may please the court a preliminary injunction cannot issue unless a litigant makes a clear showing that he will likely succeed on the merits the plaintiffs in this case have failed to make a clear showing of article three standing and more importantly they have failed to make a clear showing that mississippi's conscience protection law is unconstitutional for both of these reasons the preliminary injunction should be vacated and this court should specifically hold that the constitutional challenges to mississippi's law are without merit there is no obstacles of this court reaching the merits of the constitutional claims even if it were to conclude that the plaintiffs have failed to make a clear showing of article three standing because this case comes to the court on appeal from a preliminary injunction and the article three inquiry is limited to whether the plaintiffs have made a preliminary showing based on the pleadings and the factual record as they currently exist of whether they've made a clear showing of article three standing there's no obstacle to this court going on to reach the merits if it makes the tentative preliminary conclusion that at this time there is no clear showing  know that's correct judge change that's correct if there is a final if there is a final and conclusive determination that the plaintiffs like article three standing the only problem response is to announce that fact and dismiss the cause for lack of subject matter jurisdiction that is right under no circumstance going to court the black subject matter jurisdiction rule on the merits or enter judgment on the merits but this case is coming to the court on appeal from a preliminary injunction it's a cursory abbreviated record and the only question to resolve at this time in the litigation is whether a clear showing of article three standing has been made based on the current state of the pleadings and the current state of this brecker which is pretty discovery a ruling that the plaintiffs have failed to make the clear showing needed for a preliminary injunction is not a final and conclusive determination that they whack article three standing because it's possible require evidence obtained through discovery to see whether any one of these plaintiffs or perhaps new plant if they might add later to this litigation could establish the requisite evidence of article three standing this though is that  examples where we have done what you were so we would be seeking us to do to say preliminarily the article three standing is not met and also preliminarily they've not shown the likelihood of success is there an example of such a case and i haven't  have not found an example from this court of this court doing such a thing but there are many examples of this court and other courts issuing alternate holding so there's nothing at all improper about that a court can say you lose for one of two reasons each of which standing alone is sufficient but we will we appealed this court has appellate jurisdiction under twelve ninety one to review the entire district court order both with respect to the standing analysis and the merits whether the district court has subject matter jurisdiction will depend on whether the plaintiffs can establish article three standing on dreamland if they can allege and prove injury causation dress ability they have not made a clear showing at this point to warrant a preliminary injunction that does not necessarily mean that they will be on able to do that later and it does not necessarily mean that the district court must immediately dismiss the case for lack of subject matter jurisdiction there still is jurisdiction in the district court to determine whether it has calista and article three standing is ultimately a factual question with respect to the merits of the constitutional claim by contrast that's a pure question of law there is no need for further factual development to determine that the establishment clause and equal protection clause claims lack merit that is you you you are so you are saying i'm not indicating whether i agree or don't agree with what you're saying that we would in fact under that be able to issue a binding ruling on marriage so if we were so inclined that's correct ruling that would be as binding as though we were on a marriage appeal rather than a junction appeal is that that's correct now the only circumstance in which you would be unable to do so would be if this court were to conclude that the plaintiffs absolutely cannot under any circumstances that was article three standing perhaps because they pleaded themselves out of court and the complaint now we're not arguing that they in themselves out of court the complaint does not contain sufficient allegations of article three standing but that's not necessarily something that warrants immediate and permanent dismissal if a complaint lacks sufficient factual allegations the normal remedy is a motion for a more definite statement under twelve he not for the district court to throw them out for failing to put the facts in the complaint the question remains will be whether the plaintiffs can adequately plead sufficient facts to establish article three standing consistent with their will leben obligations so based on based on what you've said and speaking of course as an officer of the court also on behalf of your clients summarize for us in a sentence or two  again in one or two three percent we're asking the court to hold the plaintiff failed to make a clear showing of article three standing that's needed to warrant a preliminary injunction and that in the alternative the plaintiffs also fail to make a clear showing that mississippi's consci as to the second half as though it's different from what you told us a few minutes ago in terms of having a definitive ruling on them on the merits you're not asking for a definitive rule we merit such as the example you gave the players who play a court i believe that is a definitive ruling because this is a legal deficiency with the plaintiffs argument as opposed to article three standing which is a factual question and at this point there are not sufficient facts in the pool in marion junction record to warrant a clear showing if they have conclusively fails to establish standing after discovery and after factual development of the record then the case must be dismissed on jurisdictional grounds that's correct but right now we're at the preliminary injunction stage the questions whether they merits of the case based on hypothetical standing it cannot be assumed we are not in any way questioning still co and we want to make clear to this court that no court this court the district court no federal court is permitted to rule on the merits if there is a lack of article three standing that is a jurisdictional prerequisite the challenge in this case is that the standing inquiry is a fact bound question they have failed at this point of the proceedings to allege sufficient facts in their complaint and to put sufficient facts in the preliminary injunction record that could warrant a preliminary injunction but we are still early in this case we have not even yet moved to dismiss under twelve b six or even twelve b one in the district court and the district court still has jurisdiction going forward to determine its own choice direction and find out whether the plaintiffs will be able to produce the necessary factual evidence and the necessary pleadings in their complaint to establish article three standing nothing precludes this court from reaching the merits in that scenario we are not asking this court need a plaintiff with article three injury and a plaintiff would have to show that he is in imminent impending certainly impending or a substantial risk of suffering some personal and concrete harm on account of that statu mississippi and that they are at substantial risk of having services denied from someone whom they're planning to add to provide what about you stand either way they still need to show injury in fact and the injury needs to be personal  concrete needs to be certainly impending there needs to be a substantial risk that something will happen to them beyond mere offense taken to the statute so what they would need to find in your hypothetical your honor is the same showing they need to make with respect to this case they need to find a plaintiff who is planning a wedding and who is showing a substantial risk that someone will deny him services on account of this law they would then have to show that the law is causing that and i would services and that it could be redressed with a favorable ruling from this court there may be a difference in the type of injuries that can qualify as injury in fact under article three for example there's taxpayer standing that's acceptable in the establishment clause context that is not accepted as an injury anywhere else we certainly accept that proposition but under there's no scenario in which the plaintiffs in this case of shown in article three injury for either equal protection or establishment clause purposes and the inquiry with respect to standing would not change under your arms hypothetical of course the merits would change and we say that in their briefs were very clear a statute so just the one that your honor has described would trigger strict scrutiny under the equal protection clause and could not survive that standard so we are not in any way suggesting that your honour's hypothetical statute is constitutional and it would be enjoined if there was a plaint the standing analysis would be the same that's right there still needs to be a plaintiff with an article three injury caused by the statute and doesn't have to have an article three injury or you have to have a plaintiff for each section of the statute right well it could be a plaint has injured by the discreet section of the statute that the plaintiffs are seeking to enjoin and they do have one plaintiff in the case was alleging an imminent wedding and that's right there but as far as we know there's no one in this case who was a foster child who could possibly be affected by section two or section three of the statute in any way beyond an ideological issue is it your position that on the wedding wedding part of the statute that they not only have to lead to an imminent wedding in mississippi but that they also have to say that they sought some services to rent a hall or to get a photographer something i wouldn't quite go that far i think it's enough if they can plead that they are going to seek those services from a person who they expect to deny them those services because this law exists so it doesn't have to be that they've already gone through the trouble of asking and being denied but they have at the very least they need to show that they're getting married and getting married in mississippi rennick taylor does not even allege in the in his own declaration that he's planning to get married in the state of mississippi we have no idea where his wedding is going to be could you take us through the just broadly what constitutes the preliminary injunction record in this case we have most of those declarations talk about offense as the injury actually the declaration start on page two zero seven when it taylor's specific declaration starts on page two thirty one there is a lengthy preliminary injunction hearing this starts on page one thousand seventy seven of the c s e record and there are some witnesses who testify not so much plan a few of the plaintiffs testify but most of the witnesses are expert witnesses put forth by the plaintiffs so that's the made those are the main components of the record we have a series of declarations from the plaintiffs themselves we had a lengthy hearing in front of judge reeves and that's the evidence that this court currently has to go on no depositions yet no iraq at tory's no discovery of that so within that universe it's your position that no one says they're getting married in mississippi that as far as i know the entire universe of all the records not just the pleadings i've read the record many times i've not seen anyone other than running taylor who's alleging that he is getting married and he does not even the lead to these getting married in the state of mississippi so we need a lot more detail than that before any court can conclude that there's a clear showing of standing to section three five which is the one subsection of the statute that deals with wedding related services there are all sorts of other provisions where the case for standing is even weaker for example section three four the statute deals with certain services like fertility services and counseling and sex change operations and no plaintiff in this case is alleging that they're seeking fertility services or sex change operations from anyone let alone from someone who might deny them those services on account of this mississippi statute so let's get to that to the question of stigma which you call treatment of other words can be used and you related to it so the hypothetical i think was mentioned in briefing so i'll explore it and suppose that mississippi passed a statute that said the official religion of mississippi is other than baptist are you saying that no one no one would have standing under there and do that statue well they would still have to show an article three injury and they'd and they would be suing an officer of the state presumably who is in charge with enforcing that statute if the statute says nothing more than the official religion is southern baptist there needs to be some duty for an executive official to carry out  obviously violate the plain language of of the first a message but standing would be standing would be a complicated question their judgment because first under x parte young a plaintiff can only sue a state officer who is carrying out an executive duty or some administrative duty with respect to that law and the way your honor has described the statute it appears to be nothing more than at the clara torrie state now if there's a tax that's being imposed to fund the southern baptist church clearly there would be standing to enjoin that tax under the supreme court's taxpayer standard doctrine if there is some public display of a religious symbol due to the statutes indorsement or establishment of the southern baptist religion yes there would be standing to enjoin that public display of a symbol by someone who regularly or at least one time encounters that symbol in his daily life but without more detail without knowing more about just exactly how the statute is implemented i don't think i can give a candid answer to your obvious question because a statute this is nothing more than make a statement but doesn't  that that simple hypothetical i don't believe causation or addressability could be established even independent of the stigma enter it because federal courts can't order a statute to be repealed all they can do is enjoying state officials from enforcing a statute that's on the books there is no rid of a racial the gives the federal court the authority to order a legislature to repeal a statute or instruct a state officer to erase a statute from the statutory books so that statute will remain no matter what a nobody even remotely brought up the possibility that we could consider anything other than standing as a binary of a choice not something that says it's tentative but so in federal court when a party pleads he or she pleads the best case that he or she has in terms of what that plaintiff hopes to prove after discovery if discovery is needed now here telling us that there's nothing in those pleadings read in the light most favorable to the plaintiffs that week that can be construed as establishing standing so i don't quite understand how it is that you say that lack of standing could be cured by discovery if it hasn't been planted i mean there would be no need for discovery if the pleadings are already being construed as widely as the plaintiffs have pled the supreme court's rulings in this area are not entirely consistent and on the one hand you have these cases like warfare consulting and clapper where the supreme court says you need to put the allegations of standing in the complaint you need facts and then there are other cases likes worker works and calmly against gibson where the supreme court says the federal rules of civil procedure established in notice pleading machine you don't even need to plead facts if the defendant thinks he needs more factual detail to be able to defend he should move for a more definite statement  twelve be there's tension between those cases there's common and it ball coming along later with this new plausibility standard the law of pleading right now is in flux and the supreme court's guidance is not entirely consistent so we did say in our opening brief at the very end in the conclusion section that the preliminary injunction should be vacated and the case remanded with instructions to dismiss for lack of subject matter jurisdiction and we made that request based on worth against celtic and based on clapping where the supreme court dismissed complaints shouldn't warrant dismissal it should warrant a more definite statement under twelve b only if you actually plead yourself out of court should not result in the case being tossed by the district court but again we can line up supreme court decisions on both sides of this issue and it's not entirely clear where the supreme court would come down in a situation like this because sometimes the supreme court says dismissed for failing to allege sufficient facts sometimes it says don't dismiss for failing to allege sufficient facts so work your argument court the available options based on what the supreme court said and the supreme court has not been entirely consistent on the question of fact pleading versus notice pleading on the issue of article three standing worth against seldon and clapper indicate that the facts need to be pleaded in the complaint and if they're not pleaded in the complaint the case needs to be thrown out that's what the court said in those cases there are other cases though from the supreme court that take a much more forgiving standard with respect to the issue of fact leaving and s there are some differences recognized in the supreme court's own case law and one of those is the issue of taxpayer standing another possible distinction is whether personal confrontation with a religious symbol the supreme court has said that's enough to establish standing in establishment clause context it's hard to think of an analogue that would exist in equal protection because one does not encounter religious symbols typically as the basis of an equal protection claim those are the two main differences that i could think of so you know if they put on a big board th statute and put in front of the state capital and said proudly supporting the rights of religious people and put this up on a big board they might have standing because they if they live around the block or go to the state capit would that be a different scenario under the establishment clause i believe they would have standing under our hypothetical because the direct and personal contact with something that is alleged to be a religious symbol sponsored by the state is an awful article personally confronting the statute book is not a confrontational enough under the law is your position now if it that can't be enough for standing if it were everyone would have standing to challenge any law they disagree with and that's inconsistent with many decisions of the supreme court including new doubt because michael newdow was not allowed to have standing to challenge the federal statute that added the phrase under god in the pledge of allegiance and he couldn't say that i opened up the statute books and read the statute that caused me offense that was an awful lot of free standing there provision would have prevented the state courts from probating his will so that is a clear personal and concrete harm that goes well beyond offense taken over the law in addition the constitutional provision in award was specifically disparaging sharia law and b implication the muslim faith in catholic league that was also the tone of the resolution that was challenged it was a specific and direct disparagement of the calf a leadership for their position on an issue no such direct disparagement is being made in mississippi's conscience protect law is singles out certain beliefs for protection but it's not going out of its way to explicitly disparage the beliefs that are not listed in section two so that's the distinction we also think the biggest wrong we decided for the reasons we provided in our brief but it's not necessary for this court to create a s that's not permitted under the statute if a clerk or any state employee is recused the issuance of a marriage license cannot be delayed in any manner so even under your honour's hypothetical that is of the law if the clerk is going to make a scene run down the hall and say i accused steps must be taken to prevent that from happening under the terms of the statute now if this were to happen if what your honor has described were to happen for some reason there would be article three injury certainly encountering that type of scenario at the county courthouse is an article three injury and it would give the person who encountered that clerk standing to challenge the law and whether it succeeds on the merits is a separate question but what you are describing is not what the statute for tax ok let's talk about section  court no not at all the only supreme court holds is that a state is required to recognize that license marriage is between the same sex the private actor is not the state private actors decisions do not implicate an overstatement just change the state is allowing it to occur without penalty or reprisal from the state it's not a blessing it's just the state failing to punish or discriminate or take adverse action against those people who act in a matter in accordance with their conscience the state is not for example complicit in the consumption of pay o t if they exempt followers of the native religion from using pale as part of their religious start that's not state action this is not state action either is it important to the constitutionality of the statute that it contains the conscientious objector status not just for religious objection but also for sincerely held believes secular it certainly would not make the law unconstitutional if it were limited to religious exemptions for example the payout exemptions that are discussed in the pale the way church of god case those exemptions were limited to people who in just a p o v explicitly for religious vicar from harrisburg mississippi although he couldn't be here because of the storms that have been plaguing mississippi in the last forty eight hours i want to be perfectly clear about something at the outset my client knowledge and respect that there are many different people with different but equally sincere religious beliefs about marriage in general and about marriage between same sex couples in particular i am not here today to tell you that such beliefs can never be accommodated under the first amendment in fact my clients believe that in light of the supreme court's decision in employment division versus smith neutral religious exemption laws play a vital role in the preservation of religious liberty in this country and in fact many states throughout this nation such as maine or utah have been experimenting with religious a combination laws pertaining to l g p t issues with thoughtful people on both sides seeking to forge fair and constitutional compromises in good faith but we are not here today to talk in general about the conflicts that can arise between sincerely held religious beliefs and the constitutional right recognized by the supreme court and oberg a foe we are here today to talk about a specific statute h b fifteen twenty three which is completely inconsistent with our country's history and constitutional practice regarding religious liberty unlike any other religious accommodation statute of which we are aware h b fifteen twenty three begins with the endorsement  three specific religious beliefs and then based upon those beliefs permits what i call the kitchen sink approach and extremely broad and open ended range of exemptions and conduct if there is one were intense debates within christian sucks within present sex and between protestant sex about issues back at that time about taking ocean about having taxes to support a government church about native americans and it didn't matter whether the debate was within methodism for example or between methodists and presbyterians the first man and the establishment clause covers both what you're looking at in the establishment clause context in the words of justice o'connor that was adopted by the court in santa fe is what a reasonable observer how a reasonable observer would perceive the statute or the nachman in the context in which it was passed and there is no way that a reasonable observer in the state of mississippi could construe the statute any other way other than the explicit indorsement of certain religious beliefs what the statute does is it says to certain people in mississippi you are outsiders you are not part of the political community like my client reverend and it says to other people in mississippi you are insiders you are the favored people the religious not the certainly  religion doesn't have to be establishment of religion its establishment of religious belief just as creationism in the louisiana cases the courts and you couldn't force creation in creationism to be taught in the schools creationism is associate with a whole bunch of religions that is correct your honor but again what the supreme court test requires you to do is look at what a reasonable person would think about whether the statute is sending a message we can get to standing but the constitutional injury first album is the government sending a message and what message to people in mississippi think the government was sending a message about religious beliefs and indeed when you're looking at this inquiry unlike in other contexts there is no debate within the supreme court about whether legislative history is admissible it clearly is in fact justice souter has said in mccreary that not looking at legislative history in this context would be disingenuous because you have to look at the context of the s and not only can you look at it as a reasonable observer but as a matter of fact we know exactly how the statute was perceived in mississippi your honor this morning to use the phrase twitter verse the twitter verse in response to the announcement of the statute was all about religious beliefs against gay people and against same sex marriage there was no one no one talking about this statute big motivated by some kind of secular also you know prominent people have said we do this because we're loving we do this and they have decided bible verses in but you wouldn't argue that those are religious that your honor you have the statue itself which says religious belief i think thirty four times you have every person who supported the statute including the governor including the legislature saying the purpose of the statute was to promote these religious beliefs and to protect people with these religious beliefs does it say it was to promote those religious beliefs or does it say it was to protect people who pursue those beliefs it was to protect people pursue those religious beliefs but there was no one zero people saying that we're promoting the statute because of some secular policy reason which you're not even hearing from the other side other than the protection of these religious beliefs does it matter that the statute itself contains a secular exception i guess the other side the answer is it can but the answer also in establishing close terminology the phrase that's used is sham and if the court concludes that the words moral conviction in this statute are a sham just as a concluded in wallace we jeffrey of course was huge after they already had a moment of silence statute for the school system and then they passed another statute the court concludes just as here you have a mississippi riffraff thing of a mississippi riffraff b you have the words on the other side saying the statute doesn't do anything i'm happy to answer questions about what the statute actually does but if they're right in the statute doesn't do anything then all it does is send a message about three specific religious beliefs we've never had a statute that has ever done this and our constitutional history the utah statute doesn't do it the main very well last friday is you have to look at the nature of the injury for equal protection the nature of the injury is on equal treatment for an establishment clause violation the constitutional injury is when the government speaks it sends a message to certain people certainly just people or non religious people that they are outsiders and other religious people that they are insiders into the supreme court has been very clear that it's the injury that causes the problem it's the government speaking that causes the case and murray's a perfect example she's a small cross in the city of boston seal on a police car or something like that and that's enough to establish standing or you have a school prayer cases in the school prayer cases are crucial in this regard as we look to see whether any plaintiff had been held to have standing in a school prayer case before there was ever school prayer and what's the answer yes in the santa fe case the supreme court and response to the argument that it was an improper facial challenge had this to say they said the mere pell cij by the district of a policy that has the purpose and perception of government establishment of a religion is enough to create a facial challenge  exactly the same as a standing argument being made here and they further went on to say not only is this simple announcement of this policy with the purpose and perception of school endorsement enough but i'm going to read this specifically we need not wait for the inevitable to confirm and magnify the constitutional injury so exactly what my friend on the other side was saying is that you have to wait till there is some kind of concrete exception class injury the supreme court exactly the opposite my clients have been hurt enough they have testified in court that a message has been conveyed to them that they are outsiders in their own home state and unlike nellie forge they don't have to travel anywhere they're not roaming in search of a constitutional violation the constitutional violation came to their own homes and back statutes there's one those that judge all road wrote about in the century a case where there are narrow exemptions that tend to deal almost exclusively with matters of ceremonial religious practice in new york we have issues with orthodox jews and are a number of statutes or cases that allow orthodox jews to follow their practices and it's not a violation why because it's not sending the message the shanta real practices are a bit of a government permitting santeria practice it is not sending a message to anyone that santa riyadh is the preferred religious belief in texas or mississippi or louisiana that is that is that just because it's small it's because of the context the context of the statute the context of the society all these things which supreme court has said you are to look at in this context so but could one argue that in this changing culture that the number of people who are  people who have an orthodox view of biblical prohibitions in the book of romans or something i'm trying to try to make a hypothetical that those are becoming a smaller and smaller group of people and no and and in fact you can't get a one of the real the good law firms that follow these amicus briefs are not filing briefs for them so maybe in the context they're a small group to like to see and to reince because no because people are afraid to say those public your own is that is that possible that may be true with respect to another such but with with all due respect not true for the state of mississippi just not true for the state of mississippi based on the legislative record a tenth of the governor that he would be was ok so there are two things that are obvious constitutional violations with the statue the first one i think takes care of the case you don't need to go beyond it the first one is the non neutrality the supreme court has said countless times get the utah compromise for example which has not been challenge says religious views about marriage sexually in gender i think it's the language so it's huge or you could have religious view on one side or will just be on the other and you it's certainly self neutrality problem else about what kinds of bells and suspenders were going to be put in place by the state of mr because the statute just says impediment and delay to make sure that the hypothetical that you postulate judge change would never have and it's not fair to have to say to a gay couple go to you know close your eyes cross your finger say a prayer and hope it doesn't happen to you you can't you can't put a cockup at that risk we want to make sure that it wouldn't happen and it's at least possible that if those thoughts of suspenders one place that could be constitutional the problem with this statute is it goes far beyond that and that's where distinguishes it from the abortion context in the abortion religious exemption statues you know going in the legislature knew going in exactly what someone could or could not do in connection with the procedure performing an abortion people have very strongly just beliefs about that they believe it to be murder that's understandable it's a huge imposition on religious exercise and you know exactly what someone can or can't do with this statute with the kind of kitchen sink approach to the subsections throwing a whole bunch of different stuff in there are certain sections and you've kind of alluded to this where it is impossible to know sitting here today how it could ar what people could do whether a clerk could yell at someone like that i don't think that's disposed of in the statute at all whether a public school teacher could make similar comments to a class of seven year old kids in a public school and not be nature of the injury for establishment cause is the government sending an official message let me talk about that for a second i'm not you saying that the more cases not about sending a message that but the injury for equal for equal protection is some kind of governmental enforced unequal treatment so that you have to look at what the constitutional provision the guards against to protect against for establishment clause of sending a message by the government and for equal protection it's treating people differently without either a rational basis or depending upon the level of scrutiny now with respect to this issue about the question you ask judge all right about the big banner on the subsea capital that has had the statute in it i can't imagine how the government can send a more clear message about the willage of preference is with respect to these issues then by passing this kind of a statute that is how the government sends messages the fact of the matter is i can't give you a case that doesn't because no case no government has ever tried to pass this kind of statute in the past but if in this school context the plaintiff had standing to challenge the school prayer in santa fe before the prayer was ever gain my religious is it's kind of funny my religious tradition teaches that were you can hurt someone with words frankly a lot more than you can with pictures and the words in section two have cause my clients they testified that it has and as a supreme court shouldn't santa fe you don't have to wait for more stigmatic injury that's enough for  commercial law and so i deal with the world of civil procedure all the time and i'm familiar with these kinds of government that the difficulties between the supreme court what they said in a phone twamley and what they said and calmly and what they said in worth we saw then i agree with my friend sitting to my left that there is confusion in the case law but i think that the answer on a pulmonary injunction is pretty well established as if you conclude that there is no standing a you don't reach the merits and i think you've already talked about and b you would send it back particularly if you think that there was a problem with you would send it back to allow the plaintiffs to further develop the record as to the pleadings again i don't think you would need to allege that kind of standing that kind of injury that's already happened for the social cause i should also say that  kendrick the supreme court says again that facial challenges in the establishment clause context are the norm and that the court has frequently permitted there to be standing and a facial challenge before the whatever the issue was the prayer school prayer or whatever it was went into effect but mr mitchell if i heard him correctly didn't talk about going back to him and pleadings i had asked him a couple of questions about that he says he says it goes back for discover y tell us tell us how that would work if it worked and what what discovery do you do you think after discovery your your your pleadings would be properly amended to be more expedited schedule and we put on testimony from one of the witnesses who lived in mississippi that she had a good friend of hers had a daughter who was seven years old who was who went to the public schools and in this daughter's class the second grader first grade teacher went around and said to each kid who are your parents and are they married this little girl raised her hand and said yes my have two moms and their marriage the teacher then said no they're not your mother or your parents are not married and then pulled the rest of the students to show the scar all that all their other male female parents were properly married in contrast to hers would we add parties like that is plaintiffs to this action that was not object to on hearsay grounds by the way would we add parties like that if the court were to rule us most assuredly would and that happened but here's the difference in the statute what happened in that story is the teacher was reassigned from the school's class if that happened under h b fifteen twenty three that teacher could not be reassigned if she were  reassigned she would have a suit against the state of mississippi for an injunction and potentially monetary damages your honour's i implore you do not put that seven year old child at the risk of that kind of indignity the supreme court precedents say you do not need that kind of harm for the establishment clause the harm is the sending of the message stigmatic injury is parodic matic injury in the context of the establishment clause and again i'm not saying that's true for any other part of the that has sent this kind of stigmatic injury to people in a state where the way the statute has it's never been tried before it's kaplan on the existing record do you agree or concede that stigma is what you have on the existing record i'm not exactly the stuff you're going to go i'm not going to find buried in somebody's testimony something beyond the stigma and i'm not going that that's not good enough i'm just saying that is what you stand on  addition to that your honor if if it helps one there was testimony that merely in this goes to how things were perceived in mississippi merely upon the enact mintz of the statute gay men in the north of mississippi i believe it's the delta one hundred percent i'm pretty certain it's the delta gay men in the delta have stopped had been afraid to go out for dinner together and public because they were afraid that they would be confronted or kicked out of restaurants etc and humiliated merely she had two kids and she testified that she and her wife moved from mississippi despite all their family connections there and their love of this is sippy to tell a housewife to tampa florida excuse me because  passage of h b fifty twenty three sent a message to her that she could not raise her children in the state of mississippi without putting them to the harm of this kind of stigmatic and other injuries but how do you deal with the redress ability problem then if  of religious beliefs and stark violation i would say radical violation of the neutrality principles that underlie these provisions that will cure the stigma the the stigma that will cure the injury because just like the twitter univers court my client's raised both the stablished clause and equal protection clause claims and i just want to add a couple of things regarding the establishment clause issue in the move to equal protection the passed a law establishing a religion specifically the southern baptists religion and counsel for the governor said that by itself would not get standing to those who disagree with that law and then in response to judge l rod's question he said well maybe if there was a big board in front of the capital that would be enough to establish standing if a person actually saw the board and surely with respect to the first amendment standing does it turn on whether there's a big board you read the law one or a piece of paper or a computer a federal court can declare such a law  unconstitutional and it can enjoy its implementation so that it is not effective is law even if there's nothing else to be done under the statute other than the simply simply the passage of it respecting an establishment of religion and i think i sense that i'm sorry what case since that council i don't know that there's any case that says that because this is a unique statute just as a statute being passed that said southern baptism or the southern baptist religion is the official religion of mississippi i think of course mr mr mitchell says well if you take action against a statute like that by enjoining a state officer but th ability because there's no action to take well with every statute as with this one there's going to be an implementation day maybe it's immediate maybe it's a month later a court a federal court can in joint implementation of that statute even if it doesn't command any officer to do anything that means it is no longer effect of this law and so the citizens of mississippi going forward no there's not a law saying that southern baptists the southern baptist religion is kaplan correctly side of the santa fe case that said that the passage is the unconstitutional act now granted and if it is didn't they already have they had a written down prayer didn't they i thought they had the statement in the principle it's seen i maybe i'm get confusing it with one of the other prayer cases out of the circumstance but that well that's the case that involved prayers at the high school football at the dog and right but i thought that higher was already they were going to the violation of the status of the cause is a prayer or is a placard or is a call or is the teaching of a course on creationism the courts have held that yes there has to be a physical encounter with it but here when you're just talking about a statute that establishes a religion and there's no spit there's no there's not any further physical manifestation of it it surely is enough of an encounter to equal treatment clearly does what unequal treatment do you have in s so far i'm not saying you couldn't have unequal treatment but what in this record says that there has been unequal treatment by the governmental entity in their specific circumstance the unequal treatment is to quote the fourteenth amendment the only equal protection of the laws mean the fourteenth amendment says no state children i any person within its jurisdiction the equal protection of the laws and unlike the more case which involved a flag and unlike alan vs right which involved a tax exemption for segregated private schools that also was granted to integrated schools this statute specifically provides for unequal treatment and the an equal protection of the law specifically take maker is going to back out on the contract that possibility exists simply because of the statute itself and i still you have did you allege discriminatory treatment in the pleading and if so where is that in your plate we allege is about to be denied a cake i'm reading or i'm flowers judge kick in since case it says allen held that when plaintiffs ground their equal protection injuries in stigmatic harm they only have standing if they also allege discriminatory treatment and then it goes on they're trying to distinguish alan and in this context they do first the argument that well just the state blessing this in some way in the in the the confederate flag and  that's enough and then they reject that argument then they go after the alan argument so if you're pleading lackey no i don't think so because i think here the unequal treatment is the on equal protection of the law and the law specifically provides protection to the believers to allow them to discriminate against the people in these particular groups without any consequence from the state whatsoever belief sure but that would not be the result of a statute that provides an equal protection of the laws by designating same sex couples as the people against whom the believers can discriminate without any  i want to read to you from the decision is quoted our brief in the northeast florida contractors case it says when the government erects a barrier that makes it more difficult for members of one group to obtain a benefit then it is for members of the nother group a member of the former group seeking to challenge the barrier need not allege that he would have obtained the benefit but for the barrier in order to establish standing the injury in fact in an equal protection case of this variety as they did nial of equal treatment resulting from the imposition of the barrier not the ultimate inability to obtain the benefit and the benefit in that case  plaintiffs in the same circumstances as your appliances is theirs is limitless well the facts are different but here's the here's the key point the benefit that the lesbian and gay and transgender plaintiffs and the and the unmarried plaintiffs engage in sex and sexual intimacy they see the benefit they see is to be free of discrimination to avoid discrimination and this statute by authorizing discrimination specifically against them but no discrimination based on religious beliefs that would that would that would condemn them as being simple but not against religious beliefs that involve other types of marriages that did not that is a a structural obstacle that denies them the benefit that they see religious freedom restoration act where anytime someone who has a sincerely held religious belief regarding something like a marriage or or or anything else  an object to any action of the government for example if they were to be brought to court because they didn't provide a cake and unless there was a compelling interest in forcing them to to act contrary to that belief and it was the least least restrictive means of doing so then the persons then the person's religious objection would be upheld and again that the great of the thing about the two thousand and fourteen religious freedom restoration act in mississippi like the others throughout the states is it does not discriminate on the basis of same sex relationships or transgender or anything of it applies to all religious beliefs and that's the problem with this particular statute and that's why it isn't an equal protection of the laws because it allows same sex couples to be targeted in a way that no other couples are and it allows transgender people to be targeted the fact that it targets the others and so the the stigma in an equal protection clause has to flow from an equal treatment or again to use the words of the fourteenth amendment an equal protection of the laws board purposes the important analysis for purposes of the same sex plaintiffs is that they are stigmatized they are the ones who they are the only ones who under this statute can be discriminated against without any fear of consequence from the state and that and i'm going to quote from the windsor case that since a message that their marriages are less worthy than the marriages of others b very different than then opposite sex couples couples who are divorced couples who are interface and whatever you think about about the unmarried sexual intimacy and whether that's constitutional unconstitutional it's pretty clear that the portion of the statute giving less protection are giving no protection to same sex couples giving extra protection to those who would continue in the simple and discriminate oh i'm sorry i thought i saw the red light go off let me go have to use all your time but you i have i have one more point i want to actually two more points i want to make very briefly in the first is judge smith in quoted from the supreme court's opinion where the court said that same sex marriages that same sex couples are entitled to joint in civil marriage quote on the same terms and conditions is opposite sex couples and quote and the cordoba fellow also said that same sex couples are entitled to quote equal dignity in the eyes of the law in quote and this statute by announcing that people can discriminate against same sex couples but not against without consequence of the state but not against opposite sex couples puts them on different terms than put same sex couples on different terms and it does deny them equal dignity in the eyes of the law and the law itself encompases that only equal treatment in the companies is that an equal protection and there's no need to show any further injury no need to allow the law to take effect because the injury is clear and the result the in what they filed in this court but let me ask you whether you agree with the characterization that there is an actual threat of course thinking of of the stand in your shoes when i when i bring that to your attention i started to understand a question an actual threat to the potential customers of people who have the actual threat of a situation arising in which a business owner denies services to a same sex couple i'm just i'm just reading from front page thirty of mr mcduff's brief and of course i went back to the to the game of his brief and he did correctly quote those words that there is that there is here an actual threat and i'm asking whether that's sufficient to to confer standing or at least make it color argument of that would that would confer standing if it is an actual threat you may tell us that it's not and that the state of texas was was inaccurate in phrasing it that i need to see the full context of the state in the brief i'm sorry i from what i've a caught texas was trying to argue that there is an actual threat to the owners of those businesses a threat of government reprisal or persecution for them acting in accordance with their conscience and declining to participate in conduct that they regard as either sacrilegious or immoral that that was my understanding of t exas and make as it was telling anecdotes of individual entrepreneurs who face reprisal well threat was to them not of them but that's just suggest that there is an actual threat of an incident occurring oh it's someone wishes to you absolutely there is a possibility of that but that's not enough for stanek it's not enough for them to show there's a threat that it might happen to someone i think they have to show that that someone is one of these planks and i thought a lot of staining cases referred to to the concept of actual threat perhaps not using those exact words as is being enough is being more than just theorizing that something might possibly happen in the future there needs to be a substantial risk or a certainly impending injury to one of these actual plaintiffs in this case the fact that it might happen somewhere in the united states to some person is not enough and judge smith even if there were an actual threat they still need to show that that threat would be caused by distraction and they can't intersection of belief with public accommodation where public combination has won those battles it seems to me well in this case the state law would trump the local ordinance so it's just a simple question of supremacy of state law over local law in terms of what actually would happen under the terms of house bill fifteen twenty three now with our house bill twenty fifteen twenty three if you read the jackson ordinance and it's it's not entirely clear how far it extends the government read them or beat the jackson chooses to interpret the vague and amorphous compelling state interest override and one needs only to look at justice ginsburg's dissent and hobby lobby to see that there are a contingent of judges out there who are inclined to give the compelling interest and so many times both during the arguments today me for example ms kaplan suggested that that first grade teacher who called out a student for having same sex parents would be protected from discipline by the statute that is not what the statute said let's look at  schools are allowed to have viewpoint neutral policies that allow school officials to discipline teachers for inappropriate conduct like  no no not necessarily because the school could just say teachers are not supposed to opine one way or the other on homosexuality in the classroom and then the school's policy is perfectly consistent with the statute the other hypothetical the ms kaplan mentioned is the issue of restaurants serving people at dinner that is not a marriage related service under section three five opening up a restaurant to the it's a rehearsal dinner that is a if they don't herschel dinner being hosted at applies to the state and applies to state actors it imposes no obligation at all on the private sector private individuals off still permitted to hold their views about the institution of marriage and o'berg a full says as much this statute is in no way undermining what the supreme court said because the supreme court's decision and the text of the fourteenth amendment itself is limited to state action a restaurant that opens its doors for dinner cannot turn away any patron who walks in the door wanting to be served for dinner on the same terms as anyone else that is not a marriage related service that's serving dinner to the general public it has nothing to do with marriage it's not implicated by section three five and in all dance courts are required by the supreme court precedent to defer twenty three any differently from what i said he is misinterpreting the statute flagrantly and if he's not reversed on appeal he should be impeached it's not what the statute says we're in phatic about that it does not return address we were saying that if the judge interpret something incorrectly in a lawsuit that we should impeach him not what this law does what this law does is protect people from being compelled to participate in or lend direct assistance to conduct that violates their conscientious beliefs it is not a license to discriminate against patrons who come into your store based on their identity or based on their behavior it is a conscience protection law it is not a license to discriminate there are four fourteen seconds left if the court has any further questions i'd be happy to answer them otherwise