Volume 10, Issue 2 (Spring 2015)
Introduction (contains Table of Contents, Masthead, About the Seventh Circuit Review, and Preface)
Civil Rights Law
The Twenty-Five-Year Struggle for Marriage Equality: What Impact Does the Seventh Circuit’s Jurisprudence Have on LGBT Civil Liberties?
Abstract: Proponents fighting for the recognition of same-sex marriage as well as the legal ability to enter into the institution of marriage have typically argued that same-sex marriage bans violate the Fourteenth and Fifth Amendments of the United States Constitution. More specifically, they argue that the bans infringe upon an individual’s fundamental right to marry, discriminate on the basis of sex, and discriminate on the basis of sexual orientation.
State and federal courts have struggled with analyzing the merits of these claims and have been unsure of how to frame the legal issues. The courts have debated whether there is a fundamental right to marry or whether there should be a fundamental right to same-sex marriage. Further, courts are in disagreement over whether sexual orientation should be a suspect class or a quasi-suspect class, deserving of strict or heightened constitutional scrutiny under the equal protection guarantees of the Constitution. To date, most courts seem to agree that sex discrimination claims are untenable in LGBT civil liberty cases.
This Comment explores the definition of marriage as an institution and an individual right by analyzing same-sex marriage in the context of the Due Process and Equal Protection Clause of the Fourteenth Amendment. Additionally, this Comment assesses the development of sex and sexual orientation discrimination challenges in the courts culminating in an analysis of the United States Court of Appeals for the Seventh Circuit's recent decision in Baskin v. Bogan. There, the court struck down same-sex marriage bans, forcing Indiana and Wisconsin to accept same-sex marriage. Finally, this Comment addresses the result reached by the Seventh Circuit in terms of what expanding or limiting effect, if any, the court’s legal reasoning has on the development of LGBT civil rights.
Procedural Error? Seventh Circuit Fails to Recognize “No Procedure” Is Not “Adequate Procedure”
Abstract: When Jerry Markadonatos was arrested in the Village of Woodridge, Illinois, he was required to pay a thirty-dollar booking fee as required by Woodridge Municipal code, without any procedural process. Mr. Markadonatos challenged this fee as a violation of due process. He eventually brought both a procedural and substantive due process claim. By the time his claim reached the Seventh Circuit it had become particularly complicated in regards to whether the claim should be properly categorized as a procedural or substantive issue and whether Mr. Markadonatos had proper standing to make either claim.
In an en banc hearing, the Seventh Circuit remained split on the issues, with one group avoiding the question altogether by determining the case based on interpreting the ordinance to avoid the constitutional issues. In doing so, the Seventh Circuit failed to recognize that the deprivation of property in the absence of any procedural process must be a procedural due process issue. Judge Hamilton made this argument in his dissent, which should have been adopted by the Seventh Circuit.
Gambling on Court Interpretations of Care: Approving Leave for Travel Under the FMLA
Abstract: The Family and Medical Leave Act (FMLA) is a federal law passed in 1993 to account for changing demographics in the United States. Its intent is to improve work-life balance for employees while improving the overall productivity of employers. Under 29 U.S.C. § 2612, eligible employees are protected should they decide to request unpaid leave from work for the birth of a child, for adoption or fostering a child, because the employee is seriously ill, or “to care for” an employee’s family member with a serious health condition.
Litigation arises in determining what the legislature intended by the phrase “to care for” when an employee requests leave “to care for” a family member. The Department of Labor provides broad regulations relating to the word “care.” Because the regulations are broad in scope, and only provide a few examples of what “care” is, courts have interpreted “care” differently, especially when an employee accompanies a seriously ill family member on a trip unrelated to the family member’s medical care. The Seventh Circuit determined in Ballard v. Chicago Park District that an employee is protected by the FMLA when accompanying a family member on a trip to Las Vegas. Other circuits have decided the issue differently.
Given this circuit split, a bright-line rule is necessary. A rule taking into account the factual circumstances and opinions in each circuit would provide guidelines for not only courts, but also for employees and employers to determine whether accompanying a family member on a trip is protected under the FMLA. Consequently, this would decrease employee abuse and reduce litigation. It would also diminish the current inconsistency between FMLA interpretation today and its original intent—not only to improve work-life balance for employees but also to support businesses’ productivity.
First Amendment Law
MJ Still Winning in Chicago: The Seventh Circuit Correctly Holds That Jewel-Osco’s Use of Michael Jordan’s Likeness in Its Advertisement Constituted Commercial Speech
Abstract: Sometimes businesses advertise offers for particular products or services. In addition to product advertising, businesses frequently engage in “image” advertising, where they promote their brand generally rather than a specific product. Both types of advertising may constitute commercial speech. The U.S. Supreme Court commonly defines commercial speech as “speech that proposes a commercial transaction.” Although the Court has addressed this phrase’s meaning, it has never provided a comprehensive method for determining whether a given expression constitutes commercial speech. As a result, some courts interpret this phrase to apply narrowly in scope, while others find that it can be applied broadly. A significant question that has confused the courts is whether “image” advertisements can qualify as “speech that proposes a commercial transaction.”
The Seventh Circuit examined this issue in Jordan v. Jewel Food Stores, Inc., which began as a right of publicity dispute between NBA legend Michael Jordan and the Midwestern supermarket chain Jewel-Osco. In 2009, Jordan was inducted into the Basketball Hall of Fame, and Jewel took out a full-page advertisement in an issue of Sports Illustrated Presents to commemorate Jordan’s career. Jewel’s ad featured a pair of basketball shoes displaying Jordan’s legendary number “23,” and it paid tribute to Jordan with a few lines of text. Jewel incorporated its trademarked marketing slogan into its tribute and also prominently displayed its trademarked logo in the center of its advertisement. Jewel claimed that it was simply congratulating Jordan on his hall of fame induction. To Jordan, however, Jewel’s advertisement was an unwelcomed use of his commercial identity that he felt unfairly portrayed him as endorsing the Jewel-Osco brand without his consent.
Jordan sued Jewel under various theories of false endorsement. Jewel maintained that its advertisement was speech related to a significant public issue, and thus argued that the First Amendment provided a full defense against Jordan’s claims. Jordan argued his claims could proceed because Jewel’s advertisement was in fact commercial speech and thus entitled to a lesser-degree First Amendment protection. The Seventh Circuit, applying a flexible interpretation of commercial speech, held that when considered under the proper context, Jewel’s advertisement constituted commercial speech. This article argues that the Seventh Circuit’s broad application of the commercial speech doctrine is supported by case law and that the Seventh Circuit’s flexible application of the commercial speech doctrine is most practical and effective path forward in private-right commercial speech cases.
The Panhandlers’ Dialogue: Are Restrictions on Panhandling Content-Neutral Under the First Amendment?
Abstract: One of the defining characteristics of the U.S. Constitution is its guarantee of certain enumerated rights, including the right to free speech. The First Amendment guards against governmental regulations that infringe on the right to free speech. In recent years, local governments across the nation have enacted local laws and ordinances that regulate or prohibit panhandling in certain areas. In Norton v. City of Springfield, the Seventh Circuit reviewed and upheld one such ordinance prohibiting panhandling in the downtown historic areas. The Springfield ordinance defined panhandling as an oral request for immediate donation of money. The downtown historic district at issue was a small portion of the City of Springfield but comprised the city’s principal shopping, entertainment, and governmental areas. In reviewing this ordinance, the Seventh Circuit found that the ordinance was content-neutral and constitutional under the First Amendment.
When governmental regulations restrict speech, such as the ordinance in Norton, the speech restriction is classified as either a content-based or content-neutral restriction. Content-based restrictions are those that regulate speech because of its message, idea, or content. Content-neutral restrictions are those that regulate speech without reference to the message, idea, or content of the speech. Content-based speech restrictions are subject to strict scrutiny review, which means that the restriction must serve a compelling governmental interest that is narrowly tailored to serve that interest. Content-neutral speech restrictions, on the other hand, are subject to intermediate scrutiny, which means that the restriction must serve a significant governmental interest and still leave alternative channels of communicating the speech. In addition, if the speech restriction takes place in a traditional public forum, the restriction must be narrowly tailored to achieve the purported governmental interest
When the Seventh Circuit held that the ordinance in Norton was a content-neutral speech restriction, the Seventh Circuit departed from the majority of the federal circuits that have addressed this very issue. Because the Supreme Court has yet to address panhandling restrictions, this article first analyzes the framework that has been established in cases involving restrictions on solicitations in general. This article then discusses the decisions of the federal circuit courts on panhandling restrictions. Then, this article explains how the Seventh Circuit came to find that Springfield ordinance on panhandling was a valid content-neutral restriction. Finally, this article argues that the Seventh Circuit incorrectly classified the Springfield ordinance as a content-neutral speech restriction and, as a result, incorrectly held that it was a valid, content-neutral speech restriction.
Voter ID Law
Voter ID in Wisconsin: A Better Approach to Anderson/Burdick Balancing
Abstract: In 2011, Wisconsin Governor Scott Walker enacted 2011 Wisconsin Act 23. This law required that most of the state's voters show an acceptable form of photo identification to cast a ballot. State officials contended the regulation was necessary to detect and prevent fraud, promote public confidence in the electoral process, and improve election administration. On the other hand, critics of the law argued it was merely a partisan attempt by Republican legislators to suppress the turnout of various subgroups that overwhelmingly tend to vote Democratic.
In Frank v. Walker, voters and advocacy organizations sued, claiming the requirement placed an unjustified burden on the right to vote and, therefore, violated the Equal Protection Clause of the Fourteenth Amendment. At the trial level, the Federal District Court for the Eastern District of Wisconsin found Act 23 unconstitutional and ordered an injunction preventing implementation of the law. On appeal, the United States Court of Appeals for the Seventh Circuit reversed the lower court’s ruling and upheld the law. The U.S. Supreme Court declined to review the case.
Courts evaluating a constitutional challenge to election regulations such as Act 23 must weigh the asserted injury to the right to vote against the legitimate interests advanced by the state. Absent a clear imbalance, courts will presume the state's interests are sufficient. This analysis provides a clear and consistent method for courts evaluating such challenges; but, this approach ignores the political nature of election law. Instead, courts should permit an initial inquiry into improper partisanship to ensure more equitable outcomes. Accordingly, where plaintiffs can demonstrate a strong likelihood that passage of an election regulation was motivated primarily by political interests, courts should grant their claims deference. Then, the state should bear the burden of proving that its regulatory interests outweigh the harm imposed on voting rights.