right our fourth case for this morning is jones against carter i'll give you a minute to get settlements or craft and then you can come good morning still morning going to judge would may please the court this is not a case where prison has prohibited an inmate from obtaining something that his religion requires so to establish  burden jones had to prove that the cost of purchasing whole meat from the commissary was excessive i ask you whether you think the prison under your theory during passover could charge jewish prisoners for matzah i don't think so under our theory because in that respect it if i understand it would be a different food item so it's not the usual food package that everybody gets during passover it's a religious requirement so could they charge for the massive i would say no because if i'm understanding  my point being that i'm trying to think of something that is a religious sermon to religious requirement during the passover one of the primary things is that the flight from egypt required you know taking the bread that was not yet risen and so it's it's is one of the essential parts of the passover seder involves motsa and so if you don't  think you can charge the prisoners for that essential food which wouldn't otherwise be in a food package and sure i will not that tasty actually that's true i don't know why for mr jones not a class action easy for the prison to do when he says with the endorsement of the ema my version of islam requires me to have some meat why you don't on the understanding that that that was a meal that it was a full nutritious meal that would replace everything out of tricia's meals had any jewish person can eat during passover but pat but during that i think it's an eight day period of time since several day period time in which there is a prescribed set of things that you eat in commemoration of the flight from egypt and so it's a we've just really dictated diet that has nothing to do with nutrition it has everything to do with religious observance if there were the case then i think that the prison could charge so law or require the inmates to at least make reasonable attempts to secure it themselves i think that burden because in holt he either had to shave or he in violation of his religion or he faces serious disciplinary action and hobby lobby that either had to provide contraceptive coverage or they faced massive fine so we don't know here's an interesting thing about these fines the supreme court was not interested in looking into hobby lobby's ability to pay the fine so i don't know as i sit here whether that was one percent of hobby lobby's annual income whether it was forty percent of hobby lobby's annual income or anything else and so if you look at mr jones the record tells us on average he spends about fifty to sixty month at the commissary on all products food hygiene and other such things but he only makes thirty six to seventy to thirty six to forty two months of the shortfall anywhere from eight to eighteen dollars even if he doesn't buy any so he doesn't buy any shampoo he never buys a stamp and so on i'm having trouble if if we're not going to look at ability to pay it seems like the state saying well he can just go buy it himself why couldn't you say to a catholic prisoner we're going to require you during lent to buy i own meat free products on your theory i think that you could you could do that well i there's there's there's another commissary happy to sell you so i know i don't think our theory would allow that and i think  cases has been in this circuit since one thousand nine hundred nutrition whether the inmates forced to choose between adequate nutrition or i'm sorry and eating something that's prohibited by his religion so  offender had to either eat pork in violation of his islamic faith or he had to eat nothing but that is why my passover examples are important because certainly adequate nutrition is one possible way that this is going to come up but there are some religions including judaism but not limited to where the religion also requires you to eat a certain thing and so i don't know why one's religious observation wouldn't be substantially burdened by depriving a person at least in a way that doesn't need to remove a standard so you know there's no you know the venn diagrams overlap substantially but not completely understand but i think that this is goes to the out of the second line if you don't think there's ever any case when it or religion requires the consumption of an item other inmates but requiring him to pay out of power for the meat he seems to need to meet his religious needs wouldn't the prison food limitations effectively excerpt her sure on him to abandon his and religious beliefs and conform to the religious practices that seem to be support  that he's allowed to keep his prisoner suppose he owes money to a court because he's a frequent filer so he every month they take out of his prison account you know four dollars and seventy three cents to continue his payments for his filing fee which is what you can do if you haven't struck out so i mean you're just looking at his account but we don't know what in the hands there are on that account and you're willing to assume that maybe some mention first off the department has mechanisms in place already to judge sort of day to day week to week indigency for purposes of covering legal mailing fees and also for purposes of  the record here doesn't tell us how much the commissary me cost also doesn't tell us how it has to sort of offer a hand oh it's only a few bucks but if that's true he's going to run short every month well and that is just in a stump but i think it's important just as the state has the evidence sherry burden on the compelling interest standard the prisoner has the evidentiary burden on substantial burden on that aspect and comfortable with the rule that would require is to say only indigent defendants have the right to a religiously appropriate diet and that's not the rule we're asking for that's what that's the rule you are asking for it if you have enough money you have to pay for some of the items that make your diet religiously appropriate say only people who are really poor have an actual constitutional right to a religiously appropriate diet that doesn't burden the prison in the slightest on this record no i i'm not saying that what i'm saying is that like to sort of get back to that point about the wealth but you're right supreme court didn't ask whether hobby lobby could afford it but that's because four hundred seventy five million was just so it's not that big you know if you're amazon four hundred seventy five million nothing and i don't frankly i don't know you know where hobby lobby was in this right and there's going to be a point but where might not have been burdensome to hobby lobby but they just said point it looks like a big number to us and so it's enough there's going to be a point at which the cost will be a substantial burden even if the inmate is wealthy but before we can even make that determination we have to know a few things how much does the religious meet cost how much you need to know i'm rejecting the relevance of what you're talking about i don't know why under inmates who can show a bona fide religious practice which is not contested here by the there there is a less restrictive alternative that's available to the state but i don't know why we don't reach that point in this case because it reads the adjective substantial out of statute it asked us whether there's a burden to all of the evidence in this case well first of all it is a substantial burden in so far as a man who earns thirty six to forty two dollars a month who needs eight servings of meat a week is somehow told you have to go by and when i do that's what i'm trying to figure out what other religious practices most of the catholic group you know wants to celebrate communion and they're told well you guys have money in your account you know go out and you know pay for the the materials that are needed for holy communion well i think when used to talk about i mean but the case law is different with the ceremonial foods so you look at the sea and height all through those cases dealt with absolute prohibition of what was wrong there was at the prison refuse the inmates for a few offers so to try to acquire themselves now if the inmates try to acquire it themselves and they can afford it or they can find people to donate it then the substantial burden inquiry becomes more on the prisons shoulders instead of the inmates choice of what to buy with his own money i think it's important to know you remember here that mr john says it is the beard i mean you know you think of the other things that have been found in the cases that any expenditure at all automatically you know exposes told you know there's a five cent co pay you know if you're going to get the whole all the whatever the kosher act anything makes it substantial i think for an inmate like mr jones and this is putting aside martha stewart and someone who is independently wealthy and may have different factual scenario he is substantially burdened because of his source of income his source of income comes from two places one he has to work a job which as a court recognized can be suspended if the facilities on lockdown which happens quite frequently if using moved as he has been in th this litigation or he has depend on charity from the outside and as the tenth circuit recognized in beer had a prisoner under our loop i cannot be forced to rely on the charity of outsiders to paper but nonetheless that subject to the are clearly erroneous standard and the judge here did credit mr jones's testimony and that he is substantially burden because of where his finances come from he difficulty in determining indigenous indigency in this case would be very difficult because of the nature of providing a daily diet three times a day in the variability of his income so basically any time he is on lockdown any time his financial circumstances changed the court or the d o c has to go through this analysis and i think the way they do it in their brief kind of points to the administrative nightmare that this would pose they say you you can't they point to the fact that he spends money on other foods or that he buys jolly ranchers so the they're really saying that the g o c is going to go line by line see what he's spending his money on indetermined indigency that way and that's very different than sort of a one time court filing or determining whether he has enough for postage there's a line here that trying to develop between subsidies subsidizing and then short right at some point when it's going to move over into being subsidy right some juncture the regardless of the individual's determination of how much money they have found they're still going to be have paid for or pay for themselves helpless draw that line why where do you see is drawing  be expected to subsidize that but they are expected to subsidize a religious diet and that's what we're focused on here because the d o c has an obligation to provide a diet for every nutritionally adequate diet for every record but again as i testified there are this is a belief that is held by other muslims we know that sixteen other prisoners are getting these meat based kosher trays on so it's far below and this is one of the facts for why the d l c was not able to allege a compelling governmental interest here in the prisons that do not they didn't get the difficulty arguing that for martha stewart again you'd have to look at her personal finances maybe she has payments to her and she's paying for college for students but again you know if if you have a millionaire or a billionaire i think it's going to be really hard to make that argument which takes me back to i mean there are two ways of looking at this case one is the broad sweep about the state's responsibility to provide religiously appropriate diet when you know it's a genuine face and the other criteria are our present and the other is on a much more granular you know fact basis for this man if you look at the amount of money he earned he's going to run out of money about halfway through each month  to get the diet and does he have to spend down each month to poverty and then get the religious diets or is he has he shown enough to show that he's entitled substantially burdening  see how they approach this issue i think some courts say yes there could be theoretically some prisoners who could that wouldn't be substantially burdened by paying for their religious diet but the vast majority are in  prisoners spend their money on the difficulty of getting those funds in the first place and concluded you know this is this is kind of a hopeless analysis and you know most prisoners are entitled to a religious type free of charge now we don't have any issue and sherry like but you can imagine you know that that would certainly go to the sincerity prong is this really a sincere religious belief but it would also obviously go to the compelling governmental interest on bringing alcohol into prison or share cost of providing a steak so it's all our issue is just to get over this significant burden heart recognizing that the state still has the opportunity to present its affirmative defenses absolutely and that's those where the focus is a focus of the district the dios is argument at the district court level here i know it's only substantial burden and again we have to assume the other two problems are that so for these reasons we believe th show how often she needs it as a matter of religion as opposed to some general sense of fairness and also doesn't say there's nothing in the record about the serving size he needs so we really can't even calculate what it would cost  i think it is important that he purchases other foods any consumer on public assistance has to make a choice as to whether to buy she goes and ramen noodles or they buy the food to fulfill their religious but they are there for reasons unrelated to religion it's because they can't be housed at other facilities for security reasons or health reasons or one of them is a female and for that for all these reasons we think you should