Indiana tunes in to national issues in federal courts

What happens in Indiana regarding illegal immigration, same-sex marriage, and health-care reform may hinge on what happens
with litigation playing out in the nation’s appellate courts.

With the recent federal court rulings on those three issues, attorneys in Indiana and most states are in a holding pattern
until higher courts get involved and provide clear guidance on how those issues are to be handled. The exact impact isn’t
known, but those who’ve been involved on one or both sides of these issues say they are closely watching what happens.

Zoeller

“Those issues relate to the broader issue of state sovereignty,” Indiana Attorney General Greg Zoeller said through
an office spokesman, Bryan Corbin. “Our office has a legal duty to defend the state of Indiana’s sovereign interest
to enact and enforce its own state statutes.”

Here’s a look at the three ongoing cases and the legal issues they present, based on the merits and recent rulings.

Illegal immigration

On July 28, U.S. District Judge Susan Bolton for the District of Arizona blocked the most controversial parts of
that state’s immigration enforcement law from going into effect, a ruling that temporarily squashed a state policy that
had sparked the national debate over immigration.

In her preliminary injunction, Judge Bolton delayed the most contentious provisions of the law, including a section that
required officers to check a person’s immigration status while enforcing other laws. She also barred enforcement of
parts requiring immigrants to carry their papers and that banned illegal immigrants from soliciting employment in public places
­– a move aimed at day laborers that congregate in large numbers in parking lots across Arizona. The judge also
blocked officers from making warrantless arrests of suspected illegal immigrants. She issued the injunction in response to
a legal challenge brought against the law by the Obama administration.

“Requiring Arizona law enforcement officials and agencies to determine the immigration status of every person who is
arrested burdens lawfully present aliens because their liberty will be restricted while their status is checked,” said
Bolton, a Clinton appointee who was assigned the seven lawsuits filed against Arizona regarding the law.

Other provisions that were less contentious were allowed to take effect, including a section that bars cities in Arizona
from disregarding federal immigration laws.

Some states, such as Florida and Utah, have started tweaking their own state laws and proposed changes based on what Judge
Bolton ruled. Lawmakers or candidates in as many as 18 states say they want to push similar measures when their legislative
sessions start again in 2011, according to published reports.

Some lawmakers pushing the legislation said they won’t be daunted by the District ruling, but they will be watching
Arizona to decide how they might proceed.

The same goes for Indiana, according to Sen. Mike Delph, R-Carmel, who’s unsuccessfully fought for illegal immigration
legislation in recent years. He expects to introduce new legislation in the coming General Assembly session, and he’s
reviewing the Arizona case and how other states are responding to decide how he might draft that bill.

“It’s disappointing that we haven’t had any action from our federal lawmakers, and so we have to stand
up for our citizens,” he said. “I’m keeping an eye on the courts to tailor a product that meets our needs.
But this is an area that’s uncharted, and my hope is that we’re able to stand up for people who have real problems
with illegal immigration.”

Same-sex marriage

U.S. District Chief Judge Vaughn Walker in the Northern District of California ruled Aug. 4 that the state’s
constitutional ban on same-sex marriage, known as Proposition 8, was unconstitutional under both the due process and equal
protection clauses. The suit involves two gay couples who claimed that the 2008 voter-approved ban violated their civil rights
guaranteed by the 14th Amendment.

“Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license,”
Chief Judge Walker wrote in a 136-page opinion. “Indeed the evidence shows Proposition 8 does nothing more than enshrine
in the California constitution the notion that opposite sex couples are superior to same sex couples.”

Chief Judge Walker originally stayed a decision about whether the ban should be respected or thrown out while appeals happen,
but the judge reviewed that decision Aug. 12 and will allow same-sex couples to get married starting Aug. 18 unless a higher
court intervenes. Opponents of the ruling have already appealed to the 9th Circuit, and both sides have vowed to take the
case to the Supreme Court of the United States to decide.

This California case comes on the heels of one in Massachusetts, where in July a federal judge decided that the state’s
legally married same-sex couples had been wrongly denied the federal financial benefits of marriage because of a law preventing
the U.S. government from recognizing same-sex unions.

Currently, same-sex marriages are allowed in only four states besides California and Massachusetts – Iowa, Connecticut,
Vermont, New Hampshire, and Washington, D.C. Indiana has a state law banning same-sex marriages, and efforts in recent years
to weave that into a constitutional ban have been unsuccessful.

Just like in the illegal immigration debate, legal experts and those watching the same-sex marriage topic say those pending
cases are likely to play into how states like Indiana approach the issue down the road.

“There’s been an increasing receptiveness to include same-sex couples in people’s definitions of family,”
said Indiana University sociology professor Brian Powell, who has written about the issue and studied the state laws and most
recent court rulings nationally. “If upheld, the decisions likely will propel even more people to accept and possibly
embrace same-sex couples as a family.”

The AG’s office declined to comment on the constitutional element of the same-sex marriage issue, but Corbin said the
state is closely watching those cases. He noted Zoeller has successfully defended Indiana’s statutory marriage definition
from legal challenges in the past.

Health-care reform

On the health-care reform front, Judge Henry Hudson in the Eastern District of Virginia ruled in early August that
the nation’s first lawsuit challenging President Barack Obama’s landmark reform could proceed. He refused to dismiss
the state’s lawsuit, which argues the requirement that its residents must have health insurance is unconstitutional
and conflicts with state law.

Noting that his ruling is only an initial step in a long line of litigation, Judge Hudson decided the issue the state raised
– whether forcing residents to buy something, namely health care, is constitutional – had not been fully tested
in court and was ripe for review.

“The congressional enactment under review – the Minimum Essential Coverage Provision – literally forges
new ground and extends (the U.S. Constitution’s) Commerce Clause powers beyond its current high watermark,” the
judge wrote in a 32-page ruling. “While this case raises a host of complex constitutional issues, all seem to distill
to the single question of whether or not Congress has the power to regulate – and tax – a citizen’s decision
not to participate in interstate commerce.”

For Indiana, Zoeller has joined with 19 other states in a similar lawsuit filed by Florida that challenges the national health-care
law. A hearing is set next month in federal court in that state on whether the case should be dismissed.

While his office is withholding specific comment about how Indiana should proceed in light of the federal cases, Zoeller
supports taking the cases to higher courts.

“The unprecedented claim that the federal government has the right to require individuals to purchase a private health-insurance
product is a question that ultimately ought to be decided by the Supreme Court,” he said.•