Tag Archives: Texas

Ssh! We’re “reflecting.”

According to the Houston Chronicle, the U.S. Court of Appeals for the Fifth Circuit this week heard oral argument on whether Texas’s school “moment of silence” law violates the Establishment Clause:

U.S. District Judge Barbara Lynn upheld the constitutionality of the law last year [….] The Crofts, of Carrollton, Texas, appealed Lynn’s ruling. On Tuesday, a three-judge panel from the 5th U.S. Circuit Court of Appeals in New Orleans heard arguments from lawyers on both sides of the case. […]

In 2003, state lawmakers amended an existing law that already allowed schools to hold a moment of silence to specify that students can use the time to “reflect, pray, meditate, or engage in any other silent activity that is not likely to interfere with or distract another student.”

[…]

Texas Solicitor General James Ho, who handles appeals for Attorney General Greg Abbott, said lawmakers included the word “prayer” to avoid confusion.

Judge Fortunato Benavides said advocates on both sides of the issue tend to distort the implications of laws governing school prayer.

“I can see why the Legislature might think that it might be important to let people know what they can do and put it in the form of a statute,” he said.

[…]

Ho and Cook both cited prior rulings by the U.S. Supreme Court to support their positions. Cook said the justices struck down an Alabama law that mirrors Texas’ minute-of-silence statute.

“By amending (the law) to include the word ‘pray,’ the Legislature, whether intentionally or otherwise, has advanced religion,” he wrote in court papers.

Ho said Alabama lawmakers had enacted their law “for the express purpose of defying the U.S. Supreme Court,” whereas sponsors of the Texas law wrote theirs in a way that would pass constitutional muster.

These statutes have always amazed me.  For nearly 50 years, the Supreme Court has held that teacher or administrator-led (or teacher or administrator-endorsed) school prayer (or school prayer disguised as a moment of silence) is unconstitutional.  To me, a school leading a prayer (even a nondenominational-ish prayer) is one of the worst kinds of establishment. It’s a government official endorsing religion (and often one religion over another), compelling kids (who likely do not yet have well-developed ideas about God) to engage in a particular religious practice, usurp parental authority on one of the most critical choices in child rearing, and create unnecessary tensions between student and teacher, peer and peer, and even religion and religion.  Likewise, though, the Supreme Court has been very clear that kids don’t lose the rights to their own, particular faith at the schoolhouse door.  Kids are more than welcome to pray (pretty much whenever they want), out loud or silently, in groups or individually.

Nonetheless, legislatures continue to believe, apparently, that kids do not have enough opportunity to pray at school on their own, and so they enact statute after statute mandating “moments of silence.” Most of the ordinances challenged fail, often because the legislature (like the Texas legislature here) enumerates that kids can pray during the moment of silence.  The cases often turn on whether the legislature had the “purpose” of promoting religion (or one religion over another) when enacting the statute.

From a legal perspective, why is “purpose” paramount?  If the legislation is truly neutral (that is, kids can do whatever they want, so long as they do it quietly) who cares if the legislators “hope” that more students pray? Is it that the implication is you’re “supposed” to pray? Or that you should feel bad if you don’t pray? That seems to be more of a question of implementation (that is, whether the school says something like “now take this moment of silence for reflection, OR TO PRAY, or to sit quietly in preparation for the day…”) rather than enaction of the statute.

But from a practical perspective, why do legislators continue to pass statutes like this?  Kids who will want to pray will.  They’ll do it when they get to their seats, right before the big test (when even non-religious kids may say a word or two), before lunch, at a Fellowship of Christian Athletes meeting, at a student-run bible study… whenever they feel compelled to.  Students who don’t want to pray won’t, unless the government compells them (a clear violation of the Establishment Clause…. well, at least at the time of this writing.) I’ve never heard a high school student, much less an elementary student ever saying “man, if I just had more time to pray,” or “man, if I just had 45 seconds at the beginning of the day to ‘reflect,’ I’m sure my studies would be better.” And have these legislators ever been to a school and sat in a room where kids are supposed to be quiet?  Like a study hall, or a classroom where people are taking a test? Half the kids are just trying to break the silence one way or another.  Rather than starting the day well, my guess is that the “prayer kids” will just be harassed by the “non-prayer kids,” the “silence” will routinely be broken (by jokesters, by kids’ cell phones, or by other kids texting away), and everyone will just be more stressed.

Regardless of the constitutionality of this particular statute (which appears to be suspect to me, based upon the drafted language), I wish state legislatures had better things to do than to mandate when and where kids have to be quiet (or mandate who has to pray and when).

I look forward to all reasonable comments.

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“Stripper Idol” Part Deux

Gene Quinn at IP Watchdog has written this post about the ongoing “Stripper Idol” lawsuit (blogged by yours truly here).  In the post, he argues that the commentators on Fox News covering the story argued on the Bill O’Reilly program that because no one would confuse a strip club with American Idol, there’d be no likelihood of confusion as to source of the services, and therefore the strip club wins.  Gene writes:

While I do enjoy O’Reilly, the fact of the matter is that his legal correspondents were dead wrong, as are most legal correspondents when the attempt to pontificate about matters relating to patents, trademarks or copyrights.

He then states that a trademark dilution theory is most likely to be successful, as “likelihood of confusion” need not be proven.  While I agree with him that the O’Reilly commentators were “dead wrong” in their assessment of the merits of the suit, I respectfully disagree that dilution is the best theory for FremantleMedia to pursue.

First, dilution is sticky because you have to prove that your mark is “famous.”  Under the Texas dilution statute, which may be more liberal than the Section 43(c) of  the Lanham Act, fame may be easier to prove.  But it’s still a significant threshold of proof that the plaintiffs must overcome.

Second, a number of recent federal decisions have noted that for a junior mark to dilute a senior mark, the junior mark must be nearly identical to the senior mark.  In other words, if we’re not going to look at consumer confusion, you have to prove a very close nexus between the allegedy famous mark and the allegedly diluted mark.  While STRIPPER IDOL and Design may be close the AMERICAN IDOL and Design design, it’s a hard burden to show that the more risque mark actually dilutes the distinctive quality of AMERICAN IDOL or tarnishes its image.

My continuing belief is that the best theory revolves around likelihood of confusion, not as to source of the goods, but as to sponsorship or affiliation. A typical survey question used to support Plaintiff’s case may ask something like “Do you believe this strip club had to get permission from anyone to use this logo? If so, who?”  I wouldn’t be surprised if a good percentage of people would respond “Yes; American Idol.”  That’s confusion as to sponsorship or affiliation.

Dilution is a good idea, too, particularly under Texas law (which may be more lenient than the federal standards), and I can’t wait to see how the case unfolds.

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If this guy can’t find a job…

The Austin American-Statesman reports here that Alberto Gonzales doesn’t have a job, and hasn’t had a lot of luck in finding one.

Since leaving office in August 2007 amid an investigation into the firing of U.S. attorneys, Gonzales said he has concentrated on cooperating with ongoing investigations. He also has given speeches, done some consulting and mediating and talked with law firms about jobs.

So far, nothing has panned out on the job front.

One of the guys in the unemployment line

One of the guys in the unemployment line

“It’s a rough economy right now, and it’s a tough time for a lot of law firms right now. Obviously they are very careful about bringing on new people, and they are going to be careful about bringing on people where there are questions about things that may have happened in their past,” he said. “Over time, I’m confident those things will be resolved, and things will work themselves out.”

The article suggests that Gonzales’s job problems are as a result of “misinformation” about his tenure as AG.  Misinformation or not, General Gonzales was the top attorney for the United States of America and a former Texas Supreme Court justice.  My guess is that he could work at nearly any law firm in the country and make seven figures doing so.

I am in the job market, and all I can say is, if this guy can’t get a job, what chance do I have?

(Then again, I wasn’t involved in the firing of nine U.S. attorneys for political reasons, I didn’t defend extraordinary rendition as constitutional, and I didn’t write the torture memo.)

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