Barely Legal: Tebowing Trademark, Political Discrimination, & DOMA v. Obamacare

Tebowing ™

For those of you unfamiliar with the fad, “Tebowing” is the act of dropping to one knee and resting your forehead on your hand in a display of prayer-like reverence.  The pose got its name from former Florida University quarterback and current New York Jets quarterback/running back Tim Tebow.  Last year, when Tebow was playing for the Denver Broncos, and inexplicably winning games, the pose swept the nation and was everywhere from Facebook to the Oscars.  Now Tebow has come out and announced that he intends to trademark “Tebowing” in an effort to make sure it is “used in the right way.”   

Bipartisan Diversity

A woman has filed suit against the University of Iowa claiming political discrimination.  She claims that despite her experience as a practicing attorney, law school book editor and adjunct law professor, she was denied her application for a professor position at the University’s law school due to her conservative political beliefs.  The job was instead awarded to a liberal male candidate who had never practiced law or worked with legal publications.  Internal University emails have surfaced which seem to support the plaintiff’s claim. 

As the law school is part of a state university, the plaintiff’s claim rests on First Amendment Freedom of Speech and Fourteenth Amendment Due Process grounds.  In upholding race-based admissions policies, the U.S. Supreme Court stated that a diverse campus is a compelling state interest.  Therefore, it is possible that the federal jury hearing this case could side with the plaintiff by finding that diversity of political thought is equally compelling and worthy of governmental protection.  A decision is expected later this week.   

Gay Marriage & ObamaCare      

A New York federal appeals court has recently ruled against the Defense of Marriage Act (DOMA), now all but ensuring that the Act will be reviewed by the U.S. Supreme Court.  The case came before the court when an elderly lesbian woman received an over $363,000 tax bill from the IRS when her female spouse died. The IRS ruled that the surviving spouse could not take advantage of the spousal deduction, as under DOMA the federal government defines marriage as between one man and one woman. 

While it may seem likely that the U.S. Supreme Court would rule the law unconstitutional given the makeup of the Court, the recent ObamaCare ruling may change the outcome.  In that case the Court held that although a direct mandate to purchase health insurance was outside the scope of Congress’ power, the federal government could establish a corresponding tax.  As Chief Justice Roberts explained, “Put simply, Congress may tax and spend. This grant gives the Federal Government considerable influence even in areas where it cannot directly regulate.  The Federal Government may enact a tax on an activity that it cannot authorize, forbid, or otherwise control.”  Accordingly while Court’s political ideologies would seem to lean towards an end to DOMA, the ObamaCare holding may result in the Act being upheld under Congress’ taxing and spending power.

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