The Seward Park Urban Renewal Area

The Seward Park Urban Renewal Area, Forty-five Years Later:
Affordable to Whom?

By Eugene Chen

I. Background

From the 1950s through the 1960s, two thousand families with low incomes were displaced from their homes when the City of New York embarked on an urban renewal plan targeting the area east along Delancey Street at the foot of the Williamsburg Bridge, otherwise known as the Seward Park Urban Renewal Area (SPURA).1 Forty-five years later, the “Seward Park Slum Clearance Project” left 165 million square feet of parking lot space, devoid of any signs of human occupation aside from the coming and going of vehicles. After a contentious community debate, the City Council passed a resolution (the “Resolution”) on October 11, 2012, for a mixed-use plan to develop SPURA.2 Proposals were due to the New York City Economic Development Corporation (NYCEDC) on May 6, 2013, and on September 18, 2013, Mayor Bloomberg announced that Delancey Street Associates LLC, a joint venture composed of L+M Development Partners, BFC Partners, and Taconic Investment Partners, had been selected to develop the site.3 The plan calls for 60/40 residential and commercial development, with 500 units of permanently affordable housing, out of the 1000 units of housing being built.4 In all likelihood, the developer chosen to develop SPURA will apply for the 421-a tax exemption, an incentive intended to encourage the construction of market-rate and affordable housing in New York City (the “City”).

The decision by the City to develop SPURA forty-five years later galvanized community groups and residents in Manhattan Community Board 3 (“CB3”), a neighborhood historically made up of low-income immigrants, who wanted to ensure that the project would benefit the community and not just enrich private developers.5 Though community boards did not exist6 when the City razed the area it deemed a “slum” in the 1960s, it was at community board meetings and hearings that the community voiced demands for more affordable housing, the construction of more schools in a burdened school district, prevailing wage jobs, and a ban on big-box stores in the plan for SPURA. This paper will examine the meaning of “affordability,” as defined by the U.S. Department of Housing and Urban Development through the concept of Area Median Income, the alternative definition of affordability known as Local Median Income, and the role of the 421-a Real Property Tax Exemption in the creation of affordable housing.

II. SPURA’s “Affordable” Units are Not Affordable to Many CB3 Residents because the Units’ Median Income Guidelines Count the Incomes of Surrounding Wealthier Counties.

SUPRA’s 50% mandate for permanently affordable housing was unprecedented7 in a private mixed-use project in New York City, but the notion of what is “affordable” is surprisingly subjective. “Affordability,” though governed by numbers, is a calculation that depends on various factors, including the size of the geographic area sampled and who is counted. As far as affordable housing programs at the federal, state, and local levels are concerned, the notion of affordability is pegged to a hard number known as Area Median Income (AMI), which is determined by the United States Department of Housing and Urban Development (HUD), a federal agency.8

The Local Median Income of CB3 is a More Accurate Representation of Affordability in the Lower East Side than HUD Area Median Income.

The HUD AMI calculation does not accurately represent CB3 because it takes into account the incomes of not only the five boroughs of New York City, but also the surrounding counties of Nassau, Suffolk, Putnam, and Richmond, whose median incomes are significantly greater than that of CB3.9 The use of incomes from this area (referred to by HUD as the Metropolitan New York City Area), resulted in a 2012 HUD AMI of $83,000 for a family of four living in CB310—almost twice as much as CB3’s actual Local Median Income (“LMI”) of $43,518,11 according to the Furman Center for Real Estate and Urban Policy (the “Furman Center”).12

When the income guidelines for the proposed 500 units of affordable housing in SPURA were released, community groups questioned whether these guidelines were indeed affordable for the residents of the Lower East Side.13 Eligibility for the affordable units will be governed by bands of affordability based on percentage ranges of HUD AMI.14 Using HUD’s 2012 AMI of $83,000 for a family of four, this means that 20% of the total units will be reserved for low-income families of four earning $41,000 annually, 10% for low-income seniors, 10% for moderate-income families of four earning $107,000 annually, 10% for middle-income families of four earning $136,000 annually, and the remaining 50% reserved for market-rate housing.15

The 500 units billed as “affordable” belie how unaffordable these units actually are to the current residents of CB3. According to HUD, rent is only affordable when a household pays less than 30% of its income towards rent.16 The Furman Center found that the median income of CB3 in 2010 was $43,518, with almost half of CB3 earning below $38,000.17 For those residents earning $38,000, an affordable monthly rent for CB3 would be $950.18 And yet, at the SPURA affordability guidelines, a low-income rental unit is $1,225 for a low-income family of four, which makes up 39% of a typical CB3 household’s income.19 / 12).] At that rent, roughly half of the residents of CB3 would be unable to afford even the so-called “low-income” units proposed for SPURA under the AMI guidelines.20 And with only 200 affordable units available, it is doubtful whether these new affordable units will do much to prevent displacement of current low-income residents due to gentrification. Therefore, many advocate for the use of LMI in defining “affordability” to more accurately reflect a community’s housing needs.21

Neither Area nor Local Median Income Calculations Account for Displacement Due to Gentrification.

As defined, the income guidelines for SPURA’s affordable units would do little to stop gentrification in the Lower East Side of Manhattan, which in the past ten years has become a destination for the young and well-to-do.22 In the Lower East Side, the issues of affordable housing and gentrification are inextricably linked, since longtime residents are forced to leave when they can no longer afford their own homes due to the influx of wealthier residents. In New York for Sale, urban planning policy expert Tom Angotti examines the economic injustice behind gentrification:

As tenants and small business owners invest their time and money to gradually upgrade their neighborhoods, real estate investors become attracted to those areas and anxious to capitalize on the improvements…. [These investors] effectively appropriate the value generated by others. This is the essence of what is now known as Gentrification. It is not simply a change in demographics. It is the appropriation of economic value by one class from another.23

Framed this way, setting aside housing units for low- to moderate-income earners is an intuitive solution to the problem of gentrification. To this end, many affordable housing advocates insist that LMI24 be used to define affordable housing guidelines because it is more accurate than HUD AMI.25 While LMI is a better reflection of a community’s income, it is also an imperfect measure. LMI, like AMI, fails to illuminate what part of a median income increase in a community results from the displacement of low-income earners by higher-income earners. According to the Furman Center, from 2008 to 2010 the LMI of households in CB3 increased from $36,408 to $43,518.26 This is surprising, especially given the recession in 2008, from which the nation has not completely recovered.27 This increase in median income may be due in part to the influx of wealthier residents, a steady pattern of gentrification occurring in the Lower East Side since at least the 1970s.28 At the same time that the LMI of CB3 increased, the City’s unemployment rate for Hispanics, who make up about 20% of CB3, rose from 7.2% to 13.3%29—nearly three times as high as white residents, who make up 30% of CB3.30 Although LMI is more representative of CB3 than HUD AMI, using LMI is still problematic because it does not take into account the historical impact that gentrification has had on communities facing a shortage of affordable housing. Income increases due to the displacement of low-income residents, particularly immigrants and people of color, should be taken into account to fully address the effects of gentrification with respect to affordable housing, regardless of whether AMI or LMI is used in determining affordability standards.

To be fair, the City Council Resolution does attempt to address gentrification in several ways through what it calls “community preferences.”31 Under the Resolution, at least 50% of the affordable units (250 units) will be given to qualifying CB3 residents.32 It also aims to give preference to CB3 residents for 50% of all jobs generated from the project (during and after construction). And, to address gentrification in commercial contexts, the Resolution addresses the displacement of small businesses in the soon-to-be demolished Essex Market by guaranteeing them a space in the new market facility at a similar rent, with moving costs paid for by the City.33

Gentrification is a complex problem, which, in the case of the 421-a tax exemption, is simultaneously addressed and perpetuated through tax exemptions given to luxury developers who integrate affordable housing into their projects. In the next section, the 421-a tax exemption is discussed as an imperfect solution to inducing the development of affordable housing.

III. Developers May Receive a Windfall under the 421-a Real Property Tax Exemption, Especially if the Land in SPURA is Sold at a Discount.

Delancey Street Associates will almost certainly apply for the 421-a tax exemption to help finance construction. Under 421-a, owners of exempt property pay significantly lower property taxes, which are assessed at the property’s value prior to any improvements instead of at its value after improvements.34 So, if the value of undeveloped land in SPURA is worth $1 billion now, and after the construction of apartments, condos, parks, and stores will be worth $10 billion, developers of the property would only pay taxes on the pre-improvement value of $1 billion for fifteen years.35 In exchange for the tax exemption, a developer in Manhattan benefiting from 421-a must allocate 20% of newly built residential units to on-site affordable housing,36 which are subject to rent stabilization for thirty-five years.37

The Pratt Center for Community Development argues that 421-a does little to create affordable housing while providing windfalls to developers of market-rate housing. The Center contends that incentives are not actually needed to create market-rate housing in robust housing markets like New York City—especially in Manhattan, which received 75% of the benefit in 2005.38 Indeed, “only one-third of new construction utilizes the program, so it is clearly possible to develop without the subsidy.”39 In the 2011 fiscal year alone, the City lost over $1 billion in tax revenue due to 421-a exemptions,40 but according to the Pratt Center, only 5,700 units of affordable housing have been created through 421-a since the program’s inception.41 The Pratt Center argues that not only is the 421-a tax exemption unnecessary to encourage development, but such a windfall to developers deprives the City of hundreds of millions in tax revenue dollars each year,42 which could be used to build 100% permanently affordable housing.

In the case of SPURA, the Resolution so closely tracks the requirements of N.Y. Real Prop. Tax Law § 421-a such that Delancey Street Associates will likely qualify for the tax exemption. Provisional requirements for 421-a that SPURA guidelines meet or exceed include the mandate for 20% on-site affordable housing;43 the affordability guidelines themselves, which are pegged to a percentage of AMI;44 that residents of the community board where the property is located be given priority for purchase or rental of 50% of the affordable units;45 that service employees employed at the building be paid a prevailing wage;46 Given the City’s perception of the tax exemption’s importance in creating affordable housing, it is not unreasonable to assume that those involved in SPURA’s planning made efforts to ensure that the project would meet or exceed 421-a requirements in order to attract developers.

Early on, there was speculation that the land in SPURA would be sold at a “huge discount.”47 It is unclear how the potential for 421-a tax exemptions factored into $180 million price that Delancey Street Associates paid for the enormous parcels of land in SPURA,48 which by all accounts, is an unprecedented development opportunity. To put into perspective the bargain price tag of $180 million for 6 acres of land with a potential for 165 million square feet of development: in March 2013, Extell Development paid $103 million for a nearby waterfront site at 250 South Street zoned for 1 million square feet of development.49 The City, having come further than it has in previous attempts to develop SPURA over the last forty-five years, was likely eager to sell the land for development. The requirement for affordable housing was likely a factor in SPURA’s price as well. However, the price paid for the SPURA site by Delancey Street Associates is an anomaly for prime Manhattan real estate. Therefore, in addition to this arguably discounted price, any 421-a tax exemptions (that Delancey Street Associates will easily qualify for) would truly amount to a windfall. The City could instead have used that money towards reducing cutbacks in public services and education in low-income communities like Manhattan’s Lower East Side.

IV. Conclusion

After forty-five years, the City is finally moving forward with plans to develop SPURA as a mixed-use, mixed-income development with 50% of the housing earmarked as permanently affordable. However, questions remain as to whether gentrification can be prevented, as many residents of Community Board 3 will not be able to afford even the 200 units set aside for low-income earners, since the guidelines used to determine their eligibility are based on higher federal AMI calculations. Additionally, affordable housing advocates express concern over what they deem a windfall that developers of SPURA will receive from 421-a tax exemptions, money that could otherwise be used by the City for the public. Nonetheless, the plans to develop SPURA are unprecedented in requiring half of all residential units built be permanently affordable. SPURA development is highly anticipated by many residents of Community Board 3, as they seek some measure of closure after forty-five years of blight caused by the City’s razing of the Seward Park area.

Case Comment: United States v. Alvarez (2014)

Where Are You Going, Where Have You Been? Seriously, Let Me See Your GPS.

Warrantless Search of GPS Device Held Constitutional: United States v. Alvarez, 8:13-cr-009 (N.D.N.Y. 2014)

By Rajendra Persaud 1

            Technological advances continue to confound already dense fourth amendment jurisprudence. As modern devices become more powerful, the information stored and accessed within raises new issues that did not exist only a few decades ago. As such, new technological devices have the potential to create cases of first impression upon the courts. Recently, in U.S. v. Alvarez, Judge McAvoy ruled warrantless searches of cell phones unconstitutional in the absence of exigent circumstances or a need to protect officer safety.2 The opinion compared cell phones to modern computers3 that house a wealth of private information within4 (akin to personal residences5). Thus, the smart phones were granted protection similar to computer hard drives6 and all information obtained from the seized phones was suppressed.7

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Trans* and Gender Nonconforming Students: Suggestions for Law Faculty

Improving Law School for Trans* and Gender Nonconforming Students: Suggestions for Faculty

By Gabriel Arkles1

I.     Introduction

In a way, creating accessible, nondiscriminatory, and effective law school experiences for trans* and gender nonconforming2 students is easy. All of our skills as educators apply; we can simply extend our existing strategies and best practices. Like all students, trans* and gender nonconforming students benefit from professors who care about their learning and expect the best from them, create respectful classroom dialogue on difficult issues, provide meaningful feedback, and so on.

In another way, creating accessible, nondiscriminatory, and effective law school experiences for trans* and gender nonconforming students is fantastically difficult. Simply acknowledging trans* existence and accepting gender nonconforming people on their own terms requires an overthrow of a deeply entrenched view of gender in our society: that gender is a binary, fixed, universal, apparent, and apolitical truth. Many everyday classroom practices and longstanding university policies created with the best of intentions can harm trans* and gender nonconforming students because they are based on assumptions about gender that just don’t hold up. Partly because of these policies and practices, relatively few openly trans* and gender nonconforming people hold positions—especially the most powerful and prestigious positions—as faculty, staff, or students in law schools. Fortunately, more and more trans* and gender nonconforming people are entering law schools and many cisgender3 people want to learn how to work with them respectfully and effectively.

Like most worthy endeavors, transforming law schools to better support trans* and gender nonconforming students is not so much a matter of checking items off a list as engaging in an ongoing process. It requires participation of diverse stakeholders, attention to the particulars of unique institutions and situations, and respect for the perspectives of the people who are most directly impacted: trans* and gender nonconforming students themselves.

This document may help faculty take steps to improve some of their practices quickly and to start this larger process, but it is no substitute.4 In it, I address several major areas of concerns that can emerge by providing a general tip, examples of practices that need improvement, and examples of improved practices.
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Access to healthcare for persons with mobility impairments

Inaccessible Medical Equipment: A Barrier to Routine Medical Care For Persons with Mobility Impairments and a Civil Rights Issue

by Thomas J. Keary1

More than twenty years after the passage of the Americans With Disabilities Act of 1990 (ADA) and forty years after the passage of Section 504 of the Rehabilitation Act of 1973 (Section 504), a recent study of physicians’ offices in five major metropolitan areas reveals that patients with mobility impairment are being turned away in disturbingly high numbers. This trend is due to physical barriers to routine medical care posed by inaccessible medical and diagnostic equipment, such as examining tables, rather than by building accessibility. The results indicate that there is a continuing need for education of health care providers and patients, as well as enforcement of these laws by the government and by consumers of health care.

Researchers at the Center for Quality of Care Research at Baystate Medical Center in Springfield, Massachusetts, telephoned 256 specialty medical and surgical practices seeking an appointment for a fictional, obese wheelchair user, who could not self-transfer to an examining table.2 Of this number, 22% reported that the patient could not be seen because, in most instances, they were unable to transfer the patient from a wheelchair to the examination table (18%) and to a lesser extent because the building where the practice was located was inaccessible for people in wheelchairs (4%).3 Practices in eight medical subspecialties, such as endocrinology, gynecology and orthopedic surgery, were tested. Of these subspecialties, gynecologists had the highest rate of inaccessible practices, with 44% of the gynecological offices called informing the tester that she needed to go elsewhere, usually because the provider lacked a table that could be raised and lowered, or a lift to transfer the patient out of a wheelchair.4

Inaccessible medical equipment has an impact on the timeliness and quality of care provided to people with mobility impairments. A study by Dr. Lisa I. Iezzoni, a Professor of Medicine at the Harvard Medical School, found that mobility-impaired patients with breast cancer, when confronted with inaccessible equipment, experienced delays in receipt of treatment and physician failure to perform a proper examination. In a follow up study, Iezzoni reported that mobility limitations affected the diagnosis and treatment decisions for women with early-stage breast cancer.5

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Prof. Robson on Justice Scalia’s Petard

Justice Scalia’s Petard and Same-Sex Marriage

by

Ruthann Robson1

Justice Antonin Scalia is well known not only for his conservative views, but also his literary language. So perhaps he might appreciate how the Shakespearean phrase, “hoist with his own petard,”2 could describe how his dissents are being used to support the very outcome he derided: the constitutional recognition of same-sex marriage.

In United States v. Windsor decided in June 2013, the Court, by a bare majority, declared unconstitutional section 3 of the Defense of Marriage Act (DOMA) which prohibited federal recognition of same-sex marriages even if the marriages were recognized by state law.3 As in two other important cases involving lesbian and gay rights, Romer v. Evans (1996)4 and Lawrence v. Texas (2003),5 Justice Kennedy wrote an opinion for the majority longer on rhetoric than on analysis and Justice Scalia wrote a dissent guaranteed to be called “scathing.” In these dissents, Justice Scalia not only criticized the majority opinion’s lack of rigor and exercise of judicial supremacy, but he warned of the consequences of the Court’s decision.

In Romer, Justice Scalia’s alarm was loud, if imprecise. He famously accused the Court, like other legal elites—including law schools—of taking sides in the “culture wars” by prohibiting discrimination on the basis of sexual orientation.6

At that time, Congress had just passed the Solomon Amendment,7 denying federal funding to law schools that enforced their non-discrimination policy against military recruiters because of the military’s exclusion of homosexuals. A decade later, the Court unanimously upheld the constitutionality of the Solomon Amendment in Rumsfeld v. Forum for Academic & Institutional Rights, Inc. (2006).8 But Justice Scalia’s dissent in Romer might also be read as signaling the end of Bowers v. Hardwick (1986),9 in which the Court upheld the constitutionality of criminalizing homosexual sodomy; Scalia’s dissent in Romer chastises the majority for not even mentioning this holding.10

Lawrence v. Texas achieved Scalia’s implicit prediction regarding the demise of Bowers v. Hardwick. In his dissent in Lawrence, he repeats (and at times quotes) his earlier accusations regarding lack of rigor and assertion of judicial supremacy.11 He adds a further criticism regarding the Court’s failure to honor stare decisis.12

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Student Article: Space Law and the Future of Public Interest

 SPACE LAW AND THE FUTURE OF PUBLIC INTEREST

Mclee Kerolle1

INTRODUCTION

On April 10, 2013, the Obama Administration released its proposed budget for 2014 with initial reviews showing that there would be a $200 million cut for NASA’s planetary exploration program.2 Critics against the cut, such as Planetary Society CEO Bill Nye, have spoken out about the crippling effect the cuts will have on future missions and the cuts potential to reverse a decade’s worth of investment building the world’s premier exploration program.3 On the other hand, proponents of the budget have praised it for its approval of $105 million for a mission to capture an asteroid so that it can be explored by 2015, as well as its funding for ongoing human spaceflight and support for private space taxis that could launch astronauts to and from the International Space Station.4 Irrespective of the divisions the budget proposal has caused among those in the space industry, one thing is for certain: the space industry is going through a resurgence. Not since the Space Race has there been more of a reason for people to be excited about what lies ahead. Rightfully so, considering that despite budget cuts and perceived setbacks from the public (such as the retirement of NASA’s space shuttle program in 2011) the space industry is now a $250 billion per year global market.5

Now with what Jeffrey Kluger, a senior Time magazine writer, calls a “handful of the world’s most daring entrepreneurs” 6 picking up where the space shuttle program left off and transporting cargo and astronauts into space, the space industry is looking to grow rapidly in what is poised to become the Second Space Race. However, unlike the Space Race of the 60s & 70s, the Second Space Race will be less about government space programs and more about the private space industry actors.  With more private actors entering the space industry, more opportunities are becoming available for lawyers specializing in space exploration. While space law as a field of law is still in its infancy, the concept of a space lawyer isn’t new. Space lawyers, and space law for that matter, have been at the center of satellite issues for some time. Because satellites handle television transmissions, GPS signals, and other projects for commercial, military, and government clients, several binding international treaties such as the 1972 Convention on International Liability for Damage Caused By Space Objects7 and the 1967 Outer Space Treaty8 have been used to “address liability and risk concerns over satellites…regarding fault for either non-functioning satellites or people or property on the ground” injured or damaged by falling satellites.9  Current issues that will need to be faced by the space law community include commercial human spaceflight, space debris, export control reform, and flags of convenience. 10 Other issues such as property rights to outer space resources will grow in importance as the commercial spaceflight industry matures.11

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DACA and NY Bar Eligibility

Our latest Footnote Forum installation comes from Professors Janet M. Calvo, Shirley Lung, and Alizabeth Newman.1

NEW YORK BAR ADMISSION OF LAW SCHOOL GRADUATES AFFORDED DEFERRED ACTION FOR CHILDHOOD ARRIVALS (DACA)

Janet M. Calvo, Shirley Lung, Alizabeth Newman2

Non-citizens who are afforded Deferred Action for Childhood Arrivals (DACA) qualify for New York State bar membership. Over four hundred thousand young people in the United States have been approved for DACA, a program for non-citizens who came to the United States as children.3 Approximately one percent of DACA-eligible non-citizens have pursued graduate education,4 including law school. The admission of those approved for DACA to the bar is supported by New York statutes and the constitutional jurisprudence of the United States Court of Appeals for the Second Circuit and the New York Court of Appeals. The New York Judiciary Law explicitly precludes alienage as a basis for denial of bar admission. New York has a history of routinely admitting non-citizens to the bar; there is no categorical exclusion from bar admission of any particular category of law graduates based on immigration status. An individual’s immigration category does not determine whether he or she possesses the skills, competence, and moral character to serve as an advocate in the courts of New York and to ethically represent the best interests of clients.

I.    Deferred Action for Childhood Arrivals (DACA) Permits a Non-citizen to Reside in the U.S. and Affords Employment Authorization 

On June 15, 2012, the Department of Homeland Security announced DACA.5 The United States Citizenship and Immigration Services (USCIS) considers applications for DACA. DACA can be requested for two years and may be renewed. Those afforded DACA are not removable from the U.S. based on immigration status.6 They are eligible for authorization to work7 and are given an “Employment Authorization Document.”8 They then may obtain a Social Security card9 and a New York State driver’s license.10

DACA is a form of deferred action and is similar to other immigration categories of non-citizens. Deferred action has been available to non-citizens for many years.11 Any period of time in deferred action qualifies as a period of stay authorized by the Secretary of Homeland Security. Further, there is a long-standing federal regulation that allows employment authorization to those granted deferred action.12

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Prof. Borgmann on Hollingsworth v. Perry

CUNY Law Review is proud to introduce our latest installation in our ongoing series of web-exclusive pieces for Footnote Forum by our own Prof. Borgmann. For a primer on the procedural history of the Proposition 8 saga that led to Hollingsworth v. Perry, see our interactive graphic walk-through.

HOLLINGSWORTH v. PERRY
STANDING OVER CONSTITUTIONAL RIGHTS

Caitlin E. Borgmann1

INTRODUCTION

One might expect that a Supreme Court decision addressing the constitutionality of a citizen initiative that bars marriage between same-sex couples would yield a predictable political division among both the Justices and Court commentators. Liberal Justices and commentators, one might conjecture, would want the Court to recognize a fundamental constitutional right to marriage equality, while conservative Justices and commentators would prefer the issue be left to the political process. The Supreme Court’s recent decision in Hollingsworth v. Perry reflected no such tidy outcome, however. The majority opinion addressing California’s Proposition 8 (“Prop 8”), which amended the state’s constitution to exclude same-sex couples from legally recognized marriage, sidestepped the substantive issue through a procedural maneuver. Rather than reach the merits, the Court held that the official proponents of Prop 8, who had defended its constitutionality both in the district court and on appeal, lacked standing to appeal the district court’s opinion invalidating the initiative. The Court’s decision left marriage equality as the rule in California (although not elsewhere). Liberal Justices Breyer, Ginsburg, and Kagan joined Chief Justice Roberts’s majority opinion, as did Justice Scalia, while conservative Justices Thomas and Alito, and liberal Justice Sotomayor, joined Justice Kennedy’s vigorous dissent. Some liberal commentators who favor marriage equality applauded the Court’s decision.2

It is of course not possible to know exactly what motivated each of the Justices in Hollingsworth. But standing is a doctrine that the Court has notoriously manipulated to reach desired results on the merits.3 Commentators have widely speculated that the liberal Justices who sided with the majority preferred not to reach the merits either because they believed there were insufficient votes to find Prop 8 unconstitutional,4 or because they believed such a decision might be politically premature and therefore counterproductive, as it might prompt a backlash.5 Some proponents of marriage equality were quietly relieved by the Court’s refusal to address the merits, since it allowed the district court’s invalidation of Prop 8 to stand without risking an adverse Supreme Court decision that would be binding on all states.6

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Prof. Janet Calvo on U.S. v. Windsor’s Impact on Immigration Law

We are proud to introduce Prof. Janet Calvo’s discussion of the Windsor decision’s impact on immigration law as part of our ongoing series of web-exclusive pieces by professors, students, practitioners, and others who aim to share timely legal commentary in Footnote Forum, the online companion of the Law Review. For more on this opinion, see Prof. Ruthann Robson’s related piece

U.S. v. WINDSOR’S IMPACT ON IMMIGRATION LAW

Janet M. Calvo1

The Defense of Marriage Act (DOMA), barred federal immigration authorities2 as well as other federal officials from recognizing same-sex marriages. Now that DOMA has been declared unconstitutional in U.S. v. Windsor,3 the federal officials that implement immigration law have declared that same-sex marriages will be recognized to the same extent as opposite-sex marriages. This has implications for several aspects of immigration law and practice. On July 1, 2013 the Secretary of Homeland Security directed the U.S. Citizenship and Immigration Services (USCIS) “to review immigration visa petitions filed on behalf of a same-sex spouse in the same manner as those filed on behalf of an opposite-sex spouse,”4 and the USCIS posted additional information about implementation.5 On August 2, the Secretary of State similarly stated “when same-sex spouses apply for a visa, the Department of State will consider that application in the same manner that it will consider the application of opposite-sex spouses,”6 and the Department of State website provided further detail, in line with the USCIS position.7

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