is it really possible and i would states of america that some religions are second class religion and that's clearly what happens here gospel missions because of the fact that it chooses as a matter of its core religious beliefs to go out into the community and onto the true forty four to one power the board to publish the results of any investigation or i just need i know the section number but we sent a remand only for forty four point zero zero b m g why would that be included in the  sent to the district court in which the question is i understand it is whether or not the overt read doctrine applies i don't see how one can discuss whether or not overwrite the plies without looking to see what exactly happened when this ordinance interacts with people in the real world but your argument is one this relies upon the free exercise an establishment clause or of the over breath law essentially says that it's the free speech extend the over breath doctrine into the free speech and establishment cla i think that is a good point i think vagueness would be a better word for me here it clearly is not clear what will happen to you if you fall into this category of churches who have to come in front of the city of los angeles and provide all this information it says that you are subject to investigation it says that the it runs also the investigation we publicize efficient all of these things happen and some vague and nebulous way if you fall into this category you don't really know what's going to happen to you that may mean not much or could mean a very great deal  not a very great deal years ago when they raided their house the gunpoint at several points in the record for instance in this lucas who's most recent deposition she indicates that what they told her in the application was not what she perceived they were their how do they know what it is that they can do and what it is that they can't do their church they're not called upon to hire lawyers in theory in order to ascertain what is allowable and what isn't and yet when you read the statute once you get sucked into the process you need a team of lawyers to give you a clue as to what it really is that you can what is it you can't do and surely this indorsement power permits and meet together with the city in order to make the process more efficient what is making more efficient the religion i mean you can even fuck about that the fundamental question here to me is proposition that local shop in the us can model for the degree that the city wants to meddle they want to know everything to the nth degree if they want to know it and if they don't care because of who you are they don't need to do that there's no specific list there's no look at the ninety page questionnaire i got last time for a recall place that month the court sends out that it is nothing like that it's just a few lines and then it says what it will do whatever else you want to do and and good luck it's just an incredibly imprecise process for regulating core religious activity and the activity here is traditional core religious activity there's nothing that could be more core according to many of the things that have been published over the last hundred years on this issue this is and i think that might be a good standard if if the government is going to intervening in religion and do it based on the fact that it's either religion or some other purpose protected by the first amendment i mean every category here whether it's patriotically now when religious or whatever it has the highest level of protection of the first amendment if this law had to do with people asking people for money on a public street the debate might be in my opinion  difficult but as it stands you can ask people on a public street for money for a newspaper and you don't have to fill out any of these forms you don't have to be investigated you know how to sway a hard thousand whether or not you are endorsed which i have to say most of the anywhere in any case having to do with regulating lidge and that's that that can be done and this is not about a general sort of a law like sales tax or wage an hour i mean my recollection is that you can be forced to identify yourself this goes far beyond that and those that wish to bona fides that you are in fact connected with the organization it is recognized that free exercise clause permits some well i don't know whether the single regulation or limitation of some burden on the free exercise we don't get involve i don't think it would be reasonable for it conclude their home address all the city would know the home address but people shouldn't have to risk to be vilified by someone who did unlike what you're saying so to prove your identity to prove that you have some association i there is your theory that there is such an entanglement of city bureaucracy in the in the licensure process that it violates the free exercise yeah i mean this goes far beyond the very important duty of the government to determine whether or not i'm safe driver i mean this is a constant every year review open ended of all the documents nobody asked me to come down every year for my driver's license and have a physical for documents which is you've got not a section we sent it down for you bring in under your over breath argument and i still don't understand i see how you tired and to the free speech and and and separate and and the makes sense if you think in terms of the impacting freedom of religion either in the for the exercise was a substitute present to class but i don't see how it ties into the free speech part of the first and i and i'm i'm asking a question do you try and turn try to tie it into the free speech part of the first amendment and if so how does that work with your  free speech because what happens here is that you have a system that does not regulate a general category of speech devoid of philosophical intent or meaning like are you asking people for money it's specifically limit it's laws application to either asking people for money for patriotic for religious well in our case religious even other words and use or for  value the police officer has to listen to the person who's attempting to proselytize their religious beliefs in order to determine well this person selling newspapers is this person asking for money for states to go to las the person's talking about all the case law seems to me to be saying that any time you have the government require you to listen at great length or significant length to determine what's being said and then some people are in trouble and some people can go ahead and  talking but that requires scrutiny and the least restrictive means ok finest in your argument the same argument you use under the free exercise clause automatically also applies to the free speech get one other question is troubling to me and i think we may have we may have overlooked something the first time i want to make sure there's an equal protection issue when we remanded this the district court  court state stated that but that issue has been waived because it wasn't a complaint it was not in the moving papers and so therefore the equal protection clause was never raised and it was waived now if that's true we probably should not have sen it back down to the district court to talk about the discourse was kind enough to go ahead and do it but i want to find out if the district court was correct in its waiver is it true that as a district court said that the equal protection clause was i did not want to find do you agree with the district court that if it was not brought up in the complaint in the moving papers it would be waived for purposes of this appeal  i'm not sure that i know the law in that area clearly enough to agree to that or not agree and i can't see anybody else migrating to ordinarily it is an error it was never brought up in a complaint not in a moving papers it's not sat you something this way even doesn't come up on appeal correct i remember in fact we don't have all of this on the record unfortunately because i think it's well i'm not sure if the can i don't have it with me let's put it that way but if you peruse the complaint in this case there was nothing mentioned about equal man are you there i think the nuance might have been as the district court of indicated they were not addressing it with reference to the definitions of very big and charitable but only as to another directly to the equal protection argument that i think was just not argued minute ago i think we ought to focus on that for a moment it is the argument as i understand it that mr fassbender is making regarding between members of an organization for example if you have a church and you're passing the plate this regulation would not cover that type of a solicitation it would not cover for example if you're an elf lives in this soliciting money from the members for ly pass the plate we can't because they don't have enough money therefore other organizations that and i say that don't have to solicit from members of their morning own organization  suspect classification when it involves the religious issue it's not a suspect classification even though it turns out that many relate to a religious organization  not being a suspect class but first of all remember that even before you get to a suspect class we have to show some kind of disparate treatment disparate effect there was no intent by the city for example through harm gospel missions or any other organization this is an exemption an exemption that is in the law and there's a very good reason why the exemption is in the law i think justice good one mentioned earlier about cantwell vers s connecticut and can't will person connecticut to connecticut is very telling for example the court states three ten at three or five the general regulation of the public interest of solicitation which does not involve any religious test and  not unreasonably if parker delay the collection of funds is not open to any constitutional objection even though the collection be for religious purposes such regulation would not constitute a prohibited previous restraint on the free exercise of religion or  says and other cases it's progeny say that the government the city can go out and they can adopt regulations to protect members of the public from home from people who solicit charitable and religious fines and why can they do that are religions are not a suspect class and therefore you get to whether or not there's a rational aerated legitimate state interest and that the rational basis test that's right in this instance there was a reason for the whole the whole reason there's a problem assuming there's some kind of a problem and that is because of the exemption the exemption effectively creates two different categories but the exemption itself is consistent with cantwell because cantwell says protect yourself from strangers in the in the public in this instance the else clause a church or any other kind of private organization the soliciting funds from its own members would not be protecting would not be protecting members of the public and to  dictionary clearly indicated that the the charitable within the something that charitable includes religious so is that it for religious purposes is listening for charitable purposes so we can go on and we can talk about i don't think we're worried about that kind of a definition and it seems to me that the overbred point is goes to the discretionary enforcement of whoever the with with this ordinance is seems to me raises a question of where do you draw the line between the city's right to reasonable time place and manner regulation of of nonmembers keeping the cyber listening of of your own membership know no government has a right to interfere with that but soliciting nonmembers if the owner can't well city has a right to do put some burden on it where do you draw the line and how how much of a bird a ten page questionnaire or a one page i declared application you know if you want us to write  to have some input from both sides as to what where you think the line out of iraq but first i think the court was on the right track in the proceeding decision issued in may of two thousand three where it limited this case to charitable and solicitation those two sections we start talking about i think and i understand your question where do you draw the line is for example requiring that the results of an activity after years of soliciting which is required by the city in another section of the ordinance that's not under review by this or many of those sections you may recall that we've gone through for the last few years were  court stated that the plaintiffs in this case could not bring them up or issue preclusion a claim preclusion reasons for the most part some of the sections that were alluding to accounting procedures requiring certain information this those are sections which this court has already stated we will not review we are not reviewing those most of those kinds of questions that's why we're left with only these few questions regarding you know them the question of aching us it is it is usually in a case where like your honor just mentioned that a police officer doesn't that it's so vague that it could be they have discretion a massive amount of discretion to enforce it here there's no discretion there are in their brief concede that the term includes religion their concern is that it does conclude religion they say because it includes religion or religion is a protected class they somehow feel that  frankly that they're above all other organizations and just as we read a camp well first as connecticut we know that that's not the case this is a very reasonable ordinance it's a ministerial kind of orders there's no discretion whatsoever in the people who implemented either it is charitable or it is not charitable with the definitions or frankly there are very clear cut it is not like you have and i think in some of the cases where an approved religion or well those are the kinds of cases that an approved charitable organization where indeed there was were indeed there was a great deal of discretion  to the governmental entities to decide whether what they would or would not license was a good religion or a good charitable organization this is not the same thing here we've defined we're defining what charitable is and we  had that's why i took your points and we don't have to record since i think we do it just to try to illustrate the point i think if we you know now it's tax time or the fifteenth we're all going to file tax forms and of that section that i think it's  but they don't know that when they define a lot more specifically well i think they're doing is that what the normal person on the street think of charitable and if they go to the ordinance to look at it and if they look in a dictionary to find out what charitable means i think they get the point it includes activities that are charitable and i think most people think that religious organizations have a thread certainly if that's your ability in their hearts and in their churches and so forth but in this case remember notice pleading i don't think that you can read the complaint in its entirety and not have the sense that we thought that they were being treated differently in a way that was unfair fundamentally and it violated their constitutional rights if you go t maintain a constant survey of the field of charities which you would have to read and according to them that would listen so i read it to maintain a constant survey of the field of religions with regard to the need of the work to be done in order to secure intelligent cooperation among all you said that all this applied to churches that didn't solicit on the street but rather solicited in their own church i think we got here in a second and i didn't take the liberty of recently in preparing for this i thought an interesting question to go to west law and lexus and look and see how did cases arise about fraud and i do influence and solicitation for religions and my research using a variety of search words religion fraud and to influence virtually every case involved a typical mainstream church where in the past the minister priest rabbi whatever was accused of having and do influence or defrauding a member who had a lot of money this kind of fund raising on the street there's not a shred of evidence that's been produced that would justify any sort of strict scrutiny strict scrutiny can even come close i don't think i mean a proven nothing to indicate that this is a particular danger to the community in any way shape or form over more traditional larger churches with a big church building i mean that's just an assumption that's made and i know that the standard if it's rational basis is pretty low but i don't think it even means that especially if you actually look at the cases  know like traditional american and world why i think religious activity the other thing i would mention is that our point which i agree was not perfectly some sort of a problem here because the only way you can get charity into i mean religion into charity is by using what is number one definition in some older dictionaries and now back i say in the new random house here is back to being the number one definition again which is christian law the second definition typically is the general understanding of what charity is if you get gospel missions into this ordinance by applying christian law then you are  d it in such a way that requires that you allow discrimination against christians as compared to nine christians because the only way they have noticed is because they're engaged in the christian love practice and muslim love wouldn't for the would be covered ho that so i don't think that you can go through the definitions and pick out a definition that would result in an obvious violation of constitutional rights and substitute that instruction that gives you notice when i think you need to have one that gives you notice a right the district court said that he has clear to the district court that religion is the subset of charitable actions that is religion is always under charitable because that's what religion that's a wide variety of activity that's regard to be religious and it is not when you read the wide variety of activity i don't think any corporation is terribly charitable i mean people can have a religion i think in the united