afternoon thank you to counsel for joining us for this afternoon argument session madam clark which is please call the case for argument state home order whereby the plaintiffs palance were prohibited from gathering for religious activities in groups of more than nine people the standing question before the court is redressed ability merits of the case are not before the court mediately it should be noted that the united states supreme court in its rulings in the diocese of brooklyn versus new cuomo and candid versus new some has removed all question that the discrimination against religious exercise contained in the county state all order is unconstitutional this is important for standing analysis in identifying the harm scientists have suffered religious exercise as a so called essential activity compared to the other designated essential activities set forth in the order it alone religious exercise religious activities was subjected to the nine person gathering seismic a sion while plaintiffs were forbidden for prohibited from engaging in religious exercise or  groups of nine or greater ten or greater all bad or secular activities from grocery stores to big box home improvement stores to wal mart and so or even longer mass and so on were allowed to a church building well the st place to find those is in the paragraphs one through three which is which it introduces each of the plaintiffs not understand that our pleading has a glitch in it that we have two sets of paragraphs one through three dollars and four dollars but if you go to the party starting on page two paragraph which is a true of the appendix paragraphs twelve and three each contain in essence this allegation as a result of the restrictions imposed by the defendants the support below each plenty of has been unable to attend sunday services and other religious activities in which each plant to usually participate has been heated in their exercise of the rights to freely associate and assemble into the freedom of expression i know that and then the next sentence is the church building in which they regularly worship and describe the this record that the church is in st louis county we're not close and what we're what this says here is that church sunday services which may or may not take place in the tour and other religious activities have been this is only the plaintiffs individual plaintiffs are bringing this case not the church cracked that is correct your own so it our position is of course that the order was not imposed against the churches for in fact was imposed against businesses accepted directly because the nature of the order was one that prohibited people from leaving their homes to engage in anything other than essential activities the only essential activity that we seem to gather size limitation under the the challenge for her is the activity of engaging in religious activities of more than nine people so yes the plaintiffs are proceeding as individuals because it whether in churches or in places other than churches this war prohibits them from gathering in groups of ny are of more than nine people and that's a discrimination that this place on the face of the of the order and individuals who are directly or directly regulated by the order they clearly have standing to seek an injunction that forestall that discrimination i'll give them my question  quinlan in your brethen this court on page twenty five you say it is a reasonable inference that the churches would return to their prior practice of holding a larger than ten this argument is on page twenty five dollars it's a hypothetical argument it's a hypothetical argument that takes at face value the challenge that that we saw the reopening of our closed churches which we never alleged and were not seeking constructed by the county and accepted by the trial court that all we were seeking was the reopening of our churches are part of that is that under the wheel and case where we are entitled with the pleading stage to have liberal inference that if the freeing up rd party actors to give us something that we don't have we want to have the freedom of the constitution guarantees to us in the st amendment to exercise our religion  holding the service in order for you to attend and that's why i gather you are arguing it was a reasonable inference that the churches would return to their prior practice of holding larger than ten person services so  my nd question is if you prevail on that and there's sufficient pleading on that question then how would this case proceed in the district court because the county would be entitled  defend as a factual matter that you lack standing would we have witnesses from the churches testifying hypothetically what they would have done and may have two thousand and twenty if the county order had been enjoying and in order to determine whether the services would have been hell is that how you see this proceeding or if not tell me how you see it proceeding in the district car well i would say proceeding the district court of summary judgment on the legal question of whether or not the discrimination is set forth in the order is constitutional under his free court's recent ruling i'm on it the anti the standing issue how do you see it proceeding in the district court how would this be litigated in the regress ability question well i think that the plane just what each testify as to the religious activity today engaging with within which  modified order allowed to go to church in larger groups according to modify order i would but i'm going to suppose that the i think it would not be beyond the realm of speculation for appendix it's there for page response to our lack of standing argument not a word is mentioned about a primary argument that all they really plead is churches this was all about churches in the memorandum this was all about churches in their response they were ripped to this court that was filed you go back and read it until may th that was what they were complaining about was the church just couldn't have more than standing in respect of the church it's because of the issues that have been hinted at already this morning that's afternoon one is why did the churches close it they closed because of the order or some other reason and that is needed so there is no traceability or counsel i want to ask you about that are we setting out some sort of high pleading burden here because you know i tend to agree with opposing counsel that you know the that's something that that at least reasonable under the circumstances might be not be the only difference but it's a reasonable inference under the circumstances yes to us i don't think that's reasonable well i don't think it's reasonable because we don't even know what they wanted what these churches are what their rules are i know of any churches they haven't told us they've chosen not to continue to not have in person services or require in person services as of april of this year the archdiocese of st louis has given dispensation still to people attending sunday masses we don't know based on the state of the pleadings i don't think the inference is reasonable i don't think the will in case that was referred to supports any part of representing the plaintiffs in that case and the evidence was that both based upon the laws that existed beforehand and the reasons why they that was there were in the record why they ceased operating plan that in the opera contracept sue and they didn't do it in my judgment and that was really clear what we're talking about until we morphed into what other religious services means and in that definition has changed over time but let me ask you about that so we have we have a statement under the parties the other religious activities and the complaint matters yes it's not it's only their bible it's not hard to figure out what some of those activities might be like heroes weddings in the jewish religion for example we gather in groups of thirteen we have to gather in groups of thirteen when a family member dies the family gathers together that obviously would have been illegal under the order again so why why shouldn't he read the complaint more liberally as encompassing some of those things we could not sit step up for example for a family member because of some of the stay at home course  in the in california i think there were by the supreme court appeals and almost a rebuke and this last one while i'm listening to us th circuit so in the south bay case it talked about how the they couldn't understand seemingly group that is permitted according to my pay something like that might be appropriate but that's not there and you know we went to pendar whether the church was willing to hold this large funeral of course that the that's another problem right there addressability ochs in our appendix read their writs of this court your dissent clearly understood this to be religious services i think we all thought that was the case until they said no no no no it's not churches of those churches that i was losing your audio again for some reason i don't know if you're moving i think it's my fault i think i tend to move when i talk so i apologize for that maurice this issue about judge white referring to closed and open churches everybody understood what that meant and i would encourage the court to read the twenty j letters that mr quinlan submitted perfectly understands that what that what judge white meant was he sought reopening of churches to have more than one people in them that's the way he praises it so there's no question about that everybody knew it judge white knew it he wrote it in the order that one  about in the event that your jacket i'm quoting a scope in one thousand cases begins to rise again in st louis county the county may adopt emergency policies to alter previously this to find strategies for isolation or to so i think the county itself is recognizing and goes off i don't want to sit that's all it broke up as you know but you got it but my point has although there isn't a history of moving the goalposts like it cuomo i think these orders recognize that the goalposts are pretty malleable and they could change at a moment's notice depending on their trip trajectory of covered ninety eight dollars what's your response to that in terms of newness my response to that is that there is no threat of arbitrary goalpost moving in this case and in the eleven months history has shown that number two of course judge if things change actions have to be taken you know this whole thing started with dr under everybody agreed if you read the opening papers and this will use a police power was necessary and this was a really dangerous disease but they said you know what we've already planned the curb there's this is now or the courage to have these restrictions in place guess what happened if you look at the chart your doctor under if you look at his by the way his affidavit submit the submitted in support of their motion zero if your graph twenty one also makes clear what they were talking about churches of god but regardless nobody disagreed early on that reaction was necessary to the stem the tide their basic argument was it had become arbitrary because there was no longer a threat we don't know what happened after this in july no you know at the time we had a few one thousand dead and it's now ten times be a nominee year so you can say whatever you want to but they never said that we didn't have the power and of course if something else happens the government the politically accountable officials not a federal judge who gets an affidavit from another doctor has to make those decisions and they will be then challenge for their constitutionality but i would submit that there had been no chance because there is no longer this differentiation i don't believe there has been since may teeth that the only entity that can gather is a church pearman what are the restrictions right now isn't just the restrictions on the number of people both inside and number of people outside in a gathering i believe it's currently fifty percent acquire code  all they requested was an injunction they didn't plead nominal damages d they didn't plead compensatory damages it was never about images and i want to just hearken back to again and judge call this question what do we go back and have an advisory opinion from judge white about how we might have it all this even though it doesn't exist any more how would he issue an injunction given database well the reason i asked was i assume that even if this court said there was an adequate pleading on redress ability the county would argue as a factual matter the churches would not have hosted large gatherings in and twenty and i assume then there would have to be evidence taken about that and i was just questioning whether that's a hypothetical scenario that it's  not live i don't think it's a lie and there's the just there's no controversy anymore so the other issue is that we simply don't know what church what the rules were what they what they were created from the order with respect to how  relate would be granted it's just not known because they didn't plead it so lesser further questions i think the court's time very well thank you for your argument mr quinlan we'll hear from you  rebuttal thank you your honor and please the court well i think that the crux of this whole case can be narrowed down to counsel statement where he said it's not that somehow the plaintiffs went from it's not now church it's not both what they could do inside their churches and what they could do otherwise and the question of whether or not their individual to choose might have imposed a non person rule and might have continued to impose a limitation on the number of persons is only half their problem because if if for example hypothetically they're not able to go to their church to engage in religious activity and they want to go someplace else to do that whether it's a park or whether it's in somebody's home or whether it's in some other public venue this order prohibits them from doing that so it's not either church is or it's a both and that's clear from the allegations of paragraphs one through three somethin's it was that if your client sent something specific that they wanted to do why not just file a complaint and seek relief in order to do that a year ago isn't it true that the judge dismissed without prejudice so your clients could have said we want to go to the park tomorrow with twenty people and relief well at that point we had no standing we had no standing to ask for anything we would have the churches might have expanded the reach of how many people be allowed in there the evidence actually submitted in the in the case by the county of the archdiocese of st louis shows that when they loosened the order they loosened up and they allowed more people  afternoon and the court will be in recess until further calls the dock