 05:
Shaving if you can shave, clipping if you can clip, chemicals if you can use chemicals.

[00:50:01] Speaker 05:
Is that my understanding?

[00:50:03] Speaker 07:
So your honor, it is the case that everybody is, there may be these slight variations for the case where somebody has this medical waiver.

[00:50:13] Speaker 07:
Again, this is part of an overall program about stripping recruits of their individuality.

[00:50:20] Speaker 05:
Why wouldn't adding a line

[00:50:22] Speaker 05:
to that program that said, if religious obligations forbid cutting your beard, it must be tied.

[00:50:31] Speaker 05:
It must be tied and tucked out of view, to the extent possible, in a certain military-regulated manner.

[00:50:44] Speaker 07:
Your Honor, the Marine Corps has explained that that isn't sufficient.

[00:50:48] Speaker 07:
Because?

[00:50:49] Speaker 07:
The Marine Corps has explained that everybody needs to be carrying out basically the same set of activities.

[00:50:55] Speaker 05:
They're not carrying out the same activities.

[00:50:57] Speaker 05:
Some are shaving, some are not shaving and not clipping because they have to wait for a certain amount of length before you can clip without causing the same irritation.

[00:51:05] Speaker 05:
It has to be a certain length before you can provide, apply the medical creams to it.

[00:51:11] Speaker 05:
So some are shaving, some aren't.

[00:51:13] Speaker 05:
Some are shaving, some aren't.

[00:51:14] Speaker 05:
Some are applying a cream.

[00:51:17] Speaker 05:
Some are applying clippers.

[00:51:19] Speaker 05:
I'm just asking where they have said, and that's all allowed.

[00:51:23] Speaker 05:
Marines of that that is all consistent with developing the mindset that we require a boot camp, which is an important interest, no doubt, the Marines.

[00:51:32] Speaker 05:
But what I haven't heard them say is, since we're already doing we already have three or four different options here.

[00:51:38] Speaker 05:
Why?

[00:51:40] Speaker 05:
What is the rationale, the evidence that adding a sentence that said

[00:51:46] Speaker 05:
or neatly and tightly tying a beard and tucking it up out of view is not another option.

[00:51:54] Speaker 05:
You don't have a choice about that.

[00:51:56] Speaker 05:
You don't get to wear your beard down.

[00:51:58] Speaker 05:
You don't get to decide whether you're going to braid it, roll it, tuck it.

[00:52:01] Speaker 05:
We're going to tell you how it's going to be tied.

[00:52:04] Speaker 05:
We, the Marines, are going to make that decision for you because you don't get to make individual choices about your beard anymore beyond the decision of having it.

[00:52:13] Speaker 05:
Where have they said, we can have three or four options, but we can't have that one too.

[00:52:18] Speaker 05:
So they're not all doing the same thing.

[00:52:21] Speaker 07:
I would point you to Colonel Jeppi's declaration.

[00:52:23] Speaker 07:
I think the Marine Corps has explained that this is the level of sacrifice that is needed.

[00:52:28] Speaker 07:
To the extent that there are close questions here, of course, the record is continuing.

[00:52:32] Speaker 05:
The level of sacrifice is surrendering individual control over the need to reduce

[00:52:42] Speaker 05:
the display of facial hair to the extent possible, reasonably possible.

[00:52:48] Speaker 05:
And all the other branches say that consistent with that is tying and rolling up beards.

[00:52:54] Speaker 05:
But I didn't see anything in the Jeppy Declaration that said that if we add that additional option to our list of existing options, the national security will suffer.

[00:53:11] Speaker 05:
as a district court found.

[00:53:13] Speaker 05:
And I'm just having trouble making that leap, given that the national security hasn't suffered for any other branch of the military.

[00:53:22] Speaker 07:
Your honor, Colonel Jeppy and the policies themselves have said that these standards in particular are meant to serve this national defense and national security interests and that this is the necessary level of

[00:53:35] Speaker 05:
Where have they said they can't add this additional option?

[00:53:39] Speaker 05:
What is the connection?

[00:53:40] Speaker 05:
I'm just, my mind cannot quite understand how the rigors of this very difficult and challenging 13 week bootcamp, it's incredibly rigorous and demanding.

[00:53:55] Speaker 05:
And all day, every day, they are taught not to think about themselves, but to think about their colleagues, about their nation, about sacrifice.

[00:54:05] Speaker 05:
24 hours a day, that's what's going on.

[00:54:09] Speaker 05:
But if we let the seek sickness to the person who can't shave that day and can't yet apply chemicals or a clipper and roll and tie up the beard into the very neat appearance that the other branches have accomplished, suddenly the wheels come off and everything else that happens for 13 weeks, 24 hours a day,

[00:54:35] Speaker 05:
seven days a week out of those 13 weeks stops working or is even diminished.

[00:54:42] Speaker 07:
So your honor, the Marine Corps in particular is the expert in running its training and the consequences.

[00:54:49] Speaker 05:
And it needs to show us that expertise.

[00:54:51] Speaker 05:
I think that's what Judge Brown was asking about.

[00:54:53] Speaker 05:
Where have they shown us that military?

[00:54:55] Speaker 02:
Maybe another way to think about this too is we've focused on whether there's a compelling government interest, but the government also has to show it's the least restrictive

[00:55:03] Speaker 02:
means, which is an exceptionally demanding standard, as the Supreme Court has said.

[00:55:08] Speaker 02:
So, I mean, with all of the exemptions in place, how can the government make out that it's the least restrictive means?

[00:55:16] Speaker 02:
I mean, even if we assume that there's some compelling governmental interest, which is also undermined by the exemptions.

[00:55:21] Speaker 02:
But, you know, putting that to one side, what about least restrictive means?

[00:55:25] Speaker 07:
The government has explained that the Marine Corps has explained that this is necessary to affect the psychological transformation.

[00:55:32] Speaker 02:
I mean, one thing I would point you to is the fact that... But how can it be the least restrictive means when there are other widespread exemptions?

[00:55:41] Speaker 02:
So we know that the Marines know how to give exemptions.

[00:55:45] Speaker 02:
Why not an exemption for observance seeks?

[00:55:49] Speaker 07:
Sure.

[00:55:50] Speaker 07:
The exemptions that the plaintiffs are pointing to are present different circumstances than what plaintiffs are asking for and therefore don't show that the government could specifically give.

[00:56:02] Speaker 02:
They are different on the margins.

[00:56:05] Speaker 02:
They are exemptions from uniformity requirements and from uniform grooming requirements.

[00:56:11] Speaker 02:
You know, there may be a little bit, you know, there may be a question of degree, but we know that the Marines gives exemptions from uniformity requirements for grooming.

[00:56:21] Speaker 02:
Lots of exemptions, not just a few.

[00:56:25] Speaker 07:
I guess I wouldn't characterize it as just being a question of uniformity.

[00:56:28] Speaker 07:
It's also a question of

[00:56:29] Speaker 07:
of the sacrifice and giving something up to strip these recruits of their individuality and to put the needs of the team above their own.

[00:56:37] Speaker 02:
So the Marines believe that it's important for observant Sikhs to give up their religious practice in order to be a member of the Marines.

[00:56:47] Speaker 07:
Your Honor, this is a rule that applies across the board.

[00:56:50] Speaker 07:
This is a set of uniform standards that applies across the board.

[00:56:53] Speaker 02:
It doesn't apply across the board because there are medical exemptions and other kinds of exemptions.

[00:56:59] Speaker 07:
But again, Your Honor, those exemptions are not things that undermine the government's interests in the same way, because as the Marine Corps explained, those present different circumstances that don't look like what the plaintiffs are requesting for their particular combination.

[00:57:15] Speaker 03:
The tattooed people don't have to take off their tattoos, right?

[00:57:20] Speaker 07:
Your honor, that's correct.

[00:57:22] Speaker 07:
But again, tattoos, this isn't a question of just making the recruits appear identical.

[00:57:27] Speaker 07:
This is a question about having recruits go through the same process and give something up for the common endeavor.

[00:57:35] Speaker 03:
Exhibit individual, correct?

[00:57:37] Speaker 03:
Isn't that the purpose of a tattoo?

[00:57:39] Speaker 03:
That you pick your choices?

[00:57:42] Speaker 07:
Your honor, I don't think that's right because the Marine Corps in particular restricts the type of tattoos.

[00:57:47] Speaker 07:
If you have a visible tattoo, for example, outside your clothes, that that is restricted under the normal, the normal course.

[00:57:55] Speaker 03:
What about women who have facial hair, you know, that they can't help that they're just hormonal is part of their body.

[00:58:02] Speaker 07:
Your honor, that's not something that that I know the details of how how it plays out in practice.

[00:58:08] Speaker 07:
It's not something that the plaintiffs have raised here is

[00:58:11] Speaker 03:
But again, we're just showing you that there's accommodations made throughout, exemptions made throughout.

[00:58:20] Speaker 07:
You know, I guess what I would say is that I think the important thing is that diversity is not inconsistent with what the Marine Corps is doing here.

[00:58:28] Speaker 07:
Of course, the Marine Corps supports diversity and recognizes the importance and the pursuit of diversity.

[00:58:35] Speaker 07:
However, what these standards are meant to accomplish and why they're consistent

[00:58:39] Speaker 07:
is the idea of recruits giving something up in order to become part of a team and put the needs of the team above their own.

[00:58:46] Speaker 03:
OK.

[00:58:46] Speaker 03:
And then I want to get your opinion about the earlier I was asking Helen's Council about the various articles of faith.

[00:58:53] Speaker 03:
And we talked about bracelet, undergarment, and whether or not you all are having any objection that it's almost an all or nothing.

[00:59:00] Speaker 03:
That if the Sikhs can't have all of their articles of faith, and you eliminate one, you're essentially still eliminated from this practice.

[00:59:08] Speaker 03:
of going into the Marines.

[00:59:11] Speaker 07:
So, Your Honor, I think it's correct that it was the plaintiff's burden to show that each of these particular religious items were necessary for them and that the government, or the Marine Corps in particular, made an error in denying them.

[00:59:28] Speaker 03:
I mean, maybe not as prevalent in their arguments, but it has been mentioned throughout the various brief filings, even somewhat in a footnote.

[00:59:36] Speaker 03:
and the government hasn't really responded to that individually.

[00:59:39] Speaker 03:
So have you forfeited that argument?

[00:59:41] Speaker 07:
No, I don't think we forfeited the argument because the Marine Corps' decision that's under review specifically talks about all of these articles of faith and denies the request as to all of these articles of faith.

[00:59:52] Speaker 07:
So it was incumbent on plaintiffs in their presentation in district court and then on appeal if they thought that was a necessary part of this to clarify that that's part of the scope of the relief that they're seeking and that the government didn't

[01:00:06] Speaker 07:
meet its burden on you know those pieces because again the government has explained what its compelling interests are here and how this is the least restrictive means of accomplishing those interests as to the beards and the other articles of faith.

[01:00:20] Speaker 03:
What would you be concerned about if we granted relief to the appellants in terms of any precedent?

[01:00:26] Speaker 03:
Again referring to the other Miki brief with other religions.

[01:00:31] Speaker 07:
So your honor, I think in general, these cases are, you know, are supposed to be kind of analyzed on a very specific level as to the particular plaintiffs and the particular interests at stake.

[01:00:43] Speaker 07:
And so in general, I think it's important that, you know, this is specific to the specifics of the evidence that we have currently.

[01:00:54] Speaker 07:
And as I mentioned before, I mean, I think what this goes back to is just the idea that there's further factual development that needs to occur here.

[01:01:04] Speaker 07:
And that because the plaintiffs haven't shown any kind of exigency or any kind of strong equity to outweigh the public interest in national defense, that a preliminary injunction shouldn't issue at this time.

[01:01:24] Speaker 05:
One, does the Marine Corps accommodate dietary restrictions if we can?

[01:01:29] Speaker 07:
General, I don't know the specifics.

[01:01:31] Speaker 07:
My understanding in general is that the food that is provided generally accommodates people's dietary restrictions.

[01:01:41] Speaker 05:
So that's not something that's needed to be stripped away, that everyone will eat the exact same food.

[01:01:47] Speaker 07:
So your honor, this is something that hasn't been a focus of briefing and plaintiffs raised it in their reply, but that's my understanding of how it works.

[01:01:53] Speaker 07:
And of course, the recruits are still all eating together at the same time in the mess hall.

[01:01:59] Speaker 05:
Yes, very fast.

[01:02:02] Speaker 05:
And now male and female recruits are training together.

[01:02:06] Speaker 05:
The statutory obligation was forward looking, but the Marines have already graduated classes of at least one class and I think maybe more of

[01:02:15] Speaker 05:
men and women who have trained together platoons.

[01:02:19] Speaker 05:
Can you tell me what it sounds like?

[01:02:22] Speaker 05:
They probably have separate barracks.

[01:02:24] Speaker 05:
Um, but we're sort of the the eating and the classrooms and the physical activities.

[01:02:31] Speaker 05:
Those are all done together during the day.

[01:02:32] Speaker 07:
So your honor, the

[01:02:35] Speaker 07:
Men and women are in separate platoons.

[01:02:37] Speaker 07:
The platoons are not integrated.

[01:02:39] Speaker 07:
At the company-wide level, there is some integration.

[01:02:42] Speaker 07:
My understanding of how that plays out in general is that the trainings are almost completely separate.

[01:02:49] Speaker 07:
They do sometimes sit in the classroom together, but the women sit with their platoon and the men sit with their platoon.

[01:02:55] Speaker 07:
And they may be sort of in the same place at the same time, but much of the training is sort of happening separately.

[01:03:01] Speaker 07:
And specifically the grooming that we're talking about here happens separately because the women live, are required by statute to live in separate barracks from the men.

[01:03:09] Speaker 05:
And is that separation consistent with what's going to be required by the, is it the National Defense Authorization Act that requires integration?

[01:03:18] Speaker 05:
23 or 24, or is that going to have to require more integration than you have now?

[01:03:25] Speaker 07:
Your honor, I believe that the issue is under consideration.

[01:03:28] Speaker 07:
I believe that the Marine Corps, that this fulfills the Marine Corps' obligation, but my understanding is that there's ongoing study happening as to how, what level to integrate at and how to run this training.

[01:03:44] Speaker 05:
And I just had one more question.

[01:03:47] Speaker 05:
So I noticed that Colonel Jeppey said, in your brief said that this grooming policy has been the policy for

[01:03:55] Speaker 05:
decades.

[01:03:57] Speaker 05:
But the Marines have been around since 1775.

[01:03:59] Speaker 05:
So when exactly did this grooming policy start?

[01:04:06] Speaker 05:
And what was the grooming policy from 1775 until this one, generally, with respect to beards and hair?

[01:04:16] Speaker 07:
So, Your Honor, I don't know the specifics of the history.

[01:04:18] Speaker 07:
And my understanding is that may be something that will be developed in discovery as things move forward.

[01:04:24] Speaker 07:
All I know is what Colonel Jeppie says in his declaration that the current standards, at least in this material form, have been around for decades.

[01:04:34] Speaker 05:
And so RFRA, you can meet the RFRA and a strict scrutiny standard on the First Amendment without even showing that this has been required to be a Marine.

[01:04:45] Speaker 05:
It could be for hundreds, 200 years.

[01:04:48] Speaker 05:
150, 175 years that the Marines did not have.

[01:04:54] Speaker 05:
such a grooming policy.

[01:04:57] Speaker 05:
That may be.

[01:04:58] Speaker 05:
Presumably, right?

[01:05:02] Speaker 05:
They did something to this change.

[01:05:03] Speaker 05:
Presumably when you adopted grooming policies to change things.

[01:05:07] Speaker 05:
We just don't know that this has been required.

[01:05:09] Speaker 05:
In fact, we seem to know that this has not been.

[01:05:12] Speaker 05:
At least some elements of this have not been a required grooming policy.

[01:05:15] Speaker 05:
They haven't been part of what it takes to be a Marine.

[01:05:22] Speaker 05:
be a Marine recruit even in boot camp.

[01:05:25] Speaker 05:
Through the history of the Marine Corps, it's just a more modern requirement as far as this record shows.

[01:05:32] Speaker 07:
Your honor, this may in part be based on sort of the shifting role of the Marine Corps in the military.

[01:05:38] Speaker 07:
I'm not sure that, you know, I believe that there have been some changes again.

[01:05:41] Speaker 07:
I'm not an expert in this and I believe that

[01:05:45] Speaker 07:
We expect there to be some testimony put into the record about the Marine Corps' unique role in the military, both currently and historically.

[01:05:56] Speaker 05:
How is it differently currently than it was historically?

[01:05:58] Speaker 05:
Other than, obviously, technologies have changed dramatically.

[01:06:03] Speaker 05:
Were they not an expeditionary force from the beginning?

[01:06:06] Speaker 07:
You're right.

[01:06:06] Speaker 07:
I believe they were.

[01:06:07] Speaker 07:
I don't know the specifics of how things have changed over the years, and that's something that is my understanding is developing in district work.

[01:06:14] Speaker 05:
The rationale here was about being an expeditionary force.

[01:06:17] Speaker 05:
And as far as you know, that's what they've been since the beginning.

[01:06:20] Speaker 07:
Your honor, that's correct that the difference between the Marine Corps and some of the other branches is the expeditionary nature of the entire service, as opposed to select groups within the service.

[01:06:32] Speaker ?:
OK.

[01:06:33] Speaker 05:
Do you have any more questions?

[01:06:34] Speaker 07:
If there are no further questions, we would ask that this sort of firm.

[01:06:37] Speaker 05:
Thank you.

[01:06:40] Speaker 05:
Mr. Baxter, we'll give you three minutes.

[01:06:46] Speaker 05:
And I have one very quick question for you.

[01:06:49] Speaker 05:
You had said when you submitted your updated declarations to this court that they would be filed in the district court within a couple of weeks.

[01:06:57] Speaker 05:
You submitted.

[01:06:58] Speaker 06:
I believe they have in your honor to double checking that they have not will file them immediately.

[01:07:03] Speaker 06:
Sorry, now go ahead.

[01:07:04] Speaker 06:
Thank you, Your Honor.

[01:07:04] Speaker 06:
I would just make three points.

[01:07:06] Speaker 06:
First, my friend on the other side says that they just need a little more time to elaborate.

[01:07:12] Speaker 06:
They've had two, over two years to elaborate all of the reasons and they have failed to give any kind of justification.

[01:07:17] Speaker 06:
I would point the court to the Golden Gordon versus Holder case, 632 F.

[01:07:22] Speaker 06:
32, 722, where this court in a very similar situation when the district court gave a cursory ruling on the fourth prong.

[01:07:28] Speaker 06:
and provided no reason, the court said that it's insufficient, it's an abuse of discretion and legal error and led to reversal.

[01:07:35] Speaker 06:
Here the court couldn't give any reasons because the Marine Corps didn't give them any new reasons to expand upon.

[01:07:41] Speaker 06:
This is the long history of beards in all of the other branches and militaries around the world, in the Marine Corps itself, and they can't provide any reason.

[01:07:51] Speaker 05:
Do you know about this historical question I was asking?

[01:07:54] Speaker 05:
It just struck me as

[01:07:56] Speaker 05:
I wanted to say this from the policy for decades, even though you've been around a long time, but I couldn't figure out maybe they've been unable to find any history for the Marine Corps.

[01:08:03] Speaker 06:
Specifically, we know that for all the other branches in 1981, the Marine Corps tightened up the rate.

[01:08:08] Speaker 06:
All the branches tightened up their regular.

[01:08:09] Speaker 06:
Prior to that, there's a long history all the way back to World War one and six serving honorably in the military.

[01:08:15] Speaker 06:
If the court's looking for any of those in the Marine Corps that you're there, we don't have historical evidence of that honor.

[01:08:20] Speaker 06:
The least restrictive means test has not been met here.

[01:08:24] Speaker 06:
And the narrow ruling for this court is to hold out on the facts of this case, the government has not met the least restrictive means test.

[01:08:31] Speaker 06:
I think that we've met the burden on the other articles of faith, but I'd like to just point to a couple of other legal sources in the appendix at appendix 275, exhibit V to the complaint section 1000,

[01:08:45] Speaker 06:
Four allows exceptions for POW and MIA bracelets.

[01:08:49] Speaker 06:
We know that wedding rings and watches are washed, are allowed at least during portions of recruit training.

[01:08:54] Speaker 06:
Section 3036 addresses undergarments.

[01:08:57] Speaker 06:
There's nothing inconsistent with Kachera.

[01:09:00] Speaker 06:
MC depot order 1513.6G.

[01:09:05] Speaker 06:
That's MC depot order 1513.6G, section 2003, subsection, I think it's 2-7 and 2-8.

[01:09:15] Speaker 06:
says that Marine recruits may keep religious articles of faith.

[01:09:19] Speaker 06:
So you can wear a cross, but you can't keep a krippan.

[01:09:21] Speaker 06:
And then finally, Your Honors, I would just point to the issue of harm.

[01:09:26] Speaker 05:
So what you just cited to me, is that in the record?

[01:09:29] Speaker 06:
Your Honor, I believe it's in the appendix.

[01:09:31] Speaker 06:
I don't have the appendix site on this.

[01:09:33] Speaker 06:
The, it's also legal, the Marine Corps own legal authority.

[01:09:37] Speaker 06:
The district court, your honor, if this were about race, there'd be no question about saying that there's harm if you're told, oh, you can go join the army and do that.

[01:09:43] Speaker 06:
That's what the district court told our clients.

[01:09:45] Speaker 06:
Why don't they just go join the army?

[01:09:46] Speaker 06:
Why don't they just give up their religion for 13 weeks?

[01:09:49] Speaker 06:
We have proof of, in this courtroom, Chaplain Goldstein, 37 years in expeditionary forces to Iraq and Iran.

[01:09:58] Speaker 06:
Major Lieutenant-Curl Colm O'Caltsey served with his beard and turban in Afghanistan.

[01:10:05] Speaker 06:
Bronze medal star award recipient.

[01:10:07] Speaker 06:
Recently dying of terminal cancer because of exposure to burn pits in Afghanistan.

[01:10:14] Speaker 06:
Excuse me, Major Civil Policy of 18 comes here as an asylum.

[01:10:20] Speaker 06:
never thinks he'll have the opportunity to serve his country, goes to West Point on a reception day to shave or go home, has the truth between his religious value to serve and his religious value to maintain his hair for 10 years, kept his braid in a ziplock bag so he would remember that he would never again abandon his religious beliefs.

[01:10:41] Speaker 06:
Later, allowed to wear his turban, teaches at West Point, just sworn the first two seeks to graduate from West Point with their beards and turban put.

[01:10:49] Speaker 06:
These guys really aren't able, they're not expeditionary enough to serve in the Marine Corps.

[01:10:54] Speaker 06:
This is embarrassing and despicable and it should end, and we ask this court to enter a preliminary injunction.

[01:11:00] Speaker 06:
Thank you, Your Honors.

[01:11:02] Speaker 05:
Thank you, the case is submitted.