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Other than the Fourth Amendment’s guarantee against unreasonable government searches, I would argue no other constitutional guarantee is more abused or more intentionally distorted in the modern era than the First Amendment’s Establishment Clause. Before I get to how the Guadalupe School case can help stem this abuse and distortion and hopefully re-establish the value of a functional Establishment Clause, we should delve into the background and current context of the guarantee itself.

When our Constitutional framework of religious liberty was first being put into practice, its primary author was clear the purpose was to bring about a “restoration” of religion’s primitive state where its “Teachers depended on the voluntary rewards of their flocks” instead of civil government. Despite this clear prohibition against utilizing civil support for religion (that now applies to the states as well), evidence demonstrates that many of today’s religious institutions have become primarily or substantially dependent on government funds for their operating budgets. Not only is this amount of direct funding of religious organizations by our government an insult to our rule of law, it also represents a direct threat to social stability.

As churches have become more operationally dependent on government support, their functions are increasingly being viewed as extensions of politics, rather than spiritual works. Making matters worse, we have a current president who portrays shifts in the political order as violent threats to religion. One of the main purposes of the Establishment Clause (i.e., the separation of church and state), was to prevent such religious strife. When independent operational separation exists, shifts in the political order can never pose any form of threat. Unfortunately, due to a modern campaign of distortion, the separation of church and state is regularly being represented as a form of hostility, instead of a liberty.

When it comes to educational funding, for example, the argument has been made that any government scheme that distributes taxpayer money to government-run secular schools only and that prohibits funding of any private schools (including religious schools), is being hostile to religion. In defending this argument David French asks: “If the government can’t prefer one religion over another, why can it prefer secular schools over religious schools? Why can it prefer irreligion over religion? Does the Establishment Clause permit state hostility against religion?” As it is with most legal arguments, framing is everything. And the fundamental error in this line of questioning is that it frames government separation from religious education as an extension of hostility, instead of a liberty. Indeed, the mistake in such a framing becomes abundantly clear when you apply it to the Guadalupe School case.

As the amicus signed by this country’s most prominent church and state scholars points out, at the heart of the Guadalupe School case is “the autonomy of religious organizations to select those who perform significant religious functions, including religion teachers and others who help transmit the faith.” In other words, the case is about the government being prohibited from interfering with how churches select teachers of their faith. This prohibition against government interference with religious instruction was labeled by the Supreme Court as the “ministerial exception,” but I would argue this title is fundamentally misleading. Put simply, by staying out of the affairs of religious instruction, the government is not granting any particular “exception” but is upholding the principle enshrined in the Establishment Clause that government and religion exist in a state of separation. Thankfully it appears as though the Court itself is likely going to abandon this misleading title of “exception.”

If you were to apply French’s framing to the Guadalupe School case, however, exempting private religious education employers from certain employment laws but not government “secular” employers would constitute a hostile act against the secular government employer. Think about it, if the Guadalupe School wins government school teachers would have the protection of certain employment laws while private religious school teachers would not. How could such differential treatment under the law — based solely on religious makeup — be considered fair or equal?

The difference only becomes a liberty once you view it through the framework of the First Amendment’s prohibition against government involving itself with religion. Such differential treatment is in fact necessary as it would be functionally impossible to maintain church and state separation unless government treated its secular schools in many ways differently from religious schools. In other words, labeling such differentials as hostile per se undermines the broader liberty of religious autonomy. The good news is, when it comes to the Guadalupe School case at least, the Supreme Court is virtually certain to extend separation liberty. The devil (pun intended) is in the vitally important details of such extension.

My hope is that in extending the principles at the heart of the Guadalupe School case, the justices, many of whom have viewed church and state separation as inherently hostile in the past, can be forced to recognize its inherent value. Unfortunately, it is more likely that we will see multiple justices paradoxically declare this term that religious liberty somehow means government is both commanded to stay out of the affairs of religious education while at the same time existing under an obligation to fund it. If this paradoxical and theocratic view of religious liberty wins the day, the increasing social hostility we are currently seeing, and in which our Constitutional structure of religious liberty was originally designed to prevent, will only increase.

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Tyler Broker’s work has been published in the Gonzaga Law Review, the Albany Law Review, and is forthcoming in the University of Memphis Law Review. Feel free to email him or follow him on Twitter to discuss his column.

A long-term care option such as a nursing home facility is always difficult to consider for a loved one. Watching a parent move from a sprawling house into a single room, exhausting their hard-earned money for the opportunity to live with hundreds of others and be dependent on strangers for their everyday activities is never pleasant. Even more so, observing (from a distance) a relative isolated and possibly dying, in a facility during an epidemic like COVID-19, is frustratingly brutal. Long-term care facilities, like assisted living, rehabilitation, and nursing homes, have been hit hard by the coronavirus, harming and killing thousands of residents and employees.

According to Theresa Tam, Canada’s chief public health officer, 81 percent of deaths in Canada occurred in nursing homes and facilities. More than one-third of the United State’s COVID-19 deaths occurred in long-term care facilities. Eleven percent of the total COVID-19 cases in the United States stem from long-term care facilities. Reportedly more than 4,800 nursing home residents have died since March 1, 2020, in the state of New York from COVID-19, which puts the state first in the nation in most COVID-19 nursing home deaths.

Contagious viruses like the flu and COVID-19 are spread easily among those living and working in close quarters. Many residents of nursing facilities have severe underlying health issues which make their contraction of the virus more serious, if not fatal. Residents interact closely with employees, requiring assistance in everything from eating to bathing to walking. As health officials learn more about the virus and its transmissions, states and facilities have taken steps to mitigate the disease’s spread, by isolating residents and monitoring employees traveling to and from work.

A significant and controversial issue in the spread of COVID-19 has been the return or admission of infected COVID-19 patients from the hospital to nursing facilities. Not only do returning patients have the ability to spread the virus, but in many cases, have displaced the already vulnerable residents, who are made to move to make room for the infected. In March, several states, such as New York, Massachusetts, and New Jersey issued mandates to lessen the hospitals’ loads transferring recovering COVID-19 patients to nursing homes. This is thought to have further spread the virus in the already affected facilities. States have since modified orders. For example, New York now requires patients to test negatively before moving to a nursing facility.

Questions, blame, and general frustration are being spewed by legislatures, facilities, and, of course, families. Who bears liability for all of this sickness and death? Across the nation, families are considering legal action, suing for neglect, abuse, and when there is a deceased loved one, wrongful death. States have been responding with laws for immunity, in varying measures, to protect frontline workers from potential lawsuits.

Like hospitals, doctors, and other healthcare workers, nursing homes are also seeking immunity from lawsuits so that they may continue to operate without the fear of legal repercussions. Immunity for nursing homes is controversial given ongoing concerns in the industry as to abuse, neglect, and other wrongdoing in nursing facilities, where the elderly and infirm are often weak and isolated.

Recently, as part of the New York State budget bill,  Governor Andrew Cuomo signed Article 30-D of the Public Health Law (Emergency or Disaster Treatment Protection Act), which protects nursing home executives with legal immunity. The law implements significant liability standards, providing immunity to nursing homes from criminal or civil liability, with the exception of gross negligence, reckless misconduct, or intentional malfeasance.

With facility residents dying in such large numbers, much criticism has been raised from all sides regarding this law, which many feel further harms the already vulnerable nursing home population. Investigations and probes into the law and the surrounding situation are being threatened. All the while our parents and grandparents wither away, not just from illness and death, but from isolation and what can only be described as our communal failure.

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Cori A. Robinson is a solo practitioner having founded Cori A. Robinson PLLC, a New York and New Jersey law firm, in 2017. For more than a decade Cori has focused her law practice on trusts and estates and elder law including estate and Medicaid planning, probate and administration, estate litigation, and guardianships. She can be reached at cori@robinsonestatelaw.com.

The coronavirus pandemic is changing the legal profession — and it’s not all bad. Last month, for example, I identified four ways that Biglaw might benefit from the current crisis.

Courts have adopted measures in response to the COVID-19 outbreak as well. Most notably, the U.S. Supreme Court conducted its latest oral arguments by telephone — and livestreamed the proceedings, making real-time audio available for the first time in its history. Prior to the pandemic, SCOTUS didn’t release the recordings of oral arguments until the end of each week.

A tradition-bound and precedent-based institution, the Court has historically been resistant to change, as well as a little uncomfortable with both technology and real-time coverage (especially video aka “cameras in the courtroom,” which Justice David Souter famously quipped would have to roll into the courtroom “over my dead body”). Among close observers of the Court, some of us feared some disaster associated with the new approach to oral argument would ensue, which would only increase the Court’s resistance to more transparency in the future.

But guess what happened? No such disaster occurred. The justices took to the new technology nicely, and everything went surprisingly smoothly. There were a few times when Justice Sotomayor forgot to mute herself when she wasn’t speaking, as well as an amusing occasion when an unidentified justice flushed the toilet during Roman Martinez’s argument in Barr v. American Association of Political Consultants. But these were trivialities with no real consequences (other than a silly and harmless parlor game in which some of us tried to guess who flushed; Ashley Feinberg of Slate makes the case for Justice Breyer).

In the end, the advocates could still make their cases, the justices could still ask their questions, and the American people received an excellent civic education, letting us see one of our most important democratic institutions at work. So I agree with veteran SCOTUS watcher Amy Howe: “Having seen first-hand that live-streaming is not only possible but in fact a big success, the Supreme Court should not return to its pre-pandemic status quo.”

Live-streaming wasn’t the only change made to argument format. To prevent chaos in a situation where the justices aren’t in the same room and can’t see one another, the Court instituted a system in which the justices took turns asking their questions, in order of seniority, with Chief Justice Roberts serving as moderator.

This change elicited differing responses. I support the reform; as I told Ariane de Vogue of CNN, “The new format lets every justice get in at least a few questions, so it’s more fair. It doesn’t give an advantage to the most aggressive or noisiest members of the Court. It also lets the advocates see what each member of the Court is thinking, so they can try to address each justice’s concerns — and perhaps garner the justice’s vote.”

“This format is also better for the public. We get to learn more about and recognize the justices, and we get to see how their minds work. It’s great for civic education.”

But not everyone was a fan. Responding to Jack Metzler and Garrett Epps (who both like the new format), Lyle Denniston, the longest-serving member of the Supreme Court press corps, offered this harsh assessment:

I respectfully dissent. As long as the Chief Justice keeps time scrupulously and makes sure each justice gets equal time — which he would only get better at with time (he had a few critics this time around) — the seriatim approach enhances rather than detracts from equality among the justices. And if he’s keeping time scrupulously, the Chief isn’t exercising arbitrary power. (Of course, if this continues to be a concern, one could have another official keep track of time, such as Marshal Pamela Talkin.)

Evidence that the new approach promotes rather than reduces equality among the justices: the active participation of Justice Clarence Thomas, who in the past has rarely asked questions during oral argument, but who used the more orderly format to raise a number of excellent and incisive points. The old format gave an unfair advantage to the most aggressive and obstreperous justices, while disadvantaging someone like Justice Thomas, a self-described introvert, as well as the female justices, who were frequently interrupted by their male colleagues. In other words, the new format is more fair to justices who aren’t white males.

But there is, as is often the case at SCOTUS, some room for compromise. My proposal (which I previously floated on Twitter): have one round of questions moderated by the Chief Justice, where each justice gets to have a say, then devote the remaining time to unstructured questioning.

Such an approach might call for longer arguments; as Denniston tweeted, “this alternative format simply demands more time.” But that shouldn’t be fatal, in my opinion.

If the justices have to occasionally sit in the afternoon as well as the morning — which they can do in theory and have done more in the past, but hardly do today — that’s not the end of the world. Or if the justices decide to have more cases “submitted on the briefs,” (i.e., resolved without oral argument), and hold argument only in the most consequential or complex cases, that’s not the end of the world either. Indeed, prioritizing which cases get argument is the approach generally taken by the circuit courts, from which almost all of the justices came.

There are good arguments in favor of both turn-by-turn questioning and the WWE-style “battle royal.” But I think we can all agree that real-time audio is a good thing. To paraphrase Norma Demond’s famous line from Sunset Boulevard, the justices have shown themselves to be “ready for their close-up” — and we the people welcome it.

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David Lat, the founding editor of Above the Law, is a writer, speaker, and legal recruiter at Lateral Link, where he is a managing director in the New York office. David’s book, Supreme Ambitions: A Novel (2014), was described by the New York Times as “the most buzzed-about novel of the year” among legal elites. David previously worked as a federal prosecutor, a litigation associate at Wachtell Lipton, and a law clerk to Judge Diarmuid F. O’Scannlain of the U.S. Court of Appeals for the Ninth Circuit. You can connect with David on Twitter (@DavidLat), LinkedIn, and Facebook, and you can reach him by email at dlat@laterallink.com.

With the growing popularity of hemp-derived cannabidiol (hemp CBD) products in e-commerce, the U.S. Patent and Trademark Office (USPTO) has seen a significant influx of trademark applications used in association with CBD goods. However, many of these applications have been denied by the USPTO. This article briefly addresses the reasons for these denials and discusses the trademark protections currently available to the industry.

To secure federal trademark registration, a mark’s use in commerce must be lawful under federal law.

Although the Agricultural Improvement Act of 2018 (the 2018 Farm Bill) legalized the production of hemp and hemp derivatives, including hemp CBD, by removing hemp from the Controlled Substances Act’s definition of marijuana, the new law did not legalize the production of hemp CBD products. Instead, the 2018 Farm Bill expressly preserved the FDA’s authority to regulate these products under the Food, Drug and Cosmetic Act (FDCA).

As I have discussed in this column (here and here), the FDA takes the firm position that it is unlawful to sell and market in commerce CBD food and dietary supplements, pursuant to the FDCA and the Drug Exclusion Rule. Specifically, the FDA argues that because CBD was approved and investigated as a drug ingredient before it was sold and marketed as a food or a dietary supplement, these products may not be lawfully introduced in commerce. Consequently, the USPTO, which defers to the FDA’s position, opines that “registration of marks for foods, beverages, dietary supplements, or pet treats containing CBD will still be refused as unlawful under the FDCA, even if derived from hemp.”

Cosmetics containing hemp CBD, however, are in a more ambiguous space, as the FDA has indicated that the sale and marketing of these products may be permissible. In guidance released on its website, the FDA provides that this category of product is lawful so long as they are not adulterated, mislabeled, or intended to affect the structure or function of the body, or to diagnose, cure, mitigate, treat, or prevent disease (i.e., intended as a drug).

Therefore, when applying for federal trademark protection, hemp CBD companies must be very clear about the type of cosmetic product they are selling and wanting to protect. For instance, while a hemp CBD cosmetic product in Class 003 (soaps, perfumery, essential oils, cosmetics, hair lotions, and dentifrices) may be acceptable and eligible for protection, a hemp CBD salve intended to relieve muscle soreness in Class 005 (pharmaceuticals and other preparations for medical or veterinary purposes) won’t likely qualify.

So how can hemp CBD companies protect their brands when federal trademark protection is unavailable?

One option is to secure registration for ancillary goods or services that do not violate federal law. For example, if a business manufactures a hemp CBD beverage and produces and sells a non-CBD-infused version of that beverage, the business may possibly secure a federal trademark registration that will cover the non-CBD-infused beverage.

Another strategy is to obtain a state trademark registration in a state where the sale of hemp CBD products is allowed. Even though state trademark protection is geographically limited to the state of the registration, state trademarks tend to provide more protection and legal remedies than common law rights. Common law rights are almost always limited to the geographic area in which a mark owner is using the mark, which means the mark owner needs to register that mark in order to benefit from the statutory remedies available in infringement cases.

So, until the FDA revisits its policy on the sale and marketing of hemp CBD products, particularly foods and dietary supplements, the industry will need to rely on ingenuity and trademark attorneys well-versed in hemp and CBD law to protect their brands.

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Nathalie Bougenies practices in the Portland office of Harris Bricken and was named a “2019 Rising Star” by Super Lawyers Magazine, an honor bestowed on only 2.5% of eligible Oregon attorneys. Nathalie’s practice focuses on the regulatory framework of hemp-derived CBD (“hemp CBD”) products. She is an authority on FDA enforcement, Food, Drug & Cosmetic Act and other laws and regulations surrounding hemp and hemp CBD products. She also advises domestic and international clients on the sale, distribution, marketing, labeling, importation and exportation of these products. Nathalie frequently speaks on these issues and has made national media appearances, including on NPR’s Marketplace. Nathalie is also a regular contributor to her firm’s Canna Law Blog.

Every day we see another video of an oppressed middle-aged woman unable to go to the grocery store without having to put on a mask. And as these injustices pile up, we’re seeing armed protesters swarm state capitol buildings and patriotic cable news personalities bemoan the arrival of fascism on America’s shores.

It’s only a matter of time until someone lodges a lawsuit against the local Quik-E-Mart for requiring patrons to wear masks. Once the governor gives the all-clear, data be damned, anyone trying to make you wear a mask… well, that’s got to be a Don’t Tread On Me moment, right?

The Taylor Defense Firm has a new ad, reaching out to anyone out there who might be contemplating such a lawsuit:

“Dimwitted disease vector.” Fantastic.

Unfortunately, we live in a world of elected judges and I’m 90 percent sure someone is going to drive a mom-and-pop out of business with one of these frivolous suits, bankrupting them on legal fees before they can ever see vindication at the appellate stage.

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Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

Pond Lehocky, a large workers’ compensation firm in Philadelphia, has filed Worker Adjustment and Retraining Notification (WARN) paperwork indicating they will be laying off massive amounts of employees. According to reports, Pond Lehocky will be permanently laying off 76 employees, about 30 percent of its total workforce. The layoffs are said to be effective June 1.

Due to the firm’s high volume of workers’ comp cases, the firm’s staff greatly outnumber the attorneys. Of the firm’s 260+ employees, only 44 are lawyers.

The firm had the following to say in light of these cuts: “[F]or the privacy of our clients and our staff, we do not think this is appropriate to discuss in these unprecedented and historic times.”

If your firm or organization is slashing salaries, closing its doors, or reducing the ranks of its lawyers or staff, whether through open layoffs, stealth layoffs, or voluntary buyouts, please don’t hesitate to let us know. Our vast network of tipsters is part of what makes Above the Law thrive. You can email us or text us (646-820-8477).

If you’d like to sign up for ATL’s Layoff Alerts, please scroll down and enter your email address in the box below this post. If you previously signed up for the layoff alerts, you don’t need to do anything. You’ll receive an email notification within minutes of each layoff, salary cut, or furlough announcement that we publish.

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Kathryn Rubino is a Senior Editor at Above the Law, and host of The Jabot podcast. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).

As tech companies roll out Covid-19 symptom checkers, contact tracing tools, and employee screening systems, legislators are grappling with an important question — what can they do with all of that health data? Democratic and Republican lawmakers introduced two competing privacy bills that attempt to build on existing regulations.

A group of Democrats shared proposed legislation last week that would regulate what data companies can collect during the pandemic, and requires them to delete it once the crisis ends. This includes health data and location data that might be pulled in by contact-tracing apps. For example, Apple and Google are building a contact-tracing system that would use proximity data collected by Bluetooth sensors, while Care19 is developing an app that uses location data for contact tracing.

Under the Public Health Emergency Privacy Act, sponsored by Senators Mark Warner (D-Virginia) and Richard Blumenthal (D-Connecticut), companies are limited to collecting data for public health purposes. They are barred from using health data for advertising, or to block access to employment, finance, housing or insurance.

The legislation also includes some key civil rights protections, such as prohibiting residents’ right to vote from being conditioned on the use of contact-tracing apps.

“Communications technology has obviously played an enormously important role for Americans in coping with and navigating the new reality of COVID-19 and new technology will certainly play an important role in helping to track and combat the spread of this virus. Unfortunately, our health privacy laws have not kept pace with the privacy expectations Americans have come to expect for their sensitive health data,” Warner said in a news release. “Absent a clear commitment from policymakers to improving our health privacy laws, as this important legislation seeks to accomplish, I fear that creeping privacy violations could become the new status quo in health care and public health. The credibility – and indeed efficacy – of these technologies depends on public trust.”

Earlier this month, a group of Republican senators proposed their own privacy bill, the Covid-19 Consumer Data Protection Act. It has some similarities with the Democrats’ bill, including that it encompasses both health and location data, and includes requirements that allow people to opt out of their personal data being collected. It also requires that companies delete or de-identify any data after the pandemic ends.

However, the bill does allow companies to retain aggregated or deidentified data. It also carves out an exemption for employee screening data. Companies are allowed to conduct temperature checks and conduct diagnostic testing for Covid-19 according to guidance released by the Equal Employment Opportunity Commission in March.

The bill is sponsored by Senators Roger Wicker (R-Mississippi), John Thune (R-South Dakota), Jerry Moran (R-Kansas), Masha Blackburne (R-Tennessee) and Deb Fischer (R-Nebraska).

Photo Credit: wigglestick, Getty Images

* SmileDirectClub has filed a $2.8 billion lawsuit against NBC for broadcasting an allegedly defamatory and misleading story about the company. They sound more like FrownDirectClub… [Hill]

* A well-known Texas lawyer is suing his estate planning attorney for a Texas-sized tax liability he wasn’t able to avoid. [Texas Lawyer]

* A New Orleans lawyer has been disbarred for spending her client’s settlement money received because of the Deepwater Horizon explosion. [Advocate]

* The Georgia Supreme Court has struck down a law requiring the licensing of lactation specialists. First learned about this profession from The Office. [Atlanta Journal-Constitution]

* A lawsuit against the parents of a killer who murdered four people is being allowed to proceed. [Philadelphia Inquirer]

* An Iowa attorney has been suspended from practice for overbilling a public defender’s office, sometimes logging more than 24 hours in a day. Maybe the lawyer had Doc Brown’s DeLorean? [Bloomberg Law]

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Jordan Rothman is a partner of The Rothman Law Firm, a full-service New York and New Jersey law firm. He is also the founder of Student Debt Diaries, a website discussing how he paid off his student loans. You can reach Jordan through email at jordan@rothmanlawyer.com.

There have been reports of truck drivers assisting travellers to evade lockdown travel restrictions by hiding them in trailers and compartments of their vehicles.

Government spokesperson Nick Mangwana said those catching lifts from the haulage trucks were risking the lives of many others.

“Ministry of Health and Child Care reports two new positive cases. One is a UK returnee. The other is a cross-border truck driver who tested positive in Zambia and was confirmed positive in Zimbabwe.

“Those that catch lifts on cross-border trucks are risking us all, and endangering their families,” he said on Twitter.

Mangwana had earlier said that the Southern African Development Community (SADC) had allowed trade between member states to continue, so supplies could move within the region during different lockdown regimes.

His warning came as six Zimbabwean cross-border truck drivers tested positive for COVID-19 in Zambia on Friday after crossing into the country through the Chirundu border post.

To date, Zimbabwe has confirmed 46 COVID-19 cases and four deaths.

President Emmerson Mnangagwa on Saturday said that testing of cross-border truck drivers will now be mandatory.

Zimbabwe has been on lockdown since March 30 with restrictions on inter-city travel.

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