because of its leadership requirements which they did not have a membership requirement blink open invited everyone including the complainant in this case to participate fully in their activities and when the university met with blink in september of  well and i'm wondering do any of them address the specific facts of this case was released to student organizational leadership positions or your honor i would note that martinez the supreme court's student which is not at issue here could apply the leaders of the court said that if anyone used an all comers policy to try to as the subterfuge to take over leader ship a then he presumably would change his policy and justice kennedy who was the th vote explicitly stated but if that happened that if an all comers policy was used to challenge leadership or to challenge the groups of use that that would create a substantial case a few points from a nation and so and then  one part of that and so it doesn't matter whether some is actually called a minister or not if they perform religious function as blinks opposites do here they pray they lead bible study they minister directly to their student members there's no question that they perform a ministerial function and that their religious leadership selection is protected under the religion causes of course that that goes even beyond the basic case of the long line of supreme court cases and cited martinez for the principle that courts can not engage in viewpoint or the university's cannot engage in viewpoint discrimination in handling student groups on campus and that case was arguably a much more difficult case because there the benefit involved the use of the university's trademark so it's much more easy to attribute the student group speech to the university but the court rejected that argument and said that viewpoint neutrality was still the you know unanimous consensus of cases applying that a dress the application of nondiscrimination policies in a limited public forum on university campuses i would point this court to the seven circuits decision in c l s versus walker where the court without equivocation now that that you could not restrict you cannot stop a religious group from having leadership requirements requirements very similar to those that issue here that because of a nondiscrimination policy that viewpoint atrocity was still the governing principle that this even point the court toward st polite the also  hell i think it still applies because the principle was that they could not engage if you point discrimination or violate the individual's religious freedom now that they read case did involve the student organization that's the case the defendant see him to rely on most and there the court held exactly the opposite to prove what defendant the court did recognize that policy as written in that case was viewpoint neutral but every man in the case because it was concerned that there was evidence of discrimination how the policy was applied and the court was clear that that would be unconstitutional the kauri mandated to give the university an opportunity to clean up its enforcement said maybe maybe some of these incidences where there's  you know election based on protected categories are just for oversight the university just didn't know it now can go back and clean it up well and we don't know the case settled after that point but the same thing has already happened in this case the district court's  injunction was limited to sixty days specifically to give the university an opportunity to go down and clean up its enforcement the the university already rejected that opportunity instead  be registered additional student groups while amending its policy to protect fraternity just left new st dozens of other groups untouched already discriminated based on protected categories and then when showed up at the preliminary and the summary judgment hearing the university presented a spreadsheet of all of the student groups highlighting all of the groups that it believes were in violation of its policy and so they were on hold pending the litigation all of those groups were it was just religious groups on that list thirty two religious groups all of the religious groups with leadership requirements except love works the group with police exactly opposing blinks and and no other groups even though there are numerous groups the house of lords that disk you know that requires its organizations that discriminate on protected categories and were never ever addressed by the university despite the many warnings from the district court over to injunction and these cases are consistent with a long line of cases from the supreme court this court and girl it live and don't all cases involving viewpoint child be on a student you know with student organizations in a limited public the supreme court's decisions in early and they are which are cited in our brief clearly help in a nondiscrimination a policy cannot be used to override a private organizations right to organize around shared beliefs and goals and that was another important point that the district court missed on the reasonable this issue where she was asking if the policy of the university's enforcement of its policy was reasonable in light of the purposes of the form the court pretty much  held that it was reasonable even after the university amended its policy she didn't reconsider the issue and but it doesn't make sense the policy if you look at it again j two thousand four hundred and forty nine dollars paragraphs four dollars and five dollars the admitted purpose of the form was to allow like minded students to gather around shared goals and beliefs it can be reasonable if that's the purpose of the form which is very different than the purpose of the form in martinez it's if the purpose is shared beliefs and goals allowing like min together it's not reasonable then to restrict to refuse to allow some groups to select their members based on those rules and values just so you would say that even without the viewpoint discrimination leadership selection was ok it's admitted that it has always allowed leaders of selection including other religious groups with the same beliefs as bling maintain state statements of faith required leaders and members to sign those defendants baker and nelson signed a memo reaffirming that that was permissible and that student government leaders would be personally liable if they did and if they tried to cut off funding to groups because of their statements  faith it was only at that meeting the conclusion was that the university invited to add a statement of faith so the students would know what the group was about before they joined it a link agreed to do that it provided a one page statement of faith and it was three sentences in that statement that then triggered the registration statements about links views on marriage and sexuality and defendants admitted that if bully would have just delete three statements from a statement of faith that they would have allowed to train on campus even with its religious standards other religious standards for leaders defendant baiter admitted that he thought it was fine to have standards about sexual conduct for leaders and members but he said it depended on what those standards were a knowledge of same sex marriage it was ok if they didn't it wasn't ok that's a clear example of religious targeting which this yes your honor i understand you to be saying there's a substantial body of case law that would create a notice to reasonable universe the person know what they were contemplating and what they were is exactly on point i would argue that martinez and the th circuit decision and read are also exactly on point with respect to enforcement of the policy and force what about it is not at all commerce policy both of those courts help appl a rd seven o two where this court held that application of a nondiscrimination policy could not be used to exclude the k k k from participating in what could have been considered a limited public forum the court said actually didn't matter if it was a limited public forum or not because the viewpoint discrimination was impermissible in any context but here we're not even talking about something that extreme we're talking about a religious group on campus trying to live out its beliefs believes that the supreme court where the university of iowa again while it was denied qualified immunity for rejecting a law school faculty applicant because of her socially conservative views and this court held that it should have been obvious to the that was an impermissible basis for terminating someone i think that's analogous to the situation where groups like local works were allowed to remain on campus engage fully and in the benefits that the university offered even though they required their for making this possible this is an easy end and i think the litigants all appreciate the effort the court and staff is putting in to make this happen simply put this is a qualified immunity case and more simply put this is a prong to case and so i'm not going to vote labor what the court is aware of the u s supreme court all way and was really in other cases has been very very specific about the need to look at both particular facts and with a high degree of specificity in this matter we can see we will agree that that a government entity should generally funded student organization when faced where resolving a specific civil rights complaint by a student alleging that he has been excluded from participation as a recorded statement here that the individual defendant should have been aware of their that their actions emptied blinks st amendment rights and indeed the record shows that they were generally i don't think qualified and even  that st amendment rights were implicated by the limited public forum created by their registration of student organization and that's well settled as well the more specific to records that dealt with memos that go back into the ninety's and early two thousand and one of the things that's that's missing in that recitation of the fact is that again this  facts matter is that this is a nondiscrimination policy in the state of iowa that deals resolving a gay students complain about sexual orientation discrimination the law in iowa the civil rights law and ohio law was amended in two thousand and seven the bar in the season about marriage came down in two thousand and nine and so the relationship between the human rights policy issue and the st amendment issues was involving this change and that's why it's important here not just to look at limited public forum jurisdiction but to look at it in the context of human rights policies and specifically in the context university officials trying to decide and make a decision about how to respond to a specific allegation of discrimination i mean i don't think i mean it's a legal conclusion about whether or not it was well settled i don't think judge wrote his comment about is binding with regard to this specific knowledge but the other thing that's important is this court applies a reasonable administrator standard i mean this is a reasonable the jacket standard and the discussion about prior memos based on different facts i think is is is is somewhat of a red herring because  mentioned i mean this wasn't just about membership it was about leadership and much of an interruption that make it worse you may know that there are religious organizations that don't believe you should have clergy don't believe you sh amendment well i mean again they're implicated but this case if you look at the file and look at the petitions when it was filed it was filed as a case that was clearly set up to argue to to extend the  hosanna taber taste which as you talked about is a ministerial exception in the context of a religious organization to a university and mr baxter will not be able to point to any anywhere where that has been done and so martinez does it if it rejects that and the other thing that martinez does is again i think martinez clearly clarifies the standard for limited public forum analysis stipulated all comers policy that the whole court spends a lot of pages talking about whether it in fact existed or not but i think that and it clarified that baptized policy would not be discriminatory d but this is not what we have here i mean it is i agree with mr baxter that the policy is closer to read but because it's not in all comers policy everybody's agreed to that but in martinez i think one of the really important things that happened there that's getting lost in the shuffle in the walker case there was an argument made which is the very same argument that you see throughout the briefing in this case which was not discriminating against sexual orientation in violation of the policy they were just saying you have to you have to one thing that martinez absolutely did is absolutely rejected that structure you know justice ginsburg wrote that the versus status distinction in the context of sexual orientation is not an attack on that conduct so central to the sexual orientation is an attack on a person and so i mean that's one of the reasons why martinez and reid and walker don't between not just the existence of a of a policy and a refusal to register an organization which is what you saw in martinez and read but a frank complaint about a violation of a frank and again i think mr baxter was has been clear about it the administrators were raffling in the midst of this with trying to comply with an injunction that was actually issued in the case right in other words what to do how to comply with the injunction i mean so ultimately judge judge rose concludes that the conduct violated the constitution and we have not appeal that your honor and but  but but she also d correctly concluded that this whole area specifics universities in the context of human rights policies is not sufficiently clear to warrant denial of qualified immunity you know judge rose was i think you know very specific as she went through the analysis and i think one of the things that really distinguishes this case from gurli as judge risner and in her like tonight qualified immunity she says here's how i see in the law you know we argued with that we in the field that we we had a hard case at the circuit court level but in this policy the university status case jack she doesn't mention the specific issue that there was an actual complaint pending and they were acting on a student complaint of discrimination which distinguishes it from any of the she says the she acknowledges that martinez freedom walker are the most factually similar but she then says they don't give me clear conclusions on that in fact they give us level let me again ask you you know about this as it rose in this circuit the trinity lutheran case and the supreme court uses words like unremarkable and established in similar words to say a policy to discriminate against otherwise  agree but but solely because this is the limiting factor here right this isn't just your you know we're not going to register like some of these other holder cases because we don't like what you say this gets triggered by a complaint argue and have throughout is that that this is about conduct in other words they have certain conduct that they expect members and leaders to abide by and that's what we're focused on not the status not the sexual orientation i've already said that i think the supreme court has rejected that but the flip side of that your honor and this is really to your to your question is that the university of iowa was has taken the position that they are not what we think is status discrimination based on sexual orientation and not the bullies and that that's the trigger and so i mean i think and i i mean and i appreciate i mean if it's i understand it's two sides of the same coin but but it is something that really if you read the record that even the recitation of the record by judge rose is something that the minister raters were struggling with and it's something that is not resolved by any of the cases other than martinez which in another set of facts of that is not they don't get to exclude somebody who's gay because they won't embrace beliefs that basically cut to the heart of being gay and justice ginsburg wrote that and and and rejected the same again look at judge rose's decision and kind of get a guide and the briefing in this case at least one where we move from rosenberger to martinez and walker and really in the free speech case cases you know we're in the context of universities we're in the context of dealing with our you know the free exercise cases and cami are not in the same ballpark i mean again it becomes a much broader statement general statement i mean i think it was a worker's comp case that dealt with employment and kumi case was an animal slaughter statute in the so i mean i think one of the things that martinez expressly dealt with was the fact that dealing with institutions of higher learning and this that framework it is essential to take into account  qualified immunity issue i mean again i think it's noteworthy i believe that you know we sit here today after a very hard fought battle in the in the court below   again even as recited by by judge rose i don't necessarily adopt all of her conclusions but what you see is administrators over time really wrestling with a difficult  issue and really not finding clarity yes exactly how to deal with it and i think that that's the purpose of qualified immunity it serves an important public service and her public purpose and i would urge this court to follow judge rose's conclusion that this is difficult stuff not clear and that if you apply the u s supreme court quite difficult doctor applied to specific facts and the supreme court given us a number of recent cases but most of those cases have been in the law enforcement context exigency but development of a operative policy for a higher education institution being done with good a fit of counsel and through meetings and in the white you seem to be a different reasonable d university official or administrator so i mean i will concede that the exigencies of facts that matter are different but having said that i mean just like mr baxter  has has vehemently and will say it again how important the rights that he's here to vindicate are i mean dealing with those rights therefore is very important as well and and subjecting public servants to personal liability when they don't get it right that that policy remains in intact and so i do think that's why the fact the septic wireman of the supreme court prudence administrators is important to deciding whether or not the law was was generally established well established thank you mr thompson thank you you are mr baxter and as you begin i'd like you to address the same question i asked opposing counsel about there being any difference between the speed of clarity and along with respect to free exercise on this in and free speech that's what works another group blink that accept any student regardless of sexual orientation or other status as long as they share blinks religious beliefs blink was told it could not do that it was deregistered love works was told it could do that even though it was basically saying it could reject students based on their religion that is straight viewpoint and religious discrimination and the supreme court cases on religious discrimination are clear on this issue and serves this court's i would point again this court  to the wagner versus jones case where the teacher was discriminated against because of her religious social conservative views i would add that the free speech light is also exceedingly clear i mention the c good news club versus milford central school five hundred and thirty three us ninety eight where the court can't rely on the government can't rely on complainants as its only enforcement mechanism that gives power to the majority to silence their opposition or people who have a minority impermissible and defendants claim that there's a confusion about balancing rights there's they've identified no real conflict here they could protect both students who identify as l g b t q and religious tinge by allowing both to exist on equal terms on campus  the entire point of view point discrimination that even when there are complicated complex and and controversial views that all government officials have an ironclad obligation to maintain viewpoint neutrality this is not a close