be your argument from your brief but then looking at other materials in the case i was left with the impression that there were perhaps factual issues about this that you didn't see the same way as you would dream in your view you know she just drove in front of the courthouse and i certainly take warning that some point offended observer as on under valley forge isn't enough but when you start talking about the need to go to the prosecutor's office in a building just behind the store courthouse and other kinds of legitimate business it seems different so so i ha disputed issue of fact on standing feel about this i don't think that it's from appearance but your honor because the record is clear and under spirited that none of those future exposure  render speculates about has actually happened prior to her filing of this complaint in fact her record is very clear that this way has been a constant feature of this community for nearly two decades and yet the record  courthouse numerous times i understand she only specifically identified as seeing that display during her two thousand and eighteen trip but can we draw the inference in her favor as we're required to do deposition that she was by the courthouse or in brownstone no fewer than fifteen times and yet she only saw this display after she read about the controversy in the news  after she decided to purposefully go and check it out in fact if you had meant mister me had i mean i know there's fifty thousand times when you look more carefully at the record it seems that some of the time she was just griping were in august when the display wasn't up the display doesn't go up until around the middle or think i mean that's why we have to stay motion in front of is it at the moment around thanksgiving time so we can't draw any inference one way or the other from the fact that she doesn't see the display at a time when it's not up but actually if you look on page eighty six of her deposition i asked her specifically but thanksgiving and christmas of two thousand and eighteen how many times had she been at the courthouse and with in that specific period when the name heavy on the display would have certainly been up she says she was there no fewer than fifteen times that's page eighty six of her deposition and that at the courthouse not driving  rush on to that i want to look for a nd for example it go against city of montgomery illinois one of the things we mentioned there was the need to come in to direct an unwelcome contact that was with the sign while engaging in normally bill legal obligations such as jury duty now i'm not a former district court judge such as judge saint even judge hamilton but i'm here to tell you i'm certain that jury duty doesn't happen once a week for normal citizens they get called every so often and yet we focused on that in her case it seems that she alleges that every so often she needs to follow up on this child support order and she's got business takes her past the court house so there are a couple of things i would say through that st work that number one she was very clear that she has no business in the throughout the country for direct unwelcome contact that's very different from valley forge of course right well he says you know you mean you emphasize in your brief that she's only lived in the county for two years i'm not sure why that's relevant but she is a resident of the county the courthouse is on u s fifty and somebody who's doing going about their daily business in jackson county is going to encounter it as she has and will in the future write the travel respectfully th circuit and the supreme court had said that there's no such thing as drive by standing which is what what we would have here know the standard the standard server is direct in unwelcome contact that for example is what gave standing to the plaintiffs in the american legion case correct actually it's then was not addressed in the american legion case it was addressed in the th circuit however and that was the standard you drew on a very thoughtful opinion by  wilkinson from a few years earlier sure against he would county that explains this this quite well it might be helpful to me mister me had if you could tell us what evidence it should take to show but if i understand your position then somebody who is offended by a perceived endorsement and changes their conduct would have standing with somebody who care to point out that there was no claim of the direct routine contact with the display in that case freezing right well that was one of the things that the court pointed out that the court also pointed out that when it said quote the appellants have failed to meet the minimum requirements of article three yet felons concede that they did not alter their behavior that's what the stock court thought was what was relevant and  had excuse me for a minute but i just want to underscore something judge hamilton just said i know your position is that we don't take any guidance from the american legion case on the standing point although you embrace it obviously on the merits but in addition to what the th circuit said justice gore such joined by justice thomas has an opinion concurring in the judgment that is entirely about stand so i find it just counterfactual to think that the supreme court didn't have standing in front of it it's not like they put blinders and your plugs in and decided not to pay any attention to justice course such they were conte that on these facts the facts in the american legion case this kind of forced encounter with the bladensburg cross was enough to create standing on behalf of the american humanist association and cetera et cetera so you know i just think we want to stick carefully to what the record shows and not get too far in front of ourselves well the reason the reasons that only best supreme court know is they chose like this isn't really just subsequent to you know nobody spotted a standing issue there's a lengthy and thoughtful opinion written by one justice joined by a nd one that addresses this standing whatever you want to say about the establishment clause part of your argument so if that if standing exists then the of course is the reverse because the display here is constitutional in american legion or did address mary and insult doing made clear that longstanding established monuments displays and practices are no longer to be subjected to the lemon test instead they are to enjoy a strong presumption of constitutionality that can be overcome only by a showing of discriminatory intent or by a deliberate disrespect in the design that causes how do if we accept your argument as to the application of american legion would we have to overrule our some of our existing cases including the american jewish congress case that have ruled on these issues since that decision the st the bird and the th circuit have done so lemond is no longer a political will to long standing established displays now here this particular display have been for two decades the plank of claims that because the display is only up for six weeks per year that makes it different from a kerman and a so called monument or display here's why that doesn't work in this donnelly which involved as we know in the movies more importantly we know that the quintessential example of a long standing established practice is congressional upright and legislative chaplains and we often know from common sense and experience that the chaplain isn't praying twenty four hours a day seven days a week three one hundred and sixty five dollars days here the chaplain the only place prays when the congress comes into session and there may be months when congress is not in session when there are no prayer so it's not yet if we apply american legion and look at the presumption of constitutionality the presumption applies when a display or monument has been longstanding how do we determine what longstanding is and is it just based on the particular display at issue or the concept of that display that's a question that i think i think it's both i think provides a listing of about four or five examples of religious expressive monuments that it considered to be a long standing one of the ones that refer to west people weblo religious leader whole pie as one of the immediate point out in their brief that was raised in two thousand and five so it's actually two years younger than the display at issue in this case but beyond that can i ask you is your view that under american all of the other components that have been part of this display they were further apart but on the west lawn of the courthouse they were moved closer together after the complaint came in but you know it was if we agree with you would you continue and if your catch me call because my client has no interest in doing that in a future hypothetical case i'd say you have to look at the four factors that the court has you have to look at whether there's discriminatory intent and deliberate disrespect in this design so there may be arguments that could be interest in fact in twenty nine theme the county issued an instructive letter to the lions club and the other community groups telling them that if there's going to be a display in the future it must have at least the same number and with the location of the display matter if the county wanted to move it back and move it into the courthouse as opposed to the front lawn with that matter under american legion it was never in the courthouse  courthouse there's a christmas tree and for presents and santa claus i think the location again you have to look at the war crimes and the two avenues for a for a bottle and if you have one single solitary  question that they have taken on a significance that allows communities to celebrate their original enough it that for purposes of the presumption or for purposes of analyzing whether it falls whether it overnight i'm hoping that's an american legion in looking at the perception they really seem to focus on the particular statute at issue as opposed to the historical context behind it just for purposes that the presumption manger all of these elements together show that the me here the scene is about one component that reminds us of the origins of the holidays but do not prosecute indorsement or establishment ok mister me had will have to call it quits there because your time has expired thank you very much thank you mister fox you how yes how carefully to she nail that down for those five weeks a year whether it's your visits to the new judicial building or whether it's just the fact that it's us fifty that goes a major road in from that that by going by the display or by driving by the courthouse that she actually saw the display because it's just moni that that i've seen in the record other than the twelve thousand and eighteen incident attached to various google maps showing that she really doesn't have to go by the display and raises the concern you know essentially going to manufacture standing for everybody who goes out of her way to be offended background here there are certainly cases where the person who knows about the practice take valley forge person knows about the practice is simply not engaged enough in it to support article three injury in fact and then there are other cases at the other extreme such as the brick school's case for example where the person is kind of a forced participant in a religious  experience of some kind and when you use a broad word so from that point of view how important is it that she has alleged that she's being drawn into this because she has regular needs of a regular citizen to go to the judicial building that it's in fact very difficult given the layout of this town not to go by the west lawn of the old historic courthouse you know in other words can you make the case that she putin breaking the district court relied on the fact that some of these trips were civic trips to the county prosecutor to collect child support how important is the civic persons purpose over trips falk what worries me more about your side of this case is how in a principled way we can distinguish this particular nativity scene with the secular elements that it has from the bladensburg cross both from an analytical point of view and the american legion case and from the point of view of the presumption of constitutionality that the court finds for at least bladensburg cross and i guess there are a lot of questions i have about that but one of them is whether if we got to the presumption of constitutionality what evidence if any is there in this record that the county was intending to discriminate against either people from a different religious tradition or people who have no religious as i understand it resumption  war shortly thereafter across the country to symbolize not just christianity but the enormous sacrifice made by american services and in fact mister falk with all due respect to justice isn't really the case across isn't religious i mean maybe it has a mixed message but the cross strikes me at least is religious as an activity seen but i guess when you mention indorsement it makes me want to ask you what in your view given you know the addition function that we're able to perform is left of the endorsement house there's a lot of negative commentary in the talking about you are clearly hanging your hat on the fact that this crash is only a little more than fifteen years old even though questions have been around the united states since before there was the united states and indeed around the world on the courthouse lawn permanent fresh and different because i ask you whether you might be willing to read american legion is in essence at its core and help which of the more familiar indorsement just when we run through those four factors what we're really running through is the details of the history in context of a particular display or monument or practice considered from both insider and outsider perspectives that's i mean that's a i know that there's a there's a somewhat different analytical framework but it seems to me that that's pretty much what's going on in justice alito is opinion there room to disagree with reasonable people to disagree about that reading of the way people who remember the great war they cite before sell books for example but it kind of has a feel for the to the indorsement will see now but yet i think the story more has to be a recognition here that we're talking about a very big difference and we're talking about something that reasonable server  flick what can i just add in here i mean maybe it's not just a question of counting candy canes and santa clauses you know maybe there are a lot of towns for example and we've been there been cases where although there's a crash you know there's a menorah and there are other religious symbols so that the observer will say well this is a country diverse religions and so no one could think that any one religion was being endorsed it simply acknowledge is that this is an aspect of american life has anybody ever asked this township to put up any other kind of religious symbol or is it pretty marginal so this is pretty much it is the record doesn't reflect that and i  opportunity to move set and move the carer's it made no attempt to integrate actors play they don't attempt to interrupt the visual picture and have standing on a street going into the main entrance of the court i would say that the county has already made an effort to integrate the display by bringing everything to get there before this lawsuit was filed if you look at the pictures you know there's not a way to get them even closer together no santa claus is already oblivious to social distancing he's right next to all of the other elements and the only way to get him closer would be to put him actually in the manger no cases actually held and i think that mister fox concession that that american legion goes lastly i would simply say this the record here does not allow an inference that this particular plane that has ever seen this display other than the one time when she purposefully went to inspect it i i think that's the kind of manufacture spin that the sport has previously from the pond and i think that holding otherwise in this case would open the gates for other inspectors across the state and across the country ok are moving around looking for  constitutional violations all right i think i think we have your point to thank you very much thank you to mister falk the court will take this