good morning your honors in may it please the court aaron brown for the appellant i'd like to reserve two minutes for rebuttal every day since the district court's erroneous ruling below mr vincent has been deprived of not only his religious freedoms but of the opportunity a trial on the merits of his claims repeal the reasons for claims of error and i'm happy to answer the court's questions about any of them but i'm a focused my remarks on just to the statutory claim and the first amendment claim and i'd like to begin at the end with the least restrictive means test and the turner analysis for the first amendment claim because i think that's where the differences between the two claims are starkest starting with the statutory claim the supreme court announced in holtby hobbes that the least restrictive means test is exceptionally demanding and here looking at the record putting aside arguments that defendants will move to that ruling the record itself is insufficient to sustain that burden in the sure oh this court said that it was double the onerous for the moving party at summary judgment to win on least restrictive means because they also bear the burden of persuasion at trial on that claim the supreme court and hold this quote in this court in war soldier they make clear that the record has to says specific findings showing that the prison officials actually considered making an exemption for that particular plaintive and rejected those alternatives in furtherance of a compelling state interest that didn't happen here if the court has any doubts i think that you need only look to the county declaration that was submitted below this is one forty three one forty two this is the declaration and if you look at the first paragraphs that's the core of what was submitted here of the defendant's burden the remaining paragraphs authenticate documents about mr vincent commissary purchases we explained extensively in the brief why that's not relevant but we're happy to again answer any questions the court has split i think the record tells us that at an earlier point in time the prison actually had a diet that would have satisfied with what your client claims is required by his religion they just don't do it anymore that's correct your honor and if it was  that is not all that hard for him to do if they did in the past it does to be fair to defendants your honor mr vincent's needs have changed in light of his medical diet it's no longer simply adding a cup of milk to the diet he also n the equivalent of the metabolic diet that also has fresh dairy components but you're right and the defendant say nothing about that either below and mr vincent put it in the record below and they say nothing about it here are religious figures for the proposition that is required to have dairy daily the experts say well no that's not true and once that happens the judge blow it sounds as though he does not follow the religion he's claiming to claim claiming to follow what we do is there a couple of points your honor first it is not for district courts to assess credibility at the summary judgment stage that's an issue for trial i understand that witnesses i mean he suggested go talk to these people well i'm under correction on that point your honor one of the outside ministers was one he referenced the other the minister in idaho was someone who the defendants contacted on their own ice and they both said the same thing they did both say the same thing but i would point out a couple of things first you had exactly the same thing this was a muslim prisoner who said that he wanted kosher meat added to satisfy his hollow needs the defendants argued well maybe consistent with your dietary needs but it's not mandated this quote reversed nonetheless mr vincent is the relevant authority on his religious beliefs and i should say even those for the minister that he identified the context matters here if you look at the request for accommodation it's in response to the defendants for arm that says give us the name of an outsider thirty who can confirm explain this religious mandate with is of course not the test under the statute where the first amendment more importantly the hypothetical that the that i would suggest as one could be a member of a church in good standing and that the mandate question if the if the foreman said religious practice would we gotten a different answer out of the expert that you know so why do you care about when there's a mandate or practice or custom or or have it were meant to certainly what was argued below the discord also decided on mandate as to the first amendment not as to the statutory claim and that was as this court held in chicago or the broader the broader hypothetical that i would direct the court to is if i'm a member of the church i can disagree with mine my priest and not just about sports or politics but about clear subjects about the content of my faith and love tradition that's ok and that's because the religious freedom by the statute and by the first amendment is not a right primarily or exclusively  individual religions and then were well first to honor the supreme court confronted and rejected that exact challenge and hope the hobs where the arkansas prison authorities said if we do this there are hundreds or thousands of prisoners who we're going to have to make some of the beard exception it's a much cheaper it's much cheaper for the for the prison to administer that kind of a regime that it is to provide them with with meals now the prison does appear to is this by choice he says that the prison won't give him a job that was his testimony below but separately mr vincent contends that none of the commissary options meets his religious needs and i want to point out this because that's  simply not for courts or prison officials to determine the substantive content of the petitioners religion and judge bible to your concern which i don't think i addressed about the different needs that one might have that i think goes to and the defendants here could have satisfied that if they put in a stronger record but here the record that they did assemble is subjectively weaker than the one that this court said was insufficient as a matter of law in chicago or it can't be may please the court my name is mark assistant attorney general here on behalf of the department this court should affirm the district court's order dismissing mr vincent's case because the defendants have not substantially burden the practice of his religion nor have they treated him differently because he's a member of a protected class and it's mr vincent's burden to plead a substantial burden on the exercise of his religious beliefs he claims two distinct burdens and both fall short your hono first the department's denial of mr vincent's request for supplemental food items to be added to the diet does not constitute a substantial burden the department has no duty to provide every item that an inherent may claim to be necessary to the practice in are you saying that because you don't believe this is a legitimate sincerely held religious belief or are you saying this is a religious belief but it is nonetheless not burdensome your honor we we don't need to get to whether or not this vincents right so far as the diet is articulated in mccallion verses babbitt that's a right to die within the four corners of his religion that sustains him in good health now i don't believe there's anything that stands for the prospect that every item that someone might say is permissive within their religion the department has to go out procure and provide that you know you keep fighting with his definition of his religion you can go and fight that if you want to but so long as you're saying we take for the purposes of this question that he has described accurately his sincerely held religious belief you can't give me that answer he says i need fresh every day and you say well know you don't how do you get there your honor i suppose there's a  bit of a disconnect again in the understanding of what's mandatory versus permissive in the religious right has been very clear about it he's been very clear he says i in order to in order to worship in the appropriate way there are certain kinds of sacrificial things that i'm going to do  i'm going to i'm going to give up meat i'm going to give up other things i'm going to have a vegetarian diet and as a part of that i need to have fresh dairy i would point to some of the case law your honor to justify again the idea that that particular ised that level of particularities in the request is and is not supported by the case law i would point to the chief justice burger's concurrence in the cruise vs bedo cannot possibly be any constitutional legal requirement for the government to provide materials for argument today that according to mr vincent he must have dairy in his diet or his not following the tenets of his religion irrespective of what the advisors in idaho in florida set up that from your honour's and then say  that that mr vincent is currently not working is not a foregone conclusion that will never work again or have access to the commissary can't can he work do we know do we know anything about the situation your honor that's that's not in the record i understand we're still not sure we're still not sure whether the items that are found in the commissary will satisfy his religious religious needs but if if the prison for whatever reason has has said no you can't you can't work and therefore you have no way of acquiring outside funds i was supposed to do  this your honor my understanding is that mr vinson is currently undergoing some schooling maybe that type of programming is conflicting with the work but i don't know that that's laid out properly in the record to do on that too far but i will say to the extent that milk is not at one one three you can see the ingredients list to the milk which is in the commissary the only item on the ingredients list is milk and i understand it's not fresh and we may differ there as to what constitutes milk but the only ingredient on the ingredients list that you are one in three is milk and so it's not and so your point is it's not fresh i would not tell you today your honor that you know in in whole the hobs the muslim prisoner there was willing to make an accommodation to the prison in terms of the length of his beard he acknowledged that there were some safety concerns with with the with the length of the beard but he said he had to have had to have some kind of a beard supreme court didn't didn't ding him by saying or not you're not really muslim because you you you 've compromised your religion in some ways mr vincent said well look i i realize i can't get a straight from a cow because because the state will probably be able to show that that is a burden too far well not your serving your honor without again without getting getting into the sincerity of his believes some of these in consistencies are demonstrated insincerities are still very important to this case in this posture and that's because to get to substantial burden mr vincent does require a few inferences in his favor here because his records a bit light two to particular as it comes to the medical dieted whether or not that's necessary  to and so in this posture when he requires reasonable inferences to proceed and survive summary judgment some of these inconsistencies or items that seem a little farfetched they make some of those inferences he requires to be unreasonable and so that would be grounds and i would ask the court to think about that and in a firm in the district courts dismissal of his claims for example he needs to prove that the diet available to him is incompatible five year one twenty four e r ninety five is mr vinson self diagnosing chronic hypertension giving his summary of the best medical evidence available and he are one twenty four is a health status report recommending that mr refers to in the declaration on your thirty five and then the year forty four there's mr vincent statement that a p a lie stat that's the provider that recommended the health diet told him to stop eating chips and cookies so  the inconsistent sees in the ask so without focusing on the sincerity so far as what are his religious beliefs we can give him that and in the real loop of posture these are it's very important to consider some of the dirt that gets kicked the cloud around what does this guy really believe what she really asking for because that has been a moving target throughout the litigation so so you're correct your honor to point out that was he represented in the district court he's only been represented on appeal only on appeal i understand a consulate in the briefing they've offered to stay on through trial maybe can help sort out some of these issues on remand if that's what happens but i see my time is up your honors so i would conclude by asking the district  just briefly your honour's i want to start with my colleague left off and that's mr vincent's medical needs remember that the defendants here are the moving party it's their burden mr vincent established that he was diagnosed he was prescribed the metabolic diet the so called medical diet as this court knows from its deliberate indifference jurisprudence mr vinson is a prisoner he can't get second and third opinions on demand he can't order whatever tests he chooses he takes his medical providers advice as given  there's no evidence on the record to suggest that mr vincent's health claims are untrue so the only evidence is his sworn testimony at the summary judgment stage that has to be believed second i want to go back to the question of the prisons burden and back to the question of accommodating what the defendants described in their briefing as the personal tastes of every adherent that's simply not true a ruling in mr vincents case here only establishes that the record that they assembled here was insufficient it says nothing about the record that they could assemble in a future case if they want to talk about burden they can shut this down at summary judgment in a future case and if it gets past that that's what trials are for unless they're for