lines defending freedom for new hope family services there are currently twenty thousand children in foster care in the state of new york of whom four thousand in any given time are qualified in waiting for adoption and less than half of those will in  and the faith based agencies are disproportionately helpful because they are of their ability to reach into faith communities which have a demonstrated disproportionate willingness to adopt hard to adopt children such as those of disabilities and those with born with addiction which is a very large problem in today's world i don't understand your adversary at least this time that your placements are done responsibly they just want you to expand the pool of applicants that you consider so why don't you tell us i mean i think you can assume we know some of what you've been emphasizing now what what is your constitutional claim here that you say survives the mo your honor of course in a motion to dismiss is inherently complex i want to i'd like to emphasize two things as does free speech i would say the masters off in briefing to this court the state has now made very clear that it intends and expects the regulation to compel and censor new hope speech i think that claim survives and indeed pullman junction should be entered on the basis of the free speech claim that they're compelling speech so why don't you tell us why you've got a color honor in our complaint we alleged new hopes beliefs about what's faith teachings about marriage and the best interests of children and further alleged the new hope does and wants to teach that message to both birth mothers that it works an adoptive couples that it works with them district court found that on c f s in the regulation quote simply do not compels each that was failing to accept the allegations but more dramatically that finding by the court has since been repudiated by the state in the briefings to this court i would call your honor's attention to their state's brief filed in opposition to our emergency motion for interim relief which is e c f number one hundred and one and there they said the regulation does not restrict new hope speech unrelated to its provision of adoption services and they said the regulation that new hope is not precluded from espousing its beliefs about marriage and family outside the contours of its adoption program well that's fairly plain english and what they're saying there is what we alleged that is the else capable effect of the regulation is to constrain and to compel new hope speech as it deals with birth mothers as it deals with adoptive couples it says no you can't speak about or advocate your christian beliefs about marriage and the best family for children to adoptive parents and birthparents even though they choose to come to you as a very clearly identified christian ministry that that there's really no more denial of the intent to change what new hope can say in the midst of what is its reason for existence how do they try to excuse they they also don't really the state doesn't really defend the district court's finding that all of the hope speech has been expropriated in  three which i understand predates this regulation by many years nevertheless says that you will function in complete cooperation with all existing social welfare agencies once the welfare agency defines the pool of people who are qualified to adopt what are you claiming the right you  cooperate on that point but of course your honor general obligation to cooperate can't be leveraged to accomplish unconstitutional we're claiming that we can reclaim in the my client can't be compelled to bring into the discussion that it has it has group meetings it has prayers that it can't be compelled to engage in discussions of the seem to approve same sex or unmarried couples as consistent with the best interests of children it can't be compelled to preserve those as refer so that if a gay or unmarried couple comes knocking at your door rather than closing it you have to refer them your own of that may present hard questions and i have a thought about it because my client has been happy to do so so whether whether that might be unconstitutional to require one to refer i think there have been cases that have arisen in the bush in context that suggest that requiring one to refer and certainly different cases the say that requiring one to post referral agree to that and i'm not saying we would would you also agree to commit yourselves to referrals of any any gay or unmarried couples sought to adopt with you in the interim yes  i would like in the short time available to point out one other thing that is that the state has admitted that facts alleged by new hope possibly allege animists we allege various facts and statements that i can't recite i'd like to call the court's attention to the state's brief page forty three and forty four when they said of those facts that we alleged they referred to them as quote arguably ambiguous and susceptible of different interpretations i'll take that if it's arguabl pointed out that there is precedent that suggests that if if even a valid neutral law reaches right into the heart of faith and disrupts that that perhaps an answer is no going to be referred to the hosanna taber case we referred to the dictum  in i believe masterpiece cake shop saying well of course the state couldn't require a a faith religious organization a church to perform a same sex wedding even though you can readily imagine a the neutral law that says everybody who is authorized to perform legally valid weddings must perform all legally permitted weddings so i think the answer is not necessarily but we're also happy to we also believe that we've alleged facts and indeed put in facts that meet the requirements of  a charitable function that you typed back historically to faith organizations but is not a required sacrament or ritual of the faith is there a difference there well i certainly don't think that the law can turn on what one church or another or faith or another calls a sacrament the catholics consider marriage a sacrament protestants don't you know what i mean you understand my point here you're not suggesting new new hope  forming of a family that they're facing of a child in the family the formation of the next generation is frankly central to any major faith system it is at the very core in you can kind of go through them and think through the ones even countered at the center so the the religion that seeks to foster well adoption as adoption is a legal thing and adoption is a human thing i suppose or not the same adoption has existed since time  ancient and and faith based organizations have been taking in families in place in them in homes since time age and i expect to put an expert testimony about that very issue at trial but the bottom line i would say is that when you look at who's in a table or when you look at the discussion about performing marriages what those have in common and what other similar cases have in common is they're about this thing at the heart of human existence which is family and the and the formation of the next generation and that is said there's no place in new york for any agency doesn't comply with we've cited them referring to this type of belief as archaic referred to the regulations as are the regulations archaic because they embody exactly this belief which as you well know was the legal requirement until not so long ago so i think i think that in the fall been fairly rapid succession by the statement of the enforcing offer history who says other christian organizations have decided to compromise and stay up and what does that tell you it tells you somebody is keeping track they know who this is a fact and they know what the results are keeping and i know what they're trying to achieve let me ask you mr brooks perhaps if you can recapitulate for us  the timeline of proceedings in the district court because i'd like to know how much you've done in the district court and also ultimately what i'd like to ask you to do is focus on the submission of the complaint submission of the problem injunction motion with attached affidavits response of affidavits which i think as we pointed out the briefs say what they say but don't in fact contradict key facts of the facts are as alleged for that purpose and then  dismissal grants a plumber and instruct the court to end their permanent junction how we proceed with full scale litigation is what we want and on your point i should emphasize that what new hope was happy to agree to as an interim measure just pending this appeal that is we will will move the issue of discrimination with applicants by taking no applicants if that's left in place throughout of discovery and trial period it will kill new hope  see that in writing this time for the new hopes being threatened that a number of faith based organizations disappear off the list of approved organizations well needless to say we'd like to see internal documentation that goes both to actually the formation of this what's what's the proximate cause why do they feel the need for this i think i know the answer but i have a discovery and then one is in force moment target are they out there doing what they did to new hope the faith based agency saying you know what everything's good here and it's all in good order but we need to see your policies and that's what happened to new hope so we'll be looking for evidence of of targeting both in its origin and in its in force meant i think also any allegation that this this policy is furthering is actually furthering any compelling interest something that would need to be showed under strict scrutiny is going to be very difficult for the government to prove and we intend to establish facts we'll just proof further until we turn to the standards view that's settled as a matter of law that is if it's likely that there's a violation of personal and rights that just is irreparable harm and frankly i think the un contradicted facts that that the fact of closure of new hope seeing that is irreparable harm is not is not difficult but it's also not necessary because the law is so clear that any deprivation st memory even on a temporary basis is irreparable harm when i was the you need to show us here or the district court on remand in order to satisfy the likelihood of success let me tell you what i think are the two strongest points on that one in light of the facts alleged and now frankly admitted by the state with regard to speech compulsion of speech in these interactions i think you should find a likelihood of success they say the results of this regulations were free to say whatever we want outside the scope of the ministry that's a major issue i want to understand your freedom of speech you know what the to bring those people into the counseling conference room then new hope would be to have any sort of good faith counseling of them to be prepared to be adoptive parents when new hope believes that they can't be best interest of the child adoptive parents puts new hope in an impossible situation which is why the state's exactly right that if this is compel the new hope is left free to say what it really thinks only outside the scope of its adoption service and if new hope is compelled to do home studies for these folks and evaluate them and as i was you have clearly in turns to recommend these couples to their to the birth mothers who come to them and say help me select a home for my child then that recommendation is contrary to a new hope believed to be true according to the teachings of its faith to believe that cannot be in the best interests of the child so that's that's that's really the compelled speech there's obviously if you bring somebody into your group discussion with other parents who violently disagrees with your faith principles that puts a damper on the conversation that kind of brings a sense of some of these associate of communication cases and concerns about changing my message but when it comes to the birthmother's and counseling the specific it really requires new hope to say things that they believe that their faith teaches them as false and ought not to be served and regulation really require you to be open to the idea that you would say that in the best interests of the child to be adopted by an unmarried couple by a gay couple and that that is what you absolutely cannot say that courting to your brief consistent with your faith is that right under that is exactly right so you're arguing that it starts with the st counseling session but to be in good faith compliance with this regulation you have to in the and be prepared to say that it's in the best interests of the child to be adopted by an unmarried  couple correct no hope speaks in three directions in this relationship one is to the would be adoptive parents another is to the birth mother and each of these generally pick new hope because it's a faith based ministry one of a few out of many secular and state agencies and rd it speaks to the state in the final report in which it must it can only certify if a believes that this placement is in the best interest of the child and again it's obviously intended that new hope not discriminate and that even though its faith teaches it that  case is that in the best interest of the child so that's they're not stopping they will further not there's no allegation that anybody has been prevented or even discouraged from adopting but they say we can't devote our resources and they're all private resources not a dime of state money a child catholic parents be placed with catholic family would you be permitted to ask the birth mother whether she would want  a placement with a married heterosexual couple you're going to be persuading the rich the regulation doesn't say anything about that the honor your honor so i don't know the answer to that the clients and the preliminary injunction and yours takes this into the area of general public ability and what exceptions are permitted and not permitted and this is an area where i think also and it's so fact intensive in detail that i can't begin to recite it all an argument is better done in writing anyway and you have that what i would say is that the different treatment of my client's beliefs here is exactly highlights the problem that is we begin with a regulation that purports to outlaw discrimination on the basis of a whole long list of protected characteristics and more besides and then you start shooting holes in it with exceptions and there are many exceptions there are exceptions permitted or required when it comes to really going out and recruiting parents who gets to the front of the one who gets t are exceptions allowed even on the basis of race the most troubling category in our nation's history in our constitutional law there are exceptions for that up there are exceptions for ethnicity for religion your birth choir to take the religion of the child into account you're required to place the child the religion of the child's origin into account you're required to place the child with a family of the same religion so long as that's not inconsistent with the best interest of the child all these substantial exceptions to things that in other contexts we would consider to be unacceptable discrimination based on those categories the only category that o c f says are we could never consider we could never contemplate i think was there weren't an exception on that basis is the one belief which o knows and has said is primarily in today's world in this state associated with religious faith and that is the belief in what many people describe as an old fashioned and they would describe as a traditional and well your honor we have we have chosen to focus the claim on the fact that whatever their authority it can't be used for an unconstitutional and i think that possibly one clue construction of the various argument under state law we've come to the federal courts to defend the federal constitutional rights my client if i may one last thing on the problem an injunction because i know him substantially over time i want to call and this is on the issue of exceptions in general are we making exceptions free exercise the burden is on the state to demonstrate that the law is generally applicable if it wants dismissal and i would encourage the court to go look at that because that's what it is and rather plain english in that case of just a few years ago so i think it's not necessarily intuitive to start with but that was a dismissal case in the court says we're not convinced by the state that this is generally pluggable so dismissal reversed for you  honor not a surprising question st of all race is just has a distinctive place unfortunately in our history and fortunately in our constitutional jurisprudence and in the constitution itself so and if you think about what the supreme court said in let's let's say the bob jones case about racism or the run up rodriguez the rodriguez case about reaching breaking into the jury inviolability and you compare that to what the supreme court said about exactly the type of beliefs that my client holds in the a burger fell case itself and in the masterpiece cake shop case i think you will see that they were conceived of in such very different things that you don't need to worry about the book about the bleed over that's something that can be handled if it comes up and has it ever historically come up yes has that problem come up in recent decades in the courts i think the answer is no if it does then strict scrutiny is out there  strict scrutiny district but it's not it's not contrary to a couple of things that have been said it's not always fatal it's still there to protect us the other thing i would say is that it's kind of of course we all ask that question of ourselves we think about a case like this but it's ironic because then we have the situation where in the adoption context because the overriding in general in our in our law race discrimination is an overriding concern but when it comes to adoption the overriding concern is the best interest of the child and so we see the law and we see the regulations not just permitting but requiring selection based on race again that takes us back and i won't repeat the point that there are exceptions for every type of belief and secular beliefs about what's in the best interest of the child no exception allowed for my client's belief based on their faith teachings for commissioner poole i'd like to start with just two points before we get into the actual constitutional claims and one is that new hope essentially asked to be let alone to perform its adoption services as it sees fit but it's only allowed to engage in these adoption services because it's authorized by law to do so and agrees to operate pursuant to strict statutory standards this is not a case where the state is intruding on private religious practice this is a robust regulatory scheme that they have chosen to get involved in if new hope wanted to make sure that it was only involved in any adoptions that had to do that where the family was married heterosexual heterosexual couple or a truly single parent it could counsel birth parents that that is what they should choose and if they were able to locate a specific family that birth parent wanted regulatory scheme we're in existence before the regulatory scheme came into existence since they've been in operation there has been a regulatory scheme for adoption services under new york law right and has that has not regulatory it prompted a statement by the governor and this is in the bill jacket yet it wasn't going to require any policy differences the legislation was permissive not mandatory and the agency at another time felt that that was extent i mean if this were ever to go down the road to less restrictive alternatives why wouldn't this war satisfied by requirement that agencies that have religious objections refer to the state i'd like to address that because the referral doesn't eliminate the harm that the stuff that the nondiscrimination regulation seeks to prevent when let's let's stay focused you've just told us that this regulation is entirely consistent with the statute and my question suggests to you that the regulation goes beyond the statute do you not agree with that the statute doesn't speak to what adoption agencies may or may not do so in that sense the regulation regulates something that's outside the scope of the statute right and before we get to that explain to me what it means to have a permanent or perpetual certificate of incorporation for an adoption agency in new york which is what i understand new home pat before this regulation went into effect yes that means that their corporate existence is perpetual but that is separate from more purposes of conducting adoptions it's their corporate purpose their corporate existence is thirty four which says that both the fs can make sure that authorize agencies are performing pursuant to state laws and regulations and also three hundred and seventy one subdivision ten which indicates that an authorized agency consents to approval visitation inspection and supervision and that must necessarily mean ongoing supervision and inspection and approved and they were indeed inspected shortly before you sent you also when i say you yes clients sent the letter and that told them that they were in violation of a regulation in a letter that actually commended them for some of their practice yes but let me ask you and eighty five specifies when the commissioner can order that an agency not place out children any more and i don't see any of the reasons for which such an order can be entered to apply in this circumstance what is your authority to shut them down well three hundred and eighty five is a split is specific authority under the title having to do with safety of children right we don't assume we would assume would be the primary concern that is a primary concern but in addition to that authority the state has authority under social services law section thirty four and social services law section and ten where the agency commits itself to approval inspection and supervision if there were not and thirty four says that the agency has authority to make sure there's compliance with laws and regulations but why is it that if you find that they're not why is it that you don't have to go to court because presumably what you're doing is invalidating their certificate of incorporation well we're not invalidating their certificate of incorporation which allowed them to do a number of different activities we're saying that right now they're not in compliance i don't think you have to go to court because this is basically narrow a perpetual certificate of incorporation well i don't think the action affects their certificate of incorporation it affects their ability to engage in adoption services in the way that they wish to and this is an administrative process they would be subject to administrative process if they didn't like the administrative process they could go to court in a new york state article seventy eight dollars per your letters your clients letter to them yes two choices either come become coming compliance with the regulation or start to close down yes and i am not sure i understand how you can tell an agency that it has to close down without a court order well and i would also point out that they're not raising that claim here but i understand that your honor it's a little ghost likelihood of success i mean all it comes in to whether or not you really are or are acting pursuant to appropriate authority yes but they're not claiming that we lacked authority to close them down but the authority is that there's ongoing approval is necessarily ongoing approval under three thousand three hundred and seventy one dollars subdivision ten because there would be no other way we could tell with whether they were in compliance with new york law we have the right to inspect them on an ongoing basis and to supervise and making myself clear even assuming all of that when you find them deficient in some way i don't see where the law gives you the youth already ordered them to close down i think it's just general principles of of new york state administrative law when they're not in compliance with the law for withholding our approval and they need the approval to operate you never need approval again once they have perpetual authority they you're right you get to inspect you get to do that but they don't need the point of a perpetual authorization and this is my i'm perplexed by this just this is just their corporate status not their ability to engage in the contact your corporate status that is the legal authority for them to operate in an adoption agency but they need both they need both a corporate authority that gives them the authority to be an authorised agency and they need to see fs approval ongoing approval to make sure that their program is being ok so this isn't a case where they are just slip shod about their interviews or not really placing children in appropriate settings this is a case about whether the pool of applicants they're willing to consider for a doctor's parents is what the state requires and they're saying they can't consider some of those folks without violating their religion now explain to us why we shouldn't view that as an infringement of their religious rights their religious rights are not infringed because the smith test applies here contrary to their argument that there is a an exception to the sniff test that's a here for state intrusion on internal church operations that's simply not what's going on here these are regulated adoption services and as regulated adoption services they're bringing together people outside their authority to infringe their speak and smith does say when you infringe on religious exercise and there's another right at stake then you may have to satisfy strict scrutiny but what with respect i don't why should we be receptive because that on the free speech claim the supreme court has long ruled that nondiscrimination rules regulate conduct not speech and their conduct is what is being enforced against here they must serve adoption applicants on a nondiscriminatory basis when they evaluate applicants that activity must be done in a nondiscriminatory way the thing that you're requiring them to do is be willing to say after they've done all they're in valuation that a and that an unmarried or a gay couple it would be in the best interests of the child to be placed with such a family and they're saying they can never say that are requiring them to make a determination that placement with a family that type of family may be in the child's best interests the much more difficult question and all c f s is very sensitive to this question is whether if an agency was willing to conform its conduct to the regulation if they were willing to bring in applicants of all different sexual orientations if they were willing to do nondiscriminatory home studies to all of these applicants if they were willing to place children with any of these applicants could things still profess their belief with their speech that's a very different question and a much more sense question that  s is very sensitive to and it hasn't been presented with that question new hope has never worked well the truly the answer is zero c f s has not developed a policy with respect to that because it's never been faced with that situation but if you look at the regulation the regulation regulates conduct so it may well be that they could engage in speech of their choice this is what the district court found as long as their conduct conformed to the regulation but it's hard for me to view this only as conduct when what they are ultimately required to do is make a recommendation well and recommendation seems to me to imply speech they're not making a recommendation they're actually making a placement so they're choosing the placement and placing the child with that family which is an action there not making a recommendation to an outside agency that does the placement their ultimate ultimate conduct that they were found to be in violation of is that they were they have to write a report that basically says it's in the best interests of the child be placed with this couple no they have to they have  to do conduct a home study of valuating the family make a placement and then after they've made that placement there are some submissions to the family court i got there but they're there conduct family court there's a report that they file with the family court but it's their it's their conduct that's being regulated here and they have never indicated that they would engage in that conform their conduct to the rule but want to profess their belief in their counseling sessions that's a much more difficult question and one that we don't have the actual answer to because c f s has never been presented with that but can i take you back to  s it was the predecessor agency at the time and these new you say that it was that was a reference to corporate existence yes it's filed with the secretary of state existence when an agency wants to engage in adoption or foster care services state law requires that the certificate of incorporation also be approved by the f it's an additional record it's an additional requirement  ask you about these regulations the primitive agencies to consider when making placement this is humans and adoptive parents age is that right yes that's a very i'm glad you brought that up because that's a very interesting one in particular to this case because  be considered so one might think that in this situation older parents would not very often or perhaps never at all one might think be appropriate placements in the best interests of that of a newborn because obviously the state would like the parents to be around for at least eighteen years or more but the consideration of age is not an exclusionary factor there could in fact be instances where older parents are just the right placement for a newborn if you had a newborn with special needs that needed a lot of special care or retired couple might be exactly the right one so it doesn't none of the statutes and regulations that you hope cites that they claim permit discrimination operate as an exclusionary rule well race can be considered in a in a way that if the race of the child all of ability to consider the child's race and cultural identity is appropriate it's not actually a matching of race and again what you're starting with in those cases is the of a jewish family coming to the agency and being turned away because they're jewish that's never permitted in fact that's not permitted by the very same nondiscrimination regulation at issue here so the consideration of religion in the best placement decision is not a discriminatory rule but there's no question you're preventing consideration of whether the adoptive parents are same sex as a result of the religious views of the agency yes because the state has determined what factors are relevant to the best interest determination and sexual orientation of the parents the state has decided is not a relevant factor to church case that we cited in our brief that the fact that there may be a disparate impact on religious organizations because because of factual matters they are the ones more likely to be affected it's not evidence of discrimination that was where the majority of people affected or the majority event of fact were in fact not religious the plaintiffs submit that discovery would reveal that the vast majority if not all of the agencies that have had to go out of existence since this regulation was promulgated are religious organizations dispute that well in it's not in the record  so because of the enforcement of this regulation that's not in the record but my client so advises me but to the extent there is an impact because religious organizations are the ones that have a view about placement with same sex couples does not mean that the agency was targeting those isn't that what discovery might reveal be just as a question here is whether there was any problem requiring this regulation with respect to any agency other than those with religious views the law has developed to a place where same sex couples were given equal rights to adopt and o us felt that to be consistent with that it should revise its regulatory language because there have been regulations on the books that indicated that length of marriage and homosexuality were relevant to a best interest determination so c f s revised those regulations and in doing so also made it a rule that you can't discriminate on the basis of all of these characteristics of race religion sex sexual orientation and marital status in the in the two adoption applicants with respect to religion you would have us conclude that it's just coincidental that  catholic charities no longer does adoptions in boston philadelphia chicago los angeles new orleans and most of new york no it's because those are the organizations that have the belief that is inconsistent with the nondiscrimination rule and the suggestion that i was making to you is that the plaintiffs admits that discovery we would learn that the agencies that were operating in two thousand and eighteen before the regulation and then after had to go out of business after the regulation or faith based organizations but even if there is a disparate impact on faith based organizations that doesn't mean that the agencies were trying years and that but then we also get to the question of why you were agents confronted with a law that's permissive decided to promulgated regulation that was proscript who they were aiming at i mean what problem there was that you felt needed to be addressed now it may be that discovery would reveal no no religious animists but i thought in your brief conceded that the statements being made at least that are in the record so far ambiguous well two things discovery is not needed because the purpose of the regulation was made clear by the regulatory history and we cited all of this in our brief there were right you were in that it was ambiguous both to the i'm talking about separately st the history of the regulation the history of the regulation shows that there were informational letters sent to the agencies explaining that we were bringing c f s was bringing the function of the regulations into compliance with changes in the law and i mean the problem is you went beyond the law and the state was no to the extent you write to the agencies were only bringing the regulation up to date with the applicable law there's at least an argument for the plaintiffs to make that you went beyond that and that your purpose was indicates some religious hostility these statements that they rely on two of the statements are somewhat similar to two of the statements in masterpiece cake shop this is what we explain in our brief and those statements the court in masterpiece cake shop found were in big u s and could could either be seen as simply a statement of nondiscrimination requirement or perhaps as dismissive of a religious confrontation but the master p cake shop court was not concerned about those statements in the absence of the clearly hostile statements that followed i understand that but you're not focusing on what i asked you about which is that you regulation goes beyond the law in a way that raises concern because the when the law was enacted the governor said it wasn't going to require anybody to change their policies everybody knew what he was talking about you went beyond and required them to change their policies and they say they're entitled to discovery and why you did that and the reason they say there's a good faith basis to think it was discriminatory or ambiguous statements and the ultimate consequences would choose to effectively drive religious adoption agencies out of the new york market i think we think the history of the regulation a set forth in our brief including all of the informational letters that were issued one after the other in response to the changes in the law explain where the agency was going and why it was going there it felt that this was consistent even if it went beyond that it was consistent with the law and with new york state law that prevents discrimination on the basis of sexual orientation as a matter of civil rights under the civil rights law and in and in public accommodations under the executive law so they felt that this was entirely consistent with all of new york state law the history of the regular sets that forth that we don't think discovery would produce anything beyond that and the statements speak for themselves and the two statements that that could be taken one way or the other were not found to be enough in masterpiece cake shop there are no other statements here there are no statements that raise hostility toward religion  me to quote compromise its beliefs no o c fs pointed out that other agencies who had told the agency that they did have a problem with their beliefs and these placements had decided themselves to compromise yes but that means that we're not saying explicitly or implicitly we knew who had to compromise its beliefs i think what we were saying was they had in doing that we would have to conclude that they were being told either compromised but even the supreme court found that those statements were not enough to suggest hostility it was only because the commissioner went on to say that the for adoption and so there's they're suggesting that less less colorfully perhaps you have expressed the same hostility in any event at the dismissal stage why isn't that enough well st of all the statement was there's no place in new york for providers that choose not to follow the law so it was in the specifics about regulation was what they were talking yes this regulation regulation because in because those statements are not enough to raise an inference about hostility at most they show there could be some ambiguity but there is no evidence of hostility in those statement once ambiguous is whether he had anything in mind other then faith based agencies  religious beliefs do not permit them to agree to these these two provisions the regulation prohibits discrimination on a wide variety but there was no reason to think that that was the that was the concern he was addressing when he when he spoke now what was the context of the remark no the context of the remark was agencies that refused to place with same sex marriage so that that was what there was no place for because the law didn't allow for it now the question is whether the law yes violates the constitution right but the question now is whether that reflects a hostility to a religious view contrary to what was put into the regulation is that what we're we're act yes and we don't believe that that expresses a hostile view and we don't believe discovery will produce any evidence of anything else because the history of the regulation is very clear that it was an acted in response to the changes in the law you think those comments can be construed as neutral yes absolutely because they are just saying that we feel strongly about this nondiscrimination rule and the law has changed and this is the rule that's consistent with the court has been generous and of the short claims of the regulation regulates conduct not speech in their brief and they're really focused on incidental to conduct arguments citing fair and i would just really like to contrast what was going on in the fair case in fa conduct at issue was requiring the law school to hand a key to an empty classroom to a jag recruiter and the incidental speech issue was requiring the law school to let the students know what classroom that was that's their conduct that's the speech the situation here could not be more different i was here st wants to force new hope into the into the conference room with the birth mothers with the adoptive parents and control what it says it's much more analogous to if donald rumsfeld was trying to require the law school dean the stand up in front of the student body and advocate a jag corps career as a great choice for you know graduates that would have been different case and i think in fact when you the fair case you don't have to parse it too closely it's says exactly that that would be prohibited and that it held the way it did in that case because it's fundamentally a fight about an empty conference room  obligation given that you have an authorization pursuant to the laws or i don't understand you to be arguing that you are not obligated to follow we have a lot of law that governs what happens when free speech and i frankly think that simpler in this case and free exercise run up against neutral regulation and and that law i think once you've determined as we think we will determine that this law was not neutrally motivated certainly not neutrally and forced and we saw that before our very eyes in the attempt to shut down new hope in the midst of the appeal if you get past that well then that clash is controlled by strict scrutiny and we have we have  guides us through that and made heartfelt religious beliefs sometimes have to give way to the state necessity yes the court applying the compelling state interest test of strict scrutiny so it's hard there's no general answer strict scrutiny is a very scase is very fact specific inquiry but how you resolve those issues i think is well established and your honors i will stop thank