minutes of my time for one very well mr fox mr pros claim presents some important issues to this court at the intersection of race and religion that they test how willing courts are to challenge religious belief on grounds other than sincerity and that's an thompson sincerity is also relevant in the nd question whether substantial burden has imposed indeed under that the circuits precedent sincerity is the touchstone of that test that test turns on the impact on the individual in reversed a lower court's opinion and hold that a substantial burden has been imposed on our clients religious beliefs and we would also ask that this court address the merits of the last prong the compelling interest and least you know i i've been thinking about standards and the legal standards of a rd prong which he never got to are whether the government had a compelling interest and whether they use the least restrictive means to to burden the religion and i mean are those factual issues and that's a conclusion of law in the on this record that that has been fully developed in the bench trial that the necessarily court could necessarily rule on the  evidence the government has proffered in that in that full bench strength of the would we be reviewing the record for the st time with with out a ruling by the the trial judge and i know we probably have discretion if it's a legal matter but it's somewhat unusual for us we usually let the trial judge have the st shot at it and you know give him a little bit of discretion here and i know i actually been debating this point whether we should do it or not or whether we should remain and i mean mean it's a fact and goes into law or do we rule here i think it's more prudent for us to remand it well you're i realize you're rd year law student but i would agree you have a lot of discretion on remand here and that i guess are our biggest concern is that the further we get away from the initial recognition decision the further we get away from the government's actual interests and their genuine interests and so our primary concern is that they'll be a lot of additional legal arguments and a lot of additional justification is proffered in how the government will sort of twist and transform that so that there may be some sort of middle ground to your question where it's not necessarily you you rule on all of it or it's not necessarily don't don't touch it it's but maybe a more limited remained that would specifically address the dr tab in the government to these st interests they've proffered in the st place those custody and those concerns security concerns and so you can actually limit the scope of your dream and and the least restrictive means assume the trial judge through the trial it was a lot more about the functioning of the prisons in michigan than we do at this point and factually how much restrictions are allowed without jeopardizing the security of the prisons i mean that you know that i might want to least least know what he thinks about it i guess before i i understand your concern with the least restrictive means that that necessarily does require some fact is i think that's probably the key to it because i think the prisons do have a compelling interest for security and the this religion which is racist and in beliefs could disrupt the security of the prison but nevertheless they have a they have a right to religious freedom is their least restrictive means to allow them to practice in th setting without totally disrupting the prisons you know if there is i'd like to know what it is i guess but and you bring up a good point your honor that it helps to examine these compelling interests rather than the abstract  generally but specifically on the record and examine and scrutinize the government's i don't insist they proffered in the actual case and don't you want to have an opportunity yourself to respond to the quine of least restrictive manes in the way the policy  structured for the department's policy that they've denied complete recognition at the outset and so there could be no more restrictive means i guess would would be our contention that even you know five minutes of travel time would be less restrictive than what the the prison currently imposes in this matter that they made i mean you only have the two playoffs and it's not a class action just these twenty two dollars gentlemen that want to practice their religion and they perhaps could be shifted around the prisons of michigan to somewhere where it is more secure or they could you know they might be able to make some accommodations like i have but i just don't know and i don't know a practical that is but i mean that's something that could be explored below ok but that question but the magistrate decided this on the nd step piece of there was no substantial burden on the religions and he did so by saying that the other st of all he said praying in a congregation with others of your religion somehow is not important or is not is not religiously important a lot of people go to church and pray with others would be kind of taken aback by the fact that they don't think that the magistrate doesn't think it's important pray with others of your religion and then the other thing was he said the other religions could take the could could accommodate their beliefs do the holidays and your position there is that this religion has a tenet that you have to practice the religion only with people that are true believers  examined the tenants at large and examined and that's exactly what prison officials did here was it was you know the central office in lansing googling our our clients religion and then making this determination of what's really important to them and what what is their main needs what's their primary and core tenets and then looking at those talents and evaluate sort of venn diagram in them with other religions and seeing if they could mash or if they could their needs could be met by existing recognised religions and so that's a motivation  wholly improper of that so how so how what do you can ten the procedures that they should have undertaken to make that determination because if you say they have to look soley to the individual complain to determine what if they're sincerely held belief that clearly in a prison policy could lead to manipulation it could lead to self serving assertions to circumvent some of the security and other issues at the prison for what should have been the test it's a good concern and seventeen then a year later our clients just say well if it's only when they denied the recognition of the religion this is a stage we're talking about the record that's correct ok and if we're looking to the particulars of each case does it not matter that the inability to worship together in this case is not but for caused by the determination about christian identity because  i'm struggling just a little bit with the practicalities of focusing just on these two which is correct what is the sincerity of their belief but they are no longer in the sign facility so how does that work where we are now because they couldn't communally worship together because they're not the same as early in the same facility when they filed the lawsuit when they found the law so yes i think that's kind of important michigan department of corrections are the ones that separate them right that's correct i don't think they can move the case by separating them out of their decisions and that you are the magistrate said well there's no evidence that other people show up for  communal worship but we don't know they posted they posted we're going to have a worship service at eleven o'clock the president or christian identity there may be people wandered in there they're just interested in knowing what's going on they want to convert  churches are open to other people then reckon they see converts and and that's i guess the significance of this young let me understand the last thing you said you think that they cannot even speak with other inmates about their faith that's correct or has it is not because the policy bars is the policy bar them from all of the specific things meeting together being called a out having a location kind of works is that each recognized religion in prison is given a subsidiary of a prisoner's benefit fund they're allowed to sort of advertise that hey we're having the service at this time and they're allowed to you know discuss or meet  uk but are proselytize i guess is the word i would use whereas the policy actually forbids that if you're a member of a non recognized faith forbids you from speaking to other inmates and saying hey would you would you like to join my religion you're saying there's also a st amendment proscription against seeing another inmate in the cafeteria and saying christian identity is my faith and it's matters to my life what i would have to double check the policy on the sat out with i think you might be a little bit less i just the point would be that it's very strongly worded that non recognized faiths don't have legitimacy they don't have necessarily the same rights that other recognized face would have and so that would be the main point that i would want to make i would also like to address just briefly the compelling interests offered by the government in this case so that a deputy director  offered to just occasions the st was security and the nd was custody and the our contention is just that neither those interests are backed up by any substantial evidence or any specific is that because they the policy the policy does not prohibit inmates from discussing their religious beliefs with other inmates in fact the trial record had both plaintiffs discuss as evidence how they have talked to other inmates about their religion be it in their cells or out on the yard and in fact mr fox actually converted to christian identity faith while he was in prison through talking to other inmates who were members of that faith but it bars them from the standard methodology of having a service that fits with their sincere beliefs and having people called out to come to the service if they're not recognized correct your honor that is correct presently the christian identity faith is not formally allowed to meet as a group as other religions that are numerated in the m t o steve policy and there are a large number of twenty yes ma'am there's quite a few religions that are recognised  by the m d o c who are allowed to have group services and other religious holiday find at least two of those have the same sort of separatists not actually not identical to the christian identity how how is the practice of recognition of a group such as a nation of islam different from what's being said by the  petitioners in this case we'll hear the district court made the correct factual determination that the two plaintive have not shown that the prohibition on meeting together as a group is a substantial burden to their practice of their faith in fact that the right applied well and that a problem with with going back to older law i think free exercise law that is not applicable now and the question becomes not whether you can have your faith satisfied in a pretty good way you know you can basically get together in another another approved religions advance or services and their response is we can't do that it's the wrong service they use the wrong bible they have of noxious beliefs we have to meet with our own art isn't that the test the hate test of the dough test the test your honor is correct that the test is out of the  hate substantial pressure on an inherent to modify his behavior to violate his beliefs and the factual determination by the district court was that the plaintiffs in this case did not prove that and reaffirms that it is the burden of the plaintiffs to factually show that their present situation are substantially burdened by the prohibition on group services the testimony at trial by both plaintiffs is replete with evidence that their faith has grown it has matured while they have been in prison all under this pressure prevention of meeting as groups mr perot openly said in his testimony that his christian identity faith education has continued every day while he's been in prison he possesses at least five bibles and religious texts he's a what would be an argument never to certify any religion how can that work you know anyone who who is concerned enough with their faith to ask that it be recognized in the responses you're concerned enough about your faith obviously you're doing ok we don't need to certify but they have to show that the president restriction with that they are contending that they're not allowed to meet as a group is the substantial burden to their practice of their faith and the underlying court determined was a somewhat like the wiccan case where they said well we want to open the doors and allow we don't we disagree some people want to some wiccans want to do communal services and some don't but we want to be able to invite people to a communal service and the court found that that was sufficient here on the record in the trial record the two or at least one of the plaintiffs said they are not a proselytizing faith they don't actively go out and try to seek to recruit other members they're the reason but help me understand what that has to do with their desire to worship communally with those who are christian we honor was just comparing it to the wiccan case where they wanted to recruit more people that is not the case here that according to the trial record these two plaintiffs want to meet communally with other members who are caucasian and separate and apart from other race groups to practice their faith but the death of that in and of itself suggests that they seek to recruit draw or commune with additional people who share that same religious belief it is unclear from the record your honor whether or not that is what they because because your statements right now if they want to meet with other people who share the same and that would suggest that there is a desire to include more people who share that faith and that in those religious services in a communal setting yes your honor how is your argument that communal worship isn't essential to religion and i think that's said and what they want to do is they want two or more people to worship together so that they can have a church wrapped around and here you want to deny them the chance to worship the go your honor in the trial record there is a significant evidence that the amnio see during their analysis of the application of the christian identity faith to be formally recognized which was brought forth by these two plaintiffs looked at similarly face the had  there they don't match up right even though they are the same holidays they are the same holiday it is there they appear to be celebrated on a physical different day but there's no ever that's important to these people  religious belief they say it's important to celebrate the holiday on the right day not some other day and to say well that's just it doesn't matter you don't have to get together and worship together you don't have to celebrate the holidays on the holiday it's hard for me to say that that's not substantial i understand your honor however in the trial testimony from the plaintiffs there was no explanation as to why an alternate day was not acceptable they just you think ok do you think the other mainstream do you think the mainstream christian religions would say that was acceptable to celebrate christmas you know november  something or some other day other than christmas do you think do you think that that would burden the religion your honor respectfully that matters not it will look at the christian calendar doesn't matter a lot and  you know it's very regimented respectfully honors we believe that the underlying district court made the correct factual determination that the plaintiff failed to show a substantial found those steps of burden the rd step is if there is a substantial burden the government's burden not the petitioners the government's burden is to prove a compelling state government interest and that the the clear standard has been met with an incorrect factual determination by the district court thus on the rd the promise about compelling government interest we would ask that you re man for further factual determination because you are correct there is not really any analysis from the underlying district court judge this was a bench trial so we need more development from him because he is a judge griffin highlighted the requirements on m d o c but for placement and time and space allocations are extremely factual heavy determination to be made that should not be made from an extremely high level and there's just not enough information in the underlying record for you all to be able to make a sufficient determination on that fact specially that defendant requests that you uphold the underlying decision thank you all right three to three minutes with i'm thankful i should have a few points your honor just additionally st is that and as far as the least restrictive means issue i just like to point out that the deputy director acknowledge that there's actually three recognized religions within and b o c that aren't allowed group services at all and so i just like to point out that distinction that even if we don't make it to their religious conduct  other in the yard they were to you know have a group of three or four inmates walking around the yard speaking about christian identity and a guard heard them that could be grounds for misconduct because they're discussing an unrecognized faith the last two where in the