section forty no to g unconstitutionally discriminates against mr hanssen his religious beliefs i think we need to get an overview of what is happening here the reason for the exemption from social security that in questions and in this case for you know two g is to balance competing interests on the one hand you have the social security the government says we need to have social security we need to take care of people so that destitute and we need to program how do you balance these two competing interests in the way that the the fourth you know acute attempts to do that is to say well ok we're going to let you have this religious belief and not be in social security if your religion has its own welfare program and if it's takes care of people so that they don't become a burden on the public rolls when they're not involved in social security now the trouble is that the exemption is drawn in such a way that is applied in this case it discriminates between religions who provide for their people and who provide and who don't believe in social security in other words in this case we believe that all religions who don't believe in social security and who provide for their people should be exempted and that was the rule that was announced in the gross case they kept saying there's no discrimination here no discrimination here but the trouble with that is that there was there is discrimination in this case and rose there wasn't that didn't come up the unconstitutionality of the part of the just the exemption that were challenging was not talked the marriage we each make the argument that that at this stage we shouldn't be looking any further the most put in front of us in the form of the complaint and and yet it's not going to take a whole lot of investigation to cause any find fact to reach a different conclusion than the one you just offered i mean you've offered up bits and pieces of speeches that date back many years and you've tried to link yourself to a different requirement to a different religious group in an effort to get over the problem that it's pretty apparent that the l d s church does not in fact oppose social security so i'm sorry arm but your arm may not have looked at the statement by president grant who said we are opposed to social security because it's authe that was made in one thousand thirty six the same year the social security came out and since that time there's been several of our apostles who have said including president romney and president benson and president he claimed they say these pension programs living off the government being idle are against our religion and that's not really the question here the question here is as we pointed out in our reply brief is what does mr hanson understand his religion to be if he has any basis for saying this based on this court is not in the business of interpretating scripture is what it says so if he says this is what i understand my religion to be then that's that's all it takes going to be that's a plenty of reason for that that's not what we're for a two g says you have an argument with regard to the validity of for a two g but that at least it appears to be a legitimate question with regard to whether this qualification of for a fourteen zero two g and i take your answer to be a suggestion that you're not emphasizing whether you actually qualify with the regulation as written like you're emphasizing whether the regulations written can be sustained is for a two gs pretty clear in terms of requiring some kind of established religion not simply an individual and he can have that understanding of belief certainly we've presented evidence to the court that there's plenty of evidence within the l d s church that says if a member reads these things that have been written by the apostles and prophets of our church and says yeah that looks to me like social security is it's against my religion and that's what's required the court can't get into whether or not he believes one thing and somebody else in the l d s church believes another thing the question is what does he believe based on his belief based on this the official pronouncements  the church and we presented plenty of evidence that the official pronouncements of the church beginning in one nine hundred thirty six the same year that the towns and act was passed are that the social security is bad and that we should depend upon ourselves and upon our church and not upon the government that's that's a consistent theme throughout especially the statements by president romney and by president benson that say don't don't live off the government to support yourself and we have this welfare system to back that up that's a that's quite different from paying tax pardon me i mean accepting benefits is quite different from bank tax accepting that is different from paying tax yes yes you know if you can impose a welfare pension system and say yes but i believe that the government may lawfully co decide however i'm not the question here is whether or not the exemption and i want to get into that the issue of the exemption says you have to both not believe in in public insurance or in private insurance in the that says you don't believe in private insurance as that is the issue upon which judge dawson in the lower court ruled against mr hanson he said well you don't believe you don't believe the private insurance is wrong and therefore you lose that issue right there is  issue here today whether or not the court can discriminate in that way the amish qualify the amish have they have welfare system that takes care of their people they have a religious belief against social security and the but we don't get out so the government is discriminating between the amish and the l d s people obvious people get out l d s people don't why not because it says well you have to have you have to have this belief that private insurance is no good either that's  court to use to state that this law is unconstitutional we haven't asked for an injunction if the law is unconstitutional the government can't enforce it we haven't asked for an injunction we've just said look we want you to tell us whether or not this was unconstitutional as your complaint allege that your client has paid this to the complaint alleges and i have a yes or no  allege that your client is actually paid this tax and if let's assume there's a moment that it does not ok at this point in the litigation there's any lack standing to bring this cla factually pena we're here on the rule twelve the dismissal right we have to look to your complaint right doesn't a complaint ordinarily when you're attacking a tax say that you paid the tax  i don't have it here with me your honor that's you i don't have the complaint here that was what was shown in court and what yet the complaint said i applied for an exemption and i was denied i know it says that your view on the rule twelve the dismissal and comes from the fact that it was it was demonstrated in the lower court that he's a partner in a law firm and that he applied for a fourteen zero two exemption and it was denied therefore the government has said you have to pay this tax and he's saying i don't think that i should because of these religious beliefs i think that raises the question sufficiently it does raise a question it's obvious that the governor says he has to pay the tax and he's saying i don't think i should that's that raises the question much time do i have you down to about three and a half minutes would you like to say some time or rebuttal i would you can use the time as you wish i would also explain this in twenty seconds for the thank you for your argument we'll hear from the treasury department at this time imagine that if i noticed a deficiency was ever issued we would know about it but whether somewhere out in the government certainly nothing has been communicated to us but even if anyone had ever been conclude otherwise the panel can conclude otherwise and we do address the merits which the government's response to the argument mr hanson makes of less restrictive means specifically the requirement that he not only oppose public disability benefits but private as well well the first restrictive means test doesn't apply to the stamp was meant clause as i understand that he's waived any requirement of public on the public and the requirement of opposing both public and private insurance i discriminate against those who are only a part of the public insurance governments you we should not reach the issue let's assume we do i mean the notion of something raise the reply brief for the for the first time constitutes a waiver is a discretionary doctrin can especially if it's an issue of law look to the issue and resolve the issue arc least was clear on that point what's the government's position with regard to the other fourteen zero two g s requirement that the opposition not only be the public insurance but the private insurance is not the least restrictive me wife and i think that and i understood that the well i think the it's one of the requirements of the free exercise test is that the statute is narrowly tailored to achieve the government's interest and i think  test because one of the purposes of the purpose one of the purposes of the statute is to protect these security system the government have a legitimate interest not challenging the tax itself he's challenging the fact that he was denied an exemption from the tax what's the effect of being denied exemption for the estimated tax well i mean it's not but he's not saying  overall is unconstitutional he's just saying that i'm not getting the exemption that i deserve because i know that if you prevail in this you'll prevent the federal government liking taxes from your client and will also prevent that federal government having to support him because he's waived any that's exactly what happened is that it went through the tax court and then it came to us why don't you have around thirty under dros he was the night an exemption judgment act appears to carve out general tax actions man i don't think you can you can answer those objections by the government to whether we have jurisdiction by saying well we've got no other remedy when in fact there is another remedy you just don't want to do that one for some reason so why isn't the anti injunction act of active here to to bar your action well i'm thinking that when there is a constitutional violation of the first amendment that we can go to district court and say this is a constitutional violation i want to determination of  injunction act doesn't say that you can't enjoin first amendment violation that says you can't join the collection of taxes so he's not asked his asking them he's asking the court to say that he's entitled to an exemption that's what he's asking for he's not asking you to enjoin the tax now one other point they keep saying that we waive the argument below we raise the issue of the private insurance versus public and the law that is  free exercise clause argument and this as this court has pointed out it isn't the government's choice is not if it's not the least restrictive means they don't have any compelling interest in this case and making sure that somebody doesn't believe in private insurance there's no reason for the government to to to have that position they can't demonstrate they have the burden to demonstrate that they have compelling answers and they have a burden to demonstrate on the religious freedom restoration act that