mr. laycock characterizes your position as being all deference all the time. so i'll give you an opportunity to say when would deference be inappropriate? >> deference would be inappropriate when the explanation offered on the witness stand in the record of compelling interest and the least restrictive means is neither comports with logic or common sense. it sounds like we're on agreement on that. justice sotomayor asked which lower court decision would lend the most guidance. i think a straightforward but apt analysis is in the couch case in the fourth circuit where judge traxler joined by justice o'connor and judge shedd went through the initial obligation is to explain the reason and common sense why that approach furthers a compelling interest and a least restrictive means, and once that happens, deference attaches but that doesn't mean either that you win the case. it just means you have substantial weight. you're sort of a thumb on the scale so to speak and more evidence can come into play and you can still lose. >> can i go back to just so i'm clear in

mr. laycock, you're relying on this case really on felt intuitions that this couldn't possibly advance the state's interest but for the most part in these cases, there will be some incremental gain with respect to the interests that the state has. so whether it's a full beard or whether it's long hair or whether it's a turban, there will be some ability to say even though it's just teeny tiny, there is some increase in prison security that results from disallowing this practice. and i guess i want to know, and this really fits in with several of the other questions that have been asked you, is how do we think about that question in the context of this statute? >> i think they have to show material -- the phrase in the government's brief and i think it's helpful -- a material effect on their security situation. any teeny tiny risk, however small, is another way of de facto repealing the statute because you can always imagine some teeny tiny risk. even in turner the court said the test into zero risk. even in turner the court said you have to -- >> teeny tiny isn't enough, but how about, you

mr. laycock characterizes your position as being all deference all the time. so i'll give you an opportunity to say when would deference be inappropriate? >> deference would be inappropriate when the explanation offered on the witness stand in the record of compelling interest and the least restrictive means is neither comports with logic or common sense. it sounds like we're on agreement on that. justice sotomayor asked which lower court decision would lend the most guidance. i think a straightforward but apt analysis is in the couch case in the fourth circuit where judge tracks ler joined by justice o'connor and judge shed went through the initial obligation is to explain the reason and common sense why that approach furthers a compelling interest and a least restrictive means, and once that happens, deference attaches but that doesn't mean either that you win the case. it just means you have substantial weight. you're sort of a thumb on the scale so to speak and more evidence can come into play and you can still lose. >> can i go back to just so i'm clear i

mr. laycock, you're relying on this case really on felt intuitions that this couldn't possibly advance the state's interest but for the most part in these cases, there will be some incremental gain with respect to the interests that the state has. so whether it's a full beard or whether it's long hair or whether it's a turban, there will be some ability to say even though it's just teeny tiny, there is some increase in prison security that results from disallowing this practice. and i guess i want to know, and this really fits in with several of the other questions that have been asked you, is how do we think about that question in the context of this statute? >> i think they have to show material -- the phrase in the government's brief and i think it's helpful -- a material effect on their security situation. any teeny tiny risk, however small, is another way of de facto repealing the statute because you can always imagine some teeny tiny risk. even in turner the court said the test into zero risk. even in turner the court said you have to -- >> teeny tiny isn't enough, but how about, you