Law and Disorder

More gifts to unwrap

 By A.J. Wagner

Here are a few cases that the United States Supreme Court will decide in 2013. Most of them will remain under wraps until the end of June so, depending on your point of view, Christmas in July is a possibility.

Also noted below is one case that the Supreme Court decided not to hear with ramifications that may exceed the decisions that are made.

– I have already written some about Fisher v. University of Texas. This case will decide whether universities can consider race as one part of the overall admissions criteria. Abigail Fisher was rejected by the school in 2008. She claims it was because she is Caucasian.

The university says diversity is important, not only in race, but in other areas of ability. Race, work experience, volunteer work, leadership ability and test scores should all be considered to develop a well-rounded student body which in turn provides a well-rounded experience for students.

– Another race-based case looks at the constitutionality of the Voting Rights Act of 1965. In question is whether the law can require nine southern states with a history of discrimination to submit voting regulations to the United States Justice Department for approval before implementation. Forty-one states have no such burden.

– The Supremes will also take a look at discrimination in the Defense of Marriage Act (DOMA) and California’s constitutional rejection of same-sex marriage.

They’ll be talking equal rights and equal protections of the law in these cases. Do these concepts, enshrined in our Constitution, apply to same sex marriage? We’ll find out in June. President Obama has refused to defend DOMA, so the House GOP has handled the appeal on behalf of the Federal Government. It’s that political.

– Myriad Genetics holds patents on genes that increase the risk of cancer. Many in the research community are asking the Supreme Court how a company can hold a patent on naturally occurring elements. Research will be frustrated if scientists must pay a company to experiment on these problematic genes. The legal question is whether genes are “products of nature” that may not be patented or “human-made inventions” eligible for patent protection.

– The Foreign Intelligence Surveillance Act (FISA), passed in 2008, did away with a warrant requirement for government spies to get their hands on electronic data involved in domestic communications sent or originating from overseas. With national security invoked, I’m not sure we’ll ever know all the arguments or exactly what’s at stake here. I’m not sure the justices will be able to know either.

– What happens when United States corporations violate human rights overseas? Can the victims sue? The 223-year-old Alien Tort Statute is being tested here. Shell Oil is accused of paying for killings, rapes, arrests, property damage and more to stop protesters from objecting to oil exploration.

You will hear more about these cases as the summer approaches, but there is one case you probably haven’t heard about that has great impact on the law of the land.

Pro-life forces in Oklahoma filed a petition for a proposed ballot measure to define a fertilized human egg as a “person” with full legal rights and protections. This is one of many “personhood” amendments put forward around the country which would force the state to acknowledge that life begins at conception.

Before the ink was dry on the petition, the Oklahoma Supreme Court declared the proposed law unconstitutional. Voters never got to see the initiative on the ballot.

The Oklahoma Court took a look at the 1992 decision in Planned Parenthood v. Casey where eight Republican-appointed justices failed to overturn Roe v. Wade, the famous case that first allowed the constitutional protection of abortion through a right to privacy. The Oklahoma Justices, after reading Casey, said that “personhood” for an embryo is “clearly unconstitutional.”

The matter was taken to the Supreme Court of the United States where Personhood Oklahoma could not persuade the needed four justices to accept the case for this coming year. Without four justices to approve the appeal, it was rejected, thus upholding, indirectly, the Oklahoma decision, Planned Parenthood v. Casey and Roe v. Wade. 

For years, the pro-life Republican Party has argued the importance of electing their guy as president so that conservative justices can be appointed who will, most certainly, overrule Roe v. Wade. It didn’t happen in 1992 when there were eight Republican appointees on the court, and it isn’t going to happen now with five of the most conservative justices ever appointed.

This Supreme Court went out of its way, a few years ago, to rule that corporations are people. They turned the Commerce Clause on its ear trying to eliminate Obamacare. Yet, the same Court will not even take on the issue of abortion.

Abortion is legal, and despite pro-life Republican bluster, it will remain so.


Disclaimer: The content herein is for entertainment and information only. Do not use this as a legal consultation. Every situation has different nuances that can affect the outcome and laws change without notice. If you’re in a situation that calls for legal advice, get a lawyer. You represent yourself at your own risk. The author, the Dayton City Paper and its affiliates shall have no liability stemming from your use of the information contained herein. 

A.J. Wagner is an attorney with the law firm of Flanagan, Lieberman, Hoffman and Swaim at 15 W. Fourth Street in Dayton. A.J. and his firm would be glad to help you with all of your legal needs. You can reach A.J. at (937) 223-5200 or at

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A.J. Wagner is an attorney with the law firm of Flanagan, Lieberman, Hoffman and Swaim at 15 W. Fourth Street in Dayton. A.J. and his firm would be glad to help you with all of your legal needs. You can reach A.J. at (937) 223-5200 or at

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