s the pastor there for some thirty five years people are going about going back and forth they are required to worship in church your honour's according to their discipline they are required to be present in the same area where their altar is located should be comparing the church to the essential critical infrastructure here categories of words to similar categories like concert color coded category the state may wish to place them in they are essential services under the st amendment of the constitution so they should be compared to other essential services which as the august of israel case when arguments from me well we have these scientific of categories in distinctions between churches being more like a large crowded movie theater something like that with the but that base of b says ok we're in a data free zone because nothing in the supreme court's decision reflected that attempt to evaluate data which we have in front of us may be that it's found wanting but we do have information that attempts to compare this state has offered up by trying to say look our regulations can survive strict scrutiny because there are so i'm trying to figure out ok tailored by what plenty of evidence there that people can't attend a church service is socially distance in mass as well as anyone else engaged in secular activities be a large crowds in bus terminals or district core the veil the clearly erroneous test i believe so your honor for one thing seeing that california is different from new york southern california because it's warmer and people get it in church outdoors i mean it's the thirty some forty degrees oftentimes in the morning so that's one fact we would certainly dispute and we would agree with what the nd circuit said in with the majority per curiam in brooklyn diocese when they basically dismissed restated by the dissent but the majority was not persuaded well i'm trying to give you an opportunity to focus on the case we have in front of us and indemnify what it is you think makes the district court's decision to deny your application and abuse the discretion based on fairly erroneous findings of fact and to tell me that in a different cases supreme court different conclusion that may carry the day some day but i'm not sure it really helps you very much dealing with the case that i've got in front of me i just did your honor and we did point out for example the real clear science study that showed in the seventeen thousand churches where a million people attended in the united states if they only had five documented cases of people later testing positive for folks who were nineteen and now not transmit those to anyone else and that's when people are wearing masks and socially february and march were people were not wearing masks socially just as seen in even those in the united states over the last ten months they cited where they were infections recorded in churches they numbered in the several one hundred  many where there were no protocols in place but even is stepping down to face value we've had tens of millions of people in the united states but then in church services over the last ten months because not all speeds are closed down by california most are not in the transmission risk over that period has shown that is no greater than it is in any other type of activity where people gather again in fact your honor if it's so bad in california has as they will tell you you certainly cannot live on the shoulders of the churches which have been pretty much closed down for most of all the last ten months  about constitutionally protected rights like the free exercise of religion which is the st right in the st amendment which should be no big surprise because the country was founded as a court no those are religious refugees who came here  them die in the st winter but religious liberty was so important to them that i was made paramount over these other interests in your honor we have put in scientific evidence we put in study of ten million people one of the most recent study when shown that there was a very rare incidence of asymptomatic transmission which is a big bugaboo here at this date is saying that people can be transmitted this virus in both to c d c in the united so called tram transmission risk factor which has no studies actually finding that churches are more dangerous than any other place the people responsible and asked was was said by i believe it was better again i apologize greater degree than the religious condom would do in this circumstance that means if if the state leaves unprotected secular activity threatening to spread it coded or spread the virus in a similar or greater degree than worship services would constitute discrimination and the state's record that was developed on remand demonstrates that's absolutely not the case that the state has developed objective and neutral principles to form a comprehensive regulatory scheme that regulates all activities secular and religious to light and mitigates the ris appropriately and proportionately in all those activities so congregate activities indoor congregate activities are our experts have testified was an exceptionally high risk of covert spread like concerts like spectator sporting events like worship services are regulated are subject to the same restrictions other activities that also pose a great risk are treated the same or more stringently than worship services  restaurants gym even under the regional stay at home or her nail salons barber shops acupuncture laundromats open to the public are all shut down indoors or  right yes your honor however those categories are subject to additional restrictions beyond capacity limits that houses of worship are not subject to so for example in the entertainment industry or professional sports the state mandates that in those industries there be regular frequent weekly almost daily testing of among the cast and crew of a film set for example or  athletes on sports teams players aren't suggesting that those stringent testing requirements be imposed on religious congregations and indeed it's those tailored restrictions you know for example the frequent testing requirement in entertainment or sports that mitigates the particular risk posed in those circumstances so it is not true that having a you know a film set hose for the entertainment industry for example refers back to those binding labor agreements and said if you want to operate a film set or for other entertainment production you have to abide by all the restrictions that are outlined in those in those binding labor agreements other the comparatives that are included in the critical infrastructure list many of them involve workplaces or places of employment which are subject to additional  restrictions that houses of worship aren't subject to when they conduct worship services so for example any time any employee whether at a factory whether at a law firm is exposed to the virus  the employer must report that exposure to all the other employees and so and that makes contact tracing orenstein ing mitigating the spread much easier factories which is another proposed compared precaution plexiglas barriers between factory employees i understand that in plaintiff's i believe it was in their reply brief included a factor of picture of autograph of a factory the photograph was taken before the pandemic so none of the pandemic the comparative risks in all these and the restrictions imposed that mitigate the comparative risk in all these other other industries have have been discussed by our experts are our experts dr  for almost painstakingly go by industry by industry sector by sector activity by activity and explain why those activities pose a lesser risk and why the additional restrictions imposed by the state on those activities that new york for sure actions did not meet the minimum standard of neutrality set forth in the gloomy the supreme court did not engage in that in the sector by sector activity risk comparative exercise the state has or has provided evidence for and that looks to me requires rather the supreme court found that there was discrimination from new york  because new york had severely restricted houses of worship but failed to entirely impose restrictions on on a whole you know a really broad range of secular activities this is the in the red zone were house of worship in new york were subject to a ten percent essential businesses had no cap at all and no restrictions at all yellow zone twenty five percent top for houses of worship even non essential businesses in new york were permitted without restriction so was this really wide goal between the onerous restrictions on houses of worship and the quite lax permit you know no restriction on a broad range of secular activities posing a broad range of risk transmission that the court found that doesn't it doesn't even meet the standard of neutrality and that's why the court  fine as counsel as indicated today and in the reply brief all new york had it had presented to the chord were general generalized opinions about generally the riskiness of worship services there is no evidence again nowhere near the detail and copious nature of the state's evidence going point by point saying grocery shopping here's why grocery shopping poses a less risk under generally  accepted epidemiological principles and as for narrow tailoring interest scrutiny new york didn't even attempt to argue that before the supreme court of least restrictive alternative or narrow tailoring those phrases don't or don't eat didn't even appear in new york briefing and certainly they didn't provide any evidence explaining why again that those severely the severely harsh restrictions that singled out worship services well your honor the district court made a host of factual file ending which are entitled to a higher standard of review clearer or or abuse of discretion so for example the district court found as a matter of fact that there were outbreaks i had to worship services in california including through the fall and into the winter and that plaintiff didn't rebut or take issue with those those examples district court also found that there was no evidence in the record of any outbreaks in any other industries civically job site places of employment or some of the  district court found that in the past the state had attempted to impose less restrictive alternative beginning in may the state losing the restrictions and and but age twenty five valleys similar to roman catholic diocese there was this again wide gulf between the onerous restrictions on houses of worship in about it was fifty per cent indoor and outdoor whereas a broad range of thousands and thousands of people gathered together so it was really wide goals between the rich the owners restrictions on worship services and really permissive restrictions for a whole host of secular activities that  led the court to find discrimination and all know that in california nearly all of the restrictions that nevada identified again jim's restaurants bars as you know call for does not regulate but all that nearly all of those activities are already prohibited under the regional stay at home order and are certainly receive more stringent capacity limits under the blueprint valley did identify retail but there's no indication that the opposition strict scrutiny and the finding of this communication in that phase was soley based on retail and in indeed california restricts retail more stringently certainly than new york did which again there was no restriction but also more more stringently than nevada did at present under the regional stay at home or to retail is subject to a twenty percent and hospitals are so impacted that any amount of indoor worship regardless of the size of the building regardless as to whether of masks or distancing or increase i understand that but respect believe this isn't a stream situation that the state finds itself in especially right now given the surge and unfortunately we're going by what the experts have have opined about that in these in these really impacted struggling counties regardless of the size of the building indoor worship services simply poses to greater risk masking distant things stand aren't arguing that they should just be allowed to hold five person worship services distin fifty feet apart in their and their large sanctuary rather plainness alternative that they're proposing that they presented to the district board and there is this report made findings about was unlimited numbers of words of worship services i suppose soley kept to the fire code capacity so plaintiffs are arguing that you know a five person narrowly tailored argument and so it's up over nothing we have to ask well this state prohibit asian on indoor worship is that really the best that can be offered when compared with and i guess we've been talking about the history stories in retail malls i've done i made my way through the decorations i don't pretend that i understood everything that was discus the decorations but they didn't and me an m d when i left school it is it really the case in that the evidence of outbreaks from places of worship appear to be more addict total than scientific that may be just kind of where we are in an evolving situation but is erode the best that can be offered up or indoor worship is not really narrowly tailor your hon that in the supreme court the supreme court did find it may be the case that there are you know percentage of cops could be less restrictive alternative but the denver supreme court didn't have the evidence that the state was it's hard to believe that capacity cops wouldn't be sufficient unfortunately that's what the science what the state's evidence of the supreme court was not did not have before it confirms that capacity limit insufficient to curb the spread in these really highly impacted counties and that the states experience earlier in the pandemic also corroborates that and that's what the district or this report in south bend also does this report in the harvest rock matter found as well but unfortunately this is the least restrictive the alternative to shut down indoor worship in these highly impacted counties grocery stores and retail stores are subject to are permitted indoors subject to percentage cop and other alternative restrictions the on the percentage because the transmission risk is less than in large indoor gatherings and the state's experts confirm that they explain why you know when shopping in retail stores or grocery stores interactions among patrons is fleeting and transitory not enough for objects is exceedingly rare in this virus and that's that's not me saying about it but that's what the states experts have of the issue about touching different objects throughout a store that doesn't pose a great risk and that's not how this virus transmits in the vast majority of instances the way that it transmits and this is how the state's restrictions are tailored the way that it transmits its person to person contact and the transmission is far more likely to occur when people are seated next to each other for an extended period of time in the same general proximity as they are in the indoor activities like concerts like lectures and like worship services  just a hit on a couple points closing counsel had raised suggesting that dr dog auto's a declaration engages in this comparative risk analysis that is not supported by ear and all know that if we discuss this in our brief but in situations where there might be medical or scientific uncertainty substantial deference not wholesale deference but substantial deference is warranted so the government's politically accountable public health officials who are making decisions you know even if there is some medical or scientific uncertainty and this principle has been applied for over one hundred years it does not stem from the jacobson versus massachusetts case it is that it is not applied only in cases of emergency it applies in a non emergency context even in context where individual liberties our at state and we've cited the of i have no no response to that i know that the majority of the supreme court even in roman catholic signed on to this principle of substantial not wholesale but substantial deference just as calvin on his concurring opinion would just like to address the balance of equities which the plaintiffs characterize in their reply brief as an irrelevant inquiry that simply is not true it is one of that there is some harm by plaintiffs not being able to worship indoors is out that harm is out outweighs the harm and the great harm that that the state would suffer and great harm to the public interest know and it's quite remarkable that that they dismiss it in that way especially given the really horrible wing grimaces surge of of infections hospitalizations and deaths that are occurring right now in san diego where plaintiffs church is located there is no i c u availability and that's not just for coated you know serious coated infections that also affects heart attack car accidents other serious illnesses an injury that impacts the public as well there are as we discussed earlier and there are the state has presented unrebutted evidence of outbreaks t and doesn't independently regulate in what it does is it incorporates states in the street guidance so the county aren't tracks the states are and in all respects but there is just one point that i want to raise which is epidemiology new york department of health in the brief of the american medical association that what with particularly at risk and the church is more riskier than other secular it is in their view in their medical opinions for large groups of people gathering speaking singing book proximity indoors extended periods of time on like other themes if they mention in terms of the risk factors bike shops liquor stores are not not as risky that analysis with before the bigger infection whatever it might be they don't consider the constitutional implications the founders put their job in your capable hands your honor because you stand in the breach when the people and the government officials are constitutional rights like whether it's compelling government purpose which is part of the factors that you look at is not as compelling now as it was in march we're not seen as not serious well the supreme court in the roman catholic diocese case the narrow tailor are i don't see how your argument about maybe it's not that bad helps you at all with regard to the narrow tailored issue i just want to put it in perspective because it's no worse in california  secular businesses are open they cannot justify shutting down the churches on this record because constitutional rights already issue we cited the united states what i want you to focus on and i'd like you to focus on what part of the record you think makes the case that you just argued in so far heard a lot of generalities i did try to struggle through the declaration submitted by the state i did look at dr delgado's declaration of the district court said it didn't so maybe i shouldn't have but i did what do you point is to to make the case that you're arguing that the state's regulations are not narrowly tailored they're not early deal or because they're shutting people out of even though again the hospital capacity in san diego is much better identity as in los angeles so we're asking for is what's happening in los angeles and what is recommended by the center for disease control giving deference t constitutional considerations which the state and his experts the scientists did graduate with a law degree just didn't graduate medical degrees in his eyes for the court's job to say i understand what you're trying to accomplish there is an hour killer way and indeed the least restrictive means is massive and socially just as seen sanitation protocols in ventilation and when that is done churches are certainly the least is c is any other place have anything they can be more well regulated because they have ushers here or they have a minister as opposed to other place of united states and what evidence do you cite for that proposition but i'm trying to get to your honor for the purposes of my own client your church has been open and they have not had one infection and so it's hard to prove a negative them all i could tell you well that that's a data point but not one that really can be investigated so i understand that th have to worship indoors by their doctors are being shut out of their churches as the courts in brooklyn diocese even a minimal restriction on constitutional rights for people to worship is not susceptible and that's exactly what's going on up and down this day where millions of people including of course northern california it's very difficult to worship health boards of the denver jurors and in the thirty's as i'm sure that it is my brother is in illinois and they had an outdoor service on christmas day i'm pretty confident the conditions in outside of chicago illinois are worse than they are in san diego so they are but i was there with my family this morning i was in the forty's when a little baby there i wasn't comfortable but we did it but you know what we should not have to be treated in disfavored way your honor again when people are shopping to temper that's the issue as the disfavored issue that we're trying to focus on and that's why i appreciate any references you can give me the evidence that really speaks to that i mean there hasn't been evidence of of prejudice to mean that the miami case you guide this thing in the background of this is a disfavored faith there's meant no suggestion of that here so we're just trying to figure out ok let's look at what the state done does that reflect some negative treatment and what we're asking for the united states being pointed you don't need to have the specific statements you like your governor cuomo making could have been taken as being prejudicial of people of the jewish faith we did his name is made by governor newsom in a press conference that it's a basically a hybrid ward in a low risk situation where as of the implication churches are not high enough reward which is what justice on words it said in his going current opinion of brooklyn diocese at the end of the day basically the state does not consider what happens in churches as essential as what happens in these secular places and if  bad that people cannot worship indoors in church then they should probably have to call ahead and order the groups who are going to dance and have curbside service you cannot justify keeping people out of churches by the millions in california well i think we can watch t v as it is the people i speak in really one would expect some singing we saw people in here this reach marching and chanting on television with the protest and those were encouraged by our government officials and house get hit by a car this is a relatively small risk a serious risk if you're over seventy you have gomer biddies to be sure but for most people there is no problem with going to church and worshipping same please long as you follow the protocols no risk when they looked at church services and seventeen thousand churches a one million people five inadvertent infections that caused the spreading and by the way if churches have this three or more infections they have to report it and the government