to make an independent rulings on a preliminary injunction motion as a district court would ordinarily do the chief say anything like and these rulings will carry through or pretrial proceedings something facility what what your situation was with respect to whether or not dragon worship was feasible i sat of to make a list of the possible questions that you might have evidence shiri submissions on and i snapped when i got past forty but you but don't you think that might have been helpful to a judge in deciding these weighty issues your honor if i may recount what happened here  after the initial motion for tiara was filed the judge can be at the telephone conference and instructed the parties counsel for the parties to explore the narrowing of issues and the decoration of my colleague mr me which is in the record details the discussions and the issues consider that the court allowed the briefing to be concluded and issued a twenty three dollars page order  important here is that the tiara standard in the preliminary injunction standard are essentially the same and under the circumstances where the district court analyzes the issues and the cases and issues they a reasoned and lengthy order like happened here those were the circumstances in the live at case where the court said having issued a decision on the merits that takes into account all of the case law there is no reason to think that the same plaintiff you go back to the same court and seek relief that had already been  regardless of what not the situation is based on we're godless of whether there's been any sort of adversary proceeding that we should treat that for appeal purposes like a preliminary injunction and ignore the distinction case and so both contemplate either a full adversary proceeding or circumstances such as a lengthy order like the circumstances in this case where there's a clear indication there won't be any change in the decision evidentiary record that the district court looked at and relied on and reaching the denial and i would also point out that we filed a motion for injunction pending appeal in the district court which was also denied again on the same standard injunction so we believe here all indicators all reasonable indicators are that the district court would not reach another situation on the same issue to give us the same relief we've essentially already requested  honor and that's why i believe that under the same standard that this report would not reach a different decision which justifies under this court's precedents an immediate appeal to you know what we're supposed to do in a situation in which certain of her judgment which are unfavorable to you might seem more susceptible of being influenced by other practical development and other ones that do not there are i believe under the preliminary injunction standard being a likelihood of success on the merits based on the the evidence is currently before the court i think that the pick out of those statements of hers that seemed out of her and say that part of it survives for review but the other portions of it you do sound like they're just pure legal determinations about the face of the order and whether it sounds a new job you have rejects your contention and there's nothing that seems like that to the bell is going to change that then there's the jacobson analysis which seems like it might well the pens  that's obviously correct so is this like a plan or injunction well the record in the proceedings don't make it look like one nonetheless there are at least in my view some relatively categorical statements of law that do sound like a little would answer that we have a a especially a facial challenge to the language of the orders and disparate treatment that those orders imposed on religious exercise and since in the extent our challenges on the face of the waters i don't believe there's any further factual development which we believe on its face reimpose an absolute ban on worship because it says you can only leave your house to do an essential business or operation and religious worship was not included in that so all of those orders were before the court as well as people could worship and person but we believe at that time it was actually banned altogether based on the stay at home work and the fact that in the subsequent relief from that as we sit here today d we still have to stay at home order the initial gathering restriction there only changed by the the governor's delegation of our cabinet agency to adjust what kinds of businesses in operations can reopen so we have a costly shipping number of people who are order that allowed that fifty person limit to be imposed in the future and it's the same order that would allow the governor now to back off of that and take it back down to ten or zero your bird the authorization order victories th we're talking about now the order forty nine dollars which adopted the restarting manes economy plan which essentially opens out all of these decisions to cabinet level agency or the governor however the governor wants to proceed but there are constantly changing as we pointed out in our reply brief there's already now this is a directive that challenge to that order i'm sorry i didn't hear you on the district court separately address your challenge to  bathwater i don't believe the district court separated them out your honor with the district court analyzed them sort of as a as a unit imposing either extend person or absolute bad on on worship of the fifty person limit did not exist claim that that any water that treats on its face religious conduct differently from non religious conduct was also being challenged so it was for looking as well because we have the exact situation that we have here the  restarting manes economy plan is a constantly shifting series of of restrictions and then relaxed restrictions in the reimposition of restrictions that's what's going on and so all of it as a unit or the governor's orders were challenging questions that you would like to get to know what's on thing that the parties can agree upon in this case which is that we think that this order is appeal mall and there are a couple different points that i want to make about that the the st point is that is that the cortical wants to doesn't even have to get to the benefit from a finding a new jurisdiction so so that is certainly  uncomplicated uncomplicated yesterday but going to the issue of sort of what happened below for all intents and purposes this case proceeded just like a host of other decision goes well beyond what you'd expect from a typical you know order the court went through all the different legal about who issues were rather twenty three page decision but can i ask you something about that council so what i've been hung up on a little bit is not the merits claim but the the serious or irreparable harm claim so so the complaint said they may be subjected to criminal prosecution and i suppose that's all that was in front of the district court but if time went on in there were a policeman ery injunction proceeding they whether they needed to amend or not it seems to me that that's the kind of thing that would be subject to evidence in my wrong about that and you really could have i think a shifting landscape there so i don't i don't i'm with judge cellular not so sure we should be so quick to jump into this on but you tell me well i mean i think in this case i mean yes there was no at that i'm sure hearing although my recollection is that is that if a new party requested one either i don't think that that was our birth or close but what the case i think that the only telephone conference we had and again my memory is sort of going back and a lot's happened since since then but my memory is that the telephone conference was really about c of the parties can resolve the matter and then also sort of setting appropriate things schedule is is whether the order has the practical effect of refusing an injunction whether it might have serious or perhaps irreparable consequence and whether the order can be effectively challenged only by immediate appeal and so i think that that the those elements are probably injunction matter and also i think if you read her opinion fairly i don't think there are any set of facts that would that would come forward that would really you know change her ultimate conclusion so i would say that in these address some of the pollens suggestions in their brief that the state of maine understands how important religion is in many people's lives and beyond being important spiritual aspect it's also part of a constitutional perspective and we understand th religion has special protection under the st amendment and so we don't take that lightly but at the same time the state was basing in on precedent pandemic and so we had to balance that that that interest in protecting religious freedom  safety of these people to answer your question so the only hope was that so st of all in my view and i think if you if you look at the complaints and if you look at the p r i briefing and if you look at the judge's order there's nothing to suggest that the plaintiffs were ever arguing that people are prevented from leaving home to attend religious services that that is really an argument that they have developed since the primary injunction proceedings and it's an argument that's just completely factually wrong i mean you asked about staying at home is a little ambiguous but you know we have repeatedly and unequivocal he said that we consider attending worship services to be an essential activity and it's one that people can leave home to do so so st wasn't a part of this argument that they were also challenging a stay at home or her i think if you look at the complaint and you look at the briefing you look at the order you're not going to see that but i think i think our view that doesn't really affect any of the analysis of the case and so we don't think whether it's ten or fifty or just for him or me though we order is that i think we suppose there are going to restrain we're going to issue a restraining strange well i mean the order that's in front of a court is the town person gathering structure no longer in effect which is no longer a fact and you know that's why i recognize there's some tension between the position that we're taking ten person gathering or other what are the activities that are not employment related that  stay at home or her you couldn't leave homs either work and essential business in operation or to engage in an essential activity and what are essential activities as your understanding is church going to church services are treated the same way as well so there and of activities we would say that are treated the same way as as obtaining medical or or mental health services because we  any more clearly people may leave home to attend religious services activities and so i don't have the order in order for me none of those are employment related right those are completely separate from a place so for example you can leave your home to go take around the back pay path who are you can you can leave your home to i mean go grocery shopping even though you're not actually working at the grocery store provos activities the gathering restriction kicks in well you think gathering restriction is still on top of it so f could leave home to exercise but you can't exercise at least at the time you can exercise in a group of more than ten people then one last question does the gathering restriction kick in employment related activities so if i want to have a  but at least in my view that would be considered a gathering because the the point of the gatherings and i just want to step back a nd because i think there's maybe a little bit of confusion if it fifty people are in a grocery store all the same time that's not considered a gathering that's a good to completely different set of restrictions which applies to how many customers can be in a retail operation at a specific time so what what the gathering or section applies to isn't a place to sort of communal for people who are gathering together for some you know for some communal purpose and are staying together for that period of time so certainly your core stuff could work at the core if you wanted to you know go in the conference room and have a gathering of fifty people and you know do it within a courthouse conference room i think i'm reasonably confident in saying that that sort of a social gathering within a business operation would be subject to the governors or shims can you gather the fifty hypotheticals that that are difficult to address you know we're constantly just asking you if they if they have been addressed if you have been on them four as far as i know they haven't i mean these always all come to the attorney general's office sometimes decided but i think sort of the point i want to make also is that is this isn't just semantics in terms of what's considered a gathering of sort of what's considered something something else like like shopping at a store we presented evidence there's a fundamental difference between sort of social and communal gatherings as opposed to someone going to a grocery store and i think this was really hit home and i think i think it's been think you will notice of this because as you're walking away from the close question that you were asked  we don't know if we do have a lot of general clip ability as i understand it in the states in very strong position and i think there's some kind of a confusion around how much of a justification you have to have for a long general bill so i'm really trying to get it whether you have a lot of general of the ability if the gathering restriction applied even in businesses that certainly would support the idea that it's a lot of gentlefolk with the bill if it does not that it sounds interest and you were suggesting that there is a basic divide between the treatment of employment related activities and non employment related activities and so long as you're engaged in a non employment related activity the gathering restriction may quite extend it doesn't apply to others because their employment related activities all of which are treated differently and i take it your you say that it's just a neutral criterion or distinction yes i do want to make apply to a gathering it doesn't apply for example if you've got seventy five people inside a supermarket shopping and those people aren't i mean gauged in their own  reported in the news and i think the court probably are you aware of this that we had a wedding which is another kind of gathering in a market with you know just sixty five people and we're now dealing with over one hundred and fifty i don't know i thought i think you're getting outside the in point out that the biggest problem that maine has with the general applicability issue is what i call the same building problem on the face of the orders that we've challenge which we put in paragraph fifty of our complaint which is all of them up to that point in time on the face of those orders a church can it was prohibited from worship or best could it have worship with ten people in its building but in the same building could host an unlimited number of people for providing food providing shelter  employment we have for example the provision of social services not religious services that i pointed out can happen in a church building but as soon as the pastor turns to that same number of people and same building and begins a worship getting that you are right we disagree that it's generally applicable criteria because the same number of people could be assembled for a unemployment counseling session for example for two hours every day a week but a the miller things can happen doesn't address the concern that i'm trying to get you to answer the rock i'm trying to answer in accordance with the supreme court standard set forth in to me which says that when the government restrict about wine is riddled with well the point i'm trying to make runner is sitting in the same room surrounded by one hundred other people for a social services counseling session is identical conduct to sitting the the there is also no religious neutrality here because if we go back to the original gathering were religion is treated in the same category as social personal and discretionary events in other words unimportant and so we can we can stop it whereas as we see through the development of the orders hundreds of other things in these forty different categories were permitted and i would additionally point out your honor that beyond essential businesses in operations these workers even allow what are considered non essential businesses in operations literally everything else to meet without restriction or to operate without numeric restriction as long as its employees are socially distance from one another so the  exceptions are so huge that all that they swallow the rule and we don't have a generally applicable set of restrictions because everyone can get out of them except for churches which were expressly prohibited in the original gathering  if i want to get twenty people together for a book club i can't do that and i don't believe so your honor the best people together for a for a counseling session on how to obtain the conduct is identical it's just one is motivated by religious reasons going to worship and other conduct is not motivated by its reasons but under under the supreme court standard what we must look at is is the state allowing things of similar risk not things that look just the same as on the surface but is the state allowing conduct of similar risk to worship whether street being worship and if that's the case it doesn't meet the free exercise standard so you additional questions no monks thank you very much thank you to both council and we will take this case under advisement thank you that concludes the arguments for today the session of the honorable united states court of appeals is now recessed until the next session of the court god save the united states of america and this honorable court counsel you may now disconnect from the meeting