In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 05-1271

GREATER CHICAGO COMBINE AND CENTER, INC.,

an Illinois not-for-profit corporation,

Plaintiff-Appellant,

v.

CITY OF CHICAGO,

Defendant-Appellee.

____________

Appeal from the United States District Court 

for the Northern District of Illinois, Eastern Division.

No. 04 C 5429—Harry D. Leinenweber, Judge.

____________

ARGUED OCTOBER 28, 2005—DECIDED DECEMBER 22, 2005

____________

Before EASTERBROOK,MANION, andROVNER, Circuit Judges.

MANION, Circuit Judge. The City of Chicago enacted an

ordinance that prohibited the keeping of pigeons in most

residential areas of the city. An organization of homing

pigeon keepers, known as the Greater Chicago Combine and

Center, Inc., sued the city claiming that the ordinance violated the Fourteenth Amendment of the United

States Constitution. The district court granted the city

summary judgment. We affirm.
2 No. 05-1271

I.

In September 2003, Chicago’s city council passed the

“Restrictions on Pigeons” ordinance in response to citizen complaints about feathers, droppings, odor, and

noise (cooing) generated by pigeons housed in residential

areas (i.e., coops in homes, backyards, and garages). The

council also enacted the ordinance due to public health

concerns (e.g., disease).

Specifically, the ordinance, Chicago Municipal Code § 7-

12-387, prohibits the keeping of pigeons within residential districts. Pursuant to § 387(b), it is “unlawful for any

person to import, own, keep or otherwise possess any

live pigeon within any area designated as a residence under

the Chicago Zoning Ordinance” except for “transporting a

live pigeon through a residential district, if the pigeon is

caged during transport and not released in a residential

district.” In addition, § 387(c) makes it “unlawful for any

person to construct or maintain any coop or cote that is, or

may be used for the storage, maintenance or sheltering of

any live pigeon within” the aforementioned residential

areas. By its terms, the ordinance does not apply to nonresidential areas, such as those zoned commercial or

industrial.

Under § 387(e), violations of the ordinance are treated as

a public nuisance. As such, violations are abated in accordance with the notice and other procedures set forth in

Chicago Municipal Code § 7-28-010. Section 387(f) subjects violators to fines ranging from $100 to $1,000 or jail

time up to six months per offense. Each day a violation

continues is deemed a separate offense.

Prior to this ordinance, the city did not restrict the keeping

of pigeons, and a number of city residents housed pigeons
No. 05-1271 3

on their property. Among those keeping pigeons were

members of a non-profit organization called the Greater

Chicago Combine and Center, Inc. (“GCCC”). According to

GCCC, its members raise, train, and breed homing pigeons

for educational purposes.

The anti-pigeon ordinance went into effect on January 1,

2004. At that time, the ordinance contained an exemption

for educational, medical, scientific, and zoological purposes.

Thus, under this exemption in § 387(d), a pigeon could be

kept in a residential area if it were kept for one of the four

enumerated purposes and if its owner obtained a license.

GCCC members in the city’s residential areas seized on

the educational exemption to continue their homing pigeon pursuits. Viewing this development as an unintended “loophole,” the city council amended the exemption

in May 2004. It replaced § 387(d)’s broad language exempting the four aforementioned purposes with narrower

language exempting two specific sites: the Lincoln Park Zoo

and the zoo at Indian Boundary Park. Other than those two

zoos, pigeons could no longer be kept in residential areas

for any purpose.

Later in that same month, the city council amended the

ordinance a second time. This amendment exempted two of

the city’s fifty wards (the 32d and 47th wards) from the

residential pigeon ban. The aldermen representing these two

wards initiated this amendment. The record does not reveal

the precise reason that these two particular wards were

exempted, but presumably the aldermen were responding

to pigeon-keeping constituents.

With the educational exemption repealed, GCCC members in residential areas of the other forty-eight wards no

longer had a plausible means of keeping their pigeons and
4 No. 05-1271

1 GCCC’s only claim under state law was that the city, in passing

the ordinance, exceeded its “home rule” power under the Illinois

Constitution. See City of Burbank v. Czaja, 769 N.E.2d 1045, 1051

(Ill. App. Ct. 2002). As indicated below, GCCC does not pursue

this claim on appeal.

2 In its current form, the ordinance reads as follows:

Restrictions on pigeons. (a) For purposes of this section only

(continued...)

simultaneously complying with the ordinance. Consequently, in August 2004, GCCC sued the city on behalf of its

affected members. GCCC claimed that the ordinance

violated its affected members’ equal protection rights under

the Fourteenth Amendment. The complaint specifically

claimed that the ordinance “violates the equal protection

clause because the classifications are disparate in that they

allow certain residents to continue to harbor homing pigeons within the city of Chicago.” The complaint

also included a substantive due process claim under the

Fourteenth Amendment as well as a supplemental state law

claim.1

With the complaint, GCCC filed a motion for a preliminary injunction. Resting primarily on the two-ward exemption, the district court granted the motion in late August.

The district court vacated the injunction in September on a

procedural ground, but, at the district court’s request, the

city agreed to voluntarily refrain from enforcing the ordinance until the matter was resolved.

In apparent response to GCCC’s equal protection

claims, the city council passed another amendment in

November, which repealed the two-ward exemption.

Therefore, as of this most recent amendment to the ordinance,2

 all residential areas of the city (save for the two
No. 05-1271 5

(...continued)

the following definition applies: “Pigeon” means any live

bird of the Family Columbidae.

(b) It shall be unlawful for any person to import, sell, own,

keep or otherwise possess any live pigeon within any area

designated as a residence district under the Chicago Zoning

Ordinance. Nothing in this subsection prohibits any person

from transporting a live pigeon through a residential district,

if the pigeon is caged during transport and not released in a

residential district.

(c) It shall be unlawful for any person to construct or maintain any coop or cote that is, or may be used for the storage,

maintenance or sheltering of any live pigeon within any area

designated as a residence district under the Chicago Zoning

Ordinance.

(d) The provisions of subsections (b) and (c) of this section

shall not apply to the keeping of pigeons as part of an exhibit

at either Lincoln Park Zoo or the zoo at Indian Boundary

Park.

(e) Violation of any portion of this section shall constitute a

public nuisance, which may be abated pursuant to the

procedures described in section 7-28-010. In addition to any

fine or penalty, an amount equal to three times the cost or

expense incurred by the city in abating a nuisance may be

recovered in an appropriate action instituted by the corporation counsel.

(f) Any person who violates any provision of this section

shall be fined not less than $100.00 nor more than $1,000.00

or may be incarcerated for a period not to exceed six months,

or both. Each day that a violation continues shall constitute

a separate and distinct offense.

Chicago Municipal Code § 7-12-387 (amend. Nov. 3, 2004). 

zoos) are equally subject to the pigeon-keeping ban. Nonresidential areas remain ban-free.
6 No. 05-1271

Ultimately, the city moved for summary judgment. In

December, the district court granted that motion, rejecting GCCC’s federal and state claims. GCCC appeals, raising

only its federal equal protection and substantive due

process claims.

II.

Before addressing GCCC’s arguments on appeal, we

turn to a jurisdictional matter raised at oral argument.

GCCC brought this suit as a federal question case. One

component of federal question jurisdiction is “substantiality.” Gammon v. GC Servs. Ltd. P’ship, 27 F.3d 1254, 1256

(7th Cir. 1994); Ricketts v. Midw. Nat’l Bank, 874 F.2d 1177,

1180-81 (7th Cir. 1989). That is, for subject matter jurisdiction to exist in such a case, the face of the complaint must

demonstrate that a claim under the Constitution or other

laws of the United States is “sufficiently substantial.”

Gammon, 27 F.3d at 1256. As a result, if a federal claim is

“immaterial to the true thrust of the complaint and thus

made solely for the purpose of obtaining jurisdiction” or

if the federal claim is “ ’wholly insubstantial and frivolous, ’ ” Ricketts, 874 F.2d at 1182 (quoting Bell v. Hood, 327

U.S. 678, 682-83 (1946)), then “the court does not have the

power to decide the case” and must dismiss the complaint

for lack of subject matter jurisdiction, Gammon, 27 F.3d

at 1256.

Since substantiality is a jurisdictional matter, the assessment of whether a claim is insubstantial or frivolous is made

as of the time the lawsuit was initiated. See Hagans v. Lavin,

415 U.S. 528, 538-39 (1974) (“[J]urisdiction, a matter for

threshold determination, turned on whether the question

was too insubstantial for consideration.”); Mid-Am. Waste
No. 05-1271 7

Sys. v. City of Gary, 49 F.3d 286, 292 (7th Cir. 1995) (“Jurisdiction is established (or not) at the outset of a case.”);

Gammon, 27 F.3d at 1256; Ricketts, 874 F.2d at 1180-82. At the

outset of the present case, the city treated residents keeping

pigeons in two wards of the city differently than residents

keeping pigeons in the other wards of the city. GCCC based

its equal protection claim in part on this two-ward exemption, and the district court issued a preliminary injunction

primarily because of this two-ward exemption. Again, the

complaint specifically averred that the ordinance “violates

the equal protection clause because the classifications are

disparate in that they allow certain residents to continue to

harbor homing pigeons within the city of Chicago.” This

equal protection claim is sufficiently plausible to secure

subject matter jurisdiction for GCCC’s entire complaint; we

need not discuss the other constitutional allegations here.

See Rickets, 874 F.2d at 1182 (“If there is any foundation of

plausibility to the federal claim federal jurisdiction exists.”

(internal quotation omitted)); cf. Mid-Am., 49 F.3d at 292

(district court’s grant of a TRO was one reason supporting

this court’s determination that a claim was not frivolous for

jurisdictional purposes). The fact that the city repealed

the two-ward exemption does not change this jurisdictional inquiry. While the repeal diminished the strength

of GCCC’s equal protection claim, the repeal did not

“retroactively divest the court of jurisdiction.” Mid-Am., 49

F.3d at 292. Satisfied that GCCC secured federal question

jurisdiction at the outset and that we have the authority

to adjudicate this case, we turn to the merits.

III.

Our review of a district court’s summary judgment

decision is de novo. See Civil Liberties for Urban Believers
8 No. 05-1271

v. City of Chicago, 342 F.3d 752, 759 (7th Cir. 2003). Summary

judgment is appropriate when “the pleadings, depositions,

answers to interrogatories, and admissions on file, together

with the affidavits, if any, show that there is no genuine

issue as to any material fact and that the moving party is

entitled to a judgment as a matter of law.” Fed. R. Civ. P.

56(c).

We begin with the standard by which the ordinance

should be reviewed, which is a matter the parties sharply

dispute. The city maintains that GCCC’s constitutional claims should be subject to rational basis review,

which the district court applied. GCCC argues for a

higher standard, which it refers to as the substantial relationship test.

GCCC’s argument for something greater than rational

basis review draws heavily from Illinois law. In other

words, GCCC wants us to look to Illinois law to determine the proper standard of review for GCCC’s federal

constitutional claims. To justify this state law approach,

GCCC declares in its appellate brief: “Judges in federal

court cases involving land use issues are compelled to

look to the law of the state of the property’s situs for

guidance.” GCCC supports this proposition with a single

case, Board of Regents of State Colleges v. Roth, 408 U.S. 564

(1972). Unlike the present case, Roth was a procedural

due process case, which dealt with the issue of whether a

non-tenured professor had a property interest in continued employment with a state university (he did not).

Id. at 569, 576-78. GCCC hangs its hat on the following

passage from Roth: “Property interests, of course, are not

created by the Constitution. Rather, they are created and

their dimensions are defined by existing rules or understandings that stem from an independent source such as
No. 05-1271 9

state law—rules or understandings that secure certain

benefits and that support claims of entitlement to those

benefits.” Id. at 577. Here, however, we are not dealing with

some abstract property rights claim. We do not have to

decide, for instance, if GCCC’s members have a property

interest in their residences or their pigeons (they obviously

do). Roth is therefore inapposite. While in a case like Roth it

is practical to look to state law to see if a property interest

exists, that principle does not extend, as GCCC would have

it, to a state standard of review dictating a federal standard

of review in federal court on a federal constitutional question.

GCCC also bases its argument for a substantial relationship test upon Village of Euclid v. Ambler Realty Company,

272 U.S. 365 (1926), and its progeny. Euclid ruled that for an

ordinance to be held unconstitutional, the ordinance must

be “clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general

welfare.” 272 U.S. at 395. While Euclid employed the words

“substantial relation,” it also used the words “clearly

arbitrary and unreasonable.” Moreover, prior to this

summarization passage, Euclid had already said that the

ordinance did not go beyond “the bounds of reason and

assume[ ] the character of a merely arbitrary fiat.” Id. at 389

(internal quotation omitted). Also, Euclid had already

explained that the ordinance passed constitutional muster

because it “[bore] a rational relation to the health and safety

of the community” and, at that point, Euclid listed several

conceivable grounds for this rational relation. Id. at 391.

Keying off the words “clearly arbitrary and unreasonable”

as well as the other rational basis language in Euclid, our

precedent has routinely applied Euclid as a rational basis

rule for substantive due process and equal protection

challenges to municipal ordinances. See Pro-Eco, Inc. v. Bd.
10 No. 05-1271

of Comm’rs of Jay County, 57 F.3d 505, 514 (7th Cir. 1995)

(“We have interpreted ‘arbitrary and unreasonable’ to mean

invidious or irrational.” (citing Coniston Corp. v. Village of

Hoffman Estates, 844 F.2d 461, 467 (7th Cir. 1988); Burrell v.

City of Kankakee, 815 F.2d 1127, 1129 (7th Cir. 1987))); see also

Urban Believers, 342 F.3d at 766; Hager v. City of W. Peoria, 84

F.3d 865, 872 (7th Cir. 1996); Clark v. County of Winnebago,

817 F.2d 407, 408-09 (7th Cir. 1987). Accordingly, GCCC is

not entitled to a heightened, “substantial relationship”

review.

With that, we turn to GCCC’s substantive due process

claim. To be successful, GCCC must “demonstrate either

that the ordinance infringes a fundamental liberty interest

or that the ordinance is ‘arbitrary and unreasonable, having no substantial relation to the public health, safety,

morals, or general welfare.’ ” Pro-Eco, 57 F.3d at 514 (quoting Euclid, 272 U.S. at 395; citation omitted). (As indicated

above, the second alternative is a rational basis test.) The

adjective “fundamental” in this setting is reserved for

deeply-rooted, sacrosanct rights such as “the right of a

man and woman to marry, and to bear and raise their

children.” Brokaw v. Mercer County, 235 F.3d 1000, 1018 (7th

Cir. 2000). Raising homing pigeons is an entirely different

matter. It is not a fundamental right, as GCCC’s acknowledges by its silence on this issue.

Thus reaching the second alternative of the inquiry,

“governmental action passes the rational basis test if a

sound reason may be hypothesized.” Pro-Eco, 57 F.3d at

514 (internal quotation omitted); see also Euclid, 272 U.S. at

388 (“If the validity of the legislative classification for

zoning purposes be fairly debatable, the legislative judgment must be allowed to control.”); Clark, 817 F.2d at 409.

The city advances two reasons for its pigeon prohibition:
No. 05-1271 11

limiting interference with neighbors’ enjoyment of their

property and public health concerns. As the city’s reasons are at least hypothetically rational justifications for

banning pigeons in residential areas, they are enough for the

city to survive this low level standard of review. While

housing pigeons in rural areas, for example, may be a

perfectly unobtrusive endeavor, it is at least conceivable that

the feathers, droppings, odor, and noise generated by kept

pigeons in tight, urban lots would be an untenable nuisance

to residential neighbors. See Euclid, 272 U.S. at 387-88 (“A

nuisance may be merely a right thing in the wrong

place,—like a pig in the parlor instead of the barnyard.”). It

is also, at a minimum, plausible that feeding and maintaining pigeons in backyard coops would increase the public

health risks posed by rodents and disease. See Pro-Eco, 57

F.3d at 514 (“Concern for public health is a sufficient reason

on its face to pass the Euclid test.”). Consequently, the city

has a rational basis for its decision to ban the keeping of

pigeons in residential areas, and GCCC’s substantive due

process claim is at an end.

GCCC’s equal protection claim follows in much the

same manner. See, e.g., Pro-Eco, 57 F.3d at 514. GCCC

does not claim that its members are part of a particularly

“vulnerable group, racial or otherwise,” Hager, 84 F.3d at

872, also known as a “suspect class[,] whose different

treatment at the hands of the [city] would be subject to strict

or intermediate scrutiny.” Pro-Eco, 57 F.3d at 514. Therefore,

“the same test of rationality we used for analysis of [the]

substantive rights claim applies to its equal protection

claim.” Id. That is, “unless a statute classifies by race,

alienage, or national origin or impinges on fundamental

constitutional rights, the general rule is that legislation is

presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate
12 No. 05-1271

state interest.” Urban Believers, 342 F.3d at 766 (internal

quotation omitted).

With the two-ward exemption repealed, the remaining disparate classifications resulting from the ordinance are

residential versus non-residential and pigeons versus pets

that can cause unpleasant or unhealthy conditions

in a residential neighborhood. It is true that other animals make noise, leave droppings, and can be otherwise

unsavory. Nonetheless, without delving into the distinctions

between pigeons and dogs, for instance, we can put this

issue to rest by simply acknowledging that a city’s decision

to address a problem gradually is rational. See Vaden v.

Village of Maywood, 809 F.2d 361, 365 (7th Cir. 1987) (“A local

ordinance aimed at remedying a problem need not entirely

eliminate the problem. Instead, reform may take one step at

a time, addressing itself to the phase of the problem which

seems most acute to the legislative mind.” (internal quotation omitted)). Similarly, a satisfactory reason for the

residential-only ban, as the district court pointed out, is the

reasonable belief that the need to protect the public against

the nuisance and adverse health concerns generated by

pigeons is attenuated in predominately commercial areas

(even though some people may live in such areas) but

warrants greater or immediate attention in residential areas

(where people predominately live). For these reasons,

GCCC cannot show that it is “wholly impossible” to relate

this governmental action to legitimate governmental

objectives, and, as a result, we cannot disturb the ordinance

under the equal protection clause. Urban Believers, 342 F.3d

at 766 (internal quotation omitted); see also Hager, 84 F.3d at

872; Pro-Eco, 57 F.3d at 514.
No. 05-1271 13

IV.

We are not unsympathetic to the GCCC members affected

by this restriction on how they use their property. At the

same time, we understand the concerns of their neighbors.

Balancing these competing interests, however, is not our

role. Under the governing rational basis standard of review,

federal courts do not review the wisdom or desirability of

fairly debatable legislative choices. See Heller v. Doe, 509 U.S.

312, 319 (1993); Euclid, 272 U.S. at 388. Accordingly, GCCC

is not entitled to relief on its substantive due process or

equal protection claim. The judgment of the district court is

AFFIRMED.

A true Copy:

Teste:

 _____________________________

Clerk of the United States Court of 

Appeals for the Seventh Circuit 

USCA-02-C-0072—12-22-05