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Appeal denied

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Illinois

The 7th Federal Circuit issued a harshly written denial today of Protect Marriage Illinois’ appeal of an order that kept their advisory referendum off the statewide ballot.

…this suit… charges that the requirements for getting an advisory question on the Illinois ballot are so onerous that they violate freedom of speech (or of association, or to petition for redress of grievances), equal protection, and due process of law.

A state no more has a federal constitutional obligation to permit advisory questions on its ballot than it has to permit them to be painted on the walls of the state capitol. […]

The ballot is not a traditional public forum for the expression of ideas and opinions, like streets or parks, to which reasonable access must be given to people who want to engage in political and other protected expression. The fact that a public facility could be used for political speech doesnâ€™t require that it be made available for such use. A publicly owned theater doesnâ€™t have to be thrown open for political rallies. […]

Illinois places no limitations on petitions asking legislators to oppose homosexual marriage. Ballot access is another matter. It must be tightly regulated for the protection of the democratic process. This is true even when the regulation concerns the listing of candidates. A state is not required to list everyone who wants to stand for office, for then ballots would be the size of telephone books. It can impose reasonable restrictions on access […]

I’ll upload the entire opinion in a moment.

Here it is. [pdf file]

posted by Rich Miller
Wednesday, Sep 6, 06 @ 1:03 pm

Comments

That’s a lot of hostile language packed into five pages of opinion.

Comment by William Wednesday, Sep 6, 06 @ 1:12 pm
I imagine the judges enjoyed taunting them since they wasted their time.

Comment by ArchPundit Wednesday, Sep 6, 06 @ 1:33 pm
Good. The ballot should be used for referendums and elections, not polls disguised as “advisory questions.”

Comment by doubtful Wednesday, Sep 6, 06 @ 2:09 pm
It has nothing to do with “hostility.”

Judge Posner is one of the greatest conservative thinkers of our generation. There is nothing “hostile” about it. I suspect he agrees with the plaintiff’s marriage issue, but could not agree on the procedures used since our courts have already decided to the contrary.

It is well written and some witty opinion, but that is typical of Judge Posner. Judge Posner was not being “hostile.” He was just applying the law to the facts.

Comment by Skeeter Wednesday, Sep 6, 06 @ 2:15 pm
Well, there you have it…thanks for clearing that up Skeet.

Comment by Shadow Wednesday, Sep 6, 06 @ 2:34 pm
Skeeter, if you don’t see hostility and derision in that opinion then you should really get your eyes checked.

Comment by Rich Miller Wednesday, Sep 6, 06 @ 2:41 pm
I think everyone knew it was dead anyway…

Comment by Lovie's Leather Wednesday, Sep 6, 06 @ 2:42 pm
- Shadow - Wednesday, Sep 6, 06 @ 2:34 pm:

“Well, there you have itâ€¦thanks for clearing that up Skeet”

In response:

Grow up. I am sick of hearing “the judge was hostile” from every loser. The case was badly flawed. Judge Posner pointed that out. He didn’t file that weak case. He just ruled on it.

Do you really think that Judge Posner sat down and was so outraged over the idea of blocking gay marriage that he penned an angry opinion?

Get real.

Comment by Skeeter Wednesday, Sep 6, 06 @ 2:44 pm
I think you are missing what others are saying Skeeter–it was hostile, but that doesn’t mean it was because of the policy at issue. It was hostile because it was such a clear case Posner made fun of PMI and it’s lawyers.

Comment by ArchPundit Wednesday, Sep 6, 06 @ 2:50 pm
For once, I agree with Skeeter. I only wish I could turn the prose this well.

Comment by NumbersGuy Wednesday, Sep 6, 06 @ 2:53 pm
ArchPundit said it best. I should’ve explained myself better in my previous comment.

Comment by Rich Miller Wednesday, Sep 6, 06 @ 2:54 pm
All of the judges on the panel are Reagan appointees, but Judge Posner is more of a libertarian than a conservative. One pundit’s assessment: http://www.professorbainbridge.com/
2006/02/posner_is_not_a.html As for whether or not Judge Posner was being hostile, I think this post captures it: http://lawprofessors.typepad.com/
law_librarian_blog/2005/11/posner_on_posne.html

Comment by Gus Frerotte's Clipboard Wednesday, Sep 6, 06 @ 3:15 pm
I support same-sex marriage, but this opinion is absolutely horrible. 8% is far too many signatures, and this judge should know it.

Comment by Squideshi Wednesday, Sep 6, 06 @ 4:18 pm
I forgot to include this link, which you may find relevant.

Comment by Squideshi Wednesday, Sep 6, 06 @ 4:19 pm
Another schmutz on the tie for the “God Says I Should Hate You” Crowd, huh?

How sad that they spend more time spouting the message of the Old Testament, rather than the message of the New. For self-proclaimed Christians, they sure could use a little more Jesus in them.

Comment by Bubs Wednesday, Sep 6, 06 @ 4:21 pm
I agree with above sentiments in that I don’t think the judges here were particularly biased. The derisive language indicates the low opinion the judges have of the PMI legal argument.

They pack a lot ot it in the few pages of opinion.

Comment by William Wednesday, Sep 6, 06 @ 4:24 pm
Jack Roeser hurts the conservative movement AGAIN.

Comment by George Seaver Wednesday, Sep 6, 06 @ 8:07 pm
That was derisive, hostile language? Rich, you must be awfully sensitive.

Comment by Yawner Wednesday, Sep 6, 06 @ 9:53 pm
Arch and Rich, after re-reading the opinion, your point, as expressed by Arch, is very valid.

His Honor may have crossed a line of judicial decorum, but IMHO he was still doing his job. Hey, haven’t we all wanted to write a zinger (zinga?) like this to someone in our official role? Probably one of the (many) reasons why NumbersGuy isn’t JudgeGuy…

Comment by NumbersGuy Wednesday, Sep 6, 06 @ 9:59 pm
The Illinois Constitution does not allow this to appear on ballots. Where do you people think you are? California? Oregon? Colorado? Nebraska? Some kind of progressive state where voters choose?

This is Illinois. Constitutionally mandated to stay in the political backwaters of the US. Move over New Jersey and Louisiana, Illinois will show you how to stiffle voters!

Comment by VanillaMan Thursday, Sep 7, 06 @ 10:12 am
VM,

Here’s an idea: READ THE OPINION.

Actually, Illinois is the ONLY state to allow these things to appear on the ballot.

Comment by Skeeter Thursday, Sep 7, 06 @ 10:47 am
Right. Illinois is the only state to allow ADVISORY referendums on the ballot. Other states allow BINDING referendums which actually have legal effect, so citizens can actually create law!

Comment by Squideshi Thursday, Sep 7, 06 @ 11:38 am