in this case this is innocent clause case not a free exercise clause case and it involves a public employer pressuring a public employee nancy can newton to attend church and then cornish in her for not attending church there are four material facts i would like to highlight for the court st the activity and yes you in this case was an entirely religious event it was a funeral and a methodist church presided over by methodist pastor including included readings from the old housman a new testament in religious meditation religious prayers and religious h nancy can do it's and and her two coworkers were pressured to attend the funeral service at the church the two employees who gave in to the pressure and attended were not punished nancy canoed son who did not give them to the pressure was punished or be placed on involuntary administrative leave and that's what occurred so at the end of the day that was her only option rd at the time of the coercion and punishment  knew that the funeral service was at a methodist church has been perforation council mr niemeyer turning to the lot in this case for decades the law regarding the issue in this case has been clear and unequivocal at a minimum the constitution guarantees that the government may not coerce anyone to support or participate in religion neither the state nor the federal government can force or influence a person to go to church or to remain away from church against is or will and no person can be punished for church attendance for nonattendance the district court's decision changes these constitutional guarantees it creates kaviak it's an exception exceptions to the guarantees specifically if the district court's decision is up hold it public employer will be able to force it public employee to attend church or punish an employee for not attendance as long as there is no religious motivation on the part of the government or the person who chooses not to attend does not have a religious objection this would be a significant change in the la aware of any published cases or for that matter unpublished cases involving if that situation like this your honor where somebody is required to attend church for and then punished for not attending  church i just haven't been able to find any cases like that and i would i would submit that that's probably because the law has been well settled on that for some time i can point you know what i'm sort of goods i'm not sure i would draw the same inference about but but go ahead i can point you to two cases that i think are are helpful one is the th circuit case of fields versus city of tulsa in that case police officers were required to go to a mosque as part of community relations in the th circuit i think appropriately said that wasn't a violation of the establishment clause because the police officers w required to attend the religious service at the mosque in in fact the arrangements were specifically made so they would be present when the religious service was going on under state law and she had the right in line  correct to stay in the office and work the way you had no right to close a well that's that's subject to debate maybe she had the right she didn't have the ability because the office was closed the office was locked and her computer access funeral where she could go all in unpaid status where her that was the original discussion but when she was sent home at the end of the day after this these various discussions occurred she had two this issue is the more watch the deputy sheriffs association case again involving public employment and mandatory training at work where the training can be any religious message in the district court found that that mandatory models and symbols in those cases the courts offloads often look at the religious content of the challenge activity that is is the religious content incidental or is it diluted to address these cases just as your honors know the courts have come up with a number of different tasks which seem to be constantly changing and evolving in this case we proceeded under both the lemon test and the coersion passed in under the lemon test we specifically proceeded under the nd prong of the lemon test which is the primary effects test and the question there is does the government practice have the principle or primary  advancing religion the factual and korea there is whether a reasonable person being apprised of the circumstances surrounding that challenge action without reasonable person conclude that it amounted to an abortion of religion and in this nd prong the intent of the government is not an issue and that's where i get to the principle dilution which i think is relatively important in this case when looking at the nd prong of the lemon test the courts have looked at is the religious component of the challenge activity a fraction of the event and thus less likely to be seen and in an as in a door sman or is it the entire religion here the people in our culture often attend weddings and funerals across religious lines yes yes it is and that's where i see the danger because  the just or court's decision is up how any employer can save for these life events a could be it could be a wedding it could be some celebration of the life of a child or could be a funeral and a pull it public employer will religious grounds that's not here right right but well then you're placing an onus or burden on the employee to object on religious grounds and as we all know many employees are going to be hesitant to do that because  crime under indiana law at least to for public employer employee to pay an employee for not working except in unusual circumstances uscis was i was reading the priest frankly i suspected that explained the county human relations or personnel departments position that employees who attended the funeral in this case would have to take vacation time to do so i don't know the dip into my time for rebuttal several minutes just to complete my argument and that's fine so i want to go back to the reasonable person task under the under the increase under the lemon test reasonable person looking into this is going to say ok there were three employees who were pressured to attend an entirely religious of that two who gave into this pressure and went to the event nothing happened to them th manager then i'm not allowed to return it all then fired and they would conclude had she gone to this religious about she would still be employed and these things wouldn't wouldn't have happened it's i would submit to your honor's that the the district court's decision rewrite search changes the lemon test and rewrites and changes the coersion test to include additional elements  religious motivation by the government and a religious objection by the employee and if that is how the constitutional protections under the establishment clause the guaranteed or minimum protections will be substantially eroded in public employers will be emboldened to force church attendance under the guise of respect and honor for major life events like the birth of a chilled child marriage or the death of the child as occurred in this case and i will save the rest of my time t this is a garden variety employment dispute dressed up as an establishment clause case it's true this connotes and her boss district attorney mcmahon became involved in a test of wills as the district court put it during a heated workplace dispute that ultimately led to her terminations and perhaps no one involved has that test with flying colors but this ordinary employment dispute does not implicate the establishment clause as ms can use in claims simply because the conflict arose out of a funeral that happened to be held at a methodist church at the as the supreme court said in levy wisemen the establishment clause guards against quote a state created orthodoxy that puts at grave risk the freedom of belief and conscience but not even miss concludes in here argues the district attorney in that man's actions threaten anything like this and i think where she goes wrong is exactly where judge hamilton was was was asking is she offers a critically incomplete legal test for her coersion theory i think in knutson's mind it's essentially a strict liability test here any coersion combined with any religious content whatsoever results in an establishment clause violation but that's not the test as a supreme court said in van orden simply having religious content does not run afoul of the establishment clause instead as this court has recognized and curvy firey you have to examine whether religion or something else is the aim of the coersion i think that's the crucial piece your religion or something else what is the origin you if i recall correctly i think you're arguing also that there was to attend a prayer revival meeting so that you have an opportunity to save your souls and you have a staff member who objects on religious grounds and then we have the sequence of sanctions and essentially irrelevant here because the aim of the coersion and by assuming any existed assuming there was coercion in any accord and that happened was entirely disconnected from religion as of government pressure so i think if you're proceeding under a coersion theory and you examine the lee santa fe and elmar brok which i think are the leading coersion cases  all of those all of them do focus very carefully on you jack to as i think each one of those cases you know so for instance lee was a school prayer case focused very carefully on young graduates who object are induced to conform by being forced to you know attend these these prayer sessions and and i think so that's a thread that runs through all of the all of the workers in cases that if you're being coerced it only matters for establishment clause reasons if you're being coerced to engage in a religious religious practice you don't agree with and i think that's just not at all what happened here and i think a simple thought experiment  that we offered in our brief really helps underscore that fact so imagine what happened here was the funeral was held in a secular funeral home secular officiant in a secular proceeding all the facts indicate that the exact same dispute would have occurred just returning mcmahon would have wanted his employees to go to the secular funeral to honor his deceased colleague and miss commits and would have objected because she had other work to do and they would have had the same fight and you know everything else that followed from that would have been exactly the same and so i think when you're talking about an establishment clause coersion claim it's very difficult to understand how that claim can conceit can succeed if the exact same dispute would have happened removing religion from the equation altogether and i think no one here disputes that that's true miss concludes in concedes that secular honor and respect purpose winds up becoming a vehicle for pressuring employees or others to participate in religious exercises but they don't want to i don't think so your honor for a couple of reasons the st is it's clear the establishment clause is an extremely fact specific analysis and the facts here are so far removed from some of the hypotheticals that mr reiner offered that i just think the court would have no trouble identifying violations if for instance government actors were you know encouraging people to attend prayer sessions nd thing i'd say is if it's not part of your job duties they're ordinary employment mechanisms to resist that sort of activity it's not as if the public employers can force you know their employees to go around doing you know all these things disconnected from their job duties so i don't think there's really a risk of a slippery slope here in the last thing i'd say i see my time is nearly out which analysts and you did note that i think funerals in our society recognizes something different than say a prayer or revival session they are we understand that people of all faiths come together to honor the deceased and so i think even viewed objective lee no one would see that of one up funeral that happened here essentially amounts to the government establishing religion which is what the establishment clause is all about so that  yeah good morning your honour's may it please the court attorney or even wistrom on behalf of the pelly defendant trample county before getting to the to the merits of the law a political to the case i want to make a few factual points  church well that wasn't known the fact that it was a methodist church whether that was known or not to the county misprinted mr niemeyer and to mr mcmahon was not part of the summary judgment record and it certainly wasn't known knutson that it was a methodist church at the time that she made the decision not to attend she did not know the nature of the service whether it was a religious service or whether it was going to be a religious church the fact it was not until something she learned later so the venue was not built as the nature of the service is one question but the venue was also not nil the venue was not known to miss commutes and when she made the decision the venue there is there was deposition testimony at that mr mcmahon and i believe mr niemeyer knew that it was a methodist church on september th but that information was not part of the record before the judge on s the other factual point i want to make because there was some briefing as to whether or not misc knutson had the ability to work from home and whether it was the county that really prevented her from working from home and the evidence in this case clearly establishes that ms commutes and was both unable and unwilling to work from home on september th she did not have was not set up to work remotely the work that she needed to do required her to be physically present  at the office in order to access documents and do other things she had a meeting scheduled that afternoon and in fact during her conversation with mcmahon she specifically stated to mr mcmahon that she was not willing to work from home if there w employees the county's employees it's a complicated issue and the statute is somewhat ambiguous as to it's clear that he orders he can direct an order to their work she's still a county employee and that she receive a check from the county but as far as who controls and dictates her work it was this determined man who had that authority but the statute was somewhat vague as to you know who has hiring and firing type authority with respect to to the employer that you and furthermore with respect to the timing of the course and tasks in this case mr reinhart alleges that the county violated the course and passed by virtue of asking ms commutes and whether or not she wanted to or plan to attend the funeral that question was posed at a time that mr mcmahon had already closed on the office it physically changed the locks on the door and he had deactivated her computer so at the point in time where the question was asked there really was no other option working from home  even if the county permitted it and even if misc knutson was willing and able to work remotely which she wasn't working from home had been made a possibility by virtue of mr mcmahon that morning so at that point the question was simply asked would you be willing to attend the funeral when she said no at that point the only remaining option was to send her home with pay it work to try to work out a resolution with mr mcmahon and the county attempted to do that over the next several months unfortunately unsuccessfully religious intention or religious purpose on behalf of the governmental entity and it does also have to be religious objection on behalf of the employee which are clearly did not exist in this case you think it's a subjective test for the government long history of it here and some visuals who are ignorant of majority religions being oblivious to how your actions and decisions affect people in religious no i think it's a reasonable standard test so i think it is an objective standard just hamilton it's not subjective but it does require some level of objection on behalf or religious reason and we did cite i think mr ross identified the the levy and the don't were saddam or cases being situations where the the religious objection on behalf of the individual is an important factor that the court considered there was also a district court case out of idaho  the st part of the lemon clearly does require intent and purpose but the nd element we can see it does not require purpose of in town the question was whether or not the the activity has the primary a fact of endorsing a religious activity and if you look at the conduct of the county in this case there's clearly nothing that the county did that had the primary a fact of supporting or endorsing religion the question again that was posed whether or not she intended to attend the funeral was made at a point in time where there were no other options it was also made after the county had repeatedly informed both misc knutson and mr mcmahon that he did not have the authority to close down the office and he did not have the authority to require an employee to attend the funeral so simply asking the question are you planning to account and would not be deemed to have the primary a fact of endorsing or supporting a particular religion  and it is an unpublished case and i would submit to your honor's that prisoners rights cases are somewhat different when you look at establishment clause cases because there are some additional  there are lesser protections involving prisoners this is the question that has been asked by your honour's is whether or not any of the cases essentially the question is whether or not any of the cases hold or require that the person have a religious objection an order to have an establishment clause claim certainly under the lemon test that's not a requirement under the nd prop it's just simply not a requirement under the like the leak case i will acknowledge that there there has been some reference or the court did mention whether or not the person had a religious objection but i am not aware of any case holding under the coersion case holding re there's no objection it's a it's a broader societal goal of not knowing the government to impose religious beliefs on somebody or requiring somebody to attend a religious activity and i oh mr wistrom said something about first of all i want to make it clear that both the district attorney and the corporation counsel were aware that the service was happening methodist church mr westermann said well that wasn't on the record what i would tell you is that both of the defendants made that relevant because they brought up the sovereign immunity claim in the their appeal briefs that they had not brought up at the district court level and that knowledge of those two folks the district attorney and the corporation counsel is directly relevant to that issue in terms of sovereign immunity because you're  in the court of appeals brief that was brought up by the other side with respect to the qualified immunity issue whether or not these folks were aware of it is important and relevant to the issue of whether or not a person in their position would know