Legal Case Summary

Thank you. All right, we're ready to call the next case. Conestoga Woods, Facilities Corporation versus Secretary of Health and Human Services. We've given each side a half hour here. My colleagues and I have agreed that we will remain uncharacteristically silent for the first five minutes of these sites presentation. So we welcome you, Mr. Proctor, and you may proceed. Good afternoon. May I please the court? I'm Charles Proctor representing the Hawn family and Conestoga Woods specialty. May I ask for five minutes of rebuttal? Yes. Thank you, Your Honor. Since 1965, the Hawn family have been the founders, the sole stockholders, the employees, the managers, the board of directors of Conestoga Woods specialties. Without the Hawn family, there would be no Conestoga Woods specialties. There would not be 950 people employed by their company. As a result of their deep, daily involvement with Conestoga, they have been tasked with and have just as every other business America has decided, deliberated, researched, and considered every aspect of the running of that business. And that includes their health insurance policy. This is not something new to the Hawn family. They have always chosen their health insurance policy based on their deeply held, strongly believed, religious beliefs. The government has not contested the fact that the Hawns have those deeply held religious beliefs. The government in fact has conceded that they are beliefs held by the Hawn family during the entire operation of this business. The Hawns have demonstrated their religious beliefs through four key statements. One is a statement of core values. One is a vision and mission statement. The third is a business practice statement. And the fourth is a human sanctity of life statement, all of which are published and posted throughout their offices, their factories, where they do business, and are made clearly and plainly visible to their employees, their customers, the vendors that supply them with goods, and anyone that they come in contact with. To say that the Hawns have to leave their religious beliefs at home when they go to work, or that they must only exercise them in church, would be a mistake. The First Amendment does not put any prohibition on the Hawns belief in that regard. The Hawns are free to exercise their religion through their business, and their business no matter what that corporate form is, expresses the way they do business in the way they believe

. The HHS mandate places a substantial burden on the Hawns. And a substantial burden is when, as the court well knows, any time a person is required to change their beliefs, to change their behaviors as a result of that burden or that pressure. In this particular instance, the Hawns are suffering irreparable harm to their religious conscience 24 hours a day, seven days a week, because they are currently providing health insurance under the mandate for their employees. The burden, that substantial burden, which is forcing them to change their behaviors, forcing them to change their substantial beliefs, is in position of a $100 per day fine per person, per employee, plus the threats of other sanctions and a lawsuit. In this instance, that would be $95,000 per day in fines. If that's not a substantial burden, I don't know what is. There are very few businesses in this country that could withstand that type of a fine. It's not a tax, it's a fine. So they must change their beliefs. They must provide the mandated coverage, contraception, a board-efficient contraception, sterilization, and counseling at no cost to their employees, as a result of this substantial burden. The Supreme Court has ruled that a burden, no matter how slight, as in the yoder case, is enough to burden someone's conscience and require that they be given relief. The Supreme Court has also ruled in El Rod versus Burns that any injury to your religious conscience, no matter how slight is irreparable and thus not allowed. Why don't you, if you would, go to the main point that seems to be what the government presses the hardest on, which is, this isn't about the haunts, this is about conistoga the company, it's a for-profit corporation, and therefore they just don't, the company, the corporation has no free exercise rights. What, get to that issue, which seems to be kind of the heart of the government's argument. And I believe that's the heart of our argument as well, you know. Corporations somehow, the government would like to see that they'd be putting a separate category from the rest of us. Corporations are protected by free speech in the First Amendment. They're protected in the 4th, 5th, 6th, 7th, and 14th Amendment, just like the rest of us. Corporations, particularly solely owned, closely held corporations such as this, only exist because of the haunts. This is not a situation such as IBM or Ford Motor Company where there are tens of thousands of stockholders. Are you suggesting that there's a, there should be a different rule of law as respecting whether a corporate entity could exercise religious first-demand. And then it's based on whether it's closely held or publicly held. No, Your Honor, I believe that any corporation, if that is their purpose, if they wish to exercise religion, through that corporate entity, should be able to do so. But in this specific case, it's even more closely attenuated, which is a word that the government likes to use, because of the proximity of the haunts to this corporation. As I said earlier, without the haunts, there would be no conestoga. They are the heart and soul of this corporation. And like any business, whether it be IBM or Conestoga Wood, everyday decisions are made by individuals

. And those individuals don't leave their religious conscience at home. If they choose to exercise it in the workplace, they should be entitled to do so. Well, the government is at pain to point out a mere brief that the plaintiffs here aren't claiming that conestoga qualifies for religious exemption under Title VII, under the ADA, under the NLRA, or under any other federal statute that regulates employment relationship. And the implication, I guess, of that is there are recognized circumstances where a for-profit company is given some accommodation, but you don't even qualify for those statutorily recognized exemptions. What's your response to that? Your Honor, Refra was intended to cover all the other federal statutes out there and provide for expand, not contract, but expand religious freedom in this country. And as a result, whether it's OSHA or some other federal statute, Refra is designed to continue and expand the religious freedoms of the people exercising it. And whether it's Title VII or what have you, you have to look at each case on its face. This is not a Title VII case, this is not an OSHA case, this is a case regarding a substantially burdened family and their close to health company. What if the belief of the Hans or the belief of the owners of a closely held company are that there is a providential deity and that the providential deity will in intercede to cure and illness. If that is the deity's will, so that providing insurance that would allow for medical intervention would be inconsistent with those beliefs. Would that type of closely held business have a right under Refra not to provide insurance for its hundreds of employees who may not share those beliefs? You know, I believe, again, that each case has to be looked at on its individual merits. And in a situation like that where, and generically, your honor has given a case of an illness, it's one thing today, medical technology has come so far, there's so many things that medical science can do. And there are some things, of course, that they can't. There are religious beliefs out there that the sanctity of the body shall not be invaded and so that surgical intervention should not be allowed. And yet you would be required to provide health care insurance that would allow for surgical intervention for your employees. My client is not arguing that issue and the choice of the insurance is the line. I mean, isn't that, would you say though that in that case, if that is the beliefs of the owners of the business, that they would be exempt from the mandate of providing that kind of health care insurance? Your honor, the Supreme Court in Thomas said that it's not their business to decide where that line is. And if a client came in and petitioned and filed a complaint that that was the belief that you, withheld, it would not be for the court to decide where that line is. The court must only look at the application of refer to those particular circumstances. Mr. Williams, is, is, is citizens united? Are, are you basing your claim here, your position on appeal under citizens united that you fit under citizens united and that your entitled to relief based on citizens united? Or are you making a townally storm in theory of individual piercing the corporate veil so to speak claim? Your honor, I would actually take both points. Let's take the strong one first. Citizens united dealt, did not deal with religion at all, had nothing to do with religion, had deal with speech. So is it, how do you, if you're, if you rely upon it in part, how do you say that citizens united is relevant at all to our adjudication of this matter? Citizens united said that corporations can exercise political speech and association. If you look at the first amendment, Your Honor, and I, I stated this in my brief, the first amendment is not divided into paragraphs, it's not, and within that same first paragraph separated only by a semicolon, we go to free exercise and the establishment clause. So how you can say, how you can parse from that argument that you're allowed to have political association and political speech, but not religious speech, which are, semicolon means something, they didn't put an and there, they didn't put a conjunctive, they put a semicolon, there's not a conjunctive. So the semicolon, I'm not a preparing, but, and I hate to tell you my skills at that area, but I know it has some meaning

. So, and it's a, it's a meaning different than a conjunctive and correct your honor. And I, I briefly fully, the point here was because political speech and free exercise and establishment were three different concepts, I believe the founders put in that semicolon. But the point is that the key thing is, how do you parse out giving just certain rights to a corporation or to an individual and not others? Supreme Court, nor any court of this circuit has ever held that, that the first amendment guarantees really strikes out of the first amendment. This is, this is due granted. Absolutely, this is a case of first impression, your honor, and that's part of our argument that this is the first time that something of this specific nature has been heard. Well, generally we're told, maybe not publicly, but privately that pioneering doesn't count. Supreme Court, it tells us that we, we move, but this is nothing that, this is new law you're arguing in effect. Absolutely, your honor. And constitutional law. Absolutely, absolutely. So, so, so that we would be breaking Duke Brown, if we accept your United citizens theory that, that, that this is a first amendment claim here in CIPL. So then where do you go for bad? Do you come out the, the flow through? Distormons and talent. Yeah, that's your, is that your second or absolutely, honor. But let me just want to say one thing. If, if, as soon as the United recognizes political speech, then we, just by implication, you have to recognize religious speech and religious association, which is what this is. You have to, the judge Goldberg said, and I can't quote precisely, but something to the effect of, you know, it's not that, it's not the company that goes to church, it's not the company that worships, it's not the company that, that does these things. These are the beliefs of these good people who own the company and the burden here is falling on the company, not on the individuals. And to your point that they're one and the same, he, he says, in effect, you can't have it both ways. You can't enjoy the shield of a corporate, a separateness. And then when it suits you, say, but I'm one and the same. I'm not the same when it comes to liability. I am the same when it comes to religious rights, I want to assert. Speak to that. What was, where's the flaw in that reasoning? You are the technicalities of a business entity, whether it be a corporation or an LLC or a sole proprietorship. I'm not what's in question here today. What's in question here is their exercise, their protections under the Constitution, which includes the First Amendment, the Fourth, the Fifth, the Sixth, the Seventh, and the Fourth Seventh, all provide protection to a corporation as well as to an individual. But there are protections in the Constitution that the Supreme Court has said, don't apply to corporations

. The privilege against self-incrimination. A corporation only speaks and acts through the people that own and operate that entity. And the corporate technicalities and the government would like to say the bedrock of business law is what is controlling here. That bedrock is no greater, is no stronger than the bedrock of our Constitution. And we have a situation here in Refra, the government did not, Congress did not define what constituted a person. As a result, you can go to the Definitions Act 1, U.S.C.1, you can also go to 15 PA, 1501, where specifically, if a distinction hasn't been made, if they hasn't been enumerated by Congress, a person is also, can be a corporation or a business. And the same thing in 15 PA. There, in fact, 20 specific acts of a corporation are listed, but there's no negative acts in that in 15 PA. There's nothing that says a corporation can't do this. It only says what a corporation can do. 20 specific things. And in addition, with Congress, if their intent had been to prevent corporations, whether they're IBM or they're solely owned as the Hawn families, they would have said so. They would, they would, they would, they're generically speaking. Most people do not consider a corporation a person. They don't refer to a corporation as a person generically. And under the, the, the, the dictionary definition, so to speak, that we have, if the context indicates to the contrary, it's not, it's not concluded within Refra. Is that somewhat of a stretch to state that, that given the context of what we're dealing with here, where especially when Congress wanted to make a distinction, they gave exemptions to religious nonprofits. And when they want to make an exception under Title VII and the ADA and other federal laws, they've made definite exceptions. There's, there's nothing here that did the same for not for, for profit seeking corporations, which are not religious. Well, you're on right. You may be referring to that string of cases such as of Centro and Lakumi and what have you in those cases. What the court was saying is you cannot single out or eliminate a group because of their religious beliefs. If you've set forth a set of guidelines, a set of criteria for how you're going to, for, for any particular ordinance, a law or statute that you're presenting forth, you have, you, you can't exclude a corporation, whether it's for profit or nonprofit because of their religious beliefs. The for profit, nonprofit thing, I think is a smokescreen because many, many 501 C3 or, or what have you type of corporations, missions, what have you that, that we have in this country, do tremendous dollar amounts and they use that money to further the public good

. Well, let's assume that the, the corporate veil issue is not as significant as the government makes it out to be for purposes of discussion and that we were just talking about the haunts. There is a, another position that the government advocates in which the district court accepted, which is that this is just to tenuous a connection. You provide insurance for people, but there's a whole series of intermediate steps that would have to happen before anybody would actually do something that the haunts might find offensive. That's the hobby lobby line of reasoning as to this to attenuated assertion. What's your response? You're on number one, the government and respectfully of Judge Goldberg have not listed what all these steps are between the haunts and the insurance policy. The haunts individually, personally, and their board means decided on this, on whatever insurance that they get for their employees. That's number one. Number two, in going through this exercise and addressing this problem of attenuation, have we looked at, has the government shown us not only what these steps are that have attenuated it, but is this the least restrictive means of achieving their goal and they haven't offered anything in that regard either. So you've got a double issue here with that particular argument. But the first issue is substantial burden, right? Substance of burden. I think Judge Jordan's question was going to be. Yeah, before you get to least restrictive means, you have to talk about whether there's a substantial burden. I understand there are going to be an, and they'll have an advocate up here in a moment. Maybe they'll correct me, but I understand there is a certain to be in part. There's no substantial burden because you're just buying something. You're not getting a, you're not buying an abort a patient. You're not getting anything like that yourself. And you, and you won't even know what if your client, if your employee does. So what's the problem? Why are you complaining? That's easy. Because my clients have done their work, they know that that insurance policy that they're purchasing provides those objectionable services to their employees. And just knowing that, just knowing that that service is available and that they are paying for it, that they're facilitating it, that they're participating in it is enough to. But the government's position is that they're not doing anything. It's the corporation. If I, once again, I'll stay and corrected when the government speaks. The proposition is the haunts are not doing anything. The corporation is buying the policy and therefore no one else has implicated except the corporation, even though it's a given the corporation exercise through its board of directors who are elected by shareholders. But the policy is purchased and in the name of the corporation

. Your honor, you're absolutely correct. It's in the name of the corporation. So let's say the end of the House are not implicated in any burden. The question is how did it get there by the decision, by the hard work, by the dedication of the Hawn family to providing health insurance to their employees so that they can stay competitive in the marketplace. Without that, they lose an advantage there. So they have research. Their previous insurance policies did not have these features in it. It's only under the HHS mandate that this is come to fruition that they have to pay for something that burdens their conscience. It's kind of so- The legal woods currently subject to the are there. They are subjected to it, your honor. And so they've been suffering since January 1st of 2013 under this substantial burden of knowing that they are facilitating their participating in the issue of potentially religiously offending. Activity. Well, in some ways, your position on burden here echoes in some ways the timely storm in the situation that we originally discussing but did get very far on. And it is a replication almost parallel to whether or not the corporate flow through goes or doesn't go. And the government's position on, I guess, both issues is similar that the corporation is for purposes of refer. It's buying the policy, not the individuals. And their position on the first amendment flow through is that there is no flow through. The corporation is a separate entity. And it's and, and and, on's purposely incorporated for whatever reason corporate advantages are available in the commercial market. So that you really have another storm to argue it on the burden issue, do you not? Absolutely, Your Honor. And in stormans, the court found that the corporation could exercise religion. That was one of the basic premises. That's why we included it in our argument. And here, as I said earlier, that exercise of religion should not be stifled simply by a business technicality. In 1965, when the haunts incorporated this business, there was no Affordable Care Act. There was no OSHA. There was no EPA

. They incorporated for the sole purpose of some tax and liability issues. And yet, that corporation is still liable, criminally and civilly, to whomever. Well, you raised an interesting point. Does that mean that if the haunts for their religious beliefs believe, think we ought to be able to, the earth is here for us to use, and then it's fullness. And therefore, we don't have to do anything to, in any way, keep from polluting a river because the river will take care of itself. I'm pulling fanciful things up. But I mean, you mentioned the EPA. If they under OSHA think as Judge Viennese indicated that the providential handle protect our workers because we're good righteous people, so we don't need a guard on a saw. I mean, are they free to say our religious beliefs are what they are? And those regulations don't apply to us because they weren't around when we incorporated in 1965. Yeah, that wasn't my point. And I'm sorry if I indicated that. My point was that in their consideration of incorporation, it was merely tax liability issues. But as to your point, the haunts do not think that they have free reign to do whatever they want, but because this directly burns a specific religious belief, that's where their concern comes in. And on each case, how would we parse that? Because you said earlier when Judge Viennese was pressing you on this point, you'd have to do it on a case-by-case basis. If I understood you correctly, is that a practical thing to throw into the courts? Where does that start to put us directly into the question of what is a legitimate religious belief and what's not so legitimate? How do we deal with that? Now, I've considered that the burden on the courts with every corporation coming and running to the court every time they feel that they're religiously burdened would be a big issue. However, I think we have to first decide may a corporation exercised religious freedom. And I think the answer to that is yes. I see him out of time. Let me ask just one question which sits down because I like to revisit something that Judge Viennese brought up with you. But I'm concerned that you have your corporation, which is totally family owned, of course. But let us say you have a corporation which is owned by people of a multiple faiths or is owned by Christian scientists or seven-day inventors or whatever the faith is. We have to be concerned with a precedent here of what a case stands for. How would we handle a situation where you have a corporation which has let's say a hundred or think you have several thousand, four to five hundred companies who claim they have a religious extension where you have multiple religions involved in ownership or different than men and height or whatever the faith they need here is to believe it. So how could we fashion an opinion which recognizes a religious right under the first amendment or a river? What we have corporations which are most of which are not wholly owned as your corporation is. Your honor, the answer to that question is that it's not for the court to decide the theology. That is what the person believes in or what the corporation believes in is not your burden. The burden is on the court to determine can those individuals exercise free exercise? No, we're going down a slippery slope here

. Absolutely. And you can't have it. Every case is a precedent and if we say that your company has a religious right in this case, what do we do with a fortune five hundred companies? Your honor, if a majority of the stockholders believe that they have a religious component to their business and they wish to exercise it through that corporation, I believe that the court needs to protect that religion. It's just like if you look at a central akumi, those were extreme cases. One involving a hallucinogenic tea, the other one regarding animal sacrifice. Those are not mainstream religions. And yet the court chose to protect those, the exercise of religion and those instances. I don't expect that the court is going to be flooded with every corporation in America coming in and asking every time somebody wants to put a ladder of O-Sher if it's a title seven issue and having to argue this fact over and over again. Because basically, Refra was designed to override all those and as I said, expand religious freedom, not contract it. Thank you. Thank you very much Mr. Park, we'll have you back on our battle. Ms. Klein. May it please the court, Alisa Klein, for the federal government. And you can have five minutes uninterrupted if you want it. I'll wait my uninterrupted time. I'll try to get out of very brief beginning but feel free to interrupt of course. I'd like to go back to the question that your honor asked early in the beginning, which is where did this for profit, nonprofit distinction come from and why should Refra be understood to carry it forward. And the distinction is based in two different types of establishment clause concerns and it's derived from the Supreme Court's decision in Amos. Amos was interpreting the title seven religious exemption but as we've explained in our briefs, Congress was acting against the background of a lot of law with respect to the title seven exemption and the NLRA and the ADA and other areas of law. And there were two different concerns. The court recalls in Amos. The question presented was, did it violate the establishment clause? Did it impermissibly advance religion? For Congress to exempt not only the religious activities of a religious organization, a church, but also the secular activities. It was a building engineer in a gymnasium. This was direct review of a district court decision. The district court said, yes, it struck down this title seven religious employer exemption and it said that if you start exempting the secular activities, if you start exempting the religious activities of a religious organization, then that would permit churches and other religious organizations to extend their influence by entering the commercial profit making world

. This is the language from Amos, the Supreme Court's decision floating the district court. And the Supreme Court said, and there's a line between accommodating and impermissibly fostering religion and the Supreme Court said they're not to worry. We are only talking about the nonprofit activities of the church. Is that... is the concern of the government here that if they were to recognize that for folks like the haunts and the business that they closely hold, that paying for a word of patience is a terrible thing that it would result in the establishment of religion? Well, the precise answer is Congress did not authorize for-profit corporations to demand religious-based exemptions from employment laws. And, you know, whatever the particulars are, I think it's clear from Plain, it's argument that this would not be cabined to a particular health care service or even health care in general. It could extend to salaries, OSHA, payroll taxes. When you say Congress didn't do that, I mean we have cases, very specific cases including very recent ones where the Supreme Court has seemed to take a different tack in that Ms. Klein where they've said there are exemptions from Title VII, four religious beliefs, and employers don't have to meet them if they've fall within certain specific categories. And I understand you want to draw the distinction between for-profit and nonprofit, but before we get there I want to make sure because this is not the first trip to the dance for me at least with this case. I want to make sure that my understanding when this was before the court before was accurate and is still the case. So if it is the case, so bear with me for a minute. Is it accurate that the government doesn't dispute the sincerity of the Hans religious beliefs or the district courts finding that the faith of the Hans requires them to operate their business in accordance with those beliefs? Is that accurate? That's accurate here and in all of these cases we have not questioned sincerity. And the government doesn't contend that the regulations that issue are anything less than anathmet to the Hans because of those religious beliefs, right? You don't question- If the court is just restating the first point, yes. Of course we have argued that any- the requirement is imposed on the corporation and that there is- it's too attenuated to be a substantial burden. But if we're just talking about a description, the way they've articulated their religious beliefs, we're not quarreling with that. Now you don't take issue with the- with the Hans assertion that unless they submit to these regulations, they're going to be fined on a scale that's going to destroy the business. Is that right? 95,000 dollars a day is what I just heard from Mr. Proctor. Well, let's add an accurate statement. Well, first let me clarify the day to the extent there's tax liability, it's the corporation, it's not the Hans individually. And- but really the reason we're not making an argument about tax liability at all is because there is a legally enforceable requirement that the plan provide contraceptive coverage. So even if there were no tax liability, this is a real requirement that the Secretary of Labor could enforce that we assume they would obey if they did not prevail in their claim. Yeah, so is the answer to my question yes that if they don't, they, the company doesn't do what they're instructed. They're subject to 95,000 dollar day fines

. I haven't done the math, but it's the corporation there is tax liability, their tax consequences and other consequences. If a corporation does not provide women's preventive health services. We're in the ballpark. I haven't done the math, but it is I'm not disputing that there's significant tax liability, but again, just want to underscore there is a requirement. This is not like the case that went to the Supreme Court and if I be where individuals could choose do I buy insurance or do I pay the IRS the shared responsibility payment. The point here is it's not this isn't a theoretical issue right? No, no, but they've got we've got a real and immediate you either you're either buying this stuff or somebody's coming to your door and it could be 95,000. And I think that's a $1,000 a day which I think you could see to take them out of business. So it's a real and immediate issue. But again, they're and they are required to do it and this is for the benefit of the 950 full time employees. They are required to provide the coverage of mammograms and coloractal screening and all the whole damage including women's preventive health services. Nobody's talking about the coloractal screenings and mammograms. We're here about the abortive patients and the contraceptive. If I may just interrupt with abortive patients just to make clear the court is using a theological term. If the court wants to refer to IUDs and plan B and Ella, that's neutral terms for federal law purposes. A device that prevents a fertilized egg from implanting in the uterus is not an abortive patient. A board of patient would be a drug like are you for 86 that has an effect only after the woman is pregnant. So if the court wants a neutral description, we're talking about drugs and devices that could prevent a fertilized egg from implanting in the uterus. I'm not sure. I'm not sure. Not to adopt theological terminology and trying to operate. I thought having read the Amicus briefs several of them in this case that that was an accepted scientific term. But if that's troubling to you, we'll call it Ella. Or an IUD about which there's actually more evidence. Let's just say Ella for purposes of discussion. If we're agreed on all the background there that this is real and immediate, it's not theoretical. Then my question to you is when you say this comes down to the distinction between profit and nonprofit corporations. First is explain the Supreme Court statement in Bilati. I think I'm recalling this correctly. The wrong question to ask who's asserting it. The question is focus on the nature of the right. Does that principle not apply here? It applies very differently when you're talking about seeking a religious exemption from a generally applicable law. That raises a whole host of establishment clause questions that have informed the interpretation of a lot of statutes. So you are concerned that there will be an establishment of religion if you accommodate this belief? Well, we are concerned as the Supreme Court was recognizing that a special religious accommodation for a for-profit, even if it's a religious organization, if the church opens factories and starts making wood cabinets and uses the money. That's why the Supreme Court said no and that the concurrences emphasize no. We're only talking about nonprofit activity here. If they had chosen to organize themselves and it wasn't available to them in 1965, but there have been a multiplication of new kinds of business entities. Suppose they had established themselves as a limited liability company, which has some of the elements of partnership that some of the liability restrictions of a corporation. Would you be saying there are a for-profit entity as opposed to a corporation that still doesn't matter? Yes, and there are limited liability companies in some of these cases. And if they were a partnership, would you be saying the same thing? If there were a true partnership, we would still be saying that they're not entitled to a religious exemption, but the principles of corporate law that are, we think, dispositive here, would not apply in the same way. Why, why, why would, if there are a partnership and there's no liability veil, why would they not be entitled to an exemption? Well, then, if I just, if I just want to step back for one second before when we talk about nonprofit, there are some courts, like the Ninth Circuit in Spencer, that things even going to nonprofit activities is too generous. And what they would draw the line between, say, the Salvation Army and maybe a Catholic hospital that looks like a regular hospital and say, we want to see that you're not charging beyond nominal amounts for the goods and services you're providing. So that we're really, we're not in profit making world, even under the guise of a nonprofit corporate form. So just to be clear that. Well, that's an interesting point. So then let's follow your, let's follow the path you've just gone off on. Is, is the government shifting its position because I understood the government's position to be a profit versus nonprofit distinction? We have, we agree with the DC Circuit that in general this line between nonprofit and for profit is a workable line that avoids the second type of establishment clause problem, which is, so there's one concern you're walking a fine line here. We want to, you know, Congress wants to accommodate religion without impermissibly advancing it, but also doesn't want to entangle courts in kind of trolling through the beliefs of an institution to see which activities are religious or not religious. So that's why that was the second reason the Supreme Court said, okay, we're not going to, if we've got, it was, you know, the eldest church, we're not going to ask when they run a gennasium or a soup kitchen or humanitarian aid. So, what I think is that a religious activity or not, but what never has happened is a court saying for profit corporation can get any sort of religious exemption. That, and that's, so we're all the way at the other end of the section. This is a different domain. You're, you seem supportive there for a moment of the of the night circuits position that the profit nonprofit line isn't really that meaningful because you can have a hospital that looks for all the world like the hospital across town except that carries a five or one three-seat designation. And there's no difference at all. And does, to notions of religious liberty really come down to that? Well, certainly when you're talking about the extent to which Congress has allowed legal entities to get exemptions that come at the expense of the employees because anything, the exemption in all of these contexts, if you give it to the employer, it means the employee is not getting the health coverage or social security taxes paid or OSHA or, you know, non-discrimination laws

. I think I'm recalling this correctly. The wrong question to ask who's asserting it. The question is focus on the nature of the right. Does that principle not apply here? It applies very differently when you're talking about seeking a religious exemption from a generally applicable law. That raises a whole host of establishment clause questions that have informed the interpretation of a lot of statutes. So you are concerned that there will be an establishment of religion if you accommodate this belief? Well, we are concerned as the Supreme Court was recognizing that a special religious accommodation for a for-profit, even if it's a religious organization, if the church opens factories and starts making wood cabinets and uses the money. That's why the Supreme Court said no and that the concurrences emphasize no. We're only talking about nonprofit activity here. If they had chosen to organize themselves and it wasn't available to them in 1965, but there have been a multiplication of new kinds of business entities. Suppose they had established themselves as a limited liability company, which has some of the elements of partnership that some of the liability restrictions of a corporation. Would you be saying there are a for-profit entity as opposed to a corporation that still doesn't matter? Yes, and there are limited liability companies in some of these cases. And if they were a partnership, would you be saying the same thing? If there were a true partnership, we would still be saying that they're not entitled to a religious exemption, but the principles of corporate law that are, we think, dispositive here, would not apply in the same way. Why, why, why would, if there are a partnership and there's no liability veil, why would they not be entitled to an exemption? Well, then, if I just, if I just want to step back for one second before when we talk about nonprofit, there are some courts, like the Ninth Circuit in Spencer, that things even going to nonprofit activities is too generous. And what they would draw the line between, say, the Salvation Army and maybe a Catholic hospital that looks like a regular hospital and say, we want to see that you're not charging beyond nominal amounts for the goods and services you're providing. So that we're really, we're not in profit making world, even under the guise of a nonprofit corporate form. So just to be clear that. Well, that's an interesting point. So then let's follow your, let's follow the path you've just gone off on. Is, is the government shifting its position because I understood the government's position to be a profit versus nonprofit distinction? We have, we agree with the DC Circuit that in general this line between nonprofit and for profit is a workable line that avoids the second type of establishment clause problem, which is, so there's one concern you're walking a fine line here. We want to, you know, Congress wants to accommodate religion without impermissibly advancing it, but also doesn't want to entangle courts in kind of trolling through the beliefs of an institution to see which activities are religious or not religious. So that's why that was the second reason the Supreme Court said, okay, we're not going to, if we've got, it was, you know, the eldest church, we're not going to ask when they run a gennasium or a soup kitchen or humanitarian aid. So, what I think is that a religious activity or not, but what never has happened is a court saying for profit corporation can get any sort of religious exemption. That, and that's, so we're all the way at the other end of the section. This is a different domain. You're, you seem supportive there for a moment of the of the night circuits position that the profit nonprofit line isn't really that meaningful because you can have a hospital that looks for all the world like the hospital across town except that carries a five or one three-seat designation. And there's no difference at all. And does, to notions of religious liberty really come down to that? Well, certainly when you're talking about the extent to which Congress has allowed legal entities to get exemptions that come at the expense of the employees because anything, the exemption in all of these contexts, if you give it to the employer, it means the employee is not getting the health coverage or social security taxes paid or OSHA or, you know, non-discrimination laws. And this is where Congress has given only a limit of class. It's a slightly different because when you say in all these circumstances, the employee isn't getting it. I mean, the assertion here, the haunts aren't saying don't let, don't make these services available. They're saying don't make me pay for them. That's pretty dramatic differences in it from establishing a religion. Isn't that a big difference from when you said, I mean, if nobody pays social security taxes, then you don't have a social security system. If the haunts don't pay for their employees, Ella, that doesn't mean Ella, it's not available, doesn't? No, but again, the question is, can a woman who works, one of the 950 women who work for the company, when she goes and her doctor says I'm prescribing an IUD, and this will cost between $509, $900, does she have to pay out of pocket with the wages she gets from the corporation, or can she use her comprehensive health coverage? And... Aren't you really asking us to give less protection to religion under the Constitution, then, has already been adjudicated as due to free speech? It's certainly true that the free speech jurisprudence is different from the religion clauses, and the Supreme Court said this in Hosanna Tabor, but also understand in the free speech context, you're just talking about whether the government can suppress speech or preclude speech. Here, in RIFRA, what we're talking about is, can an organization, a corporation, come in and get an exemption from generally applicable law? And it's clear that a prisoner can say, I want an exemption from your meal policy, I need a halal diet. It's a big difference, though, to go from there and say, a for-profit corporation that manufactures wood cabinets or all of the other things in these cases can exclude, get an exemption from payroll taxes. What about another one you want us to make in this situation between free speech and religion, and so far as a corporation being entitled to one and not to the other, unless it's a nonprofit religious organization? Well, the Supreme Court in Hosanna Tabor did say the analysis of the speech clause is different from the analysis of the religion clauses, that the religion clauses give special solicitude to religious organizations. And the focus of the Supreme Court cases and the free speech area has been on the expression itself. Exactly. But here, again, the nature of the claim is we want an exemption. And if a corporation gets an exemption from these employment regulations, that means the employee doesn't get the benefit. So even, perhaps I should move to the point about attenuation, even in Lee, where it really was just one individual, what the Supreme Court said, by my team, was that when followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory basis. So, the employee schemes which are binding on others in that activity and the granting an exemption from their social security taxes to an employer operates to impose the employer's religious faith on the employees. So, that was in the specific context of talking about a substantial burden. In Lee, they seem to concede, this is a substantial burden. And they said, but there is a compelling state interest. That was the expression of the context of talking about a compelling state interest, right? Your position is, there's no burden here, right? Correct. Because here, what you're talking about is a regulation of a for-profit corporation and the benefits it provides to employees. And we don't believe that Congress, by using the term person, swept in all for-profit corporations. It was primarily focusing on natural persons. I mean, that's been, that's Sherbert and Yoda

. And this is where Congress has given only a limit of class. It's a slightly different because when you say in all these circumstances, the employee isn't getting it. I mean, the assertion here, the haunts aren't saying don't let, don't make these services available. They're saying don't make me pay for them. That's pretty dramatic differences in it from establishing a religion. Isn't that a big difference from when you said, I mean, if nobody pays social security taxes, then you don't have a social security system. If the haunts don't pay for their employees, Ella, that doesn't mean Ella, it's not available, doesn't? No, but again, the question is, can a woman who works, one of the 950 women who work for the company, when she goes and her doctor says I'm prescribing an IUD, and this will cost between $509, $900, does she have to pay out of pocket with the wages she gets from the corporation, or can she use her comprehensive health coverage? And... Aren't you really asking us to give less protection to religion under the Constitution, then, has already been adjudicated as due to free speech? It's certainly true that the free speech jurisprudence is different from the religion clauses, and the Supreme Court said this in Hosanna Tabor, but also understand in the free speech context, you're just talking about whether the government can suppress speech or preclude speech. Here, in RIFRA, what we're talking about is, can an organization, a corporation, come in and get an exemption from generally applicable law? And it's clear that a prisoner can say, I want an exemption from your meal policy, I need a halal diet. It's a big difference, though, to go from there and say, a for-profit corporation that manufactures wood cabinets or all of the other things in these cases can exclude, get an exemption from payroll taxes. What about another one you want us to make in this situation between free speech and religion, and so far as a corporation being entitled to one and not to the other, unless it's a nonprofit religious organization? Well, the Supreme Court in Hosanna Tabor did say the analysis of the speech clause is different from the analysis of the religion clauses, that the religion clauses give special solicitude to religious organizations. And the focus of the Supreme Court cases and the free speech area has been on the expression itself. Exactly. But here, again, the nature of the claim is we want an exemption. And if a corporation gets an exemption from these employment regulations, that means the employee doesn't get the benefit. So even, perhaps I should move to the point about attenuation, even in Lee, where it really was just one individual, what the Supreme Court said, by my team, was that when followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory basis. So, the employee schemes which are binding on others in that activity and the granting an exemption from their social security taxes to an employer operates to impose the employer's religious faith on the employees. So, that was in the specific context of talking about a substantial burden. In Lee, they seem to concede, this is a substantial burden. And they said, but there is a compelling state interest. That was the expression of the context of talking about a compelling state interest, right? Your position is, there's no burden here, right? Correct. Because here, what you're talking about is a regulation of a for-profit corporation and the benefits it provides to employees. And we don't believe that Congress, by using the term person, swept in all for-profit corporations. It was primarily focusing on natural persons. I mean, that's been, that's Sherbert and Yoda. Those are the free exercise claims at sites. And it can include churches. But that doesn't mean it brings in. And Lee also was in the context of saying, we're all in this together. Everybody's got to do it. But one of the complaints that's being made here is the administration hasn't set this regulation up that way. That there are tens of thousands, maybe hundreds of thousands, maybe more folks who are exempted from this. And they just don't happen to fall into the exemption you guys have set up. So it's really not neutral across the board, generally applicable. That seems to be a matter of some distress on the, on the part not just of the, the haunts and kind of stuff. So good, but of the several amiki who have filed on their behalf. What's your response to that? Okay, well, just both points. First, Lee was actually a stronger claim because this was a member of the Amish faith. And what he was saying is, I need to provide for my own needy. These are my Amish employees. And you don't have to worry about social security taxes on employment, you know, and pension benefits because if they're in need, I will take care of them. And this was completely credible, substantiated by practice. And in fact, Congress had exempted self-employed Amish, but notwithstanding the strength of that claim, the Supreme Court said, no, your employees decide for themselves, whether they want to get their social security benefits. And you cannot essentially impose your religious beliefs on your employees. So here, of course, if the women do not get the health coverage, they just don't get the health coverage. It's not. But if they don't get the health coverage, that doesn't mean they don't get the health care. I mean, you're back to it. Only but they have to. They don't get it. But again, the question is they have to pay, say, the, you know, 500, 600, 700 dollars for an IUD rather than using this otherwise comprehensive means of financing their health insurance. So it is a shifting of a financial burden directly to the women who are participating in this plan

. Those are the free exercise claims at sites. And it can include churches. But that doesn't mean it brings in. And Lee also was in the context of saying, we're all in this together. Everybody's got to do it. But one of the complaints that's being made here is the administration hasn't set this regulation up that way. That there are tens of thousands, maybe hundreds of thousands, maybe more folks who are exempted from this. And they just don't happen to fall into the exemption you guys have set up. So it's really not neutral across the board, generally applicable. That seems to be a matter of some distress on the, on the part not just of the, the haunts and kind of stuff. So good, but of the several amiki who have filed on their behalf. What's your response to that? Okay, well, just both points. First, Lee was actually a stronger claim because this was a member of the Amish faith. And what he was saying is, I need to provide for my own needy. These are my Amish employees. And you don't have to worry about social security taxes on employment, you know, and pension benefits because if they're in need, I will take care of them. And this was completely credible, substantiated by practice. And in fact, Congress had exempted self-employed Amish, but notwithstanding the strength of that claim, the Supreme Court said, no, your employees decide for themselves, whether they want to get their social security benefits. And you cannot essentially impose your religious beliefs on your employees. So here, of course, if the women do not get the health coverage, they just don't get the health coverage. It's not. But if they don't get the health coverage, that doesn't mean they don't get the health care. I mean, you're back to it. Only but they have to. They don't get it. But again, the question is they have to pay, say, the, you know, 500, 600, 700 dollars for an IUD rather than using this otherwise comprehensive means of financing their health insurance. So it is a shifting of a financial burden directly to the women who are participating in this plan. So precisely. But again, I should address the exempt, you know, the exemptions too, because I know your honor was asking about that. How could the right of free exercise be a personal right even under balani when you agree that a religious or a corporation can't exert that right religious? Well, again, I mean, the way it's been described in the cases is that individuals can come together to exercise religion in a communal fashion. Whether or not that's with a nonprofit church group or whatever religious group. It's a corporate entity, which is it, which is exercising a, a personal religious right according to, I mean, they allow them to do it under refer. Well, again, I don't know whether if you think of a chart, there's no question that a church can assert a right under refer or are, are they have the personal right under, they have a right. They're a person under refer. Well, but the question is whether they are serving it as an entity or because their members exercise religion through the church. Well, I mean, it appears that the church is, if it's incorporated, then most of more it's it's it's a certain the right is a corporation not as the individuals. So if a nonprofit corporation can assert a religious right. Why can't a profit corporation, I mean, the both corporations. We're not making a metaphysical point. We're saying that Congress and I should make clear that when Congress in the Senate report that a company in Ripperack, Congress actually explicitly said nothing in this act shall be construed as affecting the religious accommodation under Title VII of the Civil Rights Act of 1964. It's that Congress did not give every type of corporation the right to demand religious exemptions certain churches nonprofit activities performed by religious organizations. Yes, they can seek religious exemptions and that's when you would apply the framework of Ripperack. Well, the nonprofit church organization can pray and and and be religious. Why can't a for profit corporation also pray? I mean, they're both corporations and I take it a nonprofit church organization has praised and respects the sacraments or whatever the faith is that they're devouted to voted to. So why should we why should the corporate entity, I guess, make a difference as to whether or not there's a religious right under the first amendment? Well, let's go back to the fact that the Supreme Court in fact, no court has ever given a religious exemption to a for profit corporation. And whether you think that's inherent in the nature of free exercise or just that Congress codified this when it used the language of Ripperack, it was not making a dramatic change and for the first time allowing for profit corporations to demand exemptions from employment laws. Well, Supreme Court has ever said that for profit corporations can't have exercise a religious right. How do they? It has not explicitly said that they cannot, but it was avoiding establishment clause concerns in Amos by saying you don't have to worry about this issue of religious organizations moving into the for profit commercial profit making world. And thereby generating revenues that could be used to finance religious activities. Well, wouldn't we be imposing a particular form of collective religious violation of the first amendment if we say that that nonprofit church groups can exercise religion, but a for profit commercial corporation cannot exercise religion. Are we discriminating against a for profit organization under the first amendment? No, because again, I mean, I don't take kind of so go wood to claim that they could qualify for any of the existing exemptions, title seven, NLRA, et cetera. Those do not violate the free exercise clause. There's no question that Congress can give exemptions, even just for churches, that it doesn't extend to secular entities to for profit entities. I mean, that's actually many exemptions are explicitly limited to nonprofit entities

. So precisely. But again, I should address the exempt, you know, the exemptions too, because I know your honor was asking about that. How could the right of free exercise be a personal right even under balani when you agree that a religious or a corporation can't exert that right religious? Well, again, I mean, the way it's been described in the cases is that individuals can come together to exercise religion in a communal fashion. Whether or not that's with a nonprofit church group or whatever religious group. It's a corporate entity, which is it, which is exercising a, a personal religious right according to, I mean, they allow them to do it under refer. Well, again, I don't know whether if you think of a chart, there's no question that a church can assert a right under refer or are, are they have the personal right under, they have a right. They're a person under refer. Well, but the question is whether they are serving it as an entity or because their members exercise religion through the church. Well, I mean, it appears that the church is, if it's incorporated, then most of more it's it's it's a certain the right is a corporation not as the individuals. So if a nonprofit corporation can assert a religious right. Why can't a profit corporation, I mean, the both corporations. We're not making a metaphysical point. We're saying that Congress and I should make clear that when Congress in the Senate report that a company in Ripperack, Congress actually explicitly said nothing in this act shall be construed as affecting the religious accommodation under Title VII of the Civil Rights Act of 1964. It's that Congress did not give every type of corporation the right to demand religious exemptions certain churches nonprofit activities performed by religious organizations. Yes, they can seek religious exemptions and that's when you would apply the framework of Ripperack. Well, the nonprofit church organization can pray and and and be religious. Why can't a for profit corporation also pray? I mean, they're both corporations and I take it a nonprofit church organization has praised and respects the sacraments or whatever the faith is that they're devouted to voted to. So why should we why should the corporate entity, I guess, make a difference as to whether or not there's a religious right under the first amendment? Well, let's go back to the fact that the Supreme Court in fact, no court has ever given a religious exemption to a for profit corporation. And whether you think that's inherent in the nature of free exercise or just that Congress codified this when it used the language of Ripperack, it was not making a dramatic change and for the first time allowing for profit corporations to demand exemptions from employment laws. Well, Supreme Court has ever said that for profit corporations can't have exercise a religious right. How do they? It has not explicitly said that they cannot, but it was avoiding establishment clause concerns in Amos by saying you don't have to worry about this issue of religious organizations moving into the for profit commercial profit making world. And thereby generating revenues that could be used to finance religious activities. Well, wouldn't we be imposing a particular form of collective religious violation of the first amendment if we say that that nonprofit church groups can exercise religion, but a for profit commercial corporation cannot exercise religion. Are we discriminating against a for profit organization under the first amendment? No, because again, I mean, I don't take kind of so go wood to claim that they could qualify for any of the existing exemptions, title seven, NLRA, et cetera. Those do not violate the free exercise clause. There's no question that Congress can give exemptions, even just for churches, that it doesn't extend to secular entities to for profit entities. I mean, that's actually many exemptions are explicitly limited to nonprofit entities. Let seems to term riff wrong. It's head doesn't miscline. I mean, I thought the point of riff was to make a broad statement across the entire US code in response to Smithy organ and say, wait a second, we do not like what you did Supreme Court. We are we are we can't do it for everybody. I mean, they tried to do it for everybody. They got pushed back. They read they revisited it and they came back and said under riffra, we're going back to pre Smith rules for the federal government. They didn't make any exceptions. They were they didn't try to tune it to title seven. They said this is across the board. Is that a is that a mistake in understanding of riffra? To some extent, your honor is of course correct that they reinstated Sherbert and Yoda. Both cases involving individual claims having nothing to do with corporations or for proper corporations. Exactly when they enacted riffra, the Senate report, which the Supreme Court relies upon in Qatar said other areas of laws are unaffected and among others said nothing affects the religious accommodation under title seven. So I think it would be a mistake to say riffra overrides these existing religious employer. They didn't even try to override it. The impression that at least the three US senators who chose the phoholemicus briefly, we were trying to add to it, not take it away. It sounds like you're trying to say riffra actually was set up in a way that absorbed the exemptions existing in title seven, etc. Well, the Congress said we are not writing it. But again, the riffra, the core was about claims of individuals. They talk about prisoners, not being allowed to observe their religions or being denied certain foods. There's talk about Jews being forced to undergo autopsies in the Senate report. This was, there's nothing remotely that would suggest that Congress was doing what Amos cautioned against, which was saying for profit corporations can now based on any objection articulated by a controlling shareholder or I guess an officer or director can demand exemptions from federal law. That really would have been extraordinary and it would have come at the expense of the employees. What is your best argument for saying that riffra does not include companies such as it's not swept within that all inclusive framework. In context, person, of course it means natural person. That's the text putting the rabbit in the hat. When they say person, do they, now I agree with you to this extent

. Let seems to term riff wrong. It's head doesn't miscline. I mean, I thought the point of riff was to make a broad statement across the entire US code in response to Smithy organ and say, wait a second, we do not like what you did Supreme Court. We are we are we can't do it for everybody. I mean, they tried to do it for everybody. They got pushed back. They read they revisited it and they came back and said under riffra, we're going back to pre Smith rules for the federal government. They didn't make any exceptions. They were they didn't try to tune it to title seven. They said this is across the board. Is that a is that a mistake in understanding of riffra? To some extent, your honor is of course correct that they reinstated Sherbert and Yoda. Both cases involving individual claims having nothing to do with corporations or for proper corporations. Exactly when they enacted riffra, the Senate report, which the Supreme Court relies upon in Qatar said other areas of laws are unaffected and among others said nothing affects the religious accommodation under title seven. So I think it would be a mistake to say riffra overrides these existing religious employer. They didn't even try to override it. The impression that at least the three US senators who chose the phoholemicus briefly, we were trying to add to it, not take it away. It sounds like you're trying to say riffra actually was set up in a way that absorbed the exemptions existing in title seven, etc. Well, the Congress said we are not writing it. But again, the riffra, the core was about claims of individuals. They talk about prisoners, not being allowed to observe their religions or being denied certain foods. There's talk about Jews being forced to undergo autopsies in the Senate report. This was, there's nothing remotely that would suggest that Congress was doing what Amos cautioned against, which was saying for profit corporations can now based on any objection articulated by a controlling shareholder or I guess an officer or director can demand exemptions from federal law. That really would have been extraordinary and it would have come at the expense of the employees. What is your best argument for saying that riffra does not include companies such as it's not swept within that all inclusive framework. In context, person, of course it means natural person. That's the text putting the rabbit in the hat. When they say person, do they, now I agree with you to this extent. That corporation generally are not considered persons, but the other position is that it's included unless it's excluded by definition under the Dictionary Act or whatever. Yeah, I didn't meet the full stop. Sorry, no, it's okay. So yes, of course person includes natural persons. Yes, it also includes certain corporations. We know Supreme Court has said several times, Hosanna Taber and before, church is often incorporated. So you can have these nonprofit religious institutions and it's unsurprising that Congress used the term persons. But that's, it would be the other end of the spectrum to say every corporation can demand religious exemptions from federal law on the basis of riffra. And that's the argument here is if the controlling shareholder, perhaps a minority shareholder, the corporate officer, their personal religious beliefs have to be imputed to a for profit corporation such that it can subject to strict scrutiny, any objection that's inconsistent with what could be quite diverse religious beliefs. So on the riffra claim, your position is so to speak, it cuts it off at the past, they don't come within the statute at all. So you don't really get into the question whether the burden, whether it's substantial or anything of that nature, your position is they're not included within refer no further argument necessary. Correct, we brief the other issues, but our principal argument, our first argument is that the corporation does not state a claim under referent, Hannah, a for profit corporation. The only problem I have with that argument or a side of several is that if they include religious corporations, the corporation is a corporation that does is a different type of corporations. Why didn't they also include or make you include try to read the TV's of Congress, why they meant by the act, but why didn't they also by saying corporations include for profit corporations? Well, again, going back to what Congress was really focused on in riffra, overturning Smith, this was about whether individuals could get exemptions from the public. Going back to the priest Smith, yes. So this is what we're talking about or whether if an individual was fired, what are you pointing to? Let her finish it. Smith and Sherbert and Yoda and Thomas and Lee and all of the cases, not with corporations. No, and again, churches, we know from say church of Lakumi, they can assert free exercise claims, but we have never had a case in which a for profit corporation has been given. A free exercise right. And I just want to end by emphasizing that we don't see limits to this position. So like I think plaintiffs council has said any new can't look past any sincerely held religious objection that's raised by a corporate officer perhaps controlling shareholder perhaps minority shareholder. I don't I don't know where it ends, but in this cosmopolitan community that would have extraordinary ramifications for the employees and Congress did not authorize that type of claim. A lot of corporations make donations for profit corporations make donations to all sorts of causes, including religion, religious organizations. And they make them to sports authorities, they have stadiums made it, they give all sorts of donations under the director's discretionary theory. Now if a corporation, a for profit corporation is under law allowed to make a religious or a donation to a religious organization or for some religious cause like you mentioned Catholic charities. Why isn't that corporation also. Is it doesn't have religious rights? Well, there are lots of things corporations can do as there are owners, they're controlling their officers direct them and they can make donations, they can run new cigarettes, they can do all sorts of things

. That corporation generally are not considered persons, but the other position is that it's included unless it's excluded by definition under the Dictionary Act or whatever. Yeah, I didn't meet the full stop. Sorry, no, it's okay. So yes, of course person includes natural persons. Yes, it also includes certain corporations. We know Supreme Court has said several times, Hosanna Taber and before, church is often incorporated. So you can have these nonprofit religious institutions and it's unsurprising that Congress used the term persons. But that's, it would be the other end of the spectrum to say every corporation can demand religious exemptions from federal law on the basis of riffra. And that's the argument here is if the controlling shareholder, perhaps a minority shareholder, the corporate officer, their personal religious beliefs have to be imputed to a for profit corporation such that it can subject to strict scrutiny, any objection that's inconsistent with what could be quite diverse religious beliefs. So on the riffra claim, your position is so to speak, it cuts it off at the past, they don't come within the statute at all. So you don't really get into the question whether the burden, whether it's substantial or anything of that nature, your position is they're not included within refer no further argument necessary. Correct, we brief the other issues, but our principal argument, our first argument is that the corporation does not state a claim under referent, Hannah, a for profit corporation. The only problem I have with that argument or a side of several is that if they include religious corporations, the corporation is a corporation that does is a different type of corporations. Why didn't they also include or make you include try to read the TV's of Congress, why they meant by the act, but why didn't they also by saying corporations include for profit corporations? Well, again, going back to what Congress was really focused on in riffra, overturning Smith, this was about whether individuals could get exemptions from the public. Going back to the priest Smith, yes. So this is what we're talking about or whether if an individual was fired, what are you pointing to? Let her finish it. Smith and Sherbert and Yoda and Thomas and Lee and all of the cases, not with corporations. No, and again, churches, we know from say church of Lakumi, they can assert free exercise claims, but we have never had a case in which a for profit corporation has been given. A free exercise right. And I just want to end by emphasizing that we don't see limits to this position. So like I think plaintiffs council has said any new can't look past any sincerely held religious objection that's raised by a corporate officer perhaps controlling shareholder perhaps minority shareholder. I don't I don't know where it ends, but in this cosmopolitan community that would have extraordinary ramifications for the employees and Congress did not authorize that type of claim. A lot of corporations make donations for profit corporations make donations to all sorts of causes, including religion, religious organizations. And they make them to sports authorities, they have stadiums made it, they give all sorts of donations under the director's discretionary theory. Now if a corporation, a for profit corporation is under law allowed to make a religious or a donation to a religious organization or for some religious cause like you mentioned Catholic charities. Why isn't that corporation also. Is it doesn't have religious rights? Well, there are lots of things corporations can do as there are owners, they're controlling their officers direct them and they can make donations, they can run new cigarettes, they can do all sorts of things. It doesn't follow that they can demand religious exemptions from federal laws, they certainly couldn't say I can't pay full salary to my employees who don't tie it because I'm facilitating this conduct that is inconsistent with my personal religious credo. They could not do that. But a corporation have a hand ties. Yes, a corporation, they have assuming it's closely held and it doesn't have other fiduciary duties. Of course, they can give money to religious charities or other charities, but they can't make their employees do it. They can't withhold part of an employee's salary. They can't say the salary is facilitating the conduct of my employees with which I disagree and therefore I should get an exemption. Okay, thank you, Mr. Lennon. Mr. Brock. Your owners, at the end there when I ran out of time, we were talking about the slippery slope issue. I'd like to go back with that if you indulge me for just a moment. Under refer, it isn't a question of the belief of the haunts or anyone else. It's a question of the pressure exerted by the government. It's a pressure to make you change your belief system, no matter what it is. That's why I refer to a Your Honor to Ocentro and Lakumi. We're talking past each other here in the courtroom just as in the briefing. I got to get you to speak directly, Mr. Proctor, to Ms. Klein's point. The last thing she said was there's no limit to this position. And I think that's what Judge Viennese asked me on the word to his mouth was pushing on a little bit. I really want to hear, where's the end point? If we accept your position, where does that stop? If you, if recognizing that for the haunts this is a matter of the highest importance, what prevents us from the next person down the road saying, I feel really strongly about not paying my employees who don't agree with me about sexual orientation or women in the workforce or whatever. Where's it in? You know, going back to the pressure issue, the haunts are not trying to force their beliefs on their employees. Rather, the government is forcing the haunts to comply with what their beliefs are. How is that different in the context of, let's say the haunts say, only members of my faith can work for my for-profit company

. It doesn't follow that they can demand religious exemptions from federal laws, they certainly couldn't say I can't pay full salary to my employees who don't tie it because I'm facilitating this conduct that is inconsistent with my personal religious credo. They could not do that. But a corporation have a hand ties. Yes, a corporation, they have assuming it's closely held and it doesn't have other fiduciary duties. Of course, they can give money to religious charities or other charities, but they can't make their employees do it. They can't withhold part of an employee's salary. They can't say the salary is facilitating the conduct of my employees with which I disagree and therefore I should get an exemption. Okay, thank you, Mr. Lennon. Mr. Brock. Your owners, at the end there when I ran out of time, we were talking about the slippery slope issue. I'd like to go back with that if you indulge me for just a moment. Under refer, it isn't a question of the belief of the haunts or anyone else. It's a question of the pressure exerted by the government. It's a pressure to make you change your belief system, no matter what it is. That's why I refer to a Your Honor to Ocentro and Lakumi. We're talking past each other here in the courtroom just as in the briefing. I got to get you to speak directly, Mr. Proctor, to Ms. Klein's point. The last thing she said was there's no limit to this position. And I think that's what Judge Viennese asked me on the word to his mouth was pushing on a little bit. I really want to hear, where's the end point? If we accept your position, where does that stop? If you, if recognizing that for the haunts this is a matter of the highest importance, what prevents us from the next person down the road saying, I feel really strongly about not paying my employees who don't agree with me about sexual orientation or women in the workforce or whatever. Where's it in? You know, going back to the pressure issue, the haunts are not trying to force their beliefs on their employees. Rather, the government is forcing the haunts to comply with what their beliefs are. How is that different in the context of, let's say the haunts say, only members of my faith can work for my for-profit company. And that would violate Title VII. Why, how is that different? Because you're now forcing them to accommodate, to change their belief by saying you are discriminating against that Jewish applicant because you cannot discriminate on a basis. Are the haunts in that instance, as kind of Stogeau Woods in that instance, entitled to an exemption? Your Honor, Refra, overrides Title VII and this is not a Title VII case. I don't need to avoid your answer. But this is not a Title VII case. In those maybe a certain examples, but they use any example. Well, you're honor. I'm having trouble with the line drawing. If you look at the, one of the departments of the Health and Human Services, where they define what corporation, what defined a religious corporation that would be eligible for the exemption, that would allow somebody to be exempt, they said they had to have a religious belief or statute, excuse me, a religious, I can't remember the word, but a religious context of what they're doing, that they hired only or primarily religious people, that they served only the people of their religion. They proposed that. They're changing that though. I'm a change. It's a proposed rule change, but it hasn't been implemented yet. But that, and, and, and, you're honor, I don't need to avoid your question at all. But it's the good. The question, because the Supreme Court has already decided over and over again, that the harm to an individual, no matter how small, no matter how brief, no matter how attenuated, is sufficient to enact, refer, and free, and first amendment rights, then that's where the test is. So you've conceding that there is no limit, because that's the point the government is making. They, they, you, you heard me go right through the litany with misclined, they don't, they don't dispute that this is a terrible thing for the haunts personally. That's not on the table, they're prepared to concede that's a bad thing for them personally. But in order for us to lay down the law that you want us to lay down, doesn't there have to be some endpoint or else, maybe the right way to ask this is, address the point from Lee. You're in the commercial space, just the way the Supreme Court talked about in Lee, so you got to accept the cosmopolitan society or anything else. You know Lee is the perfect case, because in Lee, a self-employed person, what, what was meant in the context of that case is a, a sole person, a person who went out and doesn't have employees. And they exempted individuals that went out into the workplace and just worked for themselves. But when they brought on employees and because of the generally applicable benefit of social security tax to everyone in this country, because of that benefit, they felt that that was a compelling governmental interest that overrode Mr. Lee's ability to not pay those taxes. And that's the perfect case. But at the same time, they recognized that if he wanted to do that for himself and not have employees, then he was entitled to do so

. And that would violate Title VII. Why, how is that different? Because you're now forcing them to accommodate, to change their belief by saying you are discriminating against that Jewish applicant because you cannot discriminate on a basis. Are the haunts in that instance, as kind of Stogeau Woods in that instance, entitled to an exemption? Your Honor, Refra, overrides Title VII and this is not a Title VII case. I don't need to avoid your answer. But this is not a Title VII case. In those maybe a certain examples, but they use any example. Well, you're honor. I'm having trouble with the line drawing. If you look at the, one of the departments of the Health and Human Services, where they define what corporation, what defined a religious corporation that would be eligible for the exemption, that would allow somebody to be exempt, they said they had to have a religious belief or statute, excuse me, a religious, I can't remember the word, but a religious context of what they're doing, that they hired only or primarily religious people, that they served only the people of their religion. They proposed that. They're changing that though. I'm a change. It's a proposed rule change, but it hasn't been implemented yet. But that, and, and, and, you're honor, I don't need to avoid your question at all. But it's the good. The question, because the Supreme Court has already decided over and over again, that the harm to an individual, no matter how small, no matter how brief, no matter how attenuated, is sufficient to enact, refer, and free, and first amendment rights, then that's where the test is. So you've conceding that there is no limit, because that's the point the government is making. They, they, you, you heard me go right through the litany with misclined, they don't, they don't dispute that this is a terrible thing for the haunts personally. That's not on the table, they're prepared to concede that's a bad thing for them personally. But in order for us to lay down the law that you want us to lay down, doesn't there have to be some endpoint or else, maybe the right way to ask this is, address the point from Lee. You're in the commercial space, just the way the Supreme Court talked about in Lee, so you got to accept the cosmopolitan society or anything else. You know Lee is the perfect case, because in Lee, a self-employed person, what, what was meant in the context of that case is a, a sole person, a person who went out and doesn't have employees. And they exempted individuals that went out into the workplace and just worked for themselves. But when they brought on employees and because of the generally applicable benefit of social security tax to everyone in this country, because of that benefit, they felt that that was a compelling governmental interest that overrode Mr. Lee's ability to not pay those taxes. And that's the perfect case. But at the same time, they recognized that if he wanted to do that for himself and not have employees, then he was entitled to do so. And I know today that there are Amish people that do not pay social security taxes on that basis. When they have employees, they can't affect those other employees' benefits. And that's a taxation thing of general applicability across the board. And that's, I think, where the distinction is. I don't see a rush to flood the courts with, oh, I don't like this ladder because it was made in Ohio, when it should have been made in Pennsylvania and it violates my religion because that's what my religion believes. I don't see that happening. But I see that the burden and as you stated your honor at $95,000 a day. There are very few businesses that can withstand that kind of pressure. And it's the pressure on the haunts. And it's knowing every minute that they're sitting here today, every minute knowing that they're facilitating and that they are enabling this. Practice to go on. And if the, if their employees, when they're off work, want to go out and do whatever they want to do on their time and their money, that's their business. The haunts have no issue with that. But we can't take the government's position and burden the haunts with that. Okay, thanks. Thank you. Thank you. On behalf of the court, I do want to thank both sides for a very well-argued case and a difficult one. Appreciate it.

Thank you. All right, we're ready to call the next case. Conestoga Woods, Facilities Corporation versus Secretary of Health and Human Services. We've given each side a half hour here. My colleagues and I have agreed that we will remain uncharacteristically silent for the first five minutes of these sites presentation. So we welcome you, Mr. Proctor, and you may proceed. Good afternoon. May I please the court? I'm Charles Proctor representing the Hawn family and Conestoga Woods specialty. May I ask for five minutes of rebuttal? Yes. Thank you, Your Honor. Since 1965, the Hawn family have been the founders, the sole stockholders, the employees, the managers, the board of directors of Conestoga Woods specialties. Without the Hawn family, there would be no Conestoga Woods specialties. There would not be 950 people employed by their company. As a result of their deep, daily involvement with Conestoga, they have been tasked with and have just as every other business America has decided, deliberated, researched, and considered every aspect of the running of that business. And that includes their health insurance policy. This is not something new to the Hawn family. They have always chosen their health insurance policy based on their deeply held, strongly believed, religious beliefs. The government has not contested the fact that the Hawns have those deeply held religious beliefs. The government in fact has conceded that they are beliefs held by the Hawn family during the entire operation of this business. The Hawns have demonstrated their religious beliefs through four key statements. One is a statement of core values. One is a vision and mission statement. The third is a business practice statement. And the fourth is a human sanctity of life statement, all of which are published and posted throughout their offices, their factories, where they do business, and are made clearly and plainly visible to their employees, their customers, the vendors that supply them with goods, and anyone that they come in contact with. To say that the Hawns have to leave their religious beliefs at home when they go to work, or that they must only exercise them in church, would be a mistake. The First Amendment does not put any prohibition on the Hawns belief in that regard. The Hawns are free to exercise their religion through their business, and their business no matter what that corporate form is, expresses the way they do business in the way they believe. The HHS mandate places a substantial burden on the Hawns. And a substantial burden is when, as the court well knows, any time a person is required to change their beliefs, to change their behaviors as a result of that burden or that pressure. In this particular instance, the Hawns are suffering irreparable harm to their religious conscience 24 hours a day, seven days a week, because they are currently providing health insurance under the mandate for their employees. The burden, that substantial burden, which is forcing them to change their behaviors, forcing them to change their substantial beliefs, is in position of a $100 per day fine per person, per employee, plus the threats of other sanctions and a lawsuit. In this instance, that would be $95,000 per day in fines. If that's not a substantial burden, I don't know what is. There are very few businesses in this country that could withstand that type of a fine. It's not a tax, it's a fine. So they must change their beliefs. They must provide the mandated coverage, contraception, a board-efficient contraception, sterilization, and counseling at no cost to their employees, as a result of this substantial burden. The Supreme Court has ruled that a burden, no matter how slight, as in the yoder case, is enough to burden someone's conscience and require that they be given relief. The Supreme Court has also ruled in El Rod versus Burns that any injury to your religious conscience, no matter how slight is irreparable and thus not allowed. Why don't you, if you would, go to the main point that seems to be what the government presses the hardest on, which is, this isn't about the haunts, this is about conistoga the company, it's a for-profit corporation, and therefore they just don't, the company, the corporation has no free exercise rights. What, get to that issue, which seems to be kind of the heart of the government's argument. And I believe that's the heart of our argument as well, you know. Corporations somehow, the government would like to see that they'd be putting a separate category from the rest of us. Corporations are protected by free speech in the First Amendment. They're protected in the 4th, 5th, 6th, 7th, and 14th Amendment, just like the rest of us. Corporations, particularly solely owned, closely held corporations such as this, only exist because of the haunts. This is not a situation such as IBM or Ford Motor Company where there are tens of thousands of stockholders. Are you suggesting that there's a, there should be a different rule of law as respecting whether a corporate entity could exercise religious first-demand. And then it's based on whether it's closely held or publicly held. No, Your Honor, I believe that any corporation, if that is their purpose, if they wish to exercise religion, through that corporate entity, should be able to do so. But in this specific case, it's even more closely attenuated, which is a word that the government likes to use, because of the proximity of the haunts to this corporation. As I said earlier, without the haunts, there would be no conestoga. They are the heart and soul of this corporation. And like any business, whether it be IBM or Conestoga Wood, everyday decisions are made by individuals. And those individuals don't leave their religious conscience at home. If they choose to exercise it in the workplace, they should be entitled to do so. Well, the government is at pain to point out a mere brief that the plaintiffs here aren't claiming that conestoga qualifies for religious exemption under Title VII, under the ADA, under the NLRA, or under any other federal statute that regulates employment relationship. And the implication, I guess, of that is there are recognized circumstances where a for-profit company is given some accommodation, but you don't even qualify for those statutorily recognized exemptions. What's your response to that? Your Honor, Refra was intended to cover all the other federal statutes out there and provide for expand, not contract, but expand religious freedom in this country. And as a result, whether it's OSHA or some other federal statute, Refra is designed to continue and expand the religious freedoms of the people exercising it. And whether it's Title VII or what have you, you have to look at each case on its face. This is not a Title VII case, this is not an OSHA case, this is a case regarding a substantially burdened family and their close to health company. What if the belief of the Hans or the belief of the owners of a closely held company are that there is a providential deity and that the providential deity will in intercede to cure and illness. If that is the deity's will, so that providing insurance that would allow for medical intervention would be inconsistent with those beliefs. Would that type of closely held business have a right under Refra not to provide insurance for its hundreds of employees who may not share those beliefs? You know, I believe, again, that each case has to be looked at on its individual merits. And in a situation like that where, and generically, your honor has given a case of an illness, it's one thing today, medical technology has come so far, there's so many things that medical science can do. And there are some things, of course, that they can't. There are religious beliefs out there that the sanctity of the body shall not be invaded and so that surgical intervention should not be allowed. And yet you would be required to provide health care insurance that would allow for surgical intervention for your employees. My client is not arguing that issue and the choice of the insurance is the line. I mean, isn't that, would you say though that in that case, if that is the beliefs of the owners of the business, that they would be exempt from the mandate of providing that kind of health care insurance? Your honor, the Supreme Court in Thomas said that it's not their business to decide where that line is. And if a client came in and petitioned and filed a complaint that that was the belief that you, withheld, it would not be for the court to decide where that line is. The court must only look at the application of refer to those particular circumstances. Mr. Williams, is, is, is citizens united? Are, are you basing your claim here, your position on appeal under citizens united that you fit under citizens united and that your entitled to relief based on citizens united? Or are you making a townally storm in theory of individual piercing the corporate veil so to speak claim? Your honor, I would actually take both points. Let's take the strong one first. Citizens united dealt, did not deal with religion at all, had nothing to do with religion, had deal with speech. So is it, how do you, if you're, if you rely upon it in part, how do you say that citizens united is relevant at all to our adjudication of this matter? Citizens united said that corporations can exercise political speech and association. If you look at the first amendment, Your Honor, and I, I stated this in my brief, the first amendment is not divided into paragraphs, it's not, and within that same first paragraph separated only by a semicolon, we go to free exercise and the establishment clause. So how you can say, how you can parse from that argument that you're allowed to have political association and political speech, but not religious speech, which are, semicolon means something, they didn't put an and there, they didn't put a conjunctive, they put a semicolon, there's not a conjunctive. So the semicolon, I'm not a preparing, but, and I hate to tell you my skills at that area, but I know it has some meaning. So, and it's a, it's a meaning different than a conjunctive and correct your honor. And I, I briefly fully, the point here was because political speech and free exercise and establishment were three different concepts, I believe the founders put in that semicolon. But the point is that the key thing is, how do you parse out giving just certain rights to a corporation or to an individual and not others? Supreme Court, nor any court of this circuit has ever held that, that the first amendment guarantees really strikes out of the first amendment. This is, this is due granted. Absolutely, this is a case of first impression, your honor, and that's part of our argument that this is the first time that something of this specific nature has been heard. Well, generally we're told, maybe not publicly, but privately that pioneering doesn't count. Supreme Court, it tells us that we, we move, but this is nothing that, this is new law you're arguing in effect. Absolutely, your honor. And constitutional law. Absolutely, absolutely. So, so, so that we would be breaking Duke Brown, if we accept your United citizens theory that, that, that this is a first amendment claim here in CIPL. So then where do you go for bad? Do you come out the, the flow through? Distormons and talent. Yeah, that's your, is that your second or absolutely, honor. But let me just want to say one thing. If, if, as soon as the United recognizes political speech, then we, just by implication, you have to recognize religious speech and religious association, which is what this is. You have to, the judge Goldberg said, and I can't quote precisely, but something to the effect of, you know, it's not that, it's not the company that goes to church, it's not the company that worships, it's not the company that, that does these things. These are the beliefs of these good people who own the company and the burden here is falling on the company, not on the individuals. And to your point that they're one and the same, he, he says, in effect, you can't have it both ways. You can't enjoy the shield of a corporate, a separateness. And then when it suits you, say, but I'm one and the same. I'm not the same when it comes to liability. I am the same when it comes to religious rights, I want to assert. Speak to that. What was, where's the flaw in that reasoning? You are the technicalities of a business entity, whether it be a corporation or an LLC or a sole proprietorship. I'm not what's in question here today. What's in question here is their exercise, their protections under the Constitution, which includes the First Amendment, the Fourth, the Fifth, the Sixth, the Seventh, and the Fourth Seventh, all provide protection to a corporation as well as to an individual. But there are protections in the Constitution that the Supreme Court has said, don't apply to corporations. The privilege against self-incrimination. A corporation only speaks and acts through the people that own and operate that entity. And the corporate technicalities and the government would like to say the bedrock of business law is what is controlling here. That bedrock is no greater, is no stronger than the bedrock of our Constitution. And we have a situation here in Refra, the government did not, Congress did not define what constituted a person. As a result, you can go to the Definitions Act 1, U.S.C.1, you can also go to 15 PA, 1501, where specifically, if a distinction hasn't been made, if they hasn't been enumerated by Congress, a person is also, can be a corporation or a business. And the same thing in 15 PA. There, in fact, 20 specific acts of a corporation are listed, but there's no negative acts in that in 15 PA. There's nothing that says a corporation can't do this. It only says what a corporation can do. 20 specific things. And in addition, with Congress, if their intent had been to prevent corporations, whether they're IBM or they're solely owned as the Hawn families, they would have said so. They would, they would, they would, they're generically speaking. Most people do not consider a corporation a person. They don't refer to a corporation as a person generically. And under the, the, the, the dictionary definition, so to speak, that we have, if the context indicates to the contrary, it's not, it's not concluded within Refra. Is that somewhat of a stretch to state that, that given the context of what we're dealing with here, where especially when Congress wanted to make a distinction, they gave exemptions to religious nonprofits. And when they want to make an exception under Title VII and the ADA and other federal laws, they've made definite exceptions. There's, there's nothing here that did the same for not for, for profit seeking corporations, which are not religious. Well, you're on right. You may be referring to that string of cases such as of Centro and Lakumi and what have you in those cases. What the court was saying is you cannot single out or eliminate a group because of their religious beliefs. If you've set forth a set of guidelines, a set of criteria for how you're going to, for, for any particular ordinance, a law or statute that you're presenting forth, you have, you, you can't exclude a corporation, whether it's for profit or nonprofit because of their religious beliefs. The for profit, nonprofit thing, I think is a smokescreen because many, many 501 C3 or, or what have you type of corporations, missions, what have you that, that we have in this country, do tremendous dollar amounts and they use that money to further the public good. Well, let's assume that the, the corporate veil issue is not as significant as the government makes it out to be for purposes of discussion and that we were just talking about the haunts. There is a, another position that the government advocates in which the district court accepted, which is that this is just to tenuous a connection. You provide insurance for people, but there's a whole series of intermediate steps that would have to happen before anybody would actually do something that the haunts might find offensive. That's the hobby lobby line of reasoning as to this to attenuated assertion. What's your response? You're on number one, the government and respectfully of Judge Goldberg have not listed what all these steps are between the haunts and the insurance policy. The haunts individually, personally, and their board means decided on this, on whatever insurance that they get for their employees. That's number one. Number two, in going through this exercise and addressing this problem of attenuation, have we looked at, has the government shown us not only what these steps are that have attenuated it, but is this the least restrictive means of achieving their goal and they haven't offered anything in that regard either. So you've got a double issue here with that particular argument. But the first issue is substantial burden, right? Substance of burden. I think Judge Jordan's question was going to be. Yeah, before you get to least restrictive means, you have to talk about whether there's a substantial burden. I understand there are going to be an, and they'll have an advocate up here in a moment. Maybe they'll correct me, but I understand there is a certain to be in part. There's no substantial burden because you're just buying something. You're not getting a, you're not buying an abort a patient. You're not getting anything like that yourself. And you, and you won't even know what if your client, if your employee does. So what's the problem? Why are you complaining? That's easy. Because my clients have done their work, they know that that insurance policy that they're purchasing provides those objectionable services to their employees. And just knowing that, just knowing that that service is available and that they are paying for it, that they're facilitating it, that they're participating in it is enough to. But the government's position is that they're not doing anything. It's the corporation. If I, once again, I'll stay and corrected when the government speaks. The proposition is the haunts are not doing anything. The corporation is buying the policy and therefore no one else has implicated except the corporation, even though it's a given the corporation exercise through its board of directors who are elected by shareholders. But the policy is purchased and in the name of the corporation. Your honor, you're absolutely correct. It's in the name of the corporation. So let's say the end of the House are not implicated in any burden. The question is how did it get there by the decision, by the hard work, by the dedication of the Hawn family to providing health insurance to their employees so that they can stay competitive in the marketplace. Without that, they lose an advantage there. So they have research. Their previous insurance policies did not have these features in it. It's only under the HHS mandate that this is come to fruition that they have to pay for something that burdens their conscience. It's kind of so- The legal woods currently subject to the are there. They are subjected to it, your honor. And so they've been suffering since January 1st of 2013 under this substantial burden of knowing that they are facilitating their participating in the issue of potentially religiously offending. Activity. Well, in some ways, your position on burden here echoes in some ways the timely storm in the situation that we originally discussing but did get very far on. And it is a replication almost parallel to whether or not the corporate flow through goes or doesn't go. And the government's position on, I guess, both issues is similar that the corporation is for purposes of refer. It's buying the policy, not the individuals. And their position on the first amendment flow through is that there is no flow through. The corporation is a separate entity. And it's and, and and, on's purposely incorporated for whatever reason corporate advantages are available in the commercial market. So that you really have another storm to argue it on the burden issue, do you not? Absolutely, Your Honor. And in stormans, the court found that the corporation could exercise religion. That was one of the basic premises. That's why we included it in our argument. And here, as I said earlier, that exercise of religion should not be stifled simply by a business technicality. In 1965, when the haunts incorporated this business, there was no Affordable Care Act. There was no OSHA. There was no EPA. They incorporated for the sole purpose of some tax and liability issues. And yet, that corporation is still liable, criminally and civilly, to whomever. Well, you raised an interesting point. Does that mean that if the haunts for their religious beliefs believe, think we ought to be able to, the earth is here for us to use, and then it's fullness. And therefore, we don't have to do anything to, in any way, keep from polluting a river because the river will take care of itself. I'm pulling fanciful things up. But I mean, you mentioned the EPA. If they under OSHA think as Judge Viennese indicated that the providential handle protect our workers because we're good righteous people, so we don't need a guard on a saw. I mean, are they free to say our religious beliefs are what they are? And those regulations don't apply to us because they weren't around when we incorporated in 1965. Yeah, that wasn't my point. And I'm sorry if I indicated that. My point was that in their consideration of incorporation, it was merely tax liability issues. But as to your point, the haunts do not think that they have free reign to do whatever they want, but because this directly burns a specific religious belief, that's where their concern comes in. And on each case, how would we parse that? Because you said earlier when Judge Viennese was pressing you on this point, you'd have to do it on a case-by-case basis. If I understood you correctly, is that a practical thing to throw into the courts? Where does that start to put us directly into the question of what is a legitimate religious belief and what's not so legitimate? How do we deal with that? Now, I've considered that the burden on the courts with every corporation coming and running to the court every time they feel that they're religiously burdened would be a big issue. However, I think we have to first decide may a corporation exercised religious freedom. And I think the answer to that is yes. I see him out of time. Let me ask just one question which sits down because I like to revisit something that Judge Viennese brought up with you. But I'm concerned that you have your corporation, which is totally family owned, of course. But let us say you have a corporation which is owned by people of a multiple faiths or is owned by Christian scientists or seven-day inventors or whatever the faith is. We have to be concerned with a precedent here of what a case stands for. How would we handle a situation where you have a corporation which has let's say a hundred or think you have several thousand, four to five hundred companies who claim they have a religious extension where you have multiple religions involved in ownership or different than men and height or whatever the faith they need here is to believe it. So how could we fashion an opinion which recognizes a religious right under the first amendment or a river? What we have corporations which are most of which are not wholly owned as your corporation is. Your honor, the answer to that question is that it's not for the court to decide the theology. That is what the person believes in or what the corporation believes in is not your burden. The burden is on the court to determine can those individuals exercise free exercise? No, we're going down a slippery slope here. Absolutely. And you can't have it. Every case is a precedent and if we say that your company has a religious right in this case, what do we do with a fortune five hundred companies? Your honor, if a majority of the stockholders believe that they have a religious component to their business and they wish to exercise it through that corporation, I believe that the court needs to protect that religion. It's just like if you look at a central akumi, those were extreme cases. One involving a hallucinogenic tea, the other one regarding animal sacrifice. Those are not mainstream religions. And yet the court chose to protect those, the exercise of religion and those instances. I don't expect that the court is going to be flooded with every corporation in America coming in and asking every time somebody wants to put a ladder of O-Sher if it's a title seven issue and having to argue this fact over and over again. Because basically, Refra was designed to override all those and as I said, expand religious freedom, not contract it. Thank you. Thank you very much Mr. Park, we'll have you back on our battle. Ms. Klein. May it please the court, Alisa Klein, for the federal government. And you can have five minutes uninterrupted if you want it. I'll wait my uninterrupted time. I'll try to get out of very brief beginning but feel free to interrupt of course. I'd like to go back to the question that your honor asked early in the beginning, which is where did this for profit, nonprofit distinction come from and why should Refra be understood to carry it forward. And the distinction is based in two different types of establishment clause concerns and it's derived from the Supreme Court's decision in Amos. Amos was interpreting the title seven religious exemption but as we've explained in our briefs, Congress was acting against the background of a lot of law with respect to the title seven exemption and the NLRA and the ADA and other areas of law. And there were two different concerns. The court recalls in Amos. The question presented was, did it violate the establishment clause? Did it impermissibly advance religion? For Congress to exempt not only the religious activities of a religious organization, a church, but also the secular activities. It was a building engineer in a gymnasium. This was direct review of a district court decision. The district court said, yes, it struck down this title seven religious employer exemption and it said that if you start exempting the secular activities, if you start exempting the religious activities of a religious organization, then that would permit churches and other religious organizations to extend their influence by entering the commercial profit making world. This is the language from Amos, the Supreme Court's decision floating the district court. And the Supreme Court said, and there's a line between accommodating and impermissibly fostering religion and the Supreme Court said they're not to worry. We are only talking about the nonprofit activities of the church. Is that... is the concern of the government here that if they were to recognize that for folks like the haunts and the business that they closely hold, that paying for a word of patience is a terrible thing that it would result in the establishment of religion? Well, the precise answer is Congress did not authorize for-profit corporations to demand religious-based exemptions from employment laws. And, you know, whatever the particulars are, I think it's clear from Plain, it's argument that this would not be cabined to a particular health care service or even health care in general. It could extend to salaries, OSHA, payroll taxes. When you say Congress didn't do that, I mean we have cases, very specific cases including very recent ones where the Supreme Court has seemed to take a different tack in that Ms. Klein where they've said there are exemptions from Title VII, four religious beliefs, and employers don't have to meet them if they've fall within certain specific categories. And I understand you want to draw the distinction between for-profit and nonprofit, but before we get there I want to make sure because this is not the first trip to the dance for me at least with this case. I want to make sure that my understanding when this was before the court before was accurate and is still the case. So if it is the case, so bear with me for a minute. Is it accurate that the government doesn't dispute the sincerity of the Hans religious beliefs or the district courts finding that the faith of the Hans requires them to operate their business in accordance with those beliefs? Is that accurate? That's accurate here and in all of these cases we have not questioned sincerity. And the government doesn't contend that the regulations that issue are anything less than anathmet to the Hans because of those religious beliefs, right? You don't question- If the court is just restating the first point, yes. Of course we have argued that any- the requirement is imposed on the corporation and that there is- it's too attenuated to be a substantial burden. But if we're just talking about a description, the way they've articulated their religious beliefs, we're not quarreling with that. Now you don't take issue with the- with the Hans assertion that unless they submit to these regulations, they're going to be fined on a scale that's going to destroy the business. Is that right? 95,000 dollars a day is what I just heard from Mr. Proctor. Well, let's add an accurate statement. Well, first let me clarify the day to the extent there's tax liability, it's the corporation, it's not the Hans individually. And- but really the reason we're not making an argument about tax liability at all is because there is a legally enforceable requirement that the plan provide contraceptive coverage. So even if there were no tax liability, this is a real requirement that the Secretary of Labor could enforce that we assume they would obey if they did not prevail in their claim. Yeah, so is the answer to my question yes that if they don't, they, the company doesn't do what they're instructed. They're subject to 95,000 dollar day fines. I haven't done the math, but it's the corporation there is tax liability, their tax consequences and other consequences. If a corporation does not provide women's preventive health services. We're in the ballpark. I haven't done the math, but it is I'm not disputing that there's significant tax liability, but again, just want to underscore there is a requirement. This is not like the case that went to the Supreme Court and if I be where individuals could choose do I buy insurance or do I pay the IRS the shared responsibility payment. The point here is it's not this isn't a theoretical issue right? No, no, but they've got we've got a real and immediate you either you're either buying this stuff or somebody's coming to your door and it could be 95,000. And I think that's a $1,000 a day which I think you could see to take them out of business. So it's a real and immediate issue. But again, they're and they are required to do it and this is for the benefit of the 950 full time employees. They are required to provide the coverage of mammograms and coloractal screening and all the whole damage including women's preventive health services. Nobody's talking about the coloractal screenings and mammograms. We're here about the abortive patients and the contraceptive. If I may just interrupt with abortive patients just to make clear the court is using a theological term. If the court wants to refer to IUDs and plan B and Ella, that's neutral terms for federal law purposes. A device that prevents a fertilized egg from implanting in the uterus is not an abortive patient. A board of patient would be a drug like are you for 86 that has an effect only after the woman is pregnant. So if the court wants a neutral description, we're talking about drugs and devices that could prevent a fertilized egg from implanting in the uterus. I'm not sure. I'm not sure. Not to adopt theological terminology and trying to operate. I thought having read the Amicus briefs several of them in this case that that was an accepted scientific term. But if that's troubling to you, we'll call it Ella. Or an IUD about which there's actually more evidence. Let's just say Ella for purposes of discussion. If we're agreed on all the background there that this is real and immediate, it's not theoretical. Then my question to you is when you say this comes down to the distinction between profit and nonprofit corporations. First is explain the Supreme Court statement in Bilati. I think I'm recalling this correctly. The wrong question to ask who's asserting it. The question is focus on the nature of the right. Does that principle not apply here? It applies very differently when you're talking about seeking a religious exemption from a generally applicable law. That raises a whole host of establishment clause questions that have informed the interpretation of a lot of statutes. So you are concerned that there will be an establishment of religion if you accommodate this belief? Well, we are concerned as the Supreme Court was recognizing that a special religious accommodation for a for-profit, even if it's a religious organization, if the church opens factories and starts making wood cabinets and uses the money. That's why the Supreme Court said no and that the concurrences emphasize no. We're only talking about nonprofit activity here. If they had chosen to organize themselves and it wasn't available to them in 1965, but there have been a multiplication of new kinds of business entities. Suppose they had established themselves as a limited liability company, which has some of the elements of partnership that some of the liability restrictions of a corporation. Would you be saying there are a for-profit entity as opposed to a corporation that still doesn't matter? Yes, and there are limited liability companies in some of these cases. And if they were a partnership, would you be saying the same thing? If there were a true partnership, we would still be saying that they're not entitled to a religious exemption, but the principles of corporate law that are, we think, dispositive here, would not apply in the same way. Why, why, why would, if there are a partnership and there's no liability veil, why would they not be entitled to an exemption? Well, then, if I just, if I just want to step back for one second before when we talk about nonprofit, there are some courts, like the Ninth Circuit in Spencer, that things even going to nonprofit activities is too generous. And what they would draw the line between, say, the Salvation Army and maybe a Catholic hospital that looks like a regular hospital and say, we want to see that you're not charging beyond nominal amounts for the goods and services you're providing. So that we're really, we're not in profit making world, even under the guise of a nonprofit corporate form. So just to be clear that. Well, that's an interesting point. So then let's follow your, let's follow the path you've just gone off on. Is, is the government shifting its position because I understood the government's position to be a profit versus nonprofit distinction? We have, we agree with the DC Circuit that in general this line between nonprofit and for profit is a workable line that avoids the second type of establishment clause problem, which is, so there's one concern you're walking a fine line here. We want to, you know, Congress wants to accommodate religion without impermissibly advancing it, but also doesn't want to entangle courts in kind of trolling through the beliefs of an institution to see which activities are religious or not religious. So that's why that was the second reason the Supreme Court said, okay, we're not going to, if we've got, it was, you know, the eldest church, we're not going to ask when they run a gennasium or a soup kitchen or humanitarian aid. So, what I think is that a religious activity or not, but what never has happened is a court saying for profit corporation can get any sort of religious exemption. That, and that's, so we're all the way at the other end of the section. This is a different domain. You're, you seem supportive there for a moment of the of the night circuits position that the profit nonprofit line isn't really that meaningful because you can have a hospital that looks for all the world like the hospital across town except that carries a five or one three-seat designation. And there's no difference at all. And does, to notions of religious liberty really come down to that? Well, certainly when you're talking about the extent to which Congress has allowed legal entities to get exemptions that come at the expense of the employees because anything, the exemption in all of these contexts, if you give it to the employer, it means the employee is not getting the health coverage or social security taxes paid or OSHA or, you know, non-discrimination laws. And this is where Congress has given only a limit of class. It's a slightly different because when you say in all these circumstances, the employee isn't getting it. I mean, the assertion here, the haunts aren't saying don't let, don't make these services available. They're saying don't make me pay for them. That's pretty dramatic differences in it from establishing a religion. Isn't that a big difference from when you said, I mean, if nobody pays social security taxes, then you don't have a social security system. If the haunts don't pay for their employees, Ella, that doesn't mean Ella, it's not available, doesn't? No, but again, the question is, can a woman who works, one of the 950 women who work for the company, when she goes and her doctor says I'm prescribing an IUD, and this will cost between $509, $900, does she have to pay out of pocket with the wages she gets from the corporation, or can she use her comprehensive health coverage? And... Aren't you really asking us to give less protection to religion under the Constitution, then, has already been adjudicated as due to free speech? It's certainly true that the free speech jurisprudence is different from the religion clauses, and the Supreme Court said this in Hosanna Tabor, but also understand in the free speech context, you're just talking about whether the government can suppress speech or preclude speech. Here, in RIFRA, what we're talking about is, can an organization, a corporation, come in and get an exemption from generally applicable law? And it's clear that a prisoner can say, I want an exemption from your meal policy, I need a halal diet. It's a big difference, though, to go from there and say, a for-profit corporation that manufactures wood cabinets or all of the other things in these cases can exclude, get an exemption from payroll taxes. What about another one you want us to make in this situation between free speech and religion, and so far as a corporation being entitled to one and not to the other, unless it's a nonprofit religious organization? Well, the Supreme Court in Hosanna Tabor did say the analysis of the speech clause is different from the analysis of the religion clauses, that the religion clauses give special solicitude to religious organizations. And the focus of the Supreme Court cases and the free speech area has been on the expression itself. Exactly. But here, again, the nature of the claim is we want an exemption. And if a corporation gets an exemption from these employment regulations, that means the employee doesn't get the benefit. So even, perhaps I should move to the point about attenuation, even in Lee, where it really was just one individual, what the Supreme Court said, by my team, was that when followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory basis. So, the employee schemes which are binding on others in that activity and the granting an exemption from their social security taxes to an employer operates to impose the employer's religious faith on the employees. So, that was in the specific context of talking about a substantial burden. In Lee, they seem to concede, this is a substantial burden. And they said, but there is a compelling state interest. That was the expression of the context of talking about a compelling state interest, right? Your position is, there's no burden here, right? Correct. Because here, what you're talking about is a regulation of a for-profit corporation and the benefits it provides to employees. And we don't believe that Congress, by using the term person, swept in all for-profit corporations. It was primarily focusing on natural persons. I mean, that's been, that's Sherbert and Yoda. Those are the free exercise claims at sites. And it can include churches. But that doesn't mean it brings in. And Lee also was in the context of saying, we're all in this together. Everybody's got to do it. But one of the complaints that's being made here is the administration hasn't set this regulation up that way. That there are tens of thousands, maybe hundreds of thousands, maybe more folks who are exempted from this. And they just don't happen to fall into the exemption you guys have set up. So it's really not neutral across the board, generally applicable. That seems to be a matter of some distress on the, on the part not just of the, the haunts and kind of stuff. So good, but of the several amiki who have filed on their behalf. What's your response to that? Okay, well, just both points. First, Lee was actually a stronger claim because this was a member of the Amish faith. And what he was saying is, I need to provide for my own needy. These are my Amish employees. And you don't have to worry about social security taxes on employment, you know, and pension benefits because if they're in need, I will take care of them. And this was completely credible, substantiated by practice. And in fact, Congress had exempted self-employed Amish, but notwithstanding the strength of that claim, the Supreme Court said, no, your employees decide for themselves, whether they want to get their social security benefits. And you cannot essentially impose your religious beliefs on your employees. So here, of course, if the women do not get the health coverage, they just don't get the health coverage. It's not. But if they don't get the health coverage, that doesn't mean they don't get the health care. I mean, you're back to it. Only but they have to. They don't get it. But again, the question is they have to pay, say, the, you know, 500, 600, 700 dollars for an IUD rather than using this otherwise comprehensive means of financing their health insurance. So it is a shifting of a financial burden directly to the women who are participating in this plan. So precisely. But again, I should address the exempt, you know, the exemptions too, because I know your honor was asking about that. How could the right of free exercise be a personal right even under balani when you agree that a religious or a corporation can't exert that right religious? Well, again, I mean, the way it's been described in the cases is that individuals can come together to exercise religion in a communal fashion. Whether or not that's with a nonprofit church group or whatever religious group. It's a corporate entity, which is it, which is exercising a, a personal religious right according to, I mean, they allow them to do it under refer. Well, again, I don't know whether if you think of a chart, there's no question that a church can assert a right under refer or are, are they have the personal right under, they have a right. They're a person under refer. Well, but the question is whether they are serving it as an entity or because their members exercise religion through the church. Well, I mean, it appears that the church is, if it's incorporated, then most of more it's it's it's a certain the right is a corporation not as the individuals. So if a nonprofit corporation can assert a religious right. Why can't a profit corporation, I mean, the both corporations. We're not making a metaphysical point. We're saying that Congress and I should make clear that when Congress in the Senate report that a company in Ripperack, Congress actually explicitly said nothing in this act shall be construed as affecting the religious accommodation under Title VII of the Civil Rights Act of 1964. It's that Congress did not give every type of corporation the right to demand religious exemptions certain churches nonprofit activities performed by religious organizations. Yes, they can seek religious exemptions and that's when you would apply the framework of Ripperack. Well, the nonprofit church organization can pray and and and be religious. Why can't a for profit corporation also pray? I mean, they're both corporations and I take it a nonprofit church organization has praised and respects the sacraments or whatever the faith is that they're devouted to voted to. So why should we why should the corporate entity, I guess, make a difference as to whether or not there's a religious right under the first amendment? Well, let's go back to the fact that the Supreme Court in fact, no court has ever given a religious exemption to a for profit corporation. And whether you think that's inherent in the nature of free exercise or just that Congress codified this when it used the language of Ripperack, it was not making a dramatic change and for the first time allowing for profit corporations to demand exemptions from employment laws. Well, Supreme Court has ever said that for profit corporations can't have exercise a religious right. How do they? It has not explicitly said that they cannot, but it was avoiding establishment clause concerns in Amos by saying you don't have to worry about this issue of religious organizations moving into the for profit commercial profit making world. And thereby generating revenues that could be used to finance religious activities. Well, wouldn't we be imposing a particular form of collective religious violation of the first amendment if we say that that nonprofit church groups can exercise religion, but a for profit commercial corporation cannot exercise religion. Are we discriminating against a for profit organization under the first amendment? No, because again, I mean, I don't take kind of so go wood to claim that they could qualify for any of the existing exemptions, title seven, NLRA, et cetera. Those do not violate the free exercise clause. There's no question that Congress can give exemptions, even just for churches, that it doesn't extend to secular entities to for profit entities. I mean, that's actually many exemptions are explicitly limited to nonprofit entities. Let seems to term riff wrong. It's head doesn't miscline. I mean, I thought the point of riff was to make a broad statement across the entire US code in response to Smithy organ and say, wait a second, we do not like what you did Supreme Court. We are we are we can't do it for everybody. I mean, they tried to do it for everybody. They got pushed back. They read they revisited it and they came back and said under riffra, we're going back to pre Smith rules for the federal government. They didn't make any exceptions. They were they didn't try to tune it to title seven. They said this is across the board. Is that a is that a mistake in understanding of riffra? To some extent, your honor is of course correct that they reinstated Sherbert and Yoda. Both cases involving individual claims having nothing to do with corporations or for proper corporations. Exactly when they enacted riffra, the Senate report, which the Supreme Court relies upon in Qatar said other areas of laws are unaffected and among others said nothing affects the religious accommodation under title seven. So I think it would be a mistake to say riffra overrides these existing religious employer. They didn't even try to override it. The impression that at least the three US senators who chose the phoholemicus briefly, we were trying to add to it, not take it away. It sounds like you're trying to say riffra actually was set up in a way that absorbed the exemptions existing in title seven, etc. Well, the Congress said we are not writing it. But again, the riffra, the core was about claims of individuals. They talk about prisoners, not being allowed to observe their religions or being denied certain foods. There's talk about Jews being forced to undergo autopsies in the Senate report. This was, there's nothing remotely that would suggest that Congress was doing what Amos cautioned against, which was saying for profit corporations can now based on any objection articulated by a controlling shareholder or I guess an officer or director can demand exemptions from federal law. That really would have been extraordinary and it would have come at the expense of the employees. What is your best argument for saying that riffra does not include companies such as it's not swept within that all inclusive framework. In context, person, of course it means natural person. That's the text putting the rabbit in the hat. When they say person, do they, now I agree with you to this extent. That corporation generally are not considered persons, but the other position is that it's included unless it's excluded by definition under the Dictionary Act or whatever. Yeah, I didn't meet the full stop. Sorry, no, it's okay. So yes, of course person includes natural persons. Yes, it also includes certain corporations. We know Supreme Court has said several times, Hosanna Taber and before, church is often incorporated. So you can have these nonprofit religious institutions and it's unsurprising that Congress used the term persons. But that's, it would be the other end of the spectrum to say every corporation can demand religious exemptions from federal law on the basis of riffra. And that's the argument here is if the controlling shareholder, perhaps a minority shareholder, the corporate officer, their personal religious beliefs have to be imputed to a for profit corporation such that it can subject to strict scrutiny, any objection that's inconsistent with what could be quite diverse religious beliefs. So on the riffra claim, your position is so to speak, it cuts it off at the past, they don't come within the statute at all. So you don't really get into the question whether the burden, whether it's substantial or anything of that nature, your position is they're not included within refer no further argument necessary. Correct, we brief the other issues, but our principal argument, our first argument is that the corporation does not state a claim under referent, Hannah, a for profit corporation. The only problem I have with that argument or a side of several is that if they include religious corporations, the corporation is a corporation that does is a different type of corporations. Why didn't they also include or make you include try to read the TV's of Congress, why they meant by the act, but why didn't they also by saying corporations include for profit corporations? Well, again, going back to what Congress was really focused on in riffra, overturning Smith, this was about whether individuals could get exemptions from the public. Going back to the priest Smith, yes. So this is what we're talking about or whether if an individual was fired, what are you pointing to? Let her finish it. Smith and Sherbert and Yoda and Thomas and Lee and all of the cases, not with corporations. No, and again, churches, we know from say church of Lakumi, they can assert free exercise claims, but we have never had a case in which a for profit corporation has been given. A free exercise right. And I just want to end by emphasizing that we don't see limits to this position. So like I think plaintiffs council has said any new can't look past any sincerely held religious objection that's raised by a corporate officer perhaps controlling shareholder perhaps minority shareholder. I don't I don't know where it ends, but in this cosmopolitan community that would have extraordinary ramifications for the employees and Congress did not authorize that type of claim. A lot of corporations make donations for profit corporations make donations to all sorts of causes, including religion, religious organizations. And they make them to sports authorities, they have stadiums made it, they give all sorts of donations under the director's discretionary theory. Now if a corporation, a for profit corporation is under law allowed to make a religious or a donation to a religious organization or for some religious cause like you mentioned Catholic charities. Why isn't that corporation also. Is it doesn't have religious rights? Well, there are lots of things corporations can do as there are owners, they're controlling their officers direct them and they can make donations, they can run new cigarettes, they can do all sorts of things. It doesn't follow that they can demand religious exemptions from federal laws, they certainly couldn't say I can't pay full salary to my employees who don't tie it because I'm facilitating this conduct that is inconsistent with my personal religious credo. They could not do that. But a corporation have a hand ties. Yes, a corporation, they have assuming it's closely held and it doesn't have other fiduciary duties. Of course, they can give money to religious charities or other charities, but they can't make their employees do it. They can't withhold part of an employee's salary. They can't say the salary is facilitating the conduct of my employees with which I disagree and therefore I should get an exemption. Okay, thank you, Mr. Lennon. Mr. Brock. Your owners, at the end there when I ran out of time, we were talking about the slippery slope issue. I'd like to go back with that if you indulge me for just a moment. Under refer, it isn't a question of the belief of the haunts or anyone else. It's a question of the pressure exerted by the government. It's a pressure to make you change your belief system, no matter what it is. That's why I refer to a Your Honor to Ocentro and Lakumi. We're talking past each other here in the courtroom just as in the briefing. I got to get you to speak directly, Mr. Proctor, to Ms. Klein's point. The last thing she said was there's no limit to this position. And I think that's what Judge Viennese asked me on the word to his mouth was pushing on a little bit. I really want to hear, where's the end point? If we accept your position, where does that stop? If you, if recognizing that for the haunts this is a matter of the highest importance, what prevents us from the next person down the road saying, I feel really strongly about not paying my employees who don't agree with me about sexual orientation or women in the workforce or whatever. Where's it in? You know, going back to the pressure issue, the haunts are not trying to force their beliefs on their employees. Rather, the government is forcing the haunts to comply with what their beliefs are. How is that different in the context of, let's say the haunts say, only members of my faith can work for my for-profit company. And that would violate Title VII. Why, how is that different? Because you're now forcing them to accommodate, to change their belief by saying you are discriminating against that Jewish applicant because you cannot discriminate on a basis. Are the haunts in that instance, as kind of Stogeau Woods in that instance, entitled to an exemption? Your Honor, Refra, overrides Title VII and this is not a Title VII case. I don't need to avoid your answer. But this is not a Title VII case. In those maybe a certain examples, but they use any example. Well, you're honor. I'm having trouble with the line drawing. If you look at the, one of the departments of the Health and Human Services, where they define what corporation, what defined a religious corporation that would be eligible for the exemption, that would allow somebody to be exempt, they said they had to have a religious belief or statute, excuse me, a religious, I can't remember the word, but a religious context of what they're doing, that they hired only or primarily religious people, that they served only the people of their religion. They proposed that. They're changing that though. I'm a change. It's a proposed rule change, but it hasn't been implemented yet. But that, and, and, and, you're honor, I don't need to avoid your question at all. But it's the good. The question, because the Supreme Court has already decided over and over again, that the harm to an individual, no matter how small, no matter how brief, no matter how attenuated, is sufficient to enact, refer, and free, and first amendment rights, then that's where the test is. So you've conceding that there is no limit, because that's the point the government is making. They, they, you, you heard me go right through the litany with misclined, they don't, they don't dispute that this is a terrible thing for the haunts personally. That's not on the table, they're prepared to concede that's a bad thing for them personally. But in order for us to lay down the law that you want us to lay down, doesn't there have to be some endpoint or else, maybe the right way to ask this is, address the point from Lee. You're in the commercial space, just the way the Supreme Court talked about in Lee, so you got to accept the cosmopolitan society or anything else. You know Lee is the perfect case, because in Lee, a self-employed person, what, what was meant in the context of that case is a, a sole person, a person who went out and doesn't have employees. And they exempted individuals that went out into the workplace and just worked for themselves. But when they brought on employees and because of the generally applicable benefit of social security tax to everyone in this country, because of that benefit, they felt that that was a compelling governmental interest that overrode Mr. Lee's ability to not pay those taxes. And that's the perfect case. But at the same time, they recognized that if he wanted to do that for himself and not have employees, then he was entitled to do so. And I know today that there are Amish people that do not pay social security taxes on that basis. When they have employees, they can't affect those other employees' benefits. And that's a taxation thing of general applicability across the board. And that's, I think, where the distinction is. I don't see a rush to flood the courts with, oh, I don't like this ladder because it was made in Ohio, when it should have been made in Pennsylvania and it violates my religion because that's what my religion believes. I don't see that happening. But I see that the burden and as you stated your honor at $95,000 a day. There are very few businesses that can withstand that kind of pressure. And it's the pressure on the haunts. And it's knowing every minute that they're sitting here today, every minute knowing that they're facilitating and that they are enabling this. Practice to go on. And if the, if their employees, when they're off work, want to go out and do whatever they want to do on their time and their money, that's their business. The haunts have no issue with that. But we can't take the government's position and burden the haunts with that. Okay, thanks. Thank you. Thank you. On behalf of the court, I do want to thank both sides for a very well-argued case and a difficult one. Appreciate it