for his best language from the new berlin case on the principle that religious selection of or loop a codified free exercise law and i had the benefit of sitting in the back and be able to ask the question well let me answer it anyway second ground on which the plaintiffs are taught the trigger that this individual is excessive it's part of the loop that's the commerce clause and you haven't heard about that because it's not involved in the other case so i'd like to begin by discussing the commerce clause cannot be because as we've said in our brief this section not contains what's known as a jurisdictional element jurisdictional element as the supreme court has explained to us is a provision it says the statute only applies in so far as the commerce power would provide congress with authority to enact the statute so you can see that by definition the statute has to be facially constitutional the statute only by its own terms applies as far as the thirty five zero eight that was a federal firearms statute a statute that made it unlawful for a person who subject to a domestic violence restraining order to possess interest in or effecting interstate commerce any just say two things about it one is that just records is that congress was commerce power because this structure regulates land use law and not economic conduct well again the court ignored the effect of the jurisdictional element so i'm not sure you're getting very far by asking us to dive into i don't think there's any debate on the fact that a jurisdictional element is sufficient to render a stature within congress  argument all right on the law you have a limited amount of time section five well actually there's really not much more to say about section five mr trainset it the two points are that the statute codified what the free exercise clause already provide congress found in the statute and we've been through this perhaps i should just sit down and reserve my time for a bottle that might be like thank chasing this church out of the downtown area they have looked for a long time and as has been suggested there's only so much time that courts will allow churches to look for particular properties before they deem the used to be before they deem the burden imposed by the on availability of that property attributable to the government to be substantial and basically that's effectively what ended up happening to be sure this church started out downtown and what the city has give to the fact that the religious institution has a particular ministry and that's kings ministers two kinds of the most unfortunate segment of society how much does that weigh in the equation what's your ahead and change your ministry in this particular case you have a particular church that has as it were a vocation just serve the downtown community that's their raison d'tre that's why they exist that's why they're there that's that's been their goal from the beginning and it continues to be in that regard it's just i mean frankly it runs to a sort of a very high level of generality baseline propositions of first amendment law regarding the ability of government to interfere with questions of religious mission i mean  emphasizes that this is not and it cannot be interpreted as a matter of status group it does not respect and protect religious status that structure instead what it protect is religious exercise religious uses and indeed religious uses nothing other than zoning jargon for religious texts as it takes place on land so basically if there is a denial and so the footnote in west yesterday points out in accordance with the legislative history that the denial even by religious it here into first of all short of an absolute prohibition but it's still at a high level generality so the question becomes how to give them more content one way is the way that congress suggested specifically and that is to look at supreme court precedent itself which  under any available standard including the one that judge wilson articulated we would we would why is that this is unique land can't you go somewhere else and you know i have to explain why it is that i believe that it's consistent that it violates even the additional standard case those two standards if the court chose to apply them both it would yield the same results i do think that judge well since standard is perhaps broader than it needs to be i'm not saying that it's wrong i thought i was going to actually question why shouldn't we is quoting from this from a document of the city there were no vacant buildings in the downtown lake elsinore vicinity that were suitable or available for the church to make and buildings that wasn't the question the question is is there vacant is there property could buildings there is also the further evidence undisputed in the record of the churches indeed relentless search for a for a place downtown and again you know how many years do they have to keep searching before  before the conclusion paused if i could take a few moments to comment on the existing standard regarding individualized assessments and there hasn't been any talk yet about this court's decision in the thornburgh case that case elaborated authoritatively and remains a lot of the circuit on the is a general principle here now he cannot be the case that zoning laws are singularly exempt from that general principle the supreme court has not said otherwise in city of bernie it may be that in any particular applicable except that the exception from the general rule of smith for systems of individualized assessments is not another way of talking about discrimination to be sure substantial burden claims when they are triggered by a system of individualized assessments are situations where there is both a high risk of discrimination as well as an easy ability to cloak discrimination and again judge posner has been especially helpful in clarifying this distinction in the  neutral on their face but nonetheless be applied in a way applied in a way that extends benefits to uses other than religious uses but with withhold them from religious uses so for example to take the example what is the system of individualized assessments here it's the application process there is a general rule as it were cross the born of particular zone no houses of worship allowed here and indeed you know only so many uses are allowed and then certain of them are allowed pursuant to a conditional basis in thornburgh for rejecting the plain there was that there was a highly discretionary case by case application driven process and that because that process was found the court applied that standard under the free subsequent to that the city of look else in our filed a motion for remained and in that motion we argued that because the morgan hill decision in before this court was we believe contrary to th and that motion was summarily deny there was an explanation i do believe that was a panel decision on the motion and incidentally was opposed by elsinore christian center and the united states so it was a contested motion i think that goes to one of the problems with luke but i'd like to get into that in a minute on the forstmann clause issue but if i may do me just close the loop on the remain this do our particular concern was just wilson's opinion noted the district court did not apply to our case and he he felt that under the rule loop a substantial burden analysis essentially anything any in favor of a land use result that affects a religious entity is going to be deemed a substantial bur and we believe that the court's opinion in morgan hill takes a very different approach and is much more protective of the delivery of local officials who apply land use laws so i think that is a viable course of action what constitutes a substantial burden is really difficult i think for the district courts for us and for the practitioners and it would be helpful if we could fashion a definition after stance of burden that could help the district courts to decide these cases look about having to do an ad hoc individualized you know kind of ad hoc decision each time so what would be your if you would if you had to look at  in smith and a dialogue between the majority opinion and the dissenting opinions and in smith the majority laid down a bright line standard with respect to neutral laws in general it's like ability we're we're going to apply rational basis review regardless of any incidental effect on religious entities on the other side of the line if we have a law that has a good cause exemption such line rule and it was the stand disagreed the dissent in smith felt that the strict scrutiny standard should apply any time a local government makes an individual assessment that puts a burden on a religious entity and the majority opinion cautioned that if that were the law then a whole range of state laws would be subject to a religious exemption and the smith opinion a being able to distinguish when there's there's going to be a need for an exemption or not and in response to that and this isn't footnote five of the smith case the majority opinion said we recognize that judges do have the ability to look at these situations and and carefully balance as best they can where we have a substantial burden where we have important state interests and whether it's going to be a compelling interest and and we don't think that this what they call the parade of horribles is necessarily that we're going to end up with religious institutions being exempt from state laws but the real parade of horribles and this is again a footnote five is we are asking federal judges and i would add local officials to make value judgments about what is a meaningful religious practice and make these very difficult decisions about what is a substantial burden on a religious entity in the land use context or under the free exercise clause if you accepted the church's arguments in this case strict scrutiny doesn't just apply under whoop up to the landis their argument is is constitutional  which applies to health and safety codes and a whole manner of the state laws so under the church's position here you have what we view is an excessive entanglement with religion and you're asking  this how would you define substantial burden in light of the supreme court jurisprudence which are lupus specifically incorporated and how president morgan hill how would you shake a definition and certainly that's what judge wilson said we would think that would be an appropriate standard but i think we're starting to get in or at least i'm starting to get into how would we rewrite this legislation to make it better no we are going to be a fine how do you determine to decide this case land use decision would only be a substantial burden if it renders what the church is trying to accomplish with the application and practicable and that simply the existence of an unfavorable we we believe this now and saying wing local governments and the federal courts into determinations of what are appropriate religious practices and what are meaningful practices and if i could i'd like to lay out briefly the  and what it does is it uses the term individual assessments in the statute not individual exemptions and this is really the key dispositive point on the constitutional issue the church conten in their briefs and i believe they repeated it today as has the department of justice or any their position is that there's no difference between an individual assessment and an individualized exemption that the senate he said in every speech two terms are interchangeable and they do appear in smith and again in hialeah but these are two entirely different things and one only has to look to sneath so i appreciate understand the importance between a governmental apply to the area that you're trying to affect the land use way i don't believe that that is what the court in smith had in mind when they created a strict scrutiny review for good cause exemption now because what they're looking at is a good cause scenario where a state official is looking into an individual's personal beliefs in determining whether they have good cause not to work on saturday  looseness church has a good thing police say the word of god has called them to this particular location they did attempt to make that argument and judge wilson felt that that was inconsistent with their other arguments that with what the rule was laid down in the district court morgan hill standard which he said was a different standard and in his view had applied a pretty real substantial burden standard ultimately that district court opinion in morgan hill was affirmed by th court so we believe that is now the ninth circuit standard so we think you apply the wrong standard and our view is that if this case is to be remanded we believe that he will following the correct standard find that there is no or that may not have a building or the land correct i am not sure how to construe vacant in this context and it that's the party stipulation but if if we were to go back and re man i think there might be an opportunity for each side to clarify what the facts are with respect to alternative size but i think but the important distinction with the would be judge wilson would be making that analysis under the correct substantial burden standard so that's one way for the court to go but we think alternatively the court doesn't have to do that we believe the statute is unconstitutional for the three reasons express and if if it isn't constitutional and it didn't even have to be dealing with the substantial burden standard are overturning sneath and now placing a whole host of state laws under the strict scrutiny standard which was not the case under the free exercise years prudence that is not written proportional defect in the statute because the jurisdictional element only relates to the second necessary element under the commerce clause analysis the first being is this even an economic activity and if the answer is then the jurisdictional element is not going to save you because that simply goes to the second part of the analysis which is whether there's an effect on interstate commerce so that's what the jurisdictional element does is it requires the court on a case by case basis to look at that second prong  that well we debated it so and so in our view it's very clear that what the congress is doing is regulating state land use law itself and if you could do that then you could do all of the things or many of the things that the supreme court instinet said were impermissible that we should not have  doesn't change it just applies to the zoning context second assessments and exceptions there's no difference there the real question is whether the statute gives standardless discretion that invites consideration of religious reasons that's what's at issue system of individual eyes assessments required strict scrutiny so it's not just about unemployment compensation finally just rolls and you ask about the just the language of the generally applicable system on the one hand and individualized assessments on the other