The Supremes Sing

The Court Rules on Copyright, Arbitration and More

By AJ Wagner

The Supreme Court of the United States has a 9-month term each year that spans from the first Monday in October until the end of June. As the term comes to a close I’ll take a few weeks to summarize a few of the decisions that the Supremes have made this session.

+ In Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC Chief Justice John Roberts wrote, “The interest of society in the enforcement of employment discrimination statutes is undoubtedly important, but so, too, is the interest of religious groups in choosing who will preach their beliefs, teach their faith and carry out their mission.” At issue was whether the Americans with Disabilities Act (ADA) applies to religious institutions. The court gave a qualified “No.”

The ADA prohibits discrimination against the hiring and employment of people with disabilities. The Court, though “reluctant to adopt a rigid formula,” made an exception for individuals who are ministers, priests, rabbis and such and for those who are trained to teach in the religion and are hired to do so.

+ In Golan v. Attorney General Eric Holder, the Supreme Court upheld copyrights given to foreign works retroactively. In 1994, Congress passed legislation to bring foreign music, art and writings under the copyright laws in order to comply with international agreements. Many of these works – think Picasso, Stravinsky, Tolstoy and more – were already in the public domain, meaning they could be copied and used without concern for that “WARNING: FBI” statement. The legislation, however, asserted or reasserted copyright protection.

Google had a particular interest in challenging the law since they had already digitized many of the newly protected material. As part of a coalition, they asserted that the law exceeded the authority of Congress and violated free speech. The justices split 6-2 and upheld the legislation.

Justice Ginsberg summarized the case saying the enactment “simply brings certain foreign works under the same legal regime that applies to domestic and most other foreign works. That alignment does not unconstitutionally abridge speech.”

+ You may recall that last year the Supreme Court required that a bunch of claims against AT&T go to arbitration. Well, arbitration got another once over this term. A few individuals who ordered a credit card promising $300 in credit soon found out that $257 in fees had been applied to the $300. In CompuCredit Corp and Synovus Bank v. Wanda Greenwood those individuals challenged that the Credit Repair Organizations Act barred arbitration. Not so, said the Supremes in an 8-1 decision. “Had Congress meant to prohibit these very common provisions, it would have done so in a manner much more direct,” said Justice Scalia in summarizing the opinion.

This should be a wakeup call to consumers on two counts: First, beware of the fees when entering into credit card deals. Second, know that most credit cards require arbitration if there is a dispute. Arbitration can be a good thing; it is much cheaper and quicker than going to court. But the arbitration requirement also keeps you from joining forces with other consumers in a law suit that would produce a single decision that applies to all, and it makes hiring a lawyer cost-prohibitive so you will be on your own.

+ If a baby is born in Jerusalem, what country was he born in? That’s the question asked in Zivotofsky v. Clinton though the more important question is who gets to answer the first question? Does Congress, the President or do the courts get to determine important foreign policy?

Because Jerusalem is claimed by Christians, Jews and Muslims as a holy city, and because it is claimed by Israel and Palestine as a capital city, George W. Bush adopted a policy that an American born in Jerusalem could not show Israel as his country of birth. This rule sidesteps the argument of Jerusalem’s status as belonging to one country/culture or another. It is a diplomatic move made by the State Department in the best interest of the United States.

In reaction to this policy Congress passed the Foreign Relations Authorization Act requiring the State Department to record the place of birth of a U.S. citizen born in Jerusalem as Israel, if the child’s legal guardians so request.  The parents of Menachem Zivotofsky so requested and sued the State Department when it refused to put their child’s place of birth as “Jerusalem, Israel” on his passport. The place of birth is noted only as “Jerusalem.”

The trial court dismissed the suit saying neither the courts nor Congress can make foreign policy decisions which are the province of the executive branch of government. The Court of Appeals agreed. The Supreme Court, in a 99-yard punt, sent the case back to the trial court basically saying, “Don’t just dismiss it, figure it out.”

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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