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Rigel posted:We will probably have more opinions next week. Uuuugh.
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Jun 30, 2020 17:50
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hobbesmaster posted:Are catholic schools still predominately the first type? In New England they are generally. Grape fucked around with this message at 21:14 on Jun 30, 2020 |
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Jun 30, 2020 18:38
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Rigel posted:I don't know about predominant, I'm sure there are many bad catholic schools. Catholic schools do tend to be the only ones where you might find something similar to a secular school with just a few religious classes and clergy mixed in. Its the schools attached to evangelical churches that are always nuts. I grew up attending private Lutheran elementary/grade schools that were run by, and attached to, Wisconsin-synod Lutheran churches, and let me tell you, the nuts part is absolutely true.
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Jun 30, 2020 18:41
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 Opinions! UNITED STATES PATENT AND TRADEMARK OFFICE ET AL. v. BOOKING.COM B. V. TLDR: As long as you can prove consumers see your generic_product.com as a brand name (i.e., a specific source of products), you can trademark generic_product.com. In this case, booking.com. Majority Opinion (Ginsburg): This case concerns eligibility for federal trademark registration. Respondent Booking.com, an enterprise that maintains a travel-reservation website by the same name, sought to register the mark “Booking.com.” Concluding that “Booking.com” is a generic name for online hotel-reservation services, the U. S. Patent and Trademark Office (PTO) refused registration. A generic name—the name of a class of products or services—is ineligible for federal trademark registration. The word “booking,” the parties do not dispute, is generic for hotel-reservation services. “Booking.com” must also be generic, the PTO maintains, under an encompassing rule the PTO currently urges us to adopt: The combination of a generic word and “.com” is generic. In accord with the first- and second-instance judgments in this case, we reject the PTO’s sweeping rule. A term styled “generic.com” is a generic name for a class of goods or services only if the term has that meaning to consumers. Consumers, according to lower court determinations uncontested here by the PTO, do not perceive the term “Booking.com” to signify online hotel-reservation services as a class. In circumstances like those this case presents, a “generic.com” term is not generic and can be eligible for federal trademark registration. A trademark distinguishes one producer’s goods or services from another’s. Guarding a trademark against use by others, this Court has explained, “secure[s] to the owner of the mark the goodwill” of her business and “protect[s] the ability of consumers to distinguish among competing producers.” … Prime among the conditions for [federal trademark] registration, the mark must be one “by which the goods of the applicant may be distinguished from the goods of others.” Distinctiveness is often expressed on an increasing scale: Word marks “may be (1) generic; (2) descriptive; (3) suggestive; (4) arbitrary; or (5) fanciful.” Two Pesos, Inc. v. Taco Cabana, Inc., The more distinctive the mark, the more readily it qualifies for the principal register. The most distinctive marks— those that are “‘arbitrary’ (‘Camel’ cigarettes), ‘fanciful’ (‘Kodak’ film), or ‘suggestive’ (‘Tide’ laundry detergent)”— may be placed on the principal register because they are “inherently distinctive.” “Descriptive” terms, in contrast, are not eligible for the principal register based on their inherent qualities alone. The Lanham Act, “liberaliz[ing] the common law,” “extended protection to descriptive marks.” But to be placed on the principal register, descriptive terms must achieve significance “in the minds of the public” as identifying the applicant’s goods or services—a quality called “acquired distinctiveness” or “secondary meaning.” Without secondary meaning, descriptive terms may be eligible only for the supplemental register. At the lowest end of the distinctiveness scale is “the generic name for the goods or services.” The name of the good itself (e.g., “wine”) is incapable of “distinguish[ing] [one producer’s goods] from the goods of others” and is therefore ineligible for registration. Indeed, generic terms are ordinarily ineligible for protection as trademarks at all. Booking.com is a digital travel company that provides hotel reservations and other services under the brand “Booking.com,” which is also the domain name of its website. Booking.com filed applications to register four marks in connection with travel-related services, each with different visual features but all containing the term “Booking.com.” Both a PTO examining attorney and the PTO’s Trademark Trial and Appeal Board concluded that the term “Booking.com” is generic for the services at issue and is therefore unregistrable. “Booking,” the Board observed, means making travel reservations, and “.com” signifies a commercial website. The Board then ruled that “customers would understand the term BOOKING.COM primarily to refer to an online reservation service for travel, tours, and lodgings.” Alternatively, the Board held that even if “Booking.com” is descriptive, not generic, it is unregistrable because it lacks secondary meaning. Booking.com sought review in the U. S. District Court for the Eastern District of Virginia, invoking a mode of review that allows Booking.com to introduce evidence not presented to the agency. . Relying in significant part on Booking.com’s new evidence of consumer perception, the District Court concluded that “Booking.com”—unlike “booking”—is not generic. … whether “Booking.com” is generic turns on whether that term, taken as a whole, signifies to consumers the class of online hotel-reservation services. Thus, if “Booking.com” were generic, we might expect consumers to understand Travelocity—another such service—to be a “Booking.com.” We might similarly expect that a consumer, searching for a trusted source of online hotel-reservation services, could ask a frequent traveler to name her favorite “Booking.com” provider. Consumers do not in fact perceive the term “Booking.com” that way, the courts below determined. The PTO no longer disputes that determination. That should resolve this case: Because “Booking.com” is not a generic name to consumers, it is not generic. Opposing that conclusion, the PTO urges a nearly per se rule that would render “Booking.com” ineligible for registration regardless of specific evidence of consumer perception. In the PTO’s view, which the dissent embraces, when a generic term is combined with a generic top-level domain like “.com,” the resulting combination is generic. In other words, every “generic.com” term is generic according to the PTO, absent exceptional circumstances. The PTO’s own past practice appears to reflect no such comprehensive rule. See, e.g., Trademark Registration No. 3,601,346 (“ART.COM” on principal register for, inter alia, “[o]nline retail store services” offering “art prints, original art, [and] art reproductions”); Trademark Registration No. 2,580,467 (“DATING.COM” on supplemental register for “dating services”). … The PTO challenges the judgment below on a sole ground: It urges that, as a rule, combining a generic term with “.com” yields a generic composite. For the above-stated reasons, we decline a rule of that order, one that would largely disallow registration of “generic.com” terms and open the door to cancellation of scores of currently registered mark. Accordingly, the judgment of the Court of Appeals for the Fourth Circuit regarding eligibility for trademark registration is Affirmed. Lineup: Ginsburg, joined by Roberts, Thomas, Alito, Sotomayor, Kagan, Gorsuch, and Kavanaugh. Concurrence by Sotomayor. Dissent by Breyer. Concurrence (Sotomayor): The question before the Court here is simple: whether there is a nearly per se rule against trademark protection for a “generic.com” term. I agree with the Court that there is no such rule, a holding that accords with how the U. S. Patent and Trademark Office (PTO) has treated such terms in the past. I add two observations. First, the dissent wisely observes that consumer-survey evidence “may be an unreliable indicator of genericness.” Flaws in a specific survey design, or weaknesses inherent in consumer surveys generally, may limit the probative value of surveys in determining whether a particular mark is descriptive or generic in this context. But I do not read the Court’s opinion to suggest that surveys are the be-all and end-all. As the Court notes, sources such as “dictionaries, usage by consumers and competitors, and any other source of evidence bearing on how consumers perceive a term’s meaning” may also inform whether a mark is generic or descriptive. Second, the PTO may well have properly concluded, based on such dictionary and usage evidence, that Booking.com is in fact generic for the class of services at issue here, and the District Court may have erred in concluding to the contrary. But that question is not before the Court. With these understandings, I concur in the Court’s opinion. Dissent (Breyer): What is Booking.com? To answer this question, one need only consult the term itself. Respondent provides an online booking service. The company’s name informs the consumer of the basic nature of its business and nothing more. Therein lies the root of my disagreement with the majority. Trademark law does not protect generic terms, meaning terms that do no more than name the product or service itself. This principle preserves the linguistic commons by preventing one producer from appropriating to its own exclusive use a term needed by others to describe their goods or services. Today, the Court holds that the addition of “.com” to an otherwise generic term, such as “booking,” can yield a protectable trademark. Because I believe this result is inconsistent with trademark principles and sound trademark policy, I respectfully dissent. … Goodyear recognized that designations such as “Company,” “Corp.,” and “Inc.” merely indicate corporate form and therefore do nothing to distinguish one firm’s goods or services from all others’. It follows that the addition of such a corporate designation does not “magically transform a generic name for a product or service into a trademark, thereby giving a right to exclude others.” In other words, where a compound term consists simply of a generic term plus a corporate designation, the whole is necessarily no greater than the sum of its parts. This case requires us to apply these principles in the novel context of internet domain names. Respondent seeks to register a term, “Booking.com,” that consists of a generic term, “booking” (known as the second-level domain) plus “.com” (known as the top-level domain). The question at issue here is whether a term that takes the form “generic.com” is generic in the ordinary course. In my view, appending “.com” to a generic term ordinarily yields no meaning beyond that of its constituent parts. Because the term “Booking.com” is just such an ordinary “generic.com” term, in my view, it is not eligible for trademark registration. Like the corporate designations at issue in Goodyear, a top-level domain such as “.com” has no capacity to identify and distinguish the source of goods or services. It is merely a necessary component of any web address. When combined with the generic name of a class of goods or services, “.com” conveys only that the owner operates a website related to such items. Just as “Wine Company” expresses the generic concept of a company that deals in wine, “wine.com” connotes only a website that does the same. The same is true of “Booking.com.” The combination of “booking” and “.com” does not serve to “identify a particular characteristic or quality of some thing; it connotes the basic nature of that thing”—the hallmark of a generic term. … The majority believes that Goodyear is inapposite because of the nature of the domain name system. Because only one entity can hold the contractual rights to a particular domain name at a time, it contends, consumers may infer that a “generic.com” domain name refers to some specific entity. That fact does not distinguish Goodyear. A generic term may suggest that it is associated with a specific entity. That does not render it nongeneric. For example, “Wine, Inc.” implies the existence of a specific legal entity incorporated under the laws of some State. Likewise, consumers may perceive “The Wine Company” to refer to some specific company rather than a genus of companies. But the addition of the definite article “the” obviously does not transform the generic nature of that term. True, these terms do not carry the exclusivity of a domain name. But that functional exclusivity does not negate the principle animating Goodyear: Terms that merely convey the nature of the producer’s business should remain free for all to use. ... In sum, the term “Booking.com” refers to an internet booking service, which is the generic product that respondent and its competitors sell. No more and no less. The same is true of “generic.com” terms more generally. By making such terms eligible for trademark protection, I fear that today’s decision will lead to a proliferation of “generic.com” marks, granting their owners a monopoly over a zone of useful, easy-to-remember domains. This result would tend to inhibit, rather than to promote, free competition in online commerce. I respectfully dissent. https://www.supremecourt.gov/opinions/19pdf/19-46_8n59.pdf ESPINOZA ET AL. v. MONTANA DEPARTMENT OF REVENUE ET AL. TLDR: Montana’s “tax credits for donating to organizations giving school scholarships” scheme can’t bar those scholarships from being used in Christian schools. Majority Opinion (Roberts): The Montana Legislature established a program to provide tuition assistance to parents who send their children to private schools. The program grants a tax credit to anyone who donates to certain organizations that in turn award scholarships to selected students attending such schools. When petitioners sought to use the scholarships at a religious school, the Montana Supreme Court struck down the program. The Court relied on the “no-aid” provision of the State Constitution, which prohibits any aid to a school controlled by a “church, sect, or denomination.” The question presented is whether the Free Exercise Clause of the United States Constitution barred that application of the no-aid provision. In 2015, the Montana Legislature sought “to provide parental and student choice in education” by enacting a scholarship program for students attending private schools. The program grants a tax credit of up to $150 to any taxpayer who donates to a participating “student scholarship organization.” The scholarship organizations then use the donations to award scholarships to children for tuition at a private school. … The Montana Legislature also directed that the program be administered in accordance with Article X, section 6, of the Montana Constitution, which contains a “no-aid” provision barring government aid to sectarian schools. … The Religion Clauses of the First Amendment provide that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” We have recognized a “‘play in the joints’ between what the Establishment Clause permits and the Free Exercise Clause compels.” Here, the parties do not dispute that the scholarship program is permissible under the Establishment Clause. Nor could they. We have repeatedly held that the Establishment Clause is not offended when religious observers and organizations benefit from neutral government programs. … The question for this Court is whether the Free Exercise Clause precluded the Montana Supreme Court from applying Montana’s no-aid provision to bar religious schools from the scholarship program. For purposes of answering that question, we accept the Montana Supreme Court’s interpretation of state law—including its determination that the scholarship program provided impermissible “aid” within the meaning of the Montana Constitution—and we assess whether excluding religious schools and affected families from that program was consistent with the Federal Constitution. The Free Exercise Clause, which applies to the States under the Fourteenth Amendment, “protects religious observers against unequal treatment” and against “laws that impose special disabilities on the basis of religious status.” Those “basic principle[s]” have long guided this Court. Most recently, Trinity Lutheran distilled these and other decisions to the same effect into the “unremarkable” conclusion that disqualifying otherwise eligible recipients from a public benefit “solely because of their religious character” imposes “a penalty on the free exercise of religion that triggers the most exacting scrutiny.” … Here too Montana’s no-aid provision bars religious schools from public benefits solely because of the religious character of the schools. The provision also bars parents who wish to send their children to a religious school from those same benefits, again solely because of the religious character of the school. … Because the Montana Supreme Court applied the no-aid provision to discriminate against schools and parents based on the religious character of the school, the “strictest scrutiny” is required. That “stringent standard,” is not “watered down but really means what it says,” To satisfy it, government action “must advance ‘interests of the highest order’ and must be narrowly tailored in pursuit of those interests.” The Montana Supreme Court asserted that the no-aid provision serves Montana’s interest in separating church and State “more fiercely” than the Federal Constitution.But “that interest cannot qualify as compelling” in the face of the infringement of free exercise here. A State’s interest “in achieving greater separation of church and State than is already ensured under the Establishment Clause . . . is limited by the Free Exercise Clause.” The Department, for its part, asserts that the no-aid provision actually promotes religious freedom. In the Department’s view, the no-aid provision protects the religious liberty of taxpayers by ensuring that their taxes are not directed to religious organizations, and it safeguards the freedom of religious organizations by keeping the government out of their operations.An infringement of First Amendment rights, however,cannot be justified by a State’s alternative view that the infringement advances religious liberty. cannot be justified by a State’s alternative view that the infringement advances religious liberty. … The Department argues that, at the end of the day, there is no free exercise violation here because the Montana Supreme Court ultimately eliminated the scholarship program altogether. According to the Department, now that there is no program, religious schools and adherents cannot complain that they are excluded from any generally available benefit. … When the Court was called upon to apply a state law no-aid provision to exclude religious schools from the program, it was obligated by the Federal Constitution to reject the invitation. Had the Court recognized that this was, indeed, “one of those cases” in which application of the no-aid provision “would violate the Free Exercise Clause,” id., at 468, 435 P. 3d, at 614, the Court would not have proceeded to find a violation of that provision. And, in the absence of such a state law violation, the Court would have had no basis for terminating the program. Because the elimination of the program flowed directly from the Montana Supreme Court’s failure to follow the dictates of federal law, it cannot be defended as a neutral policy decision, or as resting on adequate and independent state law grounds. … The judgment of the Montana Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. Lineup: Roberts, joined by Thomas, Alito, Gorsuch, and Kavanaugh. Concurrence by Thomas, joined by Gorsuch. Concurrence by Alito. Concurrence by Gorsuch. Dissent by Ginsburg, joined by Kagan. Dissent by Breyer, joined by Kagan as to Part I. Dissent by Sotomayor. 7! opinions on this one. Concurrence (Thomas, joined by Gorsuch): The Court correctly concludes that Montana’s no-aid provision expressly discriminates against religion in violation of the Free Exercise Clause. And it properly provides relief to Montana religious schools and the petitioners who wish to use Montana’s scholarship program to send their children to such schools. I write separately to explain how this Court’s interpretation of the Establishment Clause continues to hamper free exercise rights. Until we correct course on that interpretation, individuals will continue to face needless obstacles in their attempts to vindicate their religious freedom. This case involves the Free Exercise Clause, not the Establishment Clause. But as in all cases involving a state actor, the modern understanding of the Establishment Clause is a “brooding omnipresence,” ever ready to be used to justify the government’s infringement on religious freedom. Under the modern, but erroneous, view of the Establishment Clause, the government must treat all religions equally and treat religion equally to nonreligion. … This understanding of the Establishment Clause is unmoored from the original meaning of the First Amendment. As I have explained in previous cases, at the founding, the Clause served only to “protec[t] States, and by extension their citizens, from the imposition of an established religion by the Federal Government.” Under this view, the Clause resists incorporation against the States. ... the modern view, which presumes that States must remain both completely separate from and virtually silent on matters of religion to comply with the Establishment Clause, is fundamentally incorrect. Properly understood, the Establishment Clause does not prohibit States from favoring religion. They can legislate as they wish, subject only to the limitations in the State and Federal Constitutions. Concurrence (Alito): I join the opinion of the Court in full. The basis of the decision below was a Montana constitutional provision that, according to the Montana Supreme Court, forbids parents from participating in a publicly funded scholarship program simply because they send their children to religious schools. Regardless of the motivation for this provision or its predecessor, its application here violates the Free Exercise Clause. Nevertheless, the provision’s origin is relevant under the decision we issued earlier this Term in Ramos v. Louisiana, 590 U. S. ___ (2020). The question in Ramos was whether Louisiana and Oregon laws allowing non-unanimous jury verdicts in criminal trials violated the Sixth Amendment. The Court held that they did, emphasizing that the States originally adopted those laws for racially discriminatory reasons. I argued in dissent that this original motivation, though deplorable, had no bearing on the laws’ constitutionality because such laws can be adopted for non-discriminatory reasons, and “both States readopted their rules under different circumstances in later years.” But I lost, and Ramos is now precedent. If the original motivation for the laws mattered there, it certainly matters here. … Montana’s provision was modeled on the failed Blaine Amendment to the Constitution of the United States. Named after House Speaker James Blaine, the Congressman who introduced it in 1875, the amendment was prompted by virulent prejudice against immigrants, particularly Catholic immigrants. In effect, the amendment would have “bar[red] any aid” to Catholic and other “sectarian” schools. As noted in a publication from the United States Commission on Civil Rights, a prominent supporter of this ban was the Ku Klux Klan. … Today’s public schools are quite different from those envisioned by Horace Mann, but many parents of many different faiths still believe that their local schools inculcate a worldview that is antithetical to what they teach at home. Many have turned to religious schools, at considerable expense, or have undertaken the burden of homeschooling. The tax-credit program adopted by the Montana Legislature but overturned by the Montana Supreme Court provided necessary aid for parents who pay taxes to support the public schools but who disagree with the teaching there. The program helped parents of modest means do what more affluent parents can do: send their children to a school of their choice. The argument that the decision below treats everyone the same is reminiscent of Anatole France’s sardonic remark that “‘[t]he law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.’ Concurrence (Gorsuch): Today, the Court explains how the Montana Constitution, as interpreted by the State Supreme Court, violates the First Amendment by discriminating against parents and schools based on their religious status or identity. The Court explains, too, why the State Supreme Court’s decision to eliminate the tax credit program fails to mask the discrimination. But for the Montana Constitution’s impermissible discrimination, after all, the legislature’s tax credit and scholarship program would be still operating for the benefit of Ms. Espinoza and everyone else. I agree with all the Court says on these scores and join its opinion in full. I write separately only to address an additional point. The Court characterizes the Montana Constitution as discriminating against parents and schools based on “religious status and not religious use.” No doubt, the Court proceeds as it does to underscore how the outcome of this case follows from Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U. S. ___ (2017), where the Court struck down a similar public benefits restriction that, it held, discriminated on the basis of religious status. No doubt, too, discrimination on the basis of religious status raises grave constitutional questions for the reasons the Court describes. But I was not sure about characterizing the State’s discrimination in Trinity Lutheran as focused only on religious status, and I am even less sure about characterizing the State’s discrimination here that way. In the first place, discussion of religious activity, uses, and conduct—not just status—pervades this record. The Montana Constitution forbids the use of public funds “for any sectarian purpose,” including to “aid” sectarian schools. Tracking this directive, the State Supreme Court reasoned that the legislature’s tax credit program could be used to “subsidiz[e] the sectarian school’s educational program” and thereby “strengthen . . . religious education. Meanwhile, Ms. Espinoza admits that she would like to use scholarship funds to enable her daughters to be taught in school the “same Christian values” they are taught at home. Finally, in its briefing before this Court, Montana has represented that its Constitution focuses on preventing the use of tax credits to subsidize religious activity. Not only is the record replete with discussion of activities, uses, and conduct, any jurisprudence grounded on a status-use distinction seems destined to yield more questions than answers. Does Montana seek to prevent religious parents and schools from participating in a public benefits program (status)? Or does the State aim to bar public benefits from being employed to support religious education (use)? Maybe it’s possible to describe what happened here as status-based discrimination. But it seems equally, and maybe more, natural to say that the State’s discrimination focused on what religious parents and schools do—teach religion. … Montana’s Supreme Court disregarded these foundational principles. Effectively, the court told the state legislature and parents of Montana like Ms. Espinoza: You can have school choice, but if anyone dares to choose to send a child to an accredited religious school, the program will be shuttered. That condition on a public benefit discriminates against the free exercise of religion. Calling it discrimination on the basis of religious status or religious activity makes no difference: It is unconstitutional all the same Dissent (Ginsburg, joined by Kagan): The Montana Legislature enacted a scholarship program to fund tuition for students attending private secondary schools. In the decision below, the Montana Supreme Court struck down that program in its entirety. The program, the state court ruled, conflicted with the State Constitution’s no-aid provision, which forbids government appropriations to religious schools. Parents who sought to use the program’s scholarships to fund their children’s religious education challenged the state court’s ruling. They argue in this Court that the Montana court’s application of the no-aid provision violated the Free Exercise Clause of the Federal Constitution. Importantly, the parents, petitioners here, disclaim any challenge to the no-aid provision on its face. They instead argue—and this Court’s majority accepts—that the provision is unconstitutional as applied because the First Amendment prohibits discrimination in tuition-benefit programs based on a school’s religious status. Because the state court’s decision does not so discriminate, I would reject petitioners’ free exercise claim. … Petitioners argue that the Montana Supreme Court’s decision fails when measured against Trinity Lutheran. I do not see how. Past decisions in this area have entailed differential treatment occasioning a burden on a plaintiff ’s religious exercise. This case is missing that essential component. Recall that the Montana court remedied the state constitutional violation by striking the scholarship program in its entirety. Under that decree, secular and sectarian schools alike are ineligible for benefits, so the decision cannot be said to entail differential treatment based on petitioners’ religion. Put somewhat differently, petitioners argue that the Free Exercise Clause requires a State to treat institutions and people neutrally when doling out a benefit—and neutrally is how Montana treats them in the wake of the state court’s decision. … Nearing the end of its opinion, the Court writes: “A State need not subsidize private education. But once a State decides to do so, it cannot disqualify some private schools solely because they are religious.” Because Montana’s Supreme Court did not make such a decision— its judgment put all private school parents in the same boat—this Court had no occasion to address the matter.2 On that sole ground, and reaching no other issue, I dissent from the Court’s judgment. Dissent (Breyer, joined by Kagan as to Part I): The First Amendment’s Free Exercise Clause guarantees the right to practice one’s religion. At the same time, its Establishment Clause forbids government support for religion. Taken together, the Religion Clauses have helped our Nation avoid religiously based discord while securing liberty for those of all faiths. This Court has long recognized that an overly rigid application of the Clauses could bring their mandates into conflict and defeat their basic purpose. And this potential conflict is nowhere more apparent than in cases involving state aid that serves religious purposes or institutions. In such cases, the Court has said, there must be constitutional room, or “‘play in the joints,’” between “what the Establishment Clause permits and the Free Exercise Clause compels.” … The majority barely acknowledges the play-in-the-joints doctrine here. It holds that the Free Exercise Clause forbids a State to draw any distinction between secular and religious uses of government aid to private schools that is not required by the Establishment Clause. The majority’s approach and its conclusion in this case, I fear, risk the kind of entanglement and conflict that the Religion Clauses are intended to prevent. I consequently dissent. … If, for 250 years, we have drawn a line at forcing taxpayers to pay the salaries of those who teach their faith from the pulpit, I do not see how we can today require Montana to adopt a different view respecting those who teach it in the classroom. Dissent (Sotomayor): The majority holds that a Montana scholarship program unlawfully discriminated against religious schools by excluding them from a tax benefit. The threshold problem, however, is that such tax benefits no longer exist for anyone in the State. The Montana Supreme Court invalidated the program on state-law grounds, thereby foreclosing the asapplied challenge petitioners raise here. Indeed, nothing required the state court to uphold the program or the state legislature to maintain it. The Court nevertheless reframes the case and appears to ask whether a longstanding Montana constitutional provision is facially invalid under the Free Exercise Clause, even though petitioners disavowed bringing such a claim. But by resolving a constitutional question not presented, the Court fails to heed Article III principles older than the Religion Clause it expounds. Not only is the Court wrong to decide this case at all, it decides it wrongly. In Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U. S. ___ (2017), this Court held, “for the first time, that the Constitution requires the government to provide public funds directly to a church.” Here, the Court invokes that precedent to require a State to subsidize religious schools if it enacts an education tax credit. Because this decision further “slights both our precedents and our history” and “weakens this country’s longstanding commitment to a separation of church and state beneficial to both,” I respectfully dissent. … Today’s ruling is perverse. Without any need or power to do so, the Court appears to require a State to reinstate a tax-credit program that the Constitution did not demand in the first place. We once recognized that “[w]hile the Free Exercise Clause clearly prohibits the use of state action to deny the rights of free exercise to anyone, it has never meant that a majority could use the machinery of the State to practice its beliefs.” Today’s Court, by contrast, rejects the Religion Clauses’ balanced values in favor of a new theory of free exercise, and it does so only by setting aside well-established judicial constraints. I respectfully dissent. https://www.supremecourt.gov/opinions/19pdf/18-1195_g314.pdf ulmont fucked around with this message at 23:54 on Jun 30, 2020 |
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Jun 30, 2020 20:16
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Stereotype posted:hey I just want you to know that I really appreciate you posting these here because I wouldn't read them otherwise Thanks, guys, appreciate it. End of June is always miserable as all these cases with each justice feeling the need to write opinion balloons them from a normal 20-30 pages to 90-150. Residency Evil posted:What's the last day that Mazars can be released? Thursday this week? Whenever they want. There are...I believe...10 cases left to be handed down. If they do those 2 a day, that'll probably take another 2-3 weeks.
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Jun 30, 2020 20:19
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lmao at Thomas claiming states have the right to become mini-theocracies.
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Jun 30, 2020 20:27
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Sydin posted:lmao at Thomas claiming states have the right to become mini-theocracies. gonna run for governor to Make Georgia Zoroastrian Again
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Jun 30, 2020 22:23
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Sydin posted:lmao at Thomas claiming states have the right to become mini-theocracies. He's consistent in believing that the First Amendment shouldn't be incorporated to the states, at least. Furthermore, Carthago delenda est.
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Jun 30, 2020 22:27
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Sydin posted:lmao at Thomas claiming states have the right to become mini-theocracies. Conservative disdain for federal tyranny is purely because they believe tyranny is a right reserved for the states.
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Jun 30, 2020 23:33
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Thanks for the TLDR's, some of these go right over my head or don't always make it clear how they ruled.
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Jul 1, 2020 02:51
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Freakazoid_ posted:Thanks for the TLDR's, some of these go right over my head or don't always make it clear how they ruled. Glad they're useful.
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Jul 1, 2020 03:54
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Stereotype posted:Conservative disdain for federal tyranny is purely because they believe tyranny is a right reserved for We've seen this again and again: conservatives in all branches and levels of government will happily discard the "states' rights" pretext the moment the states do something they don't like.
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Jul 1, 2020 14:28
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Alien Arcana posted:We've seen this again and again: conservatives in all branches and levels of government will happily discard the "
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Jul 1, 2020 14:48
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They are already scaremongering about gun control because it's clear from the protests that Black Panther groups are reconstituting.
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Jul 1, 2020 14:55
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Sodomy Hussein posted:They are already scaremongering about gun control because it's clear from the protests that Black Panther groups are reconstituting. Those "black panthers" were likely paid actors but I wish we would have a real presence like https://www.theguardian.com/us-news/2020/may/07/michigan-lawmaker-armed-escort-rightwing-protest, we'd end the gun control conversation in a day if we all actually exercised our rights publicly.
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Jul 1, 2020 15:13
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Roberts's opinion is insane. He says if a state provides funding for private schools it must also provide it for religious private schools. But Montana's law banned funding for secular and religious private schools. Sotomayor was right to call the decision perverse.
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Jul 1, 2020 15:52
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Groovelord Neato posted:Roberts's opinion is insane. He says if a state provides funding for private schools it must also provide it for religious private schools. But Montana's law banned funding for secular and religious private schools. Sotomayor was right to call the decision perverse. They have, in essence, struck down a portion of the Montana constitution (and 36 other state constitutions) that was their implementation of the first amendment's guarantee of separation of church and state. The response needs to be schools funded entirely by the satanic church.
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Jul 1, 2020 15:58
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Alien Arcana posted:We've seen this again and again: conservatives in all branches and levels of government will happily discard the "states' rights" pretext the moment the states do something they don't like. Yeah, from my read of the politics of the time I rather suspect the timing of the American Civil War wasn’t just Lincoln being elected but it being a sign to the South they no longer had the electoral power they used to have of making the rest of the nation dance to their tune (of things entirely disrespectful of free state’s rights like the Fugitive Slave Act) so they tried to take their ball and go home once there were enough free states that their 3/5 slave cheat didn’t work enough anymore.
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Jul 1, 2020 16:03
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MadDogMike posted:Yeah, from my read of the politics of the time I rather suspect the timing of the American Civil War wasn’t just Lincoln being elected but it being a sign to the South they no longer had the electoral power they used to have of making the rest of the nation dance to their tune (of things entirely disrespectful of free state’s rights like the Fugitive Slave Act) so they tried to take their ball and go home once there were enough free states that their 3/5 slave cheat didn’t work enough anymore. If anything, thanks to the compromise of 1877, they actually got a boost because all of those former slaves (that still had effectively no rights) counted as whole people now instead of just 3/5!
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Jul 1, 2020 16:04
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Mr. Nice! posted:They have, in essence, struck down a portion of the Montana constitution (and 36 other state constitutions) that was their implementation of the first amendment's guarantee of separation of church and state. The response needs to be Montana and other states going "lol no gently caress off with your gutting of the First Amendment" and ignoring the decision. The absolute obedience to the judiciary in the US is a problem.
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Jul 1, 2020 16:27
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Evil Fluffy posted:The response needs to be Montana and other states going "lol no gently caress off with your gutting of the First Amendment" and ignoring the decision. The absolute obedience to the judiciary in the US is a problem. The only way this becomes plausible is if the nightmare scenario of the president defying the supreme court with the support of the military came to pass. (At that point, we have much bigger problems anyway) States are not capable of defying a SCOTUS order unless the Feds allow them to defy it.
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Jul 1, 2020 16:32
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Evil Fluffy posted:The response needs to be Montana and other states going "lol no gently caress off with your gutting of the First Amendment" and ignoring the decision. The absolute obedience to the judiciary in the US is a problem. That won't happen, though, because republicans control a bunch of these states and have been co-opted entirely by the religious right that this decision supports. The CoS is the only entity that has actually been able to strike a blow against the religious right in similar circumstances.
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Jul 1, 2020 17:42
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Yeah, that ruling is completely hosed what the hell. Good job Roberts  Am I the only one who also think the booking.com ruling is hosed and it's really weird that the only one dissenting is Breyer? Maybe I'm missing the gritty legal details, but I cannot fathom how taking a generic name and slapping something that doesn't make it not generic does in fact make it not generic. Dot com doesn't meaningfully change anything, it just signifies it's a website, there's no real structural difference.
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Jul 1, 2020 20:11
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OniPanda posted:Yeah, that ruling is completely hosed what the hell. Good job Roberts The only thing I can think of is that the way domains work there can only be one with that exact name. It's like how people use google as a generic verb, but literally nobody uses "google.com" as a generic.
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Jul 1, 2020 20:25
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OniPanda posted:Am I the only one who also think the booking.com ruling is hosed and it's really weird that the only one dissenting is Breyer? Maybe I'm missing the gritty legal details, but I cannot fathom how taking a generic name and slapping something that doesn't make it not generic does in fact make it not generic. Dot com doesn't meaningfully change anything, it just signifies it's a website, there's no real structural difference. It’s arguably hosed, but maybe not. Here’s the deal: 1. A trademark, at its core, identifies a single source of goods. Like when you see IBM on a computer, you know you’re buying IBM and not HP or whoever. 2. A generic term for a good, such as “sugar” for sugar or whatever, does not. When you see sugar on a sugar bag, you don’t know who it’s from. 3. Slight tangent but trademarks that get too common, like aspirin, heroin, flip phone, etc, so that people no longer see them as a single source but just as what you’re buying, lose their trademark status. 4. Bookings.com had a survey that said “consumers see bookings.com as a single source”, not as a generic term for bookings. So bookings.com ends up with this very thin trademark that might not even stop someone from registering ebookings.com. And if things change and people don’t understand bookings.com as a single source anymore their trademark can be killed; all this said was just that there isn’t a per se rule against a generic.com trademark if customers see it as a single source.
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Jul 1, 2020 20:26
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OniPanda posted:it just signifies it's a website Yes that's the important part. I don't see why Priceline or whoever should be able to use an image with the logo "booking.com" and have it redirect to Priceline.
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Jul 1, 2020 20:27
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And now there's this.Nystral posted:Thomas and Alito are rumored to be quitting.
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Jul 1, 2020 20:31
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Trademarks are only valid in a particular domain. Some trademarks have ridiculously broad claims, some like booking.com are extremely narrow. Additionally trademarks are only tested once they see court. Theres a reason why Microsoft paid Lindows 8 figures to settle the lawsuit that Microsoft started when the judge was extremely interested in briefs on Lindows' counterclaims regarding the "windows" trademark.
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Jul 1, 2020 20:33
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Lemniscate Blue posted:And now there's this. I guess that would be a real sign that the Republicans are expecting Trump to lose in November.
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Jul 1, 2020 20:49
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Lemniscate Blue posted:And now there's this. lol can't wait for Mitch's explanation on why Garland had to be held up because it was just before an election and "the people" had the right to have a stake in Scalia's replacement, but now it is perfectly fine for Trump to ram through two Liberty Foundation thirty-something SCOTUS replacements. Also can't wait for a month of public hand-wringing from Romney, Murkowski, Collins, and Manchin over whether or not they'll do it before they all inevitably vote for Trump's nominee.
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Jul 1, 2020 21:24
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It'd be nice if either of them retires only for Collins and Booker (or whomever) to tank a replacement before the election in a desperate attempt to save their own seats (except both would still vote to confirm after the election even if Trump loses and especially if the Senate flips).Sydin posted:lol can't wait for Mitch's explanation on why Garland had to be held up because it was just before an election and "the people" had the right to have a stake in Scalia's replacement, but now it is perfectly fine for Trump to ram through two Liberty Foundation thirty-something SCOTUS replacements. The short answer is: gently caress you The long answer is: the POTUS and Senate are the same party so it's totally ok because that's what 
Evil Fluffy fucked around with this message at 21:29 on Jul 1, 2020 |
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Jul 1, 2020 21:26
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edit and quote mean different things.
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Jul 1, 2020 21:28
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Sydin posted:lol can't wait for Mitch's explanation on why Garland had to be held up because it was just before an election and "the people" had the right to have a stake in Scalia's replacement, but now it is perfectly fine for Trump to ram through two Liberty Foundation thirty-something SCOTUS replacements He's literally already provided that explanation. It can be summed up as "we won, and the only thing that matters is what you can get away with, so deal with it."
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Jul 1, 2020 22:36
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Space Gopher posted:He's literally already provided that explanation. Mitch has always been a extremely up front about what he’s doing which makes the democrats’ repeated attempts to kick that football that much sadder.
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Jul 1, 2020 22:42
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https://www.youtube.com/watch?v=YqRJXVXcVeE&t=25s Republicans only care about rules when they can use them as a club with which to beat Democrats.
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Jul 1, 2020 23:05
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FronzelNeekburm posted:https://www.youtube.com/watch?v=YqRJXVXcVeE&t=25s It’s very frustrating when people cite “rules” and “norms” as it relates to the court (or anything in government I suppose). The Democratic Party needs to learn to play insanely dirty if it wants to be impactful in the future. The republicans aren’t playing by rules, neither should the center and left.
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Jul 1, 2020 23:14
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Nobody please think I didn't already know McConnell is the epitome of a hypocrite. I was tongue and cheek saying I look forward to a reporter inevitably asking him and him brushing it off like he always does. And then MSNBC and CNN wringing their hands over it for weeks.
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Jul 1, 2020 23:21
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If the Democrats had any balls, they’d say any attempt to push a nominee in before the election, or even worse, after the election (if Trump loses), would be met with expanding the court to eleven justices. Sadly, they don’t.
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Jul 1, 2020 23:26
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ban all guns immediately. once they're banned, law obiding citizens will have no use for them anyway so the law will have no ill effect.
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Jul 2, 2020 02:19
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poo poo, Alito's 70? I thought he was younger. Okay, I'd buy that. But I'd be genuinely surprised if Thomas left for political calculation reasons.
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Jul 2, 2020 02:24
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