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Indiana tunes in to national issues in federal courts

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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.

greg zoeller 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.•

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  1. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  3. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  5. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

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