[00:00:00] Speaker 04: We will hear argument next. [00:00:27] Speaker 04: in number 17-1945, WWRD US against United States. [00:00:40] Speaker 04: Mr. Glock. [00:00:42] Speaker 01: Thank you, Your Honor. [00:00:45] Speaker 01: Appreciate this opportunity. [00:00:47] Speaker 01: Thank you, everyone, members of the court. [00:00:51] Speaker 01: I feel a little bit like the lawyer charged with establishing that [00:00:57] Speaker 01: Santa Claus was a real person. [00:01:00] Speaker 01: And the only one who believes him is Mr. Claus. [00:01:05] Speaker 01: I think probably the best thing I could do is start off by trying to describe where this case, I think, went off the rails. [00:01:16] Speaker 01: The court, the local court, recognized that... Can I ask you one thing? [00:01:21] Speaker 04: In your view, all of the items at issue stand or fall together. [00:01:27] Speaker 04: You don't have any separate argument that if some of the items don't belong in the duty-free category, then others still do. [00:01:37] Speaker 01: No, I wouldn't agree to that necessarily. [00:01:41] Speaker 01: You're talking about our items, the imported items? [00:01:45] Speaker 01: Yes, yes. [00:01:49] Speaker 01: I'm a little hesitant, Your Honor, because- But you haven't made arguments. [00:01:52] Speaker 01: No, no. [00:01:52] Speaker 01: I have not made any. [00:01:53] Speaker 04: OK. [00:01:53] Speaker 01: That's all. [00:01:54] Speaker 01: OK. [00:01:57] Speaker 04: I'm sorry. [00:01:58] Speaker 04: So where did things go off the rails? [00:02:00] Speaker 01: The lower court recognized that Christmas and Thanksgiving dinners are widely observed cultural celebrations. [00:02:10] Speaker 01: Where we fell short is convincing them that these are cultural ritual celebrations. [00:02:15] Speaker 01: Specific. [00:02:16] Speaker 01: Specific. [00:02:17] Speaker 01: specific, it's the specific ritual. [00:02:20] Speaker 01: Right, and they make a point of saying that specific rituals meant something, not just rituals. [00:02:27] Speaker 02: It would be sort of like if the judge had been trying to be funny, they might have said, well, with regard to thanksgiving, does your view of the specific ritual call for removal of the wing before the leg? [00:02:39] Speaker 01: That's what, exactly, or is the ritual putting the candle... So what is the answer to that question? [00:02:44] Speaker 02: Does your view of the Thanksgiving ritual require some specificity with regard to carving the bird? [00:02:52] Speaker 02: No, and I think that's precisely the point, where I think this... What specific act do you associate with the Thanksgiving cultural ritual? [00:03:05] Speaker 01: I think there are [00:03:07] Speaker 01: multiple acts or a series of acts. [00:03:08] Speaker 02: We'll start with one. [00:03:09] Speaker 02: I'm not very smart. [00:03:10] Speaker 01: Start with one. [00:03:12] Speaker 01: The events are held at a prescribed time and place. [00:03:15] Speaker 01: We travel to a designated family. [00:03:17] Speaker 02: So it's typically the same Thursday and the month of November. [00:03:20] Speaker 02: Exactly. [00:03:21] Speaker 01: Same day. [00:03:23] Speaker 01: As children, we know we go to our grandparents' house. [00:03:26] Speaker 01: We get a little older. [00:03:27] Speaker 01: We go to our parents. [00:03:28] Speaker 01: After that, maybe at our house. [00:03:30] Speaker 01: If you have grandparents. [00:03:31] Speaker 01: If you do have grandparents. [00:03:33] Speaker 02: That's correct. [00:03:34] Speaker 01: I think these involve a particular known and repeated events year after year. [00:03:39] Speaker 02: So it's the same date and you go to the same place. [00:03:41] Speaker 02: That's right. [00:03:42] Speaker 01: And we know what is expected to us through customs and tradition. [00:03:48] Speaker 01: We start out at the children's table. [00:03:49] Speaker 01: We work our way up to the adult table. [00:03:52] Speaker 02: We expect to overindulge in the food. [00:03:56] Speaker 02: Is that so? [00:03:57] Speaker 02: I mean, I've always brought the children to the adult table. [00:04:03] Speaker 01: You're very liberal and broad-minded. [00:04:07] Speaker 01: High-minded. [00:04:08] Speaker 02: Thank you. [00:04:10] Speaker 02: I've been called other names. [00:04:11] Speaker 01: I think that raises another interesting point. [00:04:14] Speaker 02: In this case where the court goes into great detail... But there's nothing about... I suppose the head of the family sits at the head of the table if the table has a head, or if it's a round table, he sits at a [00:04:25] Speaker 02: specific place and that is designated to be the head by the virtue of who sits on left or right. [00:04:30] Speaker 01: I think that is a good example of a ritual act. [00:04:35] Speaker 02: Time of day, though, it could be midday, mid-afternoon, evening, or even after dark. [00:04:42] Speaker 01: It could, just as the Seder might be on the first day or the second day. [00:04:46] Speaker 02: But the Seder starts at a particular time during the day, does it not? [00:04:50] Speaker 01: I think that in a... I don't think it's a particular time maybe before... I think the other acts that we say are the specific cultural ritual acts. [00:05:10] Speaker 01: Foods. [00:05:11] Speaker 01: There are recognized foods. [00:05:13] Speaker 01: We have turkey, goose, duck, ham, Christmas pudding, fruitcakes at Christmas. [00:05:16] Speaker 01: We have turkey, stuffing, cranberry, pumpkin pie. [00:05:20] Speaker 01: Thanksgiving. [00:05:21] Speaker 02: There are familiar words and stories. [00:05:23] Speaker 02: Generally recognized, because those are their different cultural influences. [00:05:28] Speaker 02: Because we always have an apple pie, which I always thought was sort of odd. [00:05:33] Speaker 01: I think that's correct. [00:05:34] Speaker 01: I think different cultural influences play a part both in this ritual and in the Seder ritual. [00:05:39] Speaker 01: If I'm an Orthodox Jew, I may follow more scripted formalities than if I'm a Reform Jew living in Virginia. [00:05:45] Speaker 01: If I'm celebrating in Israel. [00:05:48] Speaker 02: You know whether or not the rituals and I suppose all of this started Thanksgiving in New England, didn't it? [00:05:53] Speaker 02: I mean, there wasn't a Kansas where I come from in the beginning of these celebrations, I don't think. [00:06:01] Speaker 02: I don't think the Native Americans celebrated Thanksgiving. [00:06:05] Speaker 02: Do we know that? [00:06:05] Speaker 01: Well, I couldn't say. [00:06:08] Speaker 01: I think we hearken back to the days when pilgrims and the Indians first got together. [00:06:12] Speaker 02: What I'm trying to get at is it's possible that there could be regional versions of the rituals for Thanksgiving and Christmas. [00:06:19] Speaker 01: I think there can, just as with the Seder. [00:06:22] Speaker 01: It's celebrated differently in Israel than in areas in the West Bank. [00:06:28] Speaker 02: It's kind of no wonder that after [00:06:33] Speaker 02: the damage that was done in Midwest of Cannon Falls. [00:06:37] Speaker 02: And then this particular ritual requirement was put in. [00:06:41] Speaker 02: It's no wonder that the customs came and said, please get rid of all that. [00:06:45] Speaker 02: Just because of the complex. [00:06:47] Speaker 02: How does some GS 10 or 11 or 12 at the border decide whether or not a specific ritual has been performed with regard to the candle or the [00:07:02] Speaker 02: hurricane lamp that you proposed to enter. [00:07:05] Speaker 01: It'd certainly be a difficult task to administer if that were the guide. [00:07:10] Speaker 01: I think that in the context of where the statute... You're not making a void for vagueness argument here. [00:07:16] Speaker 04: Not until you just raise it here. [00:07:20] Speaker 04: What, under your view of the interpretation of this provision, what kinds of judgments would the customs officer have to make? [00:07:28] Speaker 01: Well, I think that these are articles that a customs officer would have to do what he would normally necessarily have to do in cases that involve listed articles, descriptions such as this in the heading. [00:07:42] Speaker 01: He's going to have to look at the item and see if it belongs to the same class or kind of items that [00:07:47] Speaker 01: or enumerated, he's going to have to make it. [00:07:49] Speaker 01: That's easy. [00:07:51] Speaker 01: That's a plate. [00:07:52] Speaker 01: I think he's going to, in a way, he's not going to be a religious scholar and know all of the rules of the Seder to know that this item, aside from the Seder plate, it meets within his provision. [00:08:05] Speaker 01: That's going to require a little more study. [00:08:08] Speaker 01: But I think if you're going to be able to adjudicate in your mind as an administrator that these are items that are usually used [00:08:18] Speaker 01: in these ceremonies, in these celebrations, then I think you have a good bet that. [00:08:23] Speaker 04: And more or less not used otherwise. [00:08:26] Speaker 01: And not used otherwise. [00:08:28] Speaker 01: That's correct. [00:08:29] Speaker 01: And not used otherwise. [00:08:31] Speaker 01: I think that one of the things that struck me is the court describing these articles. [00:08:36] Speaker 04: That the plain white plates that come out for Passover and are used only for Passover just because you're supposed to use different plates would [00:08:48] Speaker 04: I think there's something close to the truth about that, I'm not sure, would not come under this because those very same plates could be sold for any number of other occasions. [00:09:01] Speaker 04: There's nothing that if you look at them says, these are Passover plates. [00:09:05] Speaker 01: I think one of the definitions proposed by the government includes Seder plates that are plastic plates. [00:09:10] Speaker 01: They could be fancy or whatever. [00:09:11] Speaker 01: If they are just plain plastic plates, [00:09:15] Speaker 01: that are not used in performance of the seder, then I think that there's no way they're going to be classified here. [00:09:23] Speaker 01: There might be an argument that if you met all the criteria in carborundum and said these are the class of kinds of assault, we can prove that these particular items, even though, because cultures change, what we view as items within this ritual may change through time. [00:09:39] Speaker 01: And I think that's why it's important to look at the indicia, the seventh indicia that's pointed out in carborundum and say, well, listen, [00:09:45] Speaker 01: These are part of the kind of articles that are used. [00:09:48] Speaker 01: They're sold that way. [00:09:48] Speaker 01: They're marketed that way. [00:09:49] Speaker 01: And we use them that way. [00:09:51] Speaker 01: I think what also strains the inclusion is the fact, as Your Honor seems to be suggesting, they don't have any special symbols that make their use at another time apparent, as was the case in the festive articles. [00:10:07] Speaker 01: If you're looking to see if an item is a festive article, that was one of the issues that you were looking for. [00:10:12] Speaker 01: I'm not so certain that that's the case here. [00:10:14] Speaker 01: I don't agree with the government [00:10:15] Speaker 01: You have to first meet a festive test. [00:10:19] Speaker 01: And then subsequently, you apply all of the specific requirements that are expressed in this statute. [00:10:27] Speaker 01: But I can see your point. [00:10:28] Speaker 04: I guess part of what I'm trying to focus on is I'm thinking about how the current, the 2007 regime came to be. [00:10:39] Speaker 04: Before that, as I understand it, you know this better than I, but my understanding is [00:10:44] Speaker 04: In 2006, there was the chapter 95 and in particular the heading 95, I don't know, 0.10 or whatnot. [00:10:54] Speaker 04: And that pretty broadly covered festive articles. [00:10:59] Speaker 04: And Congress through the change says, we're not going to have that anymore. [00:11:05] Speaker 04: In particular, we're going to add an exclusion for tableware and kitchenware. [00:11:09] Speaker 04: And I'm going to, because of what you said at the very beginning of the argument, [00:11:14] Speaker 04: I'm going to include the lamps in there, your last category, everything else is clearly. [00:11:18] Speaker 04: And it feels to me like you're making an argument for reinstating under the new regime, what is pretty clearly carved out from the old regime. [00:11:31] Speaker 04: Because how is the customs officer going to make a distinction between anything that's, you know, Christmas ornaments, nativity scenes. [00:11:41] Speaker 04: articles for Christmas festivities and parts and accessories thereof. [00:11:46] Speaker 04: The answer is going to be you're now going to have to identify a specific ritual and say only some of those. [00:11:56] Speaker 04: And I don't see quite how that works. [00:11:59] Speaker 01: I think the provision came in reaction to an ever expanding inclusion of articles under the festive orbit. [00:12:07] Speaker 01: So we started at Midwest, and we went all the way through Park B. Smith. [00:12:11] Speaker 02: And it got to the point. [00:12:16] Speaker 01: That's right. [00:12:16] Speaker 01: You could wear a sweater with a Santa on it. [00:12:19] Speaker 01: It was a festive article. [00:12:22] Speaker 01: When the new provision came in effect, they put in a subheading for the utilitarian articles that we would describe, such as these plates, et cetera, what the [00:12:33] Speaker 01: the provision we're talking about in 9817, it starts out by just limiting it to certain classifications, included dinnerware, et cetera. [00:12:45] Speaker 01: And in that, it's eliminated a lot of the things that, let's say, Wilton or Michael Simon would have included, the happy birthday mug. [00:12:55] Speaker 01: That would have been festive. [00:12:56] Speaker 01: It's not anymore. [00:12:56] Speaker 01: Why? [00:12:57] Speaker 01: It's not part of a holiday. [00:13:00] Speaker 01: It's not used in a holiday. [00:13:02] Speaker 01: It's not used in a cultural ritual, necessarily, unless you say that a birthday party is a cultural ritual. [00:13:08] Speaker 01: So I think that narrows it. [00:13:10] Speaker 01: That narrows it a lot. [00:13:11] Speaker 02: Well, what happens to articles that are not listed in the listing in 981,795? [00:13:18] Speaker 02: So articles classified in headings, yada, yada, yada, yada. [00:13:22] Speaker 02: That's the nature, right? [00:13:24] Speaker 01: Right. [00:13:24] Speaker 01: Well, that's where the refinement counts. [00:13:26] Speaker 02: Let's assume you have a product that is not in that list, because it's only that list to which the rituals apply. [00:13:34] Speaker 02: So let's assume it didn't involve a baseball hat, and you put Santa Claus on the baseball hat. [00:13:44] Speaker 02: Does that still come in as a festive article? [00:13:50] Speaker 01: What happened to the old festive article? [00:13:51] Speaker 01: Yeah, it's a good question. [00:13:55] Speaker 02: Is the old festive, the festive that I dealt with in Midwestern camp, we dealt with it? [00:13:59] Speaker 01: Yeah, no, the old festive is still alive. [00:14:01] Speaker 01: That's what I thought. [00:14:03] Speaker 02: That's what I thought. [00:14:04] Speaker 01: It's still alive. [00:14:05] Speaker 01: It's still alive. [00:14:06] Speaker 01: What this does is carve out these particular items that are enumerated. [00:14:12] Speaker 01: I see that. [00:14:13] Speaker 02: And it says to them, excuse me, those things that ordinarily would come in essentially duty free. [00:14:20] Speaker 02: now are going to get a duty unless you can show that they are tied to this specific reason. [00:14:26] Speaker 02: But there's still a whole universe of things out there that still might slide under the, starting with Mid-Best Cannon Falls, the old festive thing. [00:14:34] Speaker 02: This was a limited, they picked a handful that they thought the ones that were the biggest loophole or whatever. [00:14:41] Speaker 01: I think that's precisely correct. [00:14:45] Speaker 04: You have only a minute left. [00:14:48] Speaker 04: Why don't you [00:14:49] Speaker 04: You can either use it now or use it for on rebuttal. [00:14:52] Speaker 01: I'll use it for rebuttal. [00:14:53] Speaker 01: Thank you. [00:15:05] Speaker 00: Good morning, Your Honors. [00:15:06] Speaker 00: May it please the Court? [00:15:07] Speaker 00: Your Honors, the trial court should be affirmed here because the trial court did accurately assess what the meaning of this heading captures. [00:15:17] Speaker 02: Is there a reason why in promulgating 9817.95 that there are only like nine or 10 subheadings that were identified to deserve the ritual treatment? [00:15:32] Speaker 00: Yes, Your Honor, because those are, as Your Honors were discussing earlier, there was a history here. [00:15:37] Speaker 00: 2007 becomes the break point. [00:15:40] Speaker 00: Prior to 2007, anything that would manage to be a festive article under 95.05, [00:15:47] Speaker 00: It didn't matter whether or not you were utilitarian. [00:15:49] Speaker 00: It didn't matter whether you were textile, whether you were a cup or a plate. [00:15:53] Speaker 00: None of that mattered. [00:15:54] Speaker 00: In 2007, there's a change. [00:15:56] Speaker 00: There's an exclusion to the festive articles. [00:15:59] Speaker 00: And it takes a group of what are utilitarian. [00:16:02] Speaker 02: Well, I sometimes notice why you take that group. [00:16:04] Speaker 02: For example, if you had a baseball hat that had Santa Claus on it, presumably it might still be a festive article. [00:16:10] Speaker 02: Baseball hats might come in at a duty of 25%, whereas if it's got Santa on it, it's free. [00:16:16] Speaker 00: I'm not entirely sure why this particular set was, but it appears to be because they were utilitarian articles, and that that was an issue that customs had always raised in the doctrine that was produced as part of Canon and Midwest and Park B. Customs constantly said, no, this shouldn't fall in here, because even though it's decorated, [00:16:40] Speaker 02: It's still a utilitarian article, and that was tied into- What's the government's definition of a specific ritual? [00:16:46] Speaker 02: Let's go back and take Thanksgiving. [00:16:49] Speaker 02: Yes, Your Honor. [00:16:50] Speaker 02: Tell me, let's assume that you want to create, give me an interpretation of a rich, sufficient ritual here for Thanksgiving that would have allowed these goods to survive. [00:17:04] Speaker 02: So what would the ritual have to be? [00:17:07] Speaker 00: Your Honor, [00:17:09] Speaker 00: I'm not aware of any ritual, but if I were to design one, it would have to be that there was a blessing that was given in 1622 or 23 when the pilgrims devised this event, this Thanksgiving event. [00:17:23] Speaker 00: That there was a blessing and a prayer, and that before anyone, maybe you come to the table, and before you can sit down, everyone stands up. [00:17:31] Speaker 00: All right, everyone has to, male, female, male, female, hold hands around the table. [00:17:38] Speaker 00: And then you say the prayer, and the first person says the first word, and the second person says the second word. [00:17:44] Speaker 00: And again, I'm inventing something here. [00:17:47] Speaker 00: But we're looking at, and the reason I invent it that way is because I'm looking at the exemplars of this heading. [00:17:53] Speaker 00: And we're talking about a Seder plate. [00:17:55] Speaker 00: We're talking about a menorah. [00:17:57] Speaker 00: We're talking about blessing cups. [00:17:58] Speaker 00: And we're talking about a canara. [00:18:00] Speaker 00: Those four exemplars are telling us what this heading is meaning to put back. [00:18:06] Speaker 00: Because remember, all these are utilitarian articles have just been excluded from 9505. [00:18:12] Speaker 00: And there's a footnote to 1V that says, but you can go look in the special condition. [00:18:18] Speaker 00: And it's not a heading, by the way. [00:18:19] Speaker 00: It's a subheading. [00:18:21] Speaker 00: So before you could ever get to 9817.95, you've got to first show up and see whether or not you would have been in the old regime of a festive article of 9505. [00:18:33] Speaker 00: And when you walk into that heading and you say, oh, no, I'm actually a cup, I'm a plate, I'm tableware, I'm a candle, I'm a lamp. [00:18:43] Speaker 00: If I fall into that, then I'm not allowed to be in that heading anymore. [00:18:48] Speaker 00: But I might, just might, fall into an exception to the exclusion. [00:18:53] Speaker 00: And this exception is very narrow. [00:18:55] Speaker 00: There is very specific language used here. [00:18:58] Speaker 00: As Your Honor recognizes, it's specific ritual. [00:19:01] Speaker 02: Well, if you're the customs officer at the border, golly, Lord, help the importer, because it's got to be a very, very specific ritual. [00:19:10] Speaker 02: That's true, Your Honor, but... How's the poor bloke at customs supposed to know what the... Does he have a book that tells him what rituals are for... [00:19:20] Speaker 02: every holiday? [00:19:22] Speaker 00: He doesn't, Your Honor, that I'm aware of, and she doesn't, that I'm aware of. [00:19:26] Speaker 00: But what does exist is under the Mott Act, it is the importer's obligation to make sure if I'm going to assert that I fall into 98, 1795, that in fact I'm telling you what the ritual is and that in good faith I have an obligation. [00:19:43] Speaker 00: So most of the time, as the court is aware, [00:19:45] Speaker 00: Most of the goods that are coming into the United States, we're relying on the trustworthiness of importers and of brokers to tell customs how that should be classified. [00:19:55] Speaker 04: Can I ask you about, I guess, a specific kind of thing? [00:20:00] Speaker 04: Halloween. [00:20:01] Speaker 04: Yes. [00:20:03] Speaker 04: Trick or treating. [00:20:04] Speaker 00: Yes. [00:20:04] Speaker 04: Sounds like a cultural celebration, ritual, maybe even celebration. [00:20:12] Speaker 04: Plastic, pumpkin, [00:20:15] Speaker 04: Bucket for trick or treating. [00:20:17] Speaker 00: Yes. [00:20:18] Speaker 04: Buckets are included in the list before you get to the specific ritual thing. [00:20:24] Speaker 04: Included? [00:20:26] Speaker 00: If they're in the shape of a pumpkin, they are, Your Honor. [00:20:28] Speaker 04: Why? [00:20:29] Speaker 04: I mean, except for the three words, trick or treat, there's not any words spoken and probably some extremely small percentage [00:20:44] Speaker 04: of trick-or-treaters carry these things? [00:20:46] Speaker 04: Right. [00:20:47] Speaker 04: Maybe even the particularly small ones. [00:20:50] Speaker 00: Right, Your Honor. [00:20:50] Speaker 00: They're actually not in this heading. [00:20:53] Speaker 00: They're in the other subheading. [00:20:55] Speaker 04: Why are they not in this heading? [00:20:57] Speaker 00: They're not in this heading because for the very reasons Your Honor states. [00:21:01] Speaker 00: For example, the bucket is not necessary to the performance of the act. [00:21:08] Speaker 00: If we watch the old Charlie Brown, you're out there with a pillowcase. [00:21:11] Speaker 00: So the fact that someone's made a bucket, that's lovely, but it's not necessary to the event. [00:21:17] Speaker 00: I don't know that trick-or-treating... I'm sorry, what's the other heading? [00:21:21] Speaker 00: The other heading is 981795.05. [00:21:28] Speaker 00: Utilitarian articles in the form of a three-dimensional representation of a symbol or motif clearly associated [00:21:36] Speaker 00: with a specific holiday in the United States. [00:21:39] Speaker 00: So if one were to make that bucket in the shape of a Frankenstein head, in the shape of a pumpkin, and you see this all the time. [00:21:46] Speaker 00: You see little kids walking. [00:21:47] Speaker 00: They have a little pumpkin. [00:21:48] Speaker 00: They have a little orange pumpkin with the black plastic handle at the top. [00:21:51] Speaker 00: That would fall right into the second point. [00:21:53] Speaker 00: So the first point is a very restrictive, and the category they're trying to fit into here. [00:21:59] Speaker 03: But just to follow up, why couldn't it fall within both categories? [00:22:03] Speaker 03: Why isn't the act of [00:22:06] Speaker 03: trick-or-treating, saying trick-or-treat. [00:22:08] Speaker 03: I mean, it's a very minimal ritual, perhaps, but a ritual nonetheless. [00:22:14] Speaker 03: Because it's part of this cultural celebration. [00:22:17] Speaker 00: I don't know that it's a cultural celebration, per se. [00:22:21] Speaker 00: It's a cultural event. [00:22:23] Speaker 00: And it doesn't have the formality associated with it. [00:22:27] Speaker 03: I guess that's the real next question I have, is why [00:22:32] Speaker 03: It felt perhaps like the court below and the government really is expecting something formal, something solemn, something borderline religious, if not actually religious. [00:22:44] Speaker 03: And it's not clear to me what in the text really demands that. [00:22:49] Speaker 03: So long as there is something that is ritualistic in the sense it's just something you definitely do. [00:22:56] Speaker 03: There's a certain act that you do. [00:22:59] Speaker 03: And saying trick or treat. [00:23:01] Speaker 03: Or doing the Easter egg hunt on Easter and you have those little hollow plastic eggs that you hide around in your backyard. [00:23:14] Speaker 03: Why aren't those things considered rituals? [00:23:16] Speaker 00: Because, Your Honor, I don't think that it rises to the level of formalism. [00:23:20] Speaker 00: It's more of a tradition. [00:23:21] Speaker 00: It's more of a custom. [00:23:22] Speaker 00: It's something that people have done over time. [00:23:26] Speaker 00: I mean, the idea of putting the plastic eggs out, that's a recent [00:23:30] Speaker 00: advent of Easter. [00:23:32] Speaker 00: I mean, Easter's been around 2,000 years, and this is a more recent kind of a custom or a tradition. [00:23:38] Speaker 00: People came up with an idea, they thought it was cute. [00:23:40] Speaker 04: Yeah, but I mean, but as you know, the nature of ritual celebrations of old events changes over time, often quite dramatically. [00:23:52] Speaker 04: That shouldn't mean that the new versions, you know, like the new Haggadahs or something are [00:24:00] Speaker 04: are outside this provision. [00:24:04] Speaker 00: I think, Your Honor, I think it goes back to when we talk about the formalism, when we're looking at the exemplars, we're looking at a Seder plate, there's a Haggadah that does have certain prayers, that does have a story that's being told, and it's more formulaic. [00:24:21] Speaker 00: There is a blessing that's occurring. [00:24:23] Speaker 00: There are specific foods. [00:24:25] Speaker 00: I mean, if one were to limit, say, the Halloween, [00:24:28] Speaker 00: If you were to be limited only to saying, you know, trick-or-treat, I mean, little kids would come up and they'll just stand there. [00:24:35] Speaker 00: And there is no trick-or-treat. [00:24:36] Speaker 00: It happens rather a lot. [00:24:36] Speaker 00: It happens most of the time, and most of the time it's the little kids who are trick-or-treating. [00:24:40] Speaker 00: Although I know some big kids still want to go out and try to, you know, gather as much candy as they can get until the next holiday. [00:24:46] Speaker 00: But the little kids that are going out don't even know half the time what it is there to say. [00:24:51] Speaker 00: So they come up and they stand there, and it's the person who's handing out the candy who might say, [00:24:56] Speaker 00: Do you want a treat? [00:24:57] Speaker 04: Do you want a treat? [00:24:58] Speaker 04: But just to pick up on what Judge Chen said, it seems to me that the Court of International Trade and you are taking a position requiring a very high degree of specificity and formality. [00:25:17] Speaker 04: And it's not clear why one should read that into this. [00:25:24] Speaker 04: into this language. [00:25:25] Speaker 00: I think it's because the language includes in the performance of specific ritual or cultural, excuse me, religious or cultural ritual celebrations. [00:25:37] Speaker 02: So the fact that this heading... Couldn't you have an ancient historic cultural celebration that has generalized behavior associated with it? [00:25:48] Speaker 02: Dancing, but no specific type of dancing. [00:25:53] Speaker 02: Feasts, but no particular food at the feasts, but it is admitted that it is an ancient tradition that comes down in some particular ethnic group. [00:26:06] Speaker 00: Right, but the thing, what happens there is that you have a tradition, and you have perhaps a custom, but that's not rising. [00:26:13] Speaker 00: They're choosing this word very specifically here. [00:26:16] Speaker 00: They're choosing the word ritual, and they're also including in the heading, performance, [00:26:22] Speaker 00: performance of specific religious or cultural ritual celebrations. [00:26:27] Speaker 00: So you need to understand, we're talking about performance. [00:26:30] Speaker 00: So performance is generally that word, we understand it to be scripted. [00:26:35] Speaker 02: And that is supported by the... So you're sort of trying to say that if I had a cultural, historic, you know, cultural celebration that didn't have any performance elements, you wouldn't qualify? [00:26:49] Speaker 00: I think that's right, Your Honor. [00:26:51] Speaker 02: I think you have to have some performing. [00:26:53] Speaker 00: Yes. [00:26:54] Speaker 00: In the plain language of this heading, it's calling for the performance. [00:27:00] Speaker 00: It's calling for the article to be used in the performance. [00:27:04] Speaker 00: And that goes to the concept of ritual. [00:27:06] Speaker 00: Ritual, all the definitions that we see talk about a scripted event that has a form of, when we talk about formal, [00:27:13] Speaker 00: I want to make sure that the court understands what we understand formal to be is that it is preset that there's a certain sequence of events that has to occur. [00:27:24] Speaker 00: And if it doesn't occur, then it falls out of the realm of a ritual. [00:27:27] Speaker 04: I'm not sure I can think of examples, but your friend on the other side, I think, was adverting to what intuitively seems is probably right, which is that there are certain ritual celebrations in which there's not just [00:27:41] Speaker 04: one thing you can say or one set of acts you take, but a menu of choices you have to make. [00:27:51] Speaker 04: I guess he was referring to, in Israel, a seder may be one thing and it may be a different thing in some other place. [00:28:02] Speaker 04: It feels like your approach to this would exclude that, that you're suggesting that there has to be a unique set of acts or words that pretty much everybody involved in the celebration has to follow without choice. [00:28:20] Speaker 00: Yes, I think that that's right, Your Honor, that there are certain fundamentals to that ritual event. [00:28:26] Speaker 00: Now, can one do a riff on that particular ritual event? [00:28:32] Speaker 00: and maybe add to the story. [00:28:36] Speaker 00: That might be possible, but there's an underlying fundamental. [00:28:39] Speaker 00: There's a foundation here of what the event will be. [00:28:43] Speaker 00: That would be, for example, Sederplein. [00:28:46] Speaker 00: I mean, there are the six foods. [00:28:48] Speaker 00: If you wanted to add as part of your ritual, [00:28:52] Speaker 02: two more foods to say well you know we're going to add this sweet because when we left it was even sweeter than what would happen if in in the Jewish faith for example in the reformed faith if someone decided there was permissibly could be a seventh food yeah and that the person the grand the the the rabbi who's in charge of this particular wide a group of jews said that's the way we're going to do it but that's going to be our very specific ritual and that may be [00:29:21] Speaker 00: within that group a specific tradition of a ritual. [00:29:26] Speaker 00: It may be their custom, their specific custom, but there is still underneath. [00:29:31] Speaker 00: So we still have the six foods, and someone's going to add a seventh. [00:29:35] Speaker 00: Well, that's an accretion. [00:29:37] Speaker 00: That doesn't change the foundation of the event, the fundamental event [00:29:42] Speaker 00: is still ritualistic, it is still preset, it is an ordered event. [00:29:47] Speaker 02: For example, the... So you're saying that those goods would qualify for the exclusion? [00:29:51] Speaker 02: Sorry? [00:29:52] Speaker 02: If the plate had room for the seventh or whatever, you say, well, that's okay. [00:29:56] Speaker 00: Yes, so long as it was understood. [00:29:58] Speaker 02: It's still within the ritual, it's just in a variation. [00:30:00] Speaker 02: It's a variation on a theme, but it... Well, that's what I'm trying to get at with the presiding judge. [00:30:04] Speaker 02: I'm not pushing you on whether or not there's any flexibility in your specificity. [00:30:09] Speaker 00: I think there is some flexibility, but that flexibility has to flow from an inflexible base. [00:30:16] Speaker 00: There has to be the base that is the ritual, and then there may be a riff on that ritual. [00:30:21] Speaker 00: And I see my time is up, Your Honor, but I wanted to finish the thought. [00:30:25] Speaker 00: For example, the canara, which holds candles. [00:30:28] Speaker 00: I mean, there's a certain way of lighting those. [00:30:30] Speaker 00: They're placed in a certain way. [00:30:33] Speaker 00: The color is on one side. [00:30:36] Speaker 00: There's red. [00:30:39] Speaker 00: black candle, and then green candles. [00:30:41] Speaker 00: You can't mix that up. [00:30:43] Speaker 00: Now, I mean, if you try to do a riff on that, you're changing that. [00:30:47] Speaker 00: So the canara is holding those candles in a certain way. [00:30:50] Speaker 00: There's a formalism to this. [00:30:51] Speaker 00: There are symbols and words. [00:30:53] Speaker 00: There are intonations that occur. [00:30:54] Speaker 03: What about the Fourth of July launching of fireworks? [00:30:57] Speaker 03: Every Fourth of July, every town, city, they have to buy a whole bunch of fireworks, and maybe there's some foreign country that is trying to import them into the... [00:31:09] Speaker 03: every town, every city at 9.20 p.m. [00:31:13] Speaker 03: on the 4th of July, they launch a whole bunch of fireworks. [00:31:19] Speaker 03: Wouldn't that be a utilitarian article used in the performance of a specific cultural ritual celebration? [00:31:27] Speaker 04: If there were words... Assuming it were in the home. [00:31:29] Speaker 04: Yeah, assuming it were in the room. [00:31:31] Speaker 03: Oh, then there's that. [00:31:32] Speaker 03: Yeah, the home, too. [00:31:33] Speaker 00: Well, the backyard, perhaps. [00:31:35] Speaker 03: There are over 300 million people in this country. [00:31:38] Speaker 03: Let's assume for the moment they all launch fireworks every 4th of July. [00:31:43] Speaker 03: In their home. [00:31:44] Speaker 03: At the home. [00:31:45] Speaker 00: And the first responders will be quite busy. [00:31:48] Speaker 00: But I understand. [00:31:49] Speaker 00: I appreciate the concept, Your Honor. [00:31:51] Speaker 00: It's that is this our fireworks, even though they're occurring? [00:31:57] Speaker 00: See, they're traditional. [00:31:59] Speaker 00: But if the firework didn't occur, if it rained out, would 4th of July still have occurred? [00:32:04] Speaker 00: It would have. [00:32:05] Speaker 00: And there may have been people, maybe the rituals you get up and you say, you know, the Star Spangled Banner, you sing the national anthem as part of the 4th of July, or you recite, you know, I'm from Philadelphia. [00:32:18] Speaker 00: You go out to Independence Hall, you roll out the Declaration of Independence and you recite it. [00:32:23] Speaker 00: And that's done every 4th of July in the morning when the gentleman's name was Mr. Nixon. [00:32:29] Speaker 00: would have, believe it or not, would have read the Declaration of Independence. [00:32:33] Speaker 00: So that becomes, perhaps that rises to the level of a ritual, because it is longstanding and it has a performance aspect to it, and it has specific words. [00:32:45] Speaker 00: I cannot take the Charter of Rights from another country and come into, in Philadelphia, it could be a problem. [00:32:52] Speaker 03: Is Paxitani Phil a ritual when it comes out every Groundhog Day? [00:32:58] Speaker 00: No, because Puxatani Phil, he dies, and they get a new one. [00:33:01] Speaker 00: And sometimes there's a girl. [00:33:02] Speaker 00: And it's a girl brown hot. [00:33:04] Speaker 00: I'm from Pennsylvania, so I know this. [00:33:05] Speaker 03: OK, I withdraw the question. [00:33:06] Speaker 03: I'm sorry. [00:33:07] Speaker 00: Sometimes there's a girl, and they call Phil anyway. [00:33:09] Speaker 02: It doesn't matter. [00:33:12] Speaker 00: Quit while we're ahead. [00:33:13] Speaker 00: Your Honor, the trial court below should be affirmed, because it got the right definition, and it understands that the ritual here is much more formulaic and must be performed. [00:33:23] Speaker 00: Thank you very much. [00:33:24] Speaker 04: Thank you. [00:33:28] Speaker 04: Two minutes. [00:33:30] Speaker 01: Disagree with the government. [00:33:31] Speaker 01: Number one, the invention she describes, well, first of all, in the answer to your question, as long as you say a prayer before you light the fireworks, according to the government, it would be a ritual. [00:33:42] Speaker 01: The description of the government's invention of a holiday doesn't square with some of the definitions of Seder that are already on the record. [00:33:52] Speaker 01: The government points out that a Seder is a festive that includes reading, [00:33:57] Speaker 01: drinking wine, telling stories, eating special foods, and singing. [00:34:02] Speaker 01: That's a pretty loosely informal type of description to describe the state. [00:34:08] Speaker 01: And I think that goes along with the statute and its understanding that... I'm sorry, you were reading from something that's like a definition? [00:34:16] Speaker 01: That was a definition that was provided for in one of the briefs. [00:34:20] Speaker 04: But that doesn't mean any old foods, any old songs, any... [00:34:24] Speaker 01: It doesn't describe it as any of them. [00:34:26] Speaker 04: It would be ridiculous to read that. [00:34:30] Speaker 04: Definitions are often not written that way. [00:34:32] Speaker 04: You want to know what this thing is? [00:34:34] Speaker 04: Well, it's this kind of thing. [00:34:35] Speaker 04: You want more specifics? [00:34:36] Speaker 04: I'll give them to you, but the specifics matter. [00:34:38] Speaker 01: I think that's correct. [00:34:39] Speaker 01: And that goes to the point of the statute, how it's written. [00:34:42] Speaker 01: It defines cultural rituals and religious rituals differently. [00:34:47] Speaker 01: Cultural rituals must be performed during the holiday, a holiday. [00:34:51] Speaker 01: Religious can be during a holiday or religious festival. [00:34:55] Speaker 01: Even a distinction between the words has an important function here, because I think that lends itself to the court interpreting the meaning of a religious ritual different than a cultural or sexual ritual. [00:35:10] Speaker 01: And I think that, again, goes back to what I was saying. [00:35:13] Speaker 01: What I think the court got a little bit derailed was by the discussions. [00:35:20] Speaker 01: of the very specific formal ways that a Seder may be done. [00:35:27] Speaker 01: It's the same thing about the Qunara. [00:35:28] Speaker 01: And that's a civil servant. [00:35:30] Speaker 01: That was really an invention of a college professor at the University of Chicago that wanted to create a symbolic recognized way of showing African-American culture. [00:35:46] Speaker 01: And it has been evolving. [00:35:49] Speaker 01: And maybe in a few weeks from now, it will evolve even more. [00:35:52] Speaker 01: As this country becomes more secular, we're going to have less and less religious rituals. [00:35:57] Speaker 01: And I think that the import specialist that has to deal with it then is going to have a real problem. [00:36:03] Speaker 01: Because when you look in a dictionary, when you have seven definitions of ritual, maybe the cultural rituals will be on top and the religious will be on top. [00:36:13] Speaker 04: But one thing, at least, that tell me why this is wrong. [00:36:18] Speaker 04: that would seem to favor a particularly narrow and demanding interpretation of this language is that it would diminish the range of application, discretion, and choice. [00:36:38] Speaker 01: Well, Your Honor, as we explained, and I think the government may point out, this is really darn specific. [00:36:44] Speaker 01: You have to be in one of these categories first. [00:36:46] Speaker 01: You have to be class one. [00:36:48] Speaker 01: then you have to be a specific cultural ritual. [00:36:51] Speaker 01: And it can only be used on a holiday. [00:36:53] Speaker 01: That itself is quite limiting. [00:36:55] Speaker 01: And the government seems to want to limit it only to the exemplars and nothing else. [00:37:00] Speaker 01: And it's requiring religious formality that is not necessarily a part of cultural rituals at all. [00:37:09] Speaker 01: We live these things. [00:37:10] Speaker 01: We know what to do because we've done it. [00:37:13] Speaker 01: We will do it again, and we expect to do it again. [00:37:15] Speaker 01: And our children will do it the same way, because they grew up with this cultural ritual. [00:37:22] Speaker 01: And it's part of our tradition. [00:37:26] Speaker 01: That's a forceful enough symbol for me to keep in the context of this statute, rather than looking for further ways of limiting it by saying you have to have a prayer before you light the fireworks. [00:37:37] Speaker 04: Thank you very much. [00:37:39] Speaker 04: The case is submitted, and that court will stand in recess.