[00:00:07] Speaker 02:
Thank you, and may it please the court.

[00:00:09] Speaker 02:
Jeremiah Gallas on behalf of the Appellant Youth 715 Ministries.

[00:00:13] Speaker 02:
I'm going to endeavor to reserve five minutes of my time for rebuttal, if I may.

[00:00:16] Speaker 02:
Your Honors, the motions panel here got it exactly right.

[00:00:19] Speaker 02:
The First Amendment does not allow the department to penalize 715 for hiring members of its own faith.

[00:00:26] Speaker 03:
At council, are we reviewing the motions panel decision or the district court decision?

[00:00:31] Speaker 02:
The district court decision, although the motions panel, I would say, is highly persuasive.

[00:00:37] Speaker 02:
We believe that the motions panel got it right.

[00:00:39] Speaker 02:
The department cannot get a free pass to secular grantees.

[00:00:44] Speaker 00:
Before you go to the merits, can you back up and talk about the procedure?

[00:00:48] Speaker 00:
preliminary junction stage there's a significant fork in the road at the top of the decision tree about considering evidence that wasn't presented and actually a claim I think that wasn't presented in the blue brief but was in the reply brief could you speak to that yeah with respect to the website evidence your honors and the claim and the claim so the claim was made in the complaint claim I do not see anywhere but I'm delighted to have you point out to me where and if you could just

[00:01:15] Speaker 00:
Wait till I finish.

[00:01:15] Speaker 00:
The claim that I'm looking for is a claim that U-715 was treated differently than other—than secular groups, as opposed to the claim that U-75 was treated differently than other faith-based groups that didn't require their employees to be of their same faith.

[00:01:34] Speaker 02:
Yes, Your Honor.

[00:01:35] Speaker 02:
So in the complaint, and this is at 3 ER 244 to 45, there's allegations that the department created exceptions to this non-discrimination rule, that it did not enforce that rule consistently, and that the practical effect excludes only organizations with religious beliefs like 715.

[00:01:56] Speaker 00:
Can you give me the allegation in the motion for preliminary injunction?

[00:02:00] Speaker 02:
Well, in the opening brief, Your Honor, that was with respect to the secular websites.

[00:02:05] Speaker 02:
That wasn't in there.

[00:02:06] Speaker 02:
That's true.

[00:02:07] Speaker 02:
But it was submitted in the reply brief in response to arguments that the department itself made.

[00:02:13] Speaker 00:
OK.

[00:02:14] Speaker 00:
All right.

[00:02:17] Speaker 00:
So what about the new evidence that appeared in the reply?

[00:02:20] Speaker 02:
Yeah, so the question here is whether the district court properly considered it and whether the motions panel properly considered it.

[00:02:27] Speaker 00:
The question is whether the district court abused his discretion by saying he wasn't going to consider it, isn't it?

[00:02:32] Speaker 02:
Well, Your Honor, respectfully, the district court did consider it.

[00:02:35] Speaker 00:
But it was improper, and then he went on to consider it.

[00:02:37] Speaker 00:
That's right.

[00:02:38] Speaker 00:
I'm not trying to split hairs here, but we have to be very careful about the proper procedure in the law.

[00:02:45] Speaker 00:
So this seems to be really glossed over.

[00:02:48] Speaker 00:
And so could you slow down and tell me why you think the district court abused its discretion, please?

[00:02:52] Speaker 02:
Your Honor, our position is that this year court did consider the evidence, analyzed the evidence, and made determinations based on that evidence.

[00:03:01] Speaker 02:
And so the question is whether the district court abused its discretion in doing so.

[00:03:05] Speaker 02:
We're at the preliminary injunction stage where the evidence, the evidentiary standards are more lenient.

[00:03:11] Speaker 02:
This court has said as much.

[00:03:13] Speaker 02:
We cite a case, Flathead, which was decided this year, that talks about at the preliminary injunction stage

[00:03:19] Speaker 02:
that injunctions are customarily granted on less formal procedures and evidence.

[00:03:25] Speaker 02:
And in fact, the courts can consider even inadmissible evidence and give weight to inadmissible evidence.

[00:03:31] Speaker 02:
Remember, we're not making final determinations at this stage.

[00:03:35] Speaker 02:
We're just making predictions as to the likelihood of success.

[00:03:38] Speaker 02:
This is how preliminary injunction

[00:03:40] Speaker 02:
Motions often go, and that's why there is a relaxed standard.

[00:03:43] Speaker 02:
And the touchstone, what this court has said in Flathead and other cases, the touchstone of the analysis was the other side given an opportunity to respond to the evidence.

[00:03:53] Speaker 02:
And here, the department was given the opportunity to respond, and it did respond, both in briefing, that's at ER 90, and it responded in its motion to dismiss briefing to the specific evidence that was submitted.

[00:04:06] Speaker 02:
And it had the opportunity to respond

[00:04:08] Speaker 02:
and did respond to that evidence at the preliminary injunction.

[00:04:11] Speaker 01:
Why is it implausible, based on the screenshots under an abuse of discretion standard, for the district court to conclude to the extent it is properly considering the evidence, quote unquote, in the reply brief,

[00:04:26] Speaker 01:
that those secular organizations are not similarly situated, that there's nothing on there that has a similar requirement of a statement of

[00:04:42] Speaker 01:
faith or mission to generalize.

[00:04:46] Speaker 01:
Why is that implausible given that all they say is who they target their services to and they don't say that there's any litmus test for that?

[00:04:58] Speaker 02:
Well, so two things.

[00:05:00] Speaker 02:
In looking at whether secular activity is comparable for purposes of free exercise clause, what the Supreme Court and this court has said is that comparability is judged against the government's asserted interests.

[00:05:13] Speaker 02:
And so we have to look at what is the asserted interest here?

[00:05:15] Speaker 02:
Why does the department have this rule in the first place?

[00:05:18] Speaker 02:
And the certification rule prohibits not just discrimination in employment,

[00:05:22] Speaker 02:
but also prohibits discrimination.

[00:05:24] Speaker 01:
Right, and even as to, I'll grant you that, so even as to service, although I think that's a question, even as to service, what in those screenshots tell us that it has the same test of faith or mission that 715 does?

[00:05:44] Speaker 02:
Well, so we're not looking for a comparator for does this organization discriminate based on religion.

[00:05:49] Speaker 02:
We're looking at is the secular organization in violation of the certification.

[00:05:53] Speaker 01:
Right.

[00:05:53] Speaker 01:
And what says that they discriminate based on any of the other protected categories in the same kind of formal manner, right?

[00:06:00] Speaker 01:
We're talking, we talk about the divisions policy.

[00:06:02] Speaker 01:
We also want to talk about 715 as a formal policy.

[00:06:06] Speaker 01:
Where is that in the screenshots?

[00:06:08] Speaker 02:
So I want to talk about the specific examples of that, and then I want to talk about legally what this court has said in FCA.

[00:06:13] Speaker 02:
So the specific examples, you have an organization by the name of Girls, Inc.

[00:06:20] Speaker 02:
This is at 2ER 141, who consistent with their name, Girls, Inc., says that they serve only those who identify as girls.

[00:06:27] Speaker 02:
You have another organization called Ophelia's Place.

[00:06:30] Speaker 01:
Do they say serve only?

[00:06:32] Speaker 02:
That's my understanding, because it's a girls' ink.

[00:06:34] Speaker 02:
They serve those.

[00:06:35] Speaker 01:
That's your understanding.

[00:06:36] Speaker 01:
But again, is it implausible for the district court to conclude that there's not enough there to conclude that it isn't exclusive?

[00:06:45] Speaker 02:
Well, the district court said there was no evidence.

[00:06:48] Speaker 02:
Said there was no evidence.

[00:06:49] Speaker 02:
And we submitted evidence to show that they do.

[00:06:51] Speaker 02:
The other side has put forward no evidence.

[00:06:53] Speaker 02:
And I would like to give you some other examples.

[00:06:55] Speaker 02:
So you have Ophelia's Place, a 2ER 110, to say they serve

[00:06:59] Speaker 02:
youth who have experienced girlhood.

[00:07:01] Speaker 02:
They have an FAQ page that answers the question, why not boys, explaining why they serve girls.

[00:07:09] Speaker 02:
Again, these aren't our words.

[00:07:10] Speaker 02:
These are the secular grantees' words.

[00:07:13] Speaker 02:
You have another organization with the name Black Parent Initiative, which is consistent with its name.

[00:07:17] Speaker 02:
It says it serves only African and African-American families.

[00:07:20] Speaker 01:
But why, I guess, why shouldn't we be looking for a similar, like, and this is a question I'll ask your friends as well in terms of their understanding of this, but 71.5 has a formal statement of, again, we'll back,

[00:07:33] Speaker 01:
generalize faith mission.

[00:07:36] Speaker 01:
There's no evidence of a formal statement of mission on the other side or in these secular groups requirement in order to be employed or to be served by them.

[00:07:46] Speaker 01:
You're just looking at websites and had

[00:07:50] Speaker 01:
71.5 been disqualified on the basis of its website as opposed to the investigation that followed and your client's candid admission that it does have this statement.

[00:08:01] Speaker 01:
That would seem to be apples and apples, but I guess that's the concern is are these apples and oranges here when we're talking about similar, at this stage, under an abuse of discretion and in a logical and plausible standard of review of the district court's factual findings to the extent they're appropriate.

[00:08:18] Speaker 02:
So we think there's evidence that shows quite clearly that they're excluding certain demographics.

[00:08:25] Speaker 02:
I've cited a couple.

[00:08:26] Speaker 02:
But perhaps maybe more to the legal question of what has this court said in its en banc decision in FCA is no one here disputes that these organizations, these secular grantees,

[00:08:37] Speaker 02:
are prioritizing certain demographics over others.

[00:08:40] Speaker 02:
That's undisputed.

[00:08:41] Speaker 02:
They're tailoring their services to specific demographics.

[00:08:44] Speaker 02:
And this was that issue.

[00:08:45] Speaker 01:
But I think you're confusing the evidence of the service providers with the evidence of the, in that case, the school, in this case, the division.

[00:08:57] Speaker 01:
There's no evidence so far on this record other than the fact that

[00:09:02] Speaker 01:
your client has been rejected, that the division is applying any sort of certainly no discretionary or policy-based test distinguishing between them or has even been given the opportunity to.

[00:09:14] Speaker 02:
Well, the secular grantees are in the program.

[00:09:16] Speaker 02:
They're currently being funded.

[00:09:18] Speaker 02:
The department has been aware of this for no... Right, but those are implications.

[00:09:22] Speaker 01:
And the question is whether the district court could draw an opposite influence or whether it's implausible to do so.

[00:09:28] Speaker 02:
Well, the district court, as the motions panel recognized, the district court erred to say that there was no evidence that these secular grantees discriminate.

[00:09:36] Speaker 02:
And I think we have to look at the FCA decision, where you had an example of a secular student group, the South Asian Heritage Club, that prioritized South Asian members.

[00:09:47] Speaker 02:
That organization itself said we have no issue with non-South Asian members

[00:09:53] Speaker 02:
Joining the club but what this court said en banc and the FCA decision was that was a facially discriminatory policy There might be good intentions good reasons for why the government would allow a secular grantee to have these types of policies But good intentions do not change the fact that this the government is still favoring secular conduct over religious exercise we I guess moved it word through half your time and and on to the first

[00:10:17] Speaker 01:
free exercise claim, the general applicability.

[00:10:19] Speaker 01:
Thank you for that discussion.

[00:10:23] Speaker 01:
I guess I'd like to turn towards the free speech claim and the expressive association.

[00:10:28] Speaker 01:
You'd frame this one way, but if we'd frame the question as why must the government fund groups that discriminate against religion,

[00:10:37] Speaker 01:
in fulfilling the government's own programmatic policies.

[00:10:44] Speaker 01:
What in the Constitution requires the Division in implementing its own programs through the grant program to fund those who discriminate against religion?

[00:10:53] Speaker 02:
Well, I think this is related.

[00:10:55] Speaker 02:
I know you're touching on expressive association.

[00:10:57] Speaker 02:
I do think it's related to the Trinity Lutheran type of argument where the Supreme Court has said that if the state government is going to open up a generally available government benefit program.

[00:11:07] Speaker 01:
But is this a generally?

[00:11:07] Speaker 01:
I'm quite familiar with Trinity Lutheran.

[00:11:10] Speaker 01:
But is this a generally?

[00:11:12] Speaker 01:
I guess that's an important first question.

[00:11:14] Speaker 01:
Is this a generally applicable program?

[00:11:17] Speaker 01:
It's not available to everyone.

[00:11:19] Speaker 01:
It's a discretionary program.

[00:11:21] Speaker 01:
And I get that Trinity Lutheran, the program there,

[00:11:23] Speaker 01:
But it was, that was, at least that's a little easier to categorize whether limited public forum or as a matter of free exercise on that side of the line.

[00:11:35] Speaker 01:
But here the program is to advance the government's policy, not to support the policies of the receiving funds.

[00:11:48] Speaker 01:
Is that a distinction?

[00:11:49] Speaker 01:
I'm not sure, but I need help with this.

[00:11:51] Speaker 02:
I don't think it is.

[00:11:52] Speaker 02:
It's generally available in the same way that the Trinity Lutheran program was, Espinoza, Carson, the same way.

[00:11:57] Speaker 02:
Not every organization could apply to it.

[00:11:59] Speaker 02:
But if you're otherwise eligible for it, what the Supreme Court has said, I know you're familiar with the cases, is you can't exclude based on religious character or religious exercise.

[00:12:07] Speaker 02:
We think that's what's happening here.

[00:12:09] Speaker 01:
But so here's the other, I guess, key difference is that this is not, and even if we don't get into the use status distinction that arose later on,

[00:12:21] Speaker 01:
This is neither an atheist group nor a Christian group can discriminate based on religion.

[00:12:30] Speaker 01:
This is not, this is distinguishable on that ground from Trinity Lutheran.

[00:12:34] Speaker 02:
Well, I don't necessarily think it is because a distinguishing, and we make this point in our brief, a distinguishing characteristic of religious organizations is that they do prefer members of their own faith.

[00:12:44] Speaker 02:
The state of Oregon, its own law, allows 715 to do this.

[00:12:49] Speaker 02:
The department itself has awarded 715 grant after grant.

[00:12:53] Speaker 01:
But the rule you're urging would have us also require Oregon to fund

[00:13:00] Speaker 01:
organizations that are hostile to religion and do not employ or serve people of faith on that basis.

[00:13:12] Speaker 02:
Not necessarily, Your Honor.

[00:13:13] Speaker 02:
I mean, this is a First Amendment free exercise case, so it's only going to protect religious exercise.

[00:13:18] Speaker 01:
That's why I'd open by saying I'm more interested in the expressive association question.

[00:13:22] Speaker 01:
Why isn't this government speech or a program, you know, they cite Finley, we've got Rust, you discuss USAID?

[00:13:32] Speaker 02:
Yeah, here's the main problem with the funding condition that they're imposing when we're talking about expressive association.

[00:13:38] Speaker 02:
So if we step outside of Trinity Lutheran and we just move, okay, we're talking expressive association, there's just not a case that has allowed the government to condition it in this way.

[00:13:47] Speaker 02:
And what the Alliance for Open Society case talks about is,

[00:13:51] Speaker 02:
is the restriction limited?

[00:13:54] Speaker 02:
Is it confined to the program itself?

[00:13:56] Speaker 02:
And here, the department's not confining the restriction to the program itself.

[00:14:00] Speaker 02:
It's saying, regardless of the position you have, ministerial, it doesn't have to be related to the grant program at all.

[00:14:06] Speaker 02:
You cannot prefer members of your own faith.

[00:14:08] Speaker 02:
That goes far outside the grant program.

[00:14:10] Speaker 01:
Well, I guess their response, one of their responses may be that this does not, the reason we don't have a case here is because USAID and these other expressive association cases

[00:14:20] Speaker 01:
potentially even on some readings of Dale, involve speech.

[00:14:26] Speaker 01:
And the line that's being drawn here is status discrimination about whether people have religious beliefs or not.

[00:14:34] Speaker 02:
So we argue in our brief that the appropriate test was Dale and Hurley, and is it an expressive association?

[00:14:40] Speaker 02:
I don't think anyone's disputing that 715 is an expressive association.

[00:14:43] Speaker 02:
And would the forced inclusion of a member significantly affect its message?

[00:14:47] Speaker 02:
Again, I don't think anyone's disputing that.

[00:14:49] Speaker 02:
So then the question is, can they condition the funds to giving up that expressive associational right?

[00:14:57] Speaker 00:
As opposed to tying it to the programs itself.

[00:14:59] Speaker 02:
Correct, Your Honor.

[00:15:00] Speaker 02:
Yes.

[00:15:00] Speaker 00:
Tying the condition to the funded program.

[00:15:02] Speaker 02:
Yes, your honor.

[00:15:03] Speaker 02:
And I see I have five minutes.

[00:15:04] Speaker 02:
I'm happy to answer more questions, otherwise I'll reserve the remainder.

[00:15:07] Speaker 02:
Thank you, counsel.

[00:15:08] Speaker 02:
Thank you.

[00:15:17] Speaker 04:
Good morning.

[00:15:18] Speaker 04:
May it please the court?

[00:15:19] Speaker 04:
to counsel Kirsten Nadeau on behalf of the department.

[00:15:22] Speaker 04:
I woke up this morning losing my voice, which is a bit ironic given what we're talking about today.

[00:15:30] Speaker 04:
So I apologize in advance.

[00:15:32] Speaker 04:
I'm going to do my best here.

[00:15:33] Speaker 04:
I intend to focus most of my time on the comparable conduct issue.

[00:15:41] Speaker 04:
Happy to entertain questions.

[00:15:43] Speaker 00:
Can you go to the top of the decision tree where I started?

[00:15:46] Speaker 00:
Yes.

[00:15:49] Speaker 00:
We're looking at a preliminary injunction.

[00:15:52] Speaker 00:
And, of course, that's an abusive discretion standard.

[00:15:53] Speaker 00:
And I am concerned about an argument in evidence that was raised for the first time in the reply brief.

[00:15:58] Speaker 00:
So I'm looking at E.R.

[00:15:59] Speaker 00:
9, if that helps you.

[00:16:03] Speaker 00:
The court here said that plaintiff only raised this argument in its reply brief, depriving defendants the opportunity to subtly respond.

[00:16:10] Speaker 00:
The next sentence says the plaintiff fails to allege these facts in the complaint.

[00:16:13] Speaker 00:
failing to provide notice, right?

[00:16:16] Speaker 00:
And then the third sentence says, even if the facts in the reply were properly at issue before the court, and then it goes on, as we've just been discussing, to say why he's not persuaded.

[00:16:24] Speaker 00:
But I don't know how you would have me treat this.

[00:16:30] Speaker 00:
You heard the colloquium I have with opposing counsel.

[00:16:34] Speaker 00:
Should I look at this as a requested ruling that the district court abused his discretion by saying this evidence and argument raised for the first time in the reply is not properly before the court?

[00:16:45] Speaker 00:
Or because he went on to discuss it, is the question whether he abused his discretion by considering it?

[00:16:52] Speaker 04:
So I think the department's first argument is that the evidence was not properly before the court.

[00:17:00] Speaker 04:
And I think in this case, the district court was

[00:17:04] Speaker 04:
that the district court is, you know, covering its basis, you know, assuming that it might end up with this court on appeal and exercising its discretion to address that, to address that evidence.

[00:17:17] Speaker 03:
But, counsel, once the district court considered the evidence, whether it agreed with it or not, doesn't it become part of the record?

[00:17:25] Speaker 04:
It does.

[00:17:25] Speaker 04:
And so I think kind of the next piece that is important

[00:17:32] Speaker 04:
the kind of evidence that the department could have offered if it had the ability to more substantively reply.

[00:17:40] Speaker 04:
And I think that goes to whether the district court abused its discretion here in concluding that plaintiff's evidence here was wholly insufficient to demonstrate the kind of discrimination that would require a preliminary injunction.

[00:17:55] Speaker 00:
Well, it only had to be sufficient to show a likelihood of success on the merits.

[00:17:58] Speaker 01:
That's true, yes.

[00:17:59] Speaker 01:
And I guess, so what did insufficient under what test?

[00:18:04] Speaker 01:
So I'd asked your friend these questions about if there were posted on any of these sites, assuming they're within our consideration, a formal statement of mission that reflected either the recipients or the providers of the service, would the division concede that that would be enough to fail general applicability?

[00:18:26] Speaker 04:
Well, I think that would be a much closer question.

[00:18:28] Speaker 04:
But again, I think, had the department had the opportunity to substantively respond, I would envision additional evidence such as, you know, declarations or

[00:18:40] Speaker 04:
Perhaps the bylaws of those organizations that would.

[00:18:44] Speaker 01:
What about, so again, as you say, we're just talking about likelihood.

[00:18:51] Speaker 01:
Just the fact that, as I understand it, 71.5 came to the attention of the division through its website and a reporter.

[00:19:02] Speaker 01:
The allegation or a declaration that the division doesn't appear to be as interested in these other, allegedly exclusionary organizations as it is in 71-5, would that establish it?

[00:19:14] Speaker 01:
That you're not even looking into it?

[00:19:16] Speaker 04:
So again, I think in that case, plaintiff would need to show was something much more akin to what was at issue in fellowship.

[00:19:24] Speaker 04:
Again, here what we have is evidence before the district court that there was a complaint

[00:19:31] Speaker 04:
and that the department, when it received a complaint, looked at the website and then contacted plaintiff to confirm that the discrimination is indeed happening.

[00:19:42] Speaker 04:
What you don't have is any similar complaint about those secular organizations and then confirmation from those organizations that that kind of discrimination is happening.

[00:19:54] Speaker 04:
And that's where I think the difference

[00:19:57] Speaker 00:
The difference here is... There's a problem with FCA and some of the other cases, the school cases, where we have an all-commerce policy and it looks on its face like the group, I think one of them was affiliates.

[00:20:08] Speaker 00:
And then upon inquiry, the bylaws say that they followed the all-commerce policy and anybody could participate in that school club.

[00:20:17] Speaker 00:
I don't know that about any of these clubs and that's the problem I've got.

[00:20:23] Speaker 00:
Yes, and I think, again- What he's arguing is this, he's got some evidence and he just needs to show a likelihood of success on the merits.

[00:20:31] Speaker 00:
Do you want to speak to that?

[00:20:32] Speaker 04:
Yes, and I think that goes to, again, going back to your initial point, this is what procedural posture are we in.

[00:20:39] Speaker 04:
It was plaintiff's burden to demonstrate the likelihood of success on the merits, and this court is reviewing for abuse of discretion the district court findings that that evidence was insufficient.

[00:20:51] Speaker 04:
this court to defer to that finding because it's supported by the record here.

[00:20:55] Speaker 04:
And I think your honor has pointed out the evidence that is missing that does not mimic the evidence of plaintiff's discrimination here.

[00:21:05] Speaker 00:
I will use finding.

[00:21:07] Speaker 00:
My clerks get tired of hearing me say this, but I just want to make sure you're using it the way I'm using it.

[00:21:12] Speaker 00:
You're referring now to the district court's findings of fact?

[00:21:15] Speaker 00:
You say finding, or do you really mean conclusion?

[00:21:17] Speaker 04:
So I mean that the district court made a factual finding that there was no discrimination here.

[00:21:25] Speaker 04:
Or insufficient evidence, excuse me.

[00:21:29] Speaker 03:
Yes, the likelihood of success on the merits is reviewed.

[00:21:36] Speaker 01:
So on the, I guess, if I could take you up to the expressive association claim, do you have any and hopefully your friend on reflection might be able to find a case that might help here too.

[00:21:53] Speaker 01:
So does the division dispute that 715 is an expressive association?

[00:21:58] Speaker 01:
No.

[00:21:59] Speaker 01:
Okay.

[00:22:00] Speaker 01:
And I guess we've got this, your friend raises this issue that I haven't been able to get to the bottom of in the case law, that the division is prohibiting status-based protected group discrimination on the basis of religion.

[00:22:18] Speaker 01:
And that has the effect, and let me know if the parties aren't agreed on this, of meaning that they cannot

[00:22:30] Speaker 01:
higher people who attest to their statement of faith, which, according to them, is at the core of that is what makes them an expressive association.

[00:22:43] Speaker 01:
Why isn't that a burden under Dale and some of the other cases?

[00:22:48] Speaker 04:
Well, so I think to take a bit of a step back here again, what we're talking about is a grant program.

[00:22:55] Speaker 04:
And I think Your Honor has

[00:22:58] Speaker 04:
has already expressed that this is the state offering these organizations funding to help fund both existing and new programs to help youth.

[00:23:10] Speaker 04:
So the state is not requiring any organization to hire or retain staff or ministers or even volunteers.

[00:23:19] Speaker 00:
But they are if, the state is, if they apply for these funds and the conditions is imposed more broadly than the program, than a specific program that is funded by the state.

[00:23:33] Speaker 00:
That's true, yes.

[00:23:35] Speaker 01:
All right.

[00:23:35] Speaker 01:
Why shouldn't we carry the, as your friend suggests, the Trinity Lutheran free exercise piece into expressive association here?

[00:23:48] Speaker 01:
I mean, in other words, you have a government program.

[00:23:52] Speaker 01:
It's a grant program.

[00:23:52] Speaker 01:
Just like Trinity Lutheran, there's not unlimited funds.

[00:23:55] Speaker 01:
The government has to pick and choose.

[00:23:56] Speaker 01:
But one basis on which it can't pick and choose is substituting now religion and Trinity Lutheran for expressive association here is the basis of their expressive association without burdening that and subjecting it to some level of heightened scrutiny.

[00:24:10] Speaker 04:
OK.

[00:24:12] Speaker 04:
Well, first I want to start with the department strongly disagrees that this policy, this all commerce policy, resembles anything like the policies that were at issue in the Trinity Lutheran line of cases.

[00:24:26] Speaker 04:
And so I think that's the initial starting point is.

[00:24:33] Speaker 04:
How does it differ?

[00:24:35] Speaker 04:
So the policies that issue in those cases specifically targeted religious organizations.

[00:24:40] Speaker 04:
This policy here has the incidental effect of affecting a religious organization.

[00:24:46] Speaker 04:
And that's a very different, that does not require the, or that does not compel the state to then provide, to apply that policy.

[00:25:00] Speaker 04:
you know, you know, and, excuse me, to apply that policy and provide an exemption.

[00:25:07] Speaker 01:
If it's otherwise neutrally administered, we don't have kind of a disparate impact type claim, maybe even as a matter of, at least as of expressive association.

[00:25:18] Speaker 04:
That's the department's position here.

[00:25:20] Speaker 04:
And so then, again, looking at once

[00:25:25] Speaker 04:
once the state has established that the policy itself is not specifically

[00:25:32] Speaker 04:
targeting a religious organization.

[00:25:34] Speaker 04:
Again, it's the incidental effect.

[00:25:36] Speaker 04:
Then what you're doing is looking to the factors set out in fellowship and Fulton, which is, you know, is there an express mechanism for granting an exception?

[00:25:47] Speaker 01:
Well, that's the free exercise.

[00:25:49] Speaker 01:
Right, right.

[00:25:50] Speaker 01:
But on the expressive association, you've got, they cite USAID and say, well,

[00:25:55] Speaker 04:
You know he who pays the piper calls the tune but only as to the tune not as to everything else the player might be doing and and you know, it's it's You know this this court I think is bound by the the Supreme Court's case in in Martinez still I understand that and

[00:26:13] Speaker 04:
to still be Kavanaugh.

[00:26:15] Speaker 01:
But I think Martinez seems like, I mean, there are cases there, but Martinez seems to be closer to a government-created forum of some kind than your grant and selective subsidy argument needs to take you, right?

[00:26:36] Speaker 01:
I mean, so instead, why aren't we, I think you cite Garcetti, Finley, Rust,

[00:26:43] Speaker 01:
How does this play out?

[00:26:44] Speaker 01:
Because I think your brief raises the selective government funding as opposed to a generally available program.

[00:26:52] Speaker 01:
Right.

[00:26:54] Speaker 01:
I guess first on that, what's your argument that this isn't generally available, that this wouldn't fall into these other questions about tax subsidies or school vouchers?

[00:27:06] Speaker 04:
Well, again, I don't think the department's position is that this is

[00:27:14] Speaker 04:
a completely, somehow by offering a grant funding, we would not be looking at whether the Constitution would require the state to not have a policy.

[00:27:32] Speaker 04:
for example, to not have a policy that did not allow, you know, that might violate the free expressive claim.

[00:27:41] Speaker 04:
Excuse me.

[00:27:41] Speaker 01:
Right.

[00:27:42] Speaker 01:
Well, I mean, so the division has a policy it wants to accomplish.

[00:27:45] Speaker 01:
It wants to help youth and help them get jobs, and it could do that itself.

[00:27:51] Speaker 01:
It is exercising a choice.

[00:27:52] Speaker 01:
The cases recognize that it can also, essentially, through a grant or, I mean, it really is a contract, it can also contract for those services with others.

[00:28:01] Speaker 01:
But on what terms, right?

[00:28:03] Speaker 01:
Because that's where it might not quite be Martinez.

[00:28:06] Speaker 01:
It does seem to start looking like the government funding.

[00:28:09] Speaker 01:
And you, after introducing those cases in your brief, seem to pivot to the Martinez case.

[00:28:16] Speaker 01:
Yes, good law.

[00:28:17] Speaker 01:
How would this come out if it's just the government funding case?

[00:28:21] Speaker 01:
Again, back to USAID.

[00:28:23] Speaker 01:
Is that distinguishable?

[00:28:25] Speaker 01:
You're providing funding to implement a government policy, but you're doing it in a way that, if it were a direct regulation, might impinge on their expressive association.

[00:28:41] Speaker 04:
So I think, first of all, you know, I don't,

[00:28:47] Speaker 04:
I could be wrong.

[00:28:47] Speaker 04:
I didn't understand that to be necessarily before the district court.

[00:28:53] Speaker 04:
So just kind of noting that.

[00:28:54] Speaker 01:
Which?

[00:28:56] Speaker 04:
And then again, going back to the procedural posture, whether we're looking at, did the district court make a conclusion here that plaintiff was unlikely to succeed?

[00:29:08] Speaker 04:
Did the district court consider that?

[00:29:11] Speaker 04:
So I think that's first.

[00:29:12] Speaker 04:
And then second, to answer your question,

[00:29:17] Speaker 04:
I think that's a closer question and I don't think the court needs to necessarily reach it because again what we're looking at here is an all-comers policy and I don't understand

[00:29:32] Speaker 04:
You know any court to have said that that an all-comers policy You know whether it be applied in a limited public forum or or elsewhere would would violate the free express, but it's not it can't be an all-comer I mean we there is a clause, but how is it an all-comers policy when it is?

[00:29:49] Speaker 01:
Again, you're not providing a forum like a student group in FCA or Martinez and

[00:29:54] Speaker 01:
You only want those comers who are going to faithfully implement the government's policy.

[00:30:00] Speaker 01:
That's why you have all those other guidelines.

[00:30:02] Speaker 01:
And as I understood it, at least, the interest that you advance is that this is consistent with advancing the government's policy, as opposed to creating a forum for other groups to express themselves, which is Martinez and FCA.

[00:30:18] Speaker 04:
And, you know, that's true, and I guess, you know,

[00:30:23] Speaker 04:
that does kind of raise, again, I think I would return to the fact that this is, you know, the government is, there's nothing in this kind of in the record here that plaintiffs are required to apply, required to do anything more than

[00:30:46] Speaker 04:
you know, apply for, you know, excuse me.

[00:30:50] Speaker 00:
Right.

[00:30:50] Speaker 00:
Is the argument that it doesn't infringe upon their free association, or is it your argument that they're free to associate the way they want, but they don't need to apply for this fund?

[00:31:00] Speaker 04:
That's kind of... Which?

[00:31:04] Speaker 04:
I believe the second.

[00:31:05] Speaker 04:
I was about to say the first, but I believe it's the second.

[00:31:08] Speaker 04:
It's that they are free to hire whomever they want, you know.

[00:31:14] Speaker 00:
so long as they don't expect to get the grant funding from the state or have a... You don't see any... That's why the analogy to Trinity Lutheran, right?

[00:31:22] Speaker 00:
Right.

[00:31:22] Speaker 00:
For any of those government programs, that was the issue.

[00:31:25] Speaker 04:
Right.

[00:31:26] Speaker 04:
But again, those policies were specifically targeting the religious organizations.

[00:31:31] Speaker 04:
And this, as your honor has

[00:31:34] Speaker 04:
as I think all of you recognize, this policy is, you know, prohibits all kinds of discrimination, not just the religious.

[00:31:41] Speaker 01:
But with respect to the entire organization, so I guess to maybe, and perhaps I haven't been clear, but is the division's position that having made the grant that the non-discrimination provisions apply to everything that organization does with and without the granted program?

[00:32:02] Speaker 01:
In other words, so 71.5 has a series of programs.

[00:32:05] Speaker 01:
Some of them are being funded.

[00:32:07] Speaker 01:
It has other programs and other work that it's doing according to its faith where it may want to apply.

[00:32:13] Speaker 01:
It may want the people doing those programs to abide by its statement of faith.

[00:32:20] Speaker 01:
Does the government's non-discrimination policy extend to those unfunded programs in the same organization?

[00:32:28] Speaker 04:
Oh, I see.

[00:32:29] Speaker ?:
OK.

[00:32:32] Speaker 04:
So again, I don't think that this was before the district court, but I want to answer your question.

[00:32:37] Speaker 01:
Well, this is the issue in USAID, which you cited in your brief.

[00:32:40] Speaker 04:
OK, so whether the policy extends to other programs, I think, again, the department's position would be that

[00:33:01] Speaker 04:
you know, an organization that applies for the grant and that represents that it does not discriminate.

[00:33:11] Speaker 04:
I believe this policy would cover all of the services that these organizations are extending.

[00:33:22] Speaker 04:
I do think it could, you know, I think it, again, I don't have evidence in the record

[00:33:29] Speaker 04:
youth 715 has, at least to my memory, has other programming where it does not discriminate.

[00:33:45] Speaker 04:
And so I think the department understands it to discriminate across all programming.

[00:33:53] Speaker 04:
And the department would carry, would understand also that

[00:33:57] Speaker 04:
any of the secular grantees here would similarly, this would apply to their entire organization.

[00:34:05] Speaker 04:
And so I think the answer is, I can't remember how you phrased it, is no.

[00:34:18] Speaker 04:
that this, or excuse me, is yes, that this policy would apply.

[00:34:21] Speaker 01:
Yes, the policy applies across the organization, not just the program.

[00:34:23] Speaker 01:
Yes.

[00:34:23] Speaker 01:
Okay, thank you.

[00:34:24] Speaker 00:
I have a question, but I can do it quickly, I think, while I hope.

[00:34:27] Speaker 00:
Yes.

[00:34:29] Speaker 00:
I think you're still arguing that you're resisting the premise that this certification policy infringes their associational rights.

[00:34:37] Speaker 00:
Yes.

[00:34:38] Speaker 00:
Okay, so what I understand from their

[00:34:43] Speaker 00:
I think, briefing, is the plaintiffs allege that they are practicing Christians and practicing Christians are needed to convey their message of sharing God's story of hope with young people and teaching and sharing about the life of Jesus Christ.

[00:34:56] Speaker 00:
So these are all groups, I think, agencies intending to help children, youth, who are at risk or in duress.

[00:35:03] Speaker 00:
And this agency's way of doing that, which seems to be endemic in their mission statement, is to encourage children to follow the path of Jesus Christ.

[00:35:12] Speaker ?:
All right.

[00:35:13] Speaker 00:
So, with that in mind, I'm looking at, I'm wondering what you think about New York State Club Association.

[00:35:18] Speaker 00:
The Supreme Court said this.

[00:35:20] Speaker 00:
You know what that is?

[00:35:22] Speaker 00:
It's a series of cases, J.C.'

[00:35:23] Speaker 00:
's Rotary, talking about basically, to summarize, clubs that excluded women, right?

[00:35:30] Speaker 00:
and that Supreme Court said it's conceivable, of course, that an association might be able to show that it is organized for a specific expressive purpose and that it will not be able to advocate its desired viewpoints nearly as effectively if it cannot confine its membership to those who share the same sex, for example, or the same religion.

[00:35:49] Speaker 00:
And I know this gets to be tricky, and there's sort of some mental gymnastics about racial discrimination and whatnot.

[00:35:55] Speaker 00:
But the Supreme Court wasn't persuaded that the Rotary Club needed to exclude women in order for the Rotary Club to exist as it existed, because it was essentially a business networking organization.

[00:36:09] Speaker 00:
This organization in kind and in quality is very different.

[00:36:14] Speaker 00:
So when we look at expressive association, the idea that the state of Oregon would be requiring this agency to accept among its groups somebody that didn't share their faith, it seems to me to be very different.

[00:36:29] Speaker 00:
want to have a chance, you have to have a chance to respond to that.

[00:36:32] Speaker 04:
And I think, you know, I have to return to what I have already said, which is, you know, I think plaintiff's recourse there is to not apply for the grant.

[00:36:42] Speaker 04:
Okay.

[00:36:42] Speaker 00:
Thank you for your response.

[00:36:46] Speaker 03:
Thank you.

[00:36:53] Speaker 02:
Thank you, Your Honors.

[00:36:54] Speaker 02:
A few quick points, Senator Buttle.

[00:36:55] Speaker 02:
I'll try to keep it brief.

[00:36:56] Speaker 02:
So just first, the whole purpose of this grant program, the whole purpose of the certification rule, as the department says, is to ensure equitable access to the programs.

[00:37:05] Speaker 02:
What 715 does with its hiring does not affect that interest at all in contrast to what the secular grantees are doing.

[00:37:12] Speaker 02:
The department admits as much in page 25 of its brief where it says hiring does not relate to who accesses the program.

[00:37:19] Speaker 02:
So 715 is able to participate this without undermining the government's interest.

[00:37:25] Speaker 02:
Just briefly on the evidence, the secular website evidence, I know we went through some questions there.

[00:37:31] Speaker 02:
The department did have the opportunity to respond to this.

[00:37:35] Speaker 00:
But the court wasn't persuaded.

[00:37:37] Speaker 00:
And it is a finding.

[00:37:38] Speaker 00:
Why is it an abuse of discretion for him to say, I don't think you've shown because it wasn't really thoroughly vetted, if you will.

[00:37:44] Speaker 00:
That's just my word.

[00:37:45] Speaker 00:
Because it was raised in the reply brief.

[00:37:47] Speaker 00:
Would that be an abuse of discretion?

[00:37:49] Speaker 02:
It was an abuse of discretion as a motions panel said for the district court to conclude that there was no evidence.

[00:37:55] Speaker 00:
Okay.

[00:37:56] Speaker 00:
So set that aside because we're reviewing the district court's order.

[00:37:58] Speaker 00:
Yes.

[00:37:58] Speaker 00:
All right.

[00:37:59] Speaker 00:
And the district court, what's your best shot at that?

[00:38:00] Speaker 00:
That he said, this came to me late and I need to have it really vetted because I can't tell what the screen site I'm summarizing to be sure.

[00:38:08] Speaker 00:
Paraphrasing.

[00:38:09] Speaker 00:
What do we do about that?

[00:38:10] Speaker 00:
What's your best response, please?

[00:38:11] Speaker 02:
Well, the best response is that the district court then went on to address the evidence.

[00:38:15] Speaker 00:
And he wasn't persuaded, so.

[00:38:16] Speaker 02:
He wasn't persuaded that it proved discrimination.

[00:38:19] Speaker 02:
But that's the legal significance of the facts.

[00:38:21] Speaker 02:
It's not a factual determination.

[00:38:23] Speaker 02:
There's no dispute as to what the websites say.

[00:38:25] Speaker 02:
It's just what do they mean.

[00:38:27] Speaker 02:
And that's where you get to the FCA case, is what did the court say in Ambach and FCA, if there are groups that are prioritizing some demographics over others.

[00:38:34] Speaker 00:
I know what FCA says, but can you tell me, and forgive me, I'm trying to just not use too much of your time.

[00:38:38] Speaker 00:
Can you tell me why you think the district court erred?

[00:38:42] Speaker 02:
Yes, because the evidence showed that there were secular grantees, the Black Parent Initiative, for instance, that says it only serves African-African-American families, that you have an organization that has an FAQ page that says, why not boys?

[00:38:56] Speaker 01:
Does it say, I guess that's right, so 715 says, we only hire people of our Christian faith.

[00:39:04] Speaker 01:
You keep inserting the word only, and if you can show that to the extent we consider this, if you can show that on one of those screenshots, let us know.

[00:39:16] Speaker 02:
Yeah, the Black Parent Initiative website, and if you go to our opening brief, it's page 21.

[00:39:22] Speaker 02:
There's a link to it.

[00:39:23] Speaker 02:
It says they focus solely on African-African-American families.

[00:39:27] Speaker 02:
But to Judge Johnson's question earlier, at the very least, it shows that the department is not subjecting these secular grantees to the same level of scrutiny.

[00:39:35] Speaker 01:
But how would we know that, right?

[00:39:36] Speaker 01:
I mean, you have opportunities.

[00:39:38] Speaker 01:
It wasn't pleaded in your complaint.

[00:39:40] Speaker 01:
You have opportunities to develop that record below.

[00:39:45] Speaker 01:
How is the district court supposed to know this?

[00:39:48] Speaker 01:
How is the state supposed to have an opportunity to respond at all when they're seeing it in a reply brief?

[00:39:56] Speaker 02:
Well, they had the opportunity at the preliminary injunction hearing.

[00:39:59] Speaker 02:
They could have put on evidence there.

[00:40:00] Speaker 02:
They could have put in declarations.

[00:40:03] Speaker 01:
Why is it their obligation if you haven't pleaded it or you haven't put in your own declarations?

[00:40:08] Speaker 01:
Why are they obligated to provide facts in response to your argumentation in a reply brief?

[00:40:13] Speaker 02:
Well, again, the question is whether they had the opportunity to respond.

[00:40:15] Speaker 02:
We're at the preliminary injunction stage.

[00:40:18] Speaker 02:
Granted, the evidentiary standards are looser at that stage.

[00:40:23] Speaker 02:
And so the question then is, did they have the opportunity to respond?

[00:40:27] Speaker 03:
Was there an evidentiary hearing after the reply brief was filed?

[00:40:30] Speaker 02:
I know your honor there was a heat there was a hearing but no evidence was put on and so was there an opportunity the district court give the state an opportunity to respond to the reply brief yes your honor that I'll get the sites here so er to er 53 to 57 you can see the district court asking specific questions to the department about the evidence and the significance of it so just on the Carson trinney Lutheran point

[00:41:00] Speaker 02:
In Carson, the Supreme Court made clear that it's not just religious status discrimination they're worried about.

[00:41:06] Speaker 02:
They say you cannot exclude based on religious exercise as well.

[00:41:11] Speaker 02:
My friend on the other side.

[00:41:12] Speaker 01:
That's what that policy is.

[00:41:14] Speaker 01:
This policy doesn't say that, right?

[00:41:16] Speaker 01:
It says you can't exclude whether you're religious or non-religious.

[00:41:21] Speaker 01:
You can't exclude on the basis of

[00:41:23] Speaker 02:
Yes, but as they're applying it to the religious exercises said on five seven five is being excluded from the program on account of its religious exercise So that's how we read the Carson case where it says that on the free exercise point on the free exercise Yes, yes, your honor.

[00:41:39] Speaker 02:
And then lastly just a reminder here.

[00:41:41] Speaker 02:
There's a

[00:41:43] Speaker 02:
Other factors, other PI factors, 71.5 as a result of the motions panel decision is currently in the program.

[00:41:49] Speaker 02:
We'd ask that you keep them in, reverse the district court, reinstate all claims.

[00:41:53] Speaker 01:
Just on that last point, because it's a question I forgot to ask about the status report.

[00:41:57] Speaker 01:
We have the government's status report here.

[00:41:59] Speaker 01:
Do you see any legally material difference that we should be thinking of with respect to your arguments before us as a result of the new grants?

[00:42:11] Speaker 01:
Does that change anything for us?

[00:42:14] Speaker 02:
I think, Your Honor, it just shows that the equities weigh in favor of 71.5, that if they're kicked back out of the program and have to continue paying out of pocket, it's going to jeopardize their program, hamper their ministry.

[00:42:26] Speaker 02:
And at the end of the day, that doesn't just hurt a nonprofit ministry, it hurts the kids of Oregon.

[00:42:30] Speaker 02:
So we'd ask you to reverse and keep Senator 5 in the program.

[00:42:34] Speaker 02:
Thank you.

[00:42:35] Speaker 03:
All right.

[00:42:35] Speaker 03:
Thank you.

[00:42:37] Speaker 03:
Thank you to both counsel for your arguments.

[00:42:39] Speaker 03:
The case just argued is submitted for a decision by the court that completes our calendar for today.

[00:42:44] Speaker 03:
We are on recess until 9.30 a.m.

[00:42:46] Speaker 03:
tomorrow morning.

[00:42:48] Speaker 00:
All rise.

[00:42:50] Speaker 00:
This court for this session stands adjourned.