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Seventh Circuit Review SEVENTH CIRCUIT REVIEW SEVENTH CIRCUIT REVIEW Volume 10, Issue 2 Spring 2015 CONTENTS Masthead viii About the SEVENTH CIRCUIT REVIEW ix Preface xi Civil Rights Law The Twenty-Five-Year Struggle for Marriage Equality: What Impact Does the Seventh Circuit’s Jurisprudence Have on LGBT Civil Liberties? Elly Drake 248 Constitutional Law Procedural Error? Seventh Circuit Fails to Recognize “No Procedure” Is Not “Adequate Procedure” Lyal L. Fox III 308 Employment Law Gambling on Court Interpretations of Care: Approving Leave for Travel Under the FMLA Heather N. Collinet 345 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 Michael A. Albert 386 vi The Panhandlers’ Dialogue: Are Restrictions on Panhandling Content- Neutral Under the First Amendment? Jing Zhang 442 Voter ID Law Voter ID in Wisconsin: A Better Approach to Anderson/Burdick Balancing Matthew R. Pikor 465 vii SEVENTH CIRCUIT REVIEW SEVENTH CIRCUIT REVIEW Volume 10, Issue 2 Spring 2015 Chicago-Kent College of Law Illinois Institute of Technology 565 West Adams Street, Chicago, Illinois 60661 Hal R. Morris Professor McKenna M. Prohov Executive Editor – Teaching Assistant Editorial Staff Michael A. Albert Elly Drake Nima Baratzadeh Lyal L. Fox III Heather N. Collinet Matthew R. Pikor Jing Zhang © 2015 Chicago-Kent College of Law, Illinois Institute of Technology. viii SEVENTH CIRCUIT REVIEW SEVENTH CIRCUIT REVIEW Volume 10, Issue 2 Spring 2015 ABOUT THE SEVENTH CIRCUIT REVIEW Purpose The SEVENTH CIRCUIT REVIEW is a semiannual, online journal dedicated to the analysis of recent opinions published by the United States Court of Appeals for the Seventh Circuit. The SEVENTH CIRCUIT REVIEW seeks to keep the legal community abreast of developments and trends within the Seventh Circuit and their impact on contemporary jurisprudence. The articles appearing within the SEVENTH CIRCUIT REVIEW are written and edited by Chicago-Kent College of Law students enrolled in the SEVENTH CIRCUIT REVIEW Honors Seminar. The SEVENTH CIRCUIT REVIEW Honors Seminar In this seminar, students author, edit, and publish the SEVENTH CIRCUIT REVIEW. The REVIEW is entirely student written and edited. During each semester, students identify cases recently decided by the Seventh Circuit to be included in the REVIEW, prepare initial drafts of case comments or case notes based on in-depth analysis of the identified cases and background research, edit these drafts, prepare final, publishable articles, integrate the individual articles into the online journal, and “defend” their case analysis at a semester-end roundtable. Each seminar student is an editor of the REVIEW and responsible for extensive editing of other articles. Substantial assistance is provided by the seminar teaching assistant, who acts as the executive editor. ix The areas of case law that will be covered in each journal issue will vary, depending on those areas of law represented in the court’s recently published opinions, and may include: • Americans with Disabilities Act • antitrust • bankruptcy • civil procedure • civil rights • constitutional law • copyright • corporations • criminal law and procedure • environmental • ERISA • employment law • evidence • immigration • insurance • products liability • public welfare • securities This is an honors seminar. To enroll, students must meet one of the following criteria: (1) cumulative GPA in previous legal writing courses of 3.5 and class rank at the time of registration within top 50% of class, (2) recommendation of Legal Writing 1 and 2 professor and/or Legal Writing 4 professor, (3) Law Review membership, (4) Moot Court Honor Society membership, or (5) approval of the course instructor. x SEVENTH CIRCUIT REVIEW Volume 10, Issue 2 Spring 2015 PREFACE I had the honor of serving as the Executive Editor of the SEVENTH CIRCUIT REVIEW during the 2014–2015 academic year. I would like to thank Professor Morris and the seminar students for making my experience a memorable one. The SEVENTH CIRCUIT REVIEW is a semiannual, online journal dedicated to the analysis of recent opinions published by the U.S. Court of Appeals for the Seventh Circuit. The SEVENTH CIRCUIT REVIEW seeks to keep the legal community abreast of developments and trends within the Seventh Circuit and their impact on contemporary jurisprudence. The articles appearing within the SEVENTH CIRCUIT REVIEW are written and edited by Chicago-Kent students enrolled in the SEVENTH CIRCUIT REVIEW Honors Seminar. The articles appearing in this issue are as diverse as their authors. Topics include same-sex marriage, appropriating a star athlete’s image, and leave for travel under the Family and Medical Leave Act. Each author’s hard work and willingness to collaborate produced not only publishable articles, but also a legal reference for those who wish to learn the current state of Seventh Circuit law. It was a privilege to work with the authors at every stage of the writing process, and I thank them for their dedication. Matthew Smart will serve as the Executive Editor of the SEVENTH CIRCUIT REVIEW for the 2015–2016 academic year. Matthew externed for the Honorable Ann Claire Williams of the Seventh Circuit Court of Appeals. In addition, he is the Executive Community Outreach Manager for the CHICAGO-KENT LAW REVIEW, a member of the Moot Court Honor Society, the Corporate Law Society, and the xi SEVENTH CIRCUIT REVIEW Volume 10, Issue 2 Spring 2015 Chicago-Kent Lambdas. I played an active role in selecting Matthew for this position, and I know that under his leadership the next volume of the REVIEW is sure to be one of the finest. Very Respectfully, McKenna Prohov Executive Editor, SEVENTH CIRCUIT REVIEW xii SEVENTH CIRCUIT REVIEW Volume 10, Issue 2 Spring 2015 THE TWENTY-FIVE-YEAR STRUGGLE FOR MARRIAGE EQUALITY: WHAT IMPACT DOES THE SEVENTH CIRCUIT’S JURISPRUDENCE HAVE ON LGBT CIVIL LIBERTIES? * ELLY DRAKE Cite as: Elly Drake, The Twenty-Five-Year Struggle for Marriage Equality: What Impact Does the Seventh Circuit’s Jurisprudence Have on LGBT Civil Liberties?, 10 SEVENTH CIRCUIT REV. 248 (2015), at http://www.kentlaw.iit.edu/Documents /Academic Programs/7CR/v10-2/drake.pdf. INTRODUCTION On June 28, 1969, police raided the Stonewall Inn1, a gay bar in New York’s Greenwich Village, sparking riots that are widely seen as giving birth to the modern gay rights movement.2 But the gay rights movement did not immediately take root within the law or the courts. * J.D., May 2015, Chicago-Kent College of Law, Illinois Institute of Technology; SEVENTH CIRCUIT REVIEW; B.A., Political Science and Economics, Loyola University Chicago, 2008. 1 With very few public gathering places for gays and lesbians at the time, the unwarranted police riots showcased the dislike, hate, and negative sentiments towards gays and lesbians. The riots proved the need for activism, for mutual coexistence, and for the fight to eradicate homophobia. 2 Kenneth J. Bartschi, The Two Faces of Rational Basis Review and the Implications for Marriage Equality, 48 FAM. L.Q. 471, 474 (2014), (citing Sherry Wolf, Stonewall: The Birth of Gay Power-An Excerpt from Sherry Wolf's Book, SEXUALITY AND SOCIALISM, INT’L SOCIALIST REV., http:// isreview.org/issue/63/stonewall-birthgay-power). 248 SEVENTH CIRCUIT REVIEW Volume 10, Issue 2 Spring 2015 The 1970s were filled with unsuccessful same-sex marriage cases,3 despite the fact that in 1967 the Supreme Court, in Loving v. Virginia, redefined marriage as an important individual right by striking down the ban on interracial marriage.4 In Loving, the Court held that “[t]he freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men”5 and described marriage as “one of the ‘basic civil rights of man,’ fundamental to our very existence and survival.’”6 However, for more than thirty-five years after Loving, not a single state permitted partners of the same-sex to exercise the “vital personal right” and “basic civil right” to marry until 2003.7 The issue of whether to allow same-sex marriage has many different facets and has created a very important cultural debate throughout the country.8 Public opinion has been shaped by two polarizing views.9 One view sees what some state courts have done in striking down same-sex marriage bans as correcting yet another vestige of entrenched discrimination against a politically unpopular 10 and relatively powerless group in society. Yet, the opposing view 3 See Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971), appeal dismissed, 409 U.S. 810 (1972); Jones v. Hallahan, 501 S.W.2d 588 (Ky. Ct. App. 1973); Singer v. Hara, 522 P.2d 1187 (Wash. Ct. App. 1974). 4 Loving v. Virginia, 388 U.S. 1, 12 (1967). 5 Id. 6 Frank Gulino, A Match Made in Albany: The Uneasy Wedding of Marriage Equality and Religious Liberty, 84-JAN N.Y. ST. B.J. 38, 38-39 (2012). 7 Id. at 39; see Baehr v. Lewin, 74 Haw. 530 (1993). The Supreme Court of Hawaii struck down same-sex marriage bans because they discriminate against individuals on the basis of their sex. Unfortunately, through voter initiative, same- sex marriages were subsequently banned. 8 Vincent Samar, Privacy and the Debate over Same-Sex Marriage versus Unions, 54 DePaul L. Rev. 783, 783 (2005), (citing Kathleen Harris, Tory’s Anti- Gay Rant “Venomous”, The Toronto Sun, May 9, 2003, at 12; Keith B. Richburg, Gay Marriage Becomes Routine for Dutch Two Years After Enacting Law, Up to 8%
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