[00:00:01] Speaker 05:
Good morning, Your Honors.

[00:00:03] Speaker 05:
Still good morning, and may it please the court, Jonathan Scruggs for the appellant, Jessica Bates.

[00:00:09] Speaker 05:
I will attempt to reserve five minutes for rebuttal.

[00:00:12] Speaker 05:
Your Honor, although there is a desperate need to place foster kids, Oregon has categorically excluded all foster and adoption applicants who cannot support certain controversial views on gender identity.

[00:00:25] Speaker 05:
The district court correctly applied strict scrutiny to this exclusion because it compelled and restricted my client's speech based on viewpoint, but upheld it anyways under this difficult standard.

[00:00:37] Speaker 05:
There are many reasons why this is wrong, but I want to focus on two today.

[00:00:41] Speaker 05:
First, Oregon has many less restrictive alternatives to accomplish any legitimate goals, such as pairing kids at the matching stage with like-minded families, which is exactly what the-

[00:00:56] Speaker 03:
The base was seeking as I recall elementary age elementary school age children right at the time of.

[00:01:05] Speaker 05:
her application, her oldest child was 10, and she was seeking a child under the age, siblings under the age of nine.

[00:01:13] Speaker 03:
So that means would somebody be in a position to estimate somebody who is nine or eight or seven, what their future proclivities might be with regard to sexual orientation?

[00:01:27] Speaker 05:
Well, I think they could, Your Honor.

[00:01:28] Speaker 05:
I mean, they could do a longitudinal study.

[00:01:30] Speaker 05:
But here's the point I was trying to make.

[00:01:31] Speaker 05:
Oregon hasn't provided any evidence that it tried or that it's not possible.

[00:01:37] Speaker 05:
Because Oregon carries the burden.

[00:01:39] Speaker 03:
That's not the question I'm posing, though.

[00:01:41] Speaker 03:
I mean, is it a given that, in fact, you can accurately determine at that point?

[00:01:47] Speaker 03:
Because if it's not, then why can't the states say, well, the child who we are seeking to place

[00:01:56] Speaker 03:
the child who is in the care and custody of the state, not somebody from another agency, which your client could turn to, but the care and custody of the state, if in fact that person turns out to have a sexual orientation inconsistent with your client's religious beliefs, then the state can't be confident that the child they're seeking to place

[00:02:24] Speaker 03:
will be treated in a way consistent with the child's own personal preferences.

[00:02:30] Speaker 05:
Yes, Your Honor, it's not a given.

[00:02:31] Speaker 05:
Again, Oregon didn't provide any evidence that it was a given or not a given.

[00:02:37] Speaker 03:
Oregon's the one responsible here.

[00:02:40] Speaker 03:
Why is it required to prove up the wisdom?

[00:02:43] Speaker 03:
I mean, frankly, I have real doubts about the wisdom of the state's action, but I'm having trouble figuring out why that makes it a violation of your clients.

[00:02:54] Speaker 03:
rights.

[00:02:55] Speaker 03:
Your client could turn elsewhere and has chosen not to.

[00:02:58] Speaker 03:
So why is it Oregon has to conform itself to your client's preferences?

[00:03:04] Speaker 05:
Because Oregon is engaged in viewpoint discrimination, Your Honor, and therefore strict scrutiny applies.

[00:03:09] Speaker 03:
Why?

[00:03:10] Speaker 03:
I mean, I'm having trouble with that proposition too.

[00:03:15] Speaker 03:
They're not saying that your client can't express her preferences.

[00:03:20] Speaker 03:
They're saying that if we place a child

[00:03:23] Speaker 03:
in the state's custody and to your client's care that your client can't be required to adhere to the state's standards and the child's preferences.

[00:03:37] Speaker 03:
I mean, is a school teacher entitled to teach, a public school teacher entitled to teach a class anything that the teacher wants to proclaim?

[00:03:47] Speaker 05:
Well, I think that's a good contrast, Your Honor, because in that situation, the state's engaged in government speech, but no one here is even arguing that my client is engaged in government speech, and that'd be impossible to prove under the shirtless factors.

[00:03:58] Speaker 04:
One thing you mentioned was the pairing, so that would be a kind of upfront thing, and it may not capture every child who

[00:04:06] Speaker 04:
may later decide certain issues of sexual orientation or gender identity.

[00:04:12] Speaker 04:
But what about like a system of monitoring or check-ins?

[00:04:15] Speaker 04:
Is that something that other states or that HHS does?

[00:04:18] Speaker 05:
That's exactly what, and I was going to this, Your Honor, the Biden administration does.

[00:04:22] Speaker 05:
They have this system.

[00:04:23] Speaker 05:
Not only do they pair like-minded families with kids on the front end, but they have a constant system of check-in.

[00:04:31] Speaker 05:
And in fact, if a child during that process being placed with the family,

[00:04:35] Speaker 05:
has an objection, they go and check in with the agency, and there's a process for handling that.

[00:04:42] Speaker 05:
And that respects the autonomy of the children, because the children actually get a say in that process.

[00:04:49] Speaker 05:
Here, Oregon has categorically excluded kids up front, or applicants up front, and really taken away the choice of the children.

[00:04:57] Speaker 04:
So how does the HHS policy work mechanically?

[00:04:59] Speaker 04:
Do you know?

[00:04:59] Speaker 04:
I mean, is it regularized?

[00:05:02] Speaker 04:
And how does the check-in process specifically work?

[00:05:04] Speaker 05:
Well, it starts off, Your Honor, but they send out a notice to all children over the age of 14, every children over the age of 14, or any child they know who identifies as LGBT.

[00:05:14] Speaker 05:
And they say, look, if you want a designated placement, let us know.

[00:05:17] Speaker 05:
And, you know, they'll go and manage that with the agency.

[00:05:22] Speaker 05:
Then throughout the process, there's constant check-ins.

[00:05:26] Speaker 05:
The agent goes in with the house, has constant check-ins.

[00:05:30] Speaker 05:
Now, this is for foster care.

[00:05:32] Speaker 05:
I'll say for adoption, eventually, the child becomes fully the child of the parent.

[00:05:39] Speaker 05:
So you're not going to have check-ins in that scenario.

[00:05:41] Speaker 05:
But this is in the foster care scenario.

[00:05:44] Speaker 03:
Your client isn't seeking a child over 14.

[00:05:48] Speaker 05:
That's right.

[00:05:49] Speaker 05:
Well, that's right, Your Honor.

[00:05:50] Speaker 05:
But again, the burden's on the state, because this is strict scrutiny, to show these methods are ineffective.

[00:05:55] Speaker 03:
Well, only if we accept your proposition.

[00:05:58] Speaker 03:
This is, in fact, viewpoint discrimination.

[00:06:00] Speaker 03:
And I really have trouble understanding how this is inhibiting your client's ability to express her views or practice her religion as she wants.

[00:06:10] Speaker 03:
Your Honor.

[00:06:11] Speaker 03:
The only focus is on the child and what she says and how she treats the child.

[00:06:17] Speaker 03:
not the rest of the world.

[00:06:19] Speaker 03:
And if the best interest of the child is supposed to be the uppermost priority from the state's perspective, responsible as it is for children in its care and custody, how is this viewpoint discrimination?

[00:06:33] Speaker 03:
Your client can say whatever she wants to anybody else.

[00:06:36] Speaker 05:
Well, Your Honor, that's never been or you can always speak your other message elsewhere.

[00:06:40] Speaker 05:
But here the government is essentially conditioning a benefit or a license on my client not expressing her particular views.

[00:06:47] Speaker 05:
As the district court said, inherent in the rule is that my client cannot espouse certain views on LGBT status.

[00:06:55] Speaker 05:
And the way the rule operates is on page 31 of the record.

[00:06:58] Speaker 03:
Not espouse, speak to the particular child.

[00:07:01] Speaker 03:
She can espouse all she wants to other people.

[00:07:03] Speaker 05:
Well, Your Honor, it's, you know, I don't think we should force the Muslim family to say, you know, you can't explain your religious beliefs in your own house to people in your own household, that you can hold these beliefs but you can't espouse them.

[00:07:16] Speaker 04:
Well, this kind of gets to a question I had in the case, which is, what does it mean to support a child in any of these things?

[00:07:26] Speaker 04:
We have some of the training documents, but in this case, when your client applied, did she have to sign any kind of document

[00:07:34] Speaker 05:
sort of testing i will do this or did this just come about because she said i i want you to know i object to this the latter your honor she wants to the training and and said in in the training lays it out and i think the district court looked at the record like i said this other district court interpreted the rule it said that the way the rule operates on the plaintiff is to compel positive speech while simultaneously restricting negative speech and that's consistent with the position organs taken they've taken the position that

[00:08:01] Speaker 05:
This is essentially licensed conduct and they can regulate anything.

[00:08:05] Speaker 04:
All this is for you know, they come and check the home to see is this a suitable home?

[00:08:09] Speaker 04:
Is there some guidance document or list of 20 questions that are supposed to be asked in that context specific to these issues or to supporting the child's religion or race or anything?

[00:08:20] Speaker 04:
Anything else in this policy?

[00:08:22] Speaker 05:
We don't know they are because we were kicked out at the front door before those.

[00:08:26] Speaker 05:
I think that would be appropriate thing to have is have a dialogue

[00:08:29] Speaker 05:
And again, it's undisputed that my client will love and respect every child.

[00:08:32] Speaker 05:
Every LGB child will not reject or denigrate or vilify them, but care for them and love them.

[00:08:38] Speaker 05:
Those are undisputed facts in the record.

[00:08:41] Speaker 05:
But Oregon has taken the position that categorically, and this is how it reads in the text, you have to support in all ways, including by using certain pronouns, including by being willing to take a child to pride parades.

[00:08:53] Speaker 05:
And this goes back to the system that it really hurts the kids and the applicants.

[00:08:57] Speaker 05:
I think you can imagine a scenario where you, for example, have an orthodox Jewish child who has kosher, for example, and there's only one applicant who's also orthodox and Jewish and shares the beliefs

[00:09:11] Speaker 05:
about human sexuality with my client, we would then exclude that applicant, even though that would be the best paired person to care for that child because of their religious beliefs.

[00:09:21] Speaker 03:
This undermines the whole nature of the- You seem to be commenting on the policy wisdom, and I'm not quarreling with you there, but your case isn't a policy wisdom case.

[00:09:32] Speaker 03:
That's a case that has to be made to the state of Oregon.

[00:09:37] Speaker 05:
Well, Your Honor, I was going to say it actually is because, again, this is under strict scrutiny or heightened scrutiny.

[00:09:42] Speaker 05:
And so Oregon carries the burden to show that their policy is not overbroad and they're not least restrictive alternatives.

[00:09:49] Speaker 05:
And I don't see how they can prove that when the Biden administration, when most states don't do this policy.

[00:09:55] Speaker 05:
They accommodate the interests and respect First Amendment rights.

[00:09:57] Speaker 05:
They respect the rights of, you know, yes, Your Honor.

[00:10:01] Speaker 02:
You talk fast and you're well informed.

[00:10:04] Speaker 02:
Could the state of Oregon, there are some people who have strongly held religiously based beliefs about vaccination.

[00:10:13] Speaker 02:
Could the state of Oregon say to participate in this program, you must be willing to have a child vaccinated against communicable diseases?

[00:10:24] Speaker 02:
Could they do that?

[00:10:26] Speaker 05:
Yes, and they already have that, actually.

[00:10:28] Speaker 05:
That's a separate provision regarding medical things.

[00:10:31] Speaker 02:
And would that violate, would the implementation of that violate the religious beliefs, the First Amendment-protected religious beliefs of a person who held those views?

[00:10:42] Speaker 05:
Well, no, Your Honor, assuming they apply a generally, it's a generally applicable application, right?

[00:10:48] Speaker 05:
I mean, obviously- This one is.

[00:10:49] Speaker 05:
Well, we disagree with that.

[00:10:52] Speaker 05:
We can talk about that.

[00:10:53] Speaker 02:
Tell me the difference between a requirement that you accept SOGI, if we can use that phrase, and a deeply held religious belief about vaccination.

[00:11:08] Speaker 02:
What's the difference?

[00:11:10] Speaker 05:
The difference is this one clearly encompasses speech and compels speech based on viewpoint and restricts speech based on viewpoint.

[00:11:16] Speaker 05:
And that's exactly what the district court held.

[00:11:18] Speaker 05:
So that's an enormous difference.

[00:11:20] Speaker 05:
That lines us up with 303 Creative and Hurley and all those lines of cases, and even Barnett.

[00:11:25] Speaker 05:
And to put a pin on it, Your Honor, I mean, a different state, Judge Clifton, to go to your point about how these policy decisions, well, a different state might have conservative policy views.

[00:11:35] Speaker 05:
And the question is, can they tell an LGBT applicant, you can't express pro-LGBT views to a child?

[00:11:43] Speaker 05:
Or you must use a biology-based pronouns

[00:11:47] Speaker 05:
in order to affirm a child sex.

[00:11:49] Speaker 05:
I think that would compel speech and restrict speech just like Oregon is doing.

[00:11:54] Speaker 05:
So this is a dangerous principle that Oregon has put forward that we have the right, because we view all this as conduct, to compel and restrict any speech whatsoever

[00:12:04] Speaker 05:
I mean, that gives a really a blank check to the government.

[00:12:07] Speaker 05:
And again, to your point, Judge Clifton, we don't need, we're not asking to prevent the government from restricting its policy views just to comply with the Constitution.

[00:12:17] Speaker 05:
Other states do this.

[00:12:19] Speaker 05:
This is not an impediment for the vast majority 19 states filed an amicus brief in this.

[00:12:24] Speaker 05:
This would essentially cripple the adoption and foster care system, because you would force every parent or applicant to affirm and agree with every views.

[00:12:32] Speaker 05:
We should force the atheist applicant to affirm the Trinity, because the child believes that.

[00:12:38] Speaker 05:
We should force the Muslim applicant to affirm various religious views.

[00:12:43] Speaker 05:
I mean, I just don't think the Constitution would comply with that.

[00:12:46] Speaker 04:
Does the record say anything about, some of this we're talking sort of what would happen if this were to happen, but presumably children are adopted by parents and then conflicts arise just as they can in families with biological children.

[00:13:02] Speaker 04:
Is there anything in the record that tells us how the state has dealt with this when it's arisen in the context of sexual identity or gender issues?

[00:13:11] Speaker 05:
No, Your Honor.

[00:13:12] Speaker 05:
Again, Oregon has not put forth any of that evidence that, you know, they can't do that or they failed to do that.

[00:13:18] Speaker 05:
They provided no evidence about that, and we view that as a failure.

[00:13:21] Speaker 05:
But we can compare, again, what we have with the Biden administration scheme, where they have this intricate scheme of doing check-ins.

[00:13:29] Speaker 05:
In that situation, even when you have a parent who says,

[00:13:33] Speaker 05:
hey, I can't be a designated placement, which that's the terminology the Biden administration uses for a family who shares kind of pro-JVT views.

[00:13:43] Speaker 05:
Then the agency goes to that parent and says, hey, can we work with you to try to keep this child in the home?

[00:13:50] Speaker 05:
Can you take more training?

[00:13:51] Speaker 05:
Can you do whatever?

[00:13:52] Speaker 05:
And then if that doesn't work,

[00:13:54] Speaker 05:
then they take the child and put them somewhere else.

[00:13:58] Speaker 05:
But it's an intricate system, and Oregon hasn't shown that that is not possible.

[00:14:02] Speaker 05:
In fact, my understanding is actually Oregon sends out notices regularly to children in the system, in the foster care system.

[00:14:11] Speaker 05:
To highlight the point, Your Honor, this happens all the time.

[00:14:13] Speaker 05:
I mean, we can't predict if a child is going to be disabled.

[00:14:16] Speaker 05:
We can't predict if a child is going to change religions, right?

[00:14:19] Speaker 05:
But we don't force all Muslims to be willing to speak positively about Christianity, because I think that would undermine the whole system.

[00:14:31] Speaker 05:
taking care and placing every child, it's not about any particular child, right?

[00:14:38] Speaker 05:
And the whole nature of the system is to have a diversity of views so that you can match children with the best family.

[00:14:48] Speaker 05:
And that's really going back to the point of, you know, when you do have these constitutional rights at stake, when you give the government the power to pick and choose favorite views, the burden is on them, and they need to have a high burden.

[00:15:01] Speaker 02:
Otherwise... But in your mind, it's okay for them to say, have a vaccine requirement?

[00:15:08] Speaker 05:
Well, Your Honor, again, the vaccine requirement doesn't bring up speech issues.

[00:15:12] Speaker 05:
It could bring up free exercise issues depending on how they apply

[00:15:15] Speaker 05:
the system.

[00:15:16] Speaker 02:
I mean, if they're picking and choosing how they just change the facts of this case, your client comes to this interview and says, I'm copacetic with everything the state of Oregon requires.

[00:15:26] Speaker 02:
But I want you to know something.

[00:15:28] Speaker 02:
I have deeply held religious beliefs against vaccination for communicable diseases.

[00:15:34] Speaker 02:
Is Oregon required to say

[00:15:40] Speaker 05:
Again, Your Honor, again, that's a separate provision that we weren't rejected under.

[00:15:45] Speaker 05:
I don't know how Oregon is applying this vaccination.

[00:15:47] Speaker 02:
I'm asking you, what's the difference?

[00:15:49] Speaker 05:
The difference, one respect and difference is one's about speech and one's not.

[00:15:53] Speaker 05:
And the other difference is how they apply their support provision.

[00:15:56] Speaker 02:
The client in the interview says, because of my religious beliefs, I cannot deal with a child LBGT.

[00:16:06] Speaker 02:
I just can't do it.

[00:16:07] Speaker 02:
I won't do it.

[00:16:09] Speaker 02:
What's the difference between an applicant saying that and saying, I won't subject the child to vaccination because of my beliefs?

[00:16:17] Speaker 05:
Again, your honor, I'll go back and I keep saying it.

[00:16:20] Speaker 05:
One is about speech.

[00:16:21] Speaker 05:
It's undisputable that this situation is requiring and compelling speech and restricting speech based on viewpoint.

[00:16:26] Speaker 05:
One is not.

[00:16:27] Speaker 05:
One is about conduct.

[00:16:29] Speaker 02:
And the secondary thing is we think that under- The conduct is whether she would be willing

[00:16:37] Speaker 02:
to submit a child who has this preference to medical treatment.

[00:16:44] Speaker 02:
And she said, I won't.

[00:16:46] Speaker 05:
Well, Your Honor, there's a separate provision about medical treatment.

[00:16:49] Speaker 05:
She wasn't excluded under that.

[00:16:50] Speaker 05:
She was excluded under the support provision.

[00:16:52] Speaker 05:
As the US Supreme Court said in Kennedy versus Bremerton's is footnote eight of that decision, you can't accept a post-hoc rationale.

[00:16:59] Speaker 05:
We have to accept the rationale as given.

[00:17:01] Speaker 05:
She was excluded under the support provision, which, as the district court said, and as you plainly read, does regulate speech.

[00:17:08] Speaker 05:
I see I'm over time.

[00:17:09] Speaker 05:
I'd like to reserve the rest of my time for rebuttal.

[00:17:11] Speaker 05:
Thank you.

[00:17:12] Speaker 04:
Thank you.

[00:17:30] Speaker 00:
Thank you.

[00:17:30] Speaker 00:
Good morning and may it please the court and counsel Philip Thonis on behalf of the state defendants at police.

[00:17:36] Speaker 00:
The district court acted within its discretion denying plaintiffs request for preliminary injunction because the court correctly concluded that plaintiff was unlikely to succeed on the merits of her free exercise and free speech claims.

[00:17:49] Speaker 00:
I want to, I think, reorient the analysis a little bit.

[00:17:54] Speaker 00:
My friend on the other side goes directly to the question of whether the state can satisfy strict scrutiny.

[00:18:01] Speaker 00:
But of course, we only get to strict scrutiny if this court concludes that the rule at issue here compels plaintiff's speech akin to the compelled speech in cases like Barnett, Woolley, and 303 Creative.

[00:18:13] Speaker 00:
The state very much disputes that the rule compels plaintiff's speech and is subject to strict scrutiny.

[00:18:19] Speaker 00:
We offer the court, I think, two related but doctrinally distinct analyses about how to view this rule and why this rule does not represent a compelled speech case.

[00:18:33] Speaker 04:
I guess I do have difficulty with this position.

[00:18:35] Speaker 04:
I mean, the district court obviously didn't agree with it.

[00:18:37] Speaker 04:
Correct.

[00:18:38] Speaker 04:
But isn't the whole point of this to help the whole theory behind this is to make children feel comfortable within their home based on the state's views of some of these issues?

[00:18:48] Speaker 04:
Wouldn't speech be absolutely essential to that in terms of things you should not say and things you really should say to ensure that level of comfort?

[00:18:56] Speaker 00:
Yes, absolutely, Your Honor.

[00:18:57] Speaker 04:
How could this not restrict or compel speech?

[00:18:59] Speaker 04:
It seems, as the district court said, inherent in the design of this is that you need that.

[00:19:03] Speaker 04:
That's part of the protection.

[00:19:05] Speaker 00:
So there is no, the state does not dispute and did not dispute below that speech is certainly implicated by this rule, but the important distinction is that speech is an aspect of the conduct of providing care to children who are in the state's legal custody.

[00:19:25] Speaker 00:
So in our view, that's the correct framework to view this case under in that the rule, not just the specific subsection 2K, but the entirety of this rule and indeed

[00:19:34] Speaker 00:
the state's regulations more broadly, regulate the conduct of caregivers who provide childcare to children in the state's legal custody.

[00:19:44] Speaker 00:
Speech is, of course, part of the conduct of providing childcare.

[00:19:50] Speaker 04:
Right, but it's, I mean, reading the pamphlets, it seems sort of central, right?

[00:19:54] Speaker 04:
The pronouns, right?

[00:19:56] Speaker 04:
The use of specific pronouns, the strong suggestion to use

[00:20:00] Speaker 04:
particular flags or other kinds of things to educate and show children examples of positive experiences of people who have similar gender and sexual identity.

[00:20:13] Speaker 04:
All of this is all speech related.

[00:20:17] Speaker 04:
It's all speech.

[00:20:18] Speaker 00:
Those examples certainly are, Your Honor, but I think this gets to your earlier question to my friend about what is the proper scope of this role?

[00:20:28] Speaker 00:
What does it mean to support

[00:20:30] Speaker 00:
or accept or respect a child's identity.

[00:20:34] Speaker 00:
It could be those things.

[00:20:35] Speaker 00:
It could be other things.

[00:20:36] Speaker 00:
It could be ensuring that a child has clothing that conforms with the child's gender identity or grooming habits, haircuts, things like that.

[00:20:44] Speaker 00:
There's a myriad ways that a foster parent

[00:20:48] Speaker 00:
Uh, or any parent for that matter, any caregiver provides childcare.

[00:20:51] Speaker 00:
Some of those.

[00:20:52] Speaker 04:
Miss Bates had said, you know, I'm, I'm okay with the, with the pronouns.

[00:20:57] Speaker 04:
I'm okay with, with the flags, but I'm not okay with the hormone therapy piece of this.

[00:21:02] Speaker 04:
Would she still be denied permission to be foster parent?

[00:21:08] Speaker 00:
Yes, your honor, she would.

[00:21:09] Speaker 00:
And I think my friend acknowledges that the, well,

[00:21:13] Speaker 04:
So you have to agree to basically all of these things.

[00:21:15] Speaker 04:
And this is one thing I had a question about, which I asked your friend on the other side, which is, is there some document or sort of list of 20 things that you kind of check the box and you've got to agree to each of these 20?

[00:21:26] Speaker 04:
It doesn't seem that the state has such a thing.

[00:21:29] Speaker 00:
No, I'm not aware of any such list or I think maybe one of the M.A.

[00:21:34] Speaker 00:
key briefs pejoratively described this as sort of a litmus test.

[00:21:38] Speaker 00:
I mean, it isn't.

[00:21:39] Speaker 00:
It's the state is making a policy decision about how it wants.

[00:21:43] Speaker 00:
children in its legal custody to be cared for, the rule is written broadly.

[00:21:48] Speaker 04:
Isn't that a litmus test?

[00:21:50] Speaker 04:
I think your argument is this is very important.

[00:21:53] Speaker 04:
That's why we need to ask for this.

[00:21:56] Speaker 00:
Right.

[00:21:56] Speaker 00:
Of course, your honor.

[00:21:57] Speaker 00:
But I am not aware of sort of a checklist about, you know, these are the specific things that the state is, would expect or require it.

[00:22:06] Speaker 04:
But I think that- So how does somebody in, you know, who's doing it, trying to do these approvals actually go about assessing whether a parent will be able to respect and support a child as to their sexual orientation or gender identity?

[00:22:23] Speaker 00:
So the expectations of the department are explained through the class that plaintiff went through.

[00:22:31] Speaker 00:
And then it is up to the applicant to affirm to the department that they are able to, in fact, respect acceptance.

[00:22:39] Speaker 04:
How do they do that?

[00:22:40] Speaker 04:
Is there some document that they sign saying that?

[00:22:42] Speaker 04:
Or do they just affirm it by not objecting to it?

[00:22:47] Speaker 00:
Your Honor, I do not know.

[00:22:50] Speaker 00:
precisely.

[00:22:50] Speaker 00:
In this case, plaintiff did inform Garcia, the DHS certifier, that she could not comply with this rule.

[00:22:58] Speaker 00:
In other cases, I'm not sure if there is sort of an affirmative, yes, I can comply, or a no, I'm not going to be able to comply.

[00:23:08] Speaker 02:
The Oregon system allows

[00:23:12] Speaker 02:
for some selectivity based on gender, race, religious affiliation, et cetera, doesn't it?

[00:23:22] Speaker 00:
In what way, Your Honor?

[00:23:24] Speaker 02:
Well, can an applicant for foster care, if the state calls a potential Christian family and says they have a foster child who's Jewish,

[00:23:39] Speaker 02:
Does the system, as it exists now, allow the state to not make that pair, to allow the individual to state that preference?

[00:23:50] Speaker 00:
So that would be something that would happen beyond the certification process, which is what this rule takes place at the front end, at the certification stage.

[00:23:58] Speaker 00:
I understand that.

[00:23:59] Speaker 02:
But when you get to the certification process, do you allow some selectivity and matching

[00:24:09] Speaker 00:
My understanding, Your Honor, is that no certified resource parent or adoptive resource, I think, is required to take any given foster child into their home.

[00:24:20] Speaker 00:
And I think that would be up to them to decide.

[00:24:23] Speaker 02:
So the system allows opt-out, if you will, based on race, gender, religious affiliation.

[00:24:32] Speaker 02:
A white family could say, oh, we won't take a black child.

[00:24:38] Speaker 00:
I suppose they could say that, although I think that would raise serious problems about their continued compliance with the rule.

[00:24:44] Speaker 02:
But the flip side of that is that process, which you're describing, is the state trying to match people with the child's best interest at heart and to have the best match possible.

[00:25:02] Speaker 00:
Yes, correct, Your Honor.

[00:25:03] Speaker 00:
However, I think it's important to

[00:25:06] Speaker 00:
to keep in mind, and this is one of the reasons why, in the state's view, the federal HHS rule doesn't accomplish what the state wants to accomplish here, which is that many times the state doesn't know or can't know beforehand what a child, which aspects of a child's identity are going to potentially present a problem to the caregiving family.

[00:25:32] Speaker 00:
Children, of course, change over time.

[00:25:34] Speaker 00:
If it's a long-term placement, the child might

[00:25:36] Speaker 00:
you know, go through a process of evolution or self-reflection or things.

[00:25:42] Speaker 00:
And that's the whole point of why the state wants to make this assurance at the front end that regardless of the child who does end up in your home and regardless of that child's characteristics, you are telling us that you will be able to accept, respect, and support those aspects of that.

[00:26:00] Speaker 02:
I suppose this rule did not exist.

[00:26:04] Speaker 02:
OK?

[00:26:04] Speaker 02:
OK.

[00:26:05] Speaker 02:
How likely is it that Oregon Adoptive Services would place an LGBTQ child with a family that was opposed to that from a religious point of view?

[00:26:25] Speaker 00:
I don't have hard numbers for you, Your Honor.

[00:26:28] Speaker 00:
I can say that the evidence in the record that was included with the

[00:26:33] Speaker 00:
Chang declaration does show pretty clearly that LGBTQ children are overrepresented in the foster care system and also experience worse outcomes in the foster care system.

[00:26:45] Speaker 02:
That's numbers.

[00:26:47] Speaker 02:
That's just numbers.

[00:26:48] Speaker 00:
Yeah, you're correct, Your Honor.

[00:26:52] Speaker 02:
Okay.

[00:26:53] Speaker 04:
I want to go back to the speech issue and just ask you, are there things that she cannot say to the children in the home?

[00:27:00] Speaker 04:
Would that be your position?

[00:27:03] Speaker 00:
Yes, your honor, but I don't think it's quite as restrictive as as plaintiff would have it.

[00:27:10] Speaker 00:
So there is the state is not trying to extinguish plaintiffs viewpoints about human sexuality or gender identity.

[00:27:20] Speaker 00:
And of course, that would present a constitutional problem.

[00:27:23] Speaker 00:
What the state asks plaintiff to be able to do is to in, you know, recognizing that she does hold those beliefs, be able to

[00:27:33] Speaker 00:
parent or provide child care to a child that recognizes that that child might be different and might not conform with those beliefs that plaintiff holds and to provide child care in a way that respects the child.

[00:27:49] Speaker 00:
So that might mean that there are certain things that plaintiff couldn't say to the child, telling a child that homosexual, you know, if the child

[00:27:58] Speaker 00:
was homosexual, in the state's view, the plaintiff could not tell the child that homosexuality is a sin and the child would go to hell, just to give an example.

[00:28:08] Speaker 00:
That's not in the record, I'm just saying that as an example.

[00:28:11] Speaker 00:
Or to use an example based on race, we think that the rule would prohibit a foster parent from calling a child a racial slur.

[00:28:20] Speaker 02:
But as the system currently exists, once you're past the pre-certification process,

[00:28:27] Speaker 02:
And you've got a pool of applicants who are not persuaded, don't have a problem with general requirements.

[00:28:36] Speaker 02:
And a family has called about a foster child, and they say, we want you to know this child is African-American.

[00:28:44] Speaker 02:
Could the family say, oh, I'm sorry, I can't do that?

[00:28:49] Speaker 02:
Without being tossed out of the system.

[00:28:54] Speaker 00:
I'm not positive your honor.

[00:28:56] Speaker 00:
I think that that would cause concern for DHS and could lead to decertification if if if a family refused to accept a child on the basis of race or religion or religion or disability well, I think this disability I think I want to be clear and careful because I

[00:29:19] Speaker 00:
There are many foster children who have profound medical needs, and those children often require very specific placements, and not all foster parents would be able to take children like that, or would be expected to.

[00:29:31] Speaker 00:
So that might not be a great example.

[00:29:37] Speaker 04:
What is the difference between this and the Blaze case out of the Eastern District of Washington?

[00:29:44] Speaker 04:
Is there any difference, or are these essentially two cases that have come out different ways?

[00:29:49] Speaker 00:
I think so, Your Honor.

[00:29:50] Speaker 00:
We just disagree with the district court's analysis in that case, and we do disagree, of course, with some of the district court's analysis in our own case about the compelled speech issue.

[00:30:02] Speaker 04:
in in blaze one thing that the court said was that this when you take the sum in total of all these uh... requirements it it falls disproportionately on people who have a certain viewpoint and that viewpoint is uh... most typically correlated with a religious viewpoint and therefore under the free exercise clause to be subject to strict scrutiny kind of on a gerrymandering theory how do you address that point so i your honor i i believe that goes to

[00:30:31] Speaker 00:
The question whether it's generally applicable in the state's view is that this rule applies to everyone without exemption.

[00:30:39] Speaker 00:
So we don't have sort of a formal exemption, of course, like the court found problematic in Fulton.

[00:30:46] Speaker 00:
But neither is there, there's no evidence in this record.

[00:30:50] Speaker 00:
And frankly, speaking on behalf of the state, the state just doesn't really care why a person might not be able to respect, accept, and support a child.

[00:31:00] Speaker 00:
We just want them to be able to do that.

[00:31:01] Speaker 00:
So if that comes from a place of religious conviction or a philosophical viewpoint or I'm an atheist, but I think, you know, that

[00:31:14] Speaker 04:
Caucasian people are the superior race and I don't want to have I mean those are all problems Doesn't it seem clear that the people who are most likely to have difficulty with this policy or people who have a certain religious viewpoint about sexual orientation That's what the district court said in in in blaze.

[00:31:29] Speaker 04:
I have difficulty seeing why that's not correct.

[00:31:34] Speaker 00:
I Don't I don't think I I

[00:31:38] Speaker 00:
agree with that, Your Honor, but even if that's true in the abstract, as long as the rule is neutral and generally applicable, there just isn't a free exercise problem.

[00:31:48] Speaker 00:
Of course, so long as we satisfy rational basis review.

[00:31:53] Speaker 04:
Right, but I guess it gets to the question of whether the rule is neutral, right?

[00:31:56] Speaker 04:
So you can compare this to the hypothetical Judge Hawkins was asking about the vaccines When you look and read the pamphlets and they're talking about a certain viewpoint clearly about gender identity and sexual orientation which the state believes is fundamental and to the level of things like

[00:32:15] Speaker 04:
what you should display in your home, what kind of ways in which you should address a child, what kind of places you should and shouldn't take them, as an example, not taking them to a religious activity that may not be supportive of LGBTQ plus people.

[00:32:34] Speaker 04:
When you look at all that together, doesn't that strongly show that this is really oriented around a particular viewpoint that stands in opposition to one that religious people like Miss Bates have?

[00:32:48] Speaker 00:
Certainly, it's oriented around the state's viewpoint that familial acceptance is important and is critical to the well-being of children and its care.

[00:33:01] Speaker 00:
I mean, as sending us, I mean, I do understand your honor's point that that might end up conflicting and very much does conflict with certain religious views.

[00:33:13] Speaker 00:
But that at the end of the day, so long as we're not in a strict scrutiny sort of, you know, problem with general applicability policy, you know, the state is permitted to make those that policy choice for itself about how it wants folks to provide care to children.

[00:33:30] Speaker 00:
And I guess maybe to summarize, I don't know how that necessarily moves the ball one way or the other by saying, well, the state's policy choice happens to conflict with the religious convictions of a certain subset of the population.

[00:33:49] Speaker 04:
Could the state have a policy that says you need to accept and support a certain political view?

[00:34:01] Speaker 00:
I don't know, Your Honor, to be honest.

[00:34:07] Speaker 04:
It would seem kind of problematic to me if you did.

[00:34:10] Speaker 00:
I think the reason the state would not be able to have such a rule goes to the underlying interests and the states.

[00:34:20] Speaker 00:
I guess I would question what evidence there would be that asking people to adhere to a certain political view advances the well-being of

[00:34:29] Speaker 04:
Right, but I mean, this more gets to the question of the narrow tailoring.

[00:34:32] Speaker 04:
I don't think it answers the tier of scrutiny, right?

[00:34:35] Speaker 04:
I mean, assuming that strict scrutiny applies to this, why would you say this policy is narrowly tailored as to Ms.

[00:34:42] Speaker 04:
Bates?

[00:34:44] Speaker 00:
Because the, like I said earlier, the state's ability to be insured that all certified caregivers will respect, accept, support a foster child

[00:34:59] Speaker 00:
It has to come at the front end, and because of the problems we highlighted earlier about, the state may not know what the child's identity will be like in the future.

[00:35:10] Speaker 00:
There might be little time or no time or resources to make the sort of matching that plaintiff suggests.

[00:35:18] Speaker 00:
I mean, I guess with unlimited resources, that might be an option the state can take.

[00:35:26] Speaker 04:
We the state's interest is that is in ensuring that everyone certified agrees to this and Will provide this type of care what evidence me miss Bates this kind of gets into the question of what does it mean to support someone I think miss Bates's view would be she does intend to support someone to a point and your view is that that that point is not enough but what if what evidence is there in the record that the degree of support that she would provide

[00:35:56] Speaker 04:
would be detrimental to a child who is three or four years old and who may later identify in a different way in terms of sexual orientation or gender identity?

[00:36:14] Speaker 00:
very expressly told DHS that she would not be able to use pronouns that did not conform with the child's sex assigned at birth.

[00:36:23] Speaker 00:
And that is very much an issue where the state believes that using pronouns that align with the child's gender identity is an important aspect of the child's well-being.

[00:36:32] Speaker 00:
So granted that might not be an issue when the child is a toddler, but again,

[00:36:38] Speaker 04:
What evidence in the records shows that the use of pronouns, for example, is important to the development of the child?

[00:36:48] Speaker 04:
Because I understand the high level point that children need a supportive environment to succeed.

[00:36:54] Speaker 04:
I don't think there's much dispute about that.

[00:36:55] Speaker 04:
The question is, what types of supportive environments are we talking about?

[00:37:01] Speaker 00:
Environments that acknowledge and respect the child's, those aspects of the child's identity

[00:37:08] Speaker 00:
And there is strong evidence that LGBTQ children do experience a high level of familial reject, which is part of the reason why they are overrepresented in foster care and that ensuring familial acceptance and acceptance including using pronouns that align with the child's gender identity is a critical part of ensuring the child's wellbeing because it leads to

[00:37:34] Speaker 00:
because I think the lack of familial acceptance leads to worse outcomes.

[00:37:38] Speaker 04:
What if it were a child who is older and who comes from a family like Miss Bates, a religious family, could Miss Bates, could that child be assigned to Miss Bates or she's just unable to have any child with her because of her decision not to comply with this policy?

[00:37:57] Speaker 00:
If I could finish the question, Your Honor.

[00:38:00] Speaker 00:
That's correct.

[00:38:00] Speaker 00:
So because plaintiff was not certified, she cannot care for any child in the state's legal custody at this point.

[00:38:09] Speaker 00:
So yes, she would need to comply with Rule 2K.

[00:38:14] Speaker 03:
And that policy, does that pertain?

[00:38:18] Speaker 03:
There have been references in the briefs and so forth about private placements or

[00:38:27] Speaker 03:
Is this set of rules one that applies specifically to children who have been placed in the custody of the state?

[00:38:40] Speaker 03:
Does it apply to somebody seeking to, say, adopt through a different social welfare agency?

[00:38:49] Speaker 00:
No, Your Honor, it does not.

[00:38:50] Speaker 00:
The rule, again, if I may finish,

[00:38:54] Speaker 00:
The rule expressly applies only to applicants and DHS defines an applicant as someone who is applying for certification as a resource family or adoptive resource.

[00:39:04] Speaker 00:
So they would be caring for children who are in the state's legal custody.

[00:39:14] Speaker 04:
It seems like the panel may have exhausted their questions for you.

[00:39:17] Speaker 04:
I want to thank you for your argument this morning.

[00:39:20] Speaker 04:
Unless you have a brief wrap up, we'll hear from your opposing counsel.

[00:39:23] Speaker 00:
Just to ask the court to affirm.

[00:39:24] Speaker 00:
Thank you.

[00:39:24] Speaker 00:
Thank you.

[00:39:29] Speaker 05:
Thank you, Your Honor.

[00:39:29] Speaker 05:
A few points.

[00:39:30] Speaker 05:
I'll try to talk fast.

[00:39:31] Speaker 05:
To go on the politics point, Your Honor.

[00:39:33] Speaker 05:
Interesting enough.

[00:39:33] Speaker 04:
Don't talk too fast.

[00:39:35] Speaker 05:
Exactly.

[00:39:35] Speaker 05:
In 2022, actually, Columbia came out with a study of 845 seniors

[00:39:41] Speaker 05:
who said that those with liberal political views had higher rates of depression and loneliness.

[00:39:46] Speaker 05:
So you could easily see a state under that logic trying to do something on politics.

[00:39:51] Speaker 05:
Judge Hawkins, to go to your question, Fulton rejected that same argument.

[00:39:56] Speaker 05:
In Fulton, they said, hey, we're making an exclusion categorically upfront, not on the back end.

[00:40:01] Speaker 05:
And the court said, we're not going to buy that argument, that it infects the whole system when you make exclusions on the back end.

[00:40:09] Speaker 05:
Judge Clifton, I want to go to your point about, well, let me actually, let me back up on that Fulton point.

[00:40:17] Speaker 05:
It's undisputed that they do allow exemptions based on age, disability, sex, and quote, inappropriate sexual behavior.

[00:40:25] Speaker 05:
That's on page 90, 91 in the record.

[00:40:28] Speaker 05:
So there are exemptions going on.

[00:40:31] Speaker 05:
Judge Clifton, I want to go to your point that the Supreme Court has never allowed viewpoint discrimination, whether it be a subsidy, a government program, a tax exemption.

[00:40:42] Speaker 05:
And any type of system has never allowed viewpoint discrimination.

[00:40:46] Speaker 05:
So it's no answer that you could go somewhere else.

[00:40:49] Speaker 05:
I mean, the logic could be,

[00:40:51] Speaker 05:
Well, you know, you could provide fire services.

[00:40:53] Speaker 03:
It doesn't suggest that this lawsuit is contrived, that in fact, Ms.

[00:40:58] Speaker 03:
Bates could foster, could adopt, but can't do it with a child that's been placed in the legal custody of the state.

[00:41:08] Speaker 05:
No, Your Honor.

[00:41:09] Speaker 05:
All the other methods are exceptionally expensive.

[00:41:12] Speaker 05:
She's a mom of five raising children on her own, a widower.

[00:41:14] Speaker 05:
The only way that she can adopt and care for a loving child is through

[00:41:18] Speaker 05:
the foster care system that's out there.

[00:41:22] Speaker 05:
Those other methods are not available to her for various reasons, and it's just, Your Honor, like saying that you can't provide fire services if you can hold certain beliefs, we can always provide private fire services.

[00:41:35] Speaker 05:
That's not an answer under Supreme Court doctrine.

[00:41:39] Speaker 05:
I do also want to go to the point about support.

[00:41:42] Speaker 05:
I think, Judge Bresch, you raised.

[00:41:43] Speaker 05:
I want to quote from the studies they provided.

[00:41:46] Speaker 05:
The author of their studies on page 107 of the record said this, parents and families can support their LGB child even if they believe that being LGBT is wrong by simple actions that don't require them to accept a behavior or identity they don't condone.

[00:42:03] Speaker 05:
This includes talking with their child respectfully, requiring the other family members to respect their child.

[00:42:10] Speaker 05:
And it has a list going on in there, things that Miss Bates will do.

[00:42:13] Speaker 05:
It's undisputed that she will care and accept and love any child, even if they identify as LGBT.

[00:42:19] Speaker 05:
Just wrapping up, Your Honor, I want to acknowledge that this is a controversial topic.

[00:42:22] Speaker 05:
There's people of good faith on both sides, but we don't have to get foster care kits caught in the middle.

[00:42:28] Speaker 05:
Oregon can comply with the Constitution, achieve its goals, and allow Ms.

[00:42:33] Speaker 05:
Bates to provide a loving home for a child who desperately needs it.

[00:42:37] Speaker 05:
We ask the court to reverse and to order that district court to enter an injunction to Ms.

[00:42:41] Speaker 05:
Bates' favor.

[00:42:42] Speaker 05:
Thank you.

[00:42:44] Speaker 04:
I want to thank both counsel for the helpful briefing and argument.

[00:42:47] Speaker 04:
This matter is submitted.

[00:42:48] Speaker 04:
That concludes our calendar for this morning, and we'll stand in recess until tomorrow.