your honour's this case involves mr parker's challenge to the state's total ban on communal religious exercise by nation and here and in the states prisons at the outset i want to emphasize number one that mr tucker's burden is not at issue on this appeal because the state has conceded that its policy constitutes a substantial burden on mr tucker's sincere beliefs number two and as we've argued in our briefing we think that either prong of the strict scrutiny analysis requiring the state to demonstrate that it is furthered a compelling interest the route the least restrictive means provides a ground for rematch and so while we be a compelling interest to not facilitate racial unrest in the prison but the it hasn't been demonstrated that this is necessary is that what your position you're not saying that it's not a think whether you know the activities of so called supremacist groups is by definition per se a question of prison security and it goes to that is another question i think on this record as you pointed out there is no evidence that the well i mean i didn't agree that's what i question i'm not disagreeing i'm neither agree nor disagree that it's actually so in this record it's your position that there is no evidence of it exactly and we think the issue of whether the state would have a compelling interest in preventing congregation by groups who have so called supremacist views in general is is simply not before the panel but you know in the grand scheme of things your honor we do policies of other states and to undertake an interpretation of nation the ology based on a smattering of sources that it it found in a sort of places there is no evidence in this record suggesting that mr tucker has supremacist beliefs or believes and racial superiority and there is no evidence in the record that any other nation and here and in texas prisons possesses those beliefs traditional islam either that in fact they've had issues when he's gone into those services correct that's right the group issue here of the nation of gods and earths which broke off from the nation of islam and but you know you said there's no showing that mr tucker himself holds these views and that's fine but the point is he's his one of his deprivations of religious rights according to him is the ability to communicate with others and have time with others who share his beliefs sharing n o g easy beliefs and so even if i attend a church and they have ten beliefs and i believe in none of them but not the tent that objective lee could be viewed as racial superiority of one race over another i think there are there are two points here your honor i think number one mr tucker  no evidence in the record that any nation and here in texas possesses a so called belief supremacy which i think is the also also a crucial point here you know whether we perform in individual eyes inquiry as required by mean if i join the x y z group that believes that y is god and and i say well i don't share that belief that i'm in the x y z group i mean how can you say that in other words a group has its believes and that's what makes them the group that wants to congregate if we all just have a bunch of differing views i think actually be present and you think why should be present she thinks should be president then we can be a group or we are not a group that holds the same beliefs so then that's no there's no religious deprivation there to not letting us congregate i think the critical point to understand here is that the nation does not have supremacist beliefs and i think the state's misunderstanding on this record when it's pointed to these phrases taken out of think because they had a disagreement over that so it doesn't is that your position that you can't say that just because you're mad just that you're in their power for the civil war time period i think i think that's right your honor and maybe an example would be helpful nation of gods on earth as the state has identified believe in the inner divinity of black men and women black men being gods and women and herbs and i think this belief in  divinity has been construed as a supremacist belief but if you look closely at this believe this is really a believe in self affirmation and self definition and that individuals who have here to the nation's teachings can attain some level of control over their lives and understanding of the world and that instead of thinking of god in the traditional sense and worshipping a traditional in the traditional sense of how others might understand god they look in words for that so you're saying there is no aspect of that thinking that only one race can have entered divinity that is to joran if to another race i think your honor the record contains no evidence that nation adherence have ever advocated violence and against another group i think this belief in entered in the is not a belief that compares it here  to those of another race i think there truly is an argument to be made that this is separate from what the state is considered to be ok so you're not saying said they couldn't make a record or do you say and they didn't make a record yeah that was it just didn't make a record so the state didn't make a record on two points your honor and so i think there's the least restrictive means prong and there's a compelling interest sprog on the compelling interest prong our looper acquires the state to perform an individual lives inquiry into the beliefs and characteristics of mr tucker and will admit in this case because he wishes to congregate with other here and those with whom he wishes to congregate the state here under took no investigation into the beliefs of inmates in its prisons and if you look at the state's reasoning in responding to the inmates request for it says word for word based on results of investigations with and other states correctional facilities this group uses teachings of racial supremacy so i think number one that goes to the compelling interest prong  the state fail to engage in the required analysis under article but number two if we turn to the least restrictive means prong which requires the state to not just explain what action it shows but to demonstrate affirmatively that it shows the least restrictive means of furthering an interest we'll see here that the state considered no evidence of alternative means to allow mr tucker to practice his faith while still further on a compelling interest and i think this is problematic number one because the state actually has to prove that it shows the least restrictive means you know beyond thinking about this in the abstract the record bears this out if we look at the affidavits of dan strum and the record or calvin scott there is no statement supplied by the state that banning all communal religious exercise by nation adherence is the least restrictive means this is a litigation position the state took in the court below but this is not actually supported by any evidence in the record and that's problematic here especially because the record contains evidence of less restrictive alternatives theel that in requesting nation current gay sure and certain items that would be part and parcel of any sort of communal religious exercise would go along with that so for example mr tucker has requested access to nation tax so he requested access to a lay leader to come in and lead congregation we feel that you know it's either way act thought somehow this is not my first rodeo and these cases i thought that the prison system allowed for an outside person to come in not only allowed it but i thought that's what they wanted i think that's correct your honor so they're not prohibiting him from doing that they're just there just isn't one at the moment right i i'm not sure part and parcel of any sort of form of religious exercise if a christian wanted to congregate with other christians you'd expect that they'd want maybe a bible and hymn books and a pastor to be present and we think that applies with all that  gentle words and i realize that you know you need to live really construe anything that approaches a litigant may have done so i get that but you have to be very specific and clear with the president about what you want because it might be they don't let you congregate but they will give you a bottle for example and that's certainly better than nothing so you have if you if what you want is you want to congregate you want to bible you want to him know you want and minister you've got to ask for all four and then they may or may not give it to you and then you challenge what they your honor i want to circle back to the compelling interests prom if i may and you know we have spoken about the nation believes in the abstract and we focus on the lack of the individual lives inquiry into whether any nation adherence possess such so called supremacist beliefs but i also want to focus on the more general point that the state has a deuce and no evidence that any nation and gerent and its prisons pose a security risk generally or as a result of their beliefs and you'll see that when mr baker and mr tucker filed their requests the state expressly declined to find any security concern the sta threat group management office looked into the nation following and made baker's request and specifically found that the nation does not constitute a security threat to the states motion for summary judgment to the district court conceded that it has never a sustained a security incident with any nation and here and its prisons i think you know plainly there are issues of fact in this record as to whether there are any violent tendencies of any of these individuals there are issues of fact as to whether any of these individuals actually has a supremacist belief and we feel that you know these alone are sufficient to provide a ground for reversal is this has when you say there's question about where they have suppressed belief is that based on your argument that the inner divinity is not a supremacist belief or is it your position that they do not have that interdependency belief and i'm not taking a position i'm just trying to understand your argument i think most directly your hon the evidence shows that mr tucker does not have those beliefs nor do any other nation and here and in fact so they don't believe in their inner divinity as being of a particular race i'm sorry so my times out can i do yes  supremacy and we also want to be clear on that point the panel to the statements in the record in which mr tucker has stated that he has not pro black or anti why and where he's pointed to texts describing the nation's founders inclusion of white group's teachings and commit every word of the group's lessons of the divine sciences to memory that they could progress to be god's earth's so i think it's sort of a rite of passage that you need to go through in order to retain that status may please the court and you davis for the apologies i'd like to start judge james ware with one of your questions about whether the individual ised inquiry is the right inquiry here and it's not and that is because there are really two aspects to mr tucker's claim the first is whether the group the nation should be able to meet the second is that he should be able to meet with that group because the state has a compelling interest in preventing the group hold when a prisoner is seeking an exception that applies only to him or her it's important to have that individualized inquiry so for example in those cases if there's a general policy about how long someone's hair to be and they want to exception to that it's necessary for the state to determine whether the imposition of that requirement on that individual serves a compelling interest but here the question is not is mr tucker allowed to meet with some  preexisting group the claim is that there has to be meeting of this group to begin with right and he saying my group is not racist and we want to meet and so an individualized determination needs to be made as to whether his group and i'm just saying racist as you know it's more complicated that i'm seen as a tabloid we're not racists racial supremacists and so we want to practice faith in this particular way and so then you have to determine whether their practice of the faith would be a racist thing not whether some global understanding of the faith in some other parts of the country or the world are done in a racial manner that was might that might be a background and for him to say you need to watch your keep an eye on or something to see if it developed into that but you have to look at it from his individual rise with a with his friends that want to do to recognize that when asking for a group to meet there is a plan set up in the prisons where there are all types of different groups and these groups may have individuals coming out coming in converting because they're coming into prison or leaving as well as perhaps converting from one to another so that's why the state has to look at the group itself determine whether it can meet and it's not to say  t the state is in the business of interpret what is the correct understanding of the nation's teachings that can be up to an individual to understand by himself what the teachings mean but it is up to the states to read the materials only that some inquiry was made about what some prisons in other states did you know there is absolutely evidence in the record you are ok what is the record so if the court generally two ten forty five and on there's a long section that is taken from it is from a form is he is he notes but there's no contention that these are the fundamental tackle so it was it was an online site that housed the fundamental tax  so somebody went online to look up about this religion well is that what you're saying what to texas did what texas did was if there were a multifaceted approach so there was one part of the pro choice talking to other prisons to determine how they treated this or that was an email that's in the record what the other states responded with their approaches there's also a number of different sources about the teachings of the nations so for example there's an article by an anthropology professor which describes a group consulted sources where did they get the sources that they chose to consult you're trying to decide if they fulfilled their duty to a compelling interest yes i do not know where they originally got these how they were appointed to them in the first place but what is shown in the record is that there are the teachings that are undisputedly the fundamental teachings of of the nation for example you have the supreme mathematics the supreme alphabet they have in the last found muslim nation muslim lawson's these are texts that no one disputes are fundamental to to the religion i believe  the my my friend oppositions brief five he mention these anything else that they did well i think that they is that it looking at the fundamental tax they looked at fundamental textor sources brought to and they also have various sources within within the record reports by different groups they had a gang expert who had evidence they looked to cases from that had been previously discussing about the nation but i think it's important here to focus on the fact that when the religion is wanting to meet the best evidence of their beliefs or the fundamental tax and that's especial seems like it's an interesting thing to say it's a blanket statement that's a fair point and i don't mean to make is a blatant blanket statement for every religion possible but i think here on this record where there's evidence and as my friend said a minute ago that part of the path for it here into the nation is truly sight these texts they have of these attacks are their bible i don't want to make a comparison one isn't to the other but the as part of their development they're supposed to learn these t that separates groups from one another and i would point the court for example to the specific supremacy views that are that are in there tax so for example at ten fifty one and fifty three these are in their fundamental tax there are multiple references to a specific group caucasians as the devil they have specific parts where they say that the original people which are their ethnicity the original people their lives are of supreme value and have no comparison these are not simply statements about the inner divinity that a person holds god in them these are statements that are saying you are supremum to another brace by definition of your race it's also important to recognize that the teachings which appear throughout also have connections not only inherently as violence as the record shows at ten forty a prison official talks about how in prison oftentimes the correct ok so here you have this situation where you're saying it isn't well i want to be clear because i guess if we really are way it's possible we may have to find this line because every religion has different views on chosen by god things like that so on so forth it's a complex area for courts to get themselves in the middle of your position is that when a religion teaches that this group is superio derogatory statements made about people in other major tex and i come in you can just think of them off the top of your head yes right there it's not to say that there may not be other religions that have statements that are are within the broader tax that may be taken in that vein but the difference here is that these are fundamental aspects of the nation in the sense that if you look at the primary tax the supreme mathematics the  on muslim lessons these have these statements such as another race being the devil that you need to have that there's no comparison and that the white man is by nature and practice devilishly primitive and that's  five these are things that aren't simply a one off it's the state looking at the general tax and determining how they will play essentially in prison you know the five step i'm sorry i articulable particularized approach in the least restrictive means and we know that other prison since you were using other prisons earlier have a system where they have somebody sit in to make sure that they're not doing these r that that other prisons ban it so that other prisons ban it creates a compelling interest but that other prisons allow it with some some monitoring can't be used for a least restrictive that seems to be not parallel that the record winds up through the expertise of prison officials the racial supremacy of use create buying the hard part to me i don't want to get in the middle of i mean i'm very much respectful of people's rights to different religious  no religious view at all but if we're going to get into violence in the name of religion as judge alluded to if we look at the history of the world there has been violence in the name of a number of different religion does that then permit the prison to prohibit people from practicing those religions because that would get rather brought its time at the history of the world and i'm not casting aspersions on anyone or anyone's beliefs or anything that's happened simply saying there has been violence in the name of a lot of major religions rightly or wrongly ok again i'm trying very hard to be neutral not trying to take a position i'm not trying to be inflammatory i'm making a statement of history how can you support the difference here is this is a lesser known religion why does that justify a different outcome and i disagree that the difference is that it's a lesser known legion i think the difference here is that it is the fundamental t that preached this so for example if you take a religion that may have had a past where they are involved in in conflict or violence on as a result of their religion now if it's not fundamental to the  text one that could be seen as past but it's important to realize that if for example they were taking major religion it just doesn't matter which one just a hypothetical major religion and there are and here it's at the prison which believe that these texts call them violence it's not actually in the text but that's their interpretation of it the state would have an interest in big in preventing those individuals from and that's when we get to the individual ised inquiry why isn't it why are the treated differently then because their literature also allegedly contains supreme a species from the white supremacist view according to the record turn into the breach your honor i would respectfully disagree with that characterization that is made by my opponent in his brief the there is some indications in cases that suggest that owners have some affiliation in some contacts with white supremacist groups and to the extent those are are in texas and there's no evidence of that whatsoever in the record that would be an excellent reason to not let the onus lead but what you're saying if it was in wisconsin that wouldn't be advocated racial supremacy in the same way that the nation's texts do then they would be on parallel and they should both be ok well it's my understanding that your brief page thirteen lists a whole bunch of other jurisdictions at other jurisdiction in kind of lead so it's actually you know i meant i understand that the we make the argument in our brief that the what other states are doing has a bearing and can be taken in consideration and we're not going to walk away from that but it's not necessary to determine what the other states are doing to understand that fundamentally racial supreme steps can lead to violence and to your but let me ask you your opposing counsel has directly taken that on by saying mr tucker and his fellow congregants don't believe he didn't put it quite this way but don't believe those expressly comments like caucasians are the devil or whatever that that's not part of them that they're focused on their inner divinity they're focused on bettering themselves and they're not saying that somebody else is evil so if that's the case maybe that's a denomination of energy easy why can't they congregate they renouncing the notion or i can ask more specifically but i understood him to say they're not they're not proclaiming this kind of view of caucasians as the devil for example so then why can't they me you know that comes to to again the difference between letting a group me and letting individuals and if there were a group for example that didn't have racial so premises views whether or not mr tucker had those views and wanted to join the group would be extraordinarily relevant but the point here is that he's asking for a group to be able to get counsel opposite as i understood him and i'm going to misunderstood and said no one in texas of this group has these views they're focused on their inner divinity cetera perhaps that's not accurate but that's what he's saying why isn't that the individual lives review you should make the individual eyes review of the texas group that is seeking to congregate do they think that somebody else is evil because of their the state so that's simply we don't know what the beliefs are of every at here and in the nation but perhaps more importantly the fact is that take it much larger religion if it has one hundred people the this can't be for the prison to have to go through and determine whether every single one of those people holds what believe when they're asking for a group to congregate when he's to be determined is looking at what that religion generally believes what its texts are and it's not to determine whether or not any belief is correct whether it's to determine how these teachings will affect the prison in the prison security and that's what's critical here is all underlying this all is the fact that prison is a volatile environment it is filled with many people in close quarters which is why you have to give substantial deference to each prison official who has expertise on this and there are often i mean it's no secret there are lots of racial tensions in prisons throughout texas and throughout the united states so when you have statements like this you know that one race is the devil and then you have statements such as that each member of the nation should murder the devil that the pale person is in a race with time to avoid the wrath of the nation these are things that take an objective early can create a security risk within the prison council sorry i don't really believe that you've answered my question about so some on and we got went on to something else but so so mine wasn't a group it was one gentleman who wanted to kneel before the cross and that when there was the radar these other services going on and it wasn't convenient it was it was a issue that they didn't let him do that and the court said why can't you figure out a least restrictive means and still uphold your all your brand services and all the other things going on but let him practices pay than it didn't go to things that didn't depend on the group other people doing it and also it was determined that there hadn't even been any adequate exploration of least restrict means so why are can you address both of those points these of the yes your honor so to take th issue first about whether the last monday said that the state hadn't consider other options here in the religious practices commission they put out their report that includes descriptions of what other states had done so they were more than aware of what other options were what other states were doing and yet they decided that a total ban was the only way to do this so they did consider other options and decided that this was the least sure but we don't have to because we don't give deference to that we have to we act actually look to see whether it's the least restrictive your yes yes it is the court's obligation to look at it but there is deference that is still owed because the least restrictive means is still an analysis of the prison security and to extent that prisons making a judgment about what marginal changes in the ability to meet how they affect security that is certainly due deference turning to the individual aspect of this the recall correctly it was an individual who wanted to pray in front of a cross in a in a chapel in the state tonight and that ability and part of his argument on these restrictive means was that he was he should be able to because the  church building was used for other purposes and so the court had to look at whether or not his actual use of the church there was compelling interest on that here however the compelling interest is about the group's teaching so it's not simply whether having mr tucker as part of that group is is least means it's about whether the group itself can meet if he is if a group wanted to meet in that chapel you'd have to look at whether that posed a risk and that is why this case is different from salsman on the least restrictive means thank you thank you your honors i want to begin by just emphasizing the point that this case came to us on summary judgment it was decided on a summary judgment record so the relevant question on all of these issues is whether genuine disputes of fact exist which reasonable fact finders could differ i want to turn very briefly to the least restrictive means prog and i think it's important to recognise here that the supreme court in whole in this court recently and where i have emphasized that in instances when other states employ less restrictive alternatives the state must at minimum provide a persuasive explanation as to why that alternative would not be sufficient here and despite the state's lack of consideration of other alternatives on this record the record actually shows that michigan iowa oklahoma in massachusetts all permit nation congregation what do you do  systems that reference their accommodation of nation and here in the congregation there is no evidence in the record that the state waited these other alternatives or explained which i think is the key point why they would not be a does not explain it the report provides no explanation whatsoever as to why a total ban is the only means of accomplishing the state's interest i think on the least restrictive means prong alone we can reverse the district court turning to the compelling interest prong and the failure of the state to perform an individual eyes inquiry again i want to emphasize that whether we look at mr tucker or the group of  adherence with whom he wishes to congregate the record is still devoid of evidence as to either group so you know i think the state's argument that we really need to consider the group as a whole within texas prison still fails given the summary judgment evidence i think also on the compelling interest prong the sate has advocated a position that you know states should just look at religious texts in general and derive a conclusion from that interpretation of religious the ology and if we think about the implications of that number one it would completely up and the long line of cases in the circuits press it on the supreme court require an individual eyes inquiry as a practical matter are lupa exists to ensure that these religious rights are respected and exists so that states are forced to compile rationales that allow this or courts in appellate courts and the supreme court to evaluate whether they are actually following our group as requirements i think you have a case where a state could simply make a conclusion as to the merits of religious beliefs based on those texts alone we'd be unnecessarily injecting courts into that theological determination which i think you know stands in stark contrast to all of the existing precedent  only your honour's i think on the compelling interest jobs the record contains clear evidence that the states policy here is under inclusive because the state nests to congregate and its presence and whether you look to the record or whether you look at a number of other cases that exist in this circuit and in texas to circle or its group about innocence is widely associated with white supremacist believes in its presence i think it's important to recognize that the state is the one who put this fact in issue by stating that we prevent all so called supremacist groups from congregat