Why the Chicago Foie Gras Ordinance Was Constitutional (And Should Not Have Been Repealed)

Posted by Tony Eliseuson, ALDF Volunteer Attorney Member on May 22, 2008

As I noted in my introductory post, my participation with ALDF began with an amicus brief
that ALDF filed in support of the City of Chicago’s Foie Gras ordinance
in the Seventh Circuit. As you may have heard, the City of Chicago
recently repealed that ordinance. This was an unfortunate turn of
events, which will moot the litigation. Despite the repeal, however, I
thought it would still be worthwhile to briefly discuss the litigation
that had occurred because of the likelihood that similar litigation
will ensue when other cities or states pass foie gras bans like the one
that had been in effect in Chicago.

The Chicago Foie Gras Ordinance prohibited the sale
of foie gras by restaurants within the City of Chicago. On August 22,
2006, the effective day of the ordinance, the Illinois Restaurant
Association, along with one of its member-restaurants, filed a
one-count Complaint in the Circuit Court of Cook County Illinois
against the City of Chicago, alleging the ordinance violated the
Illinois Constitution. The Plaintiffs later amended their complaint to
add a count for a violation of the dormant Commerce Clause of the
United States Constitution. The City removed the case to federal court
and filed a motion to dismiss the Amended Complaint on December 26,
2006.  

On June 12, 2007, the United States District Court
for the Northern District of Illinois held that the City of Chicago did
not violate the dormant Commerce Clause of the United States
Constitution or the Illinois State Constitution when it enacted the
Foie Gras Ordinance. See Ill. Rest. Ass’n v. City of Chicago,
492 F. Supp. 2d 891 (N.D. Ill. June 12, 2007) (Manning, J.). The
Plaintiffs have appealed that decision in part solely on the dormant
Commerce Clause issue.  

The thrust of Plaintiffs’ argument to the Seventh
Circuit was two-fold.  First, that the Chicago Foie Gras Ordinance was
protectionist in that it only placed restrictions on the sale of a
product that was produced outside Chicago (and, in fact, the State of
Illinois). Second, Plaintiffs argued that there was no legitimate local
public interest in passing the Chicago Foie Gras Ordinance. In support
of this second point the Plaintiffs argued that the humane treatment of
animals was not a legitimate local public interest. It was on this
second point that the ALDF filed its amicus brief.

Plaintiffs’
appellate brief is based upon the flawed premise that the dormant
Commerce Clause elevates free trade above all other values, and
therefore an ordinance codifying a community value regarding the humane
treatment of animals does not constitute a legitimate local public
interest under the dormant Commerce Clause. As we noted in our brief,
both the United States Supreme Court and the Seventh Circuit have
rejected that premise. To the contrary, the regulation of moral values
related to animals has particular providence within the sphere of local
and state government, a point the Seventh Circuit recognized recently
when it upheld the Illinois Horse Meat Act. Cavel Int’l, Inc. v. Madigan,
500 F.3d 551, 557 (7th Cir. 2007) ("[A] state is permitted, within
reason, to express disgust at what people do with the dead, whether
dead human beings or dead animals.").

Thus, our argument to the Seventh Circuit was that
just as the State of Illinois is allowed to pass a statute expressing
disgust at the particular treatment of dead horses, so too is the City
of Chicago allowed to express disgust with the treatment of living
geese for the production of foie gras. Thus, it is inherently within
the power of the City of Chicago to pass an ordinance that prohibits
the sale of an offensive product, namely foie gras, within the
jurisdictional borders of the City.

It is my hope that the legal analysis contained in
our brief, and the City of Chicago’s brief, will allow future
localities to defend their foie gras (or other animal protective
legislation) from similar dormant Commerce Clause challenges.