The ruling from a three judge panel for the US Court of Appeals for the 7th Circuit held that there is "nothing to suggest that Indiana is a magnet for Syrians." The opinion, penned by Judge Richard Posner, is critical at times of the arguments put forward by the state noting that it "provides no evidence that Syrian terrorists are posing as refugees or that Syrian refugees have ever committed acts of terrorism in the United States."
In stinging language, the court dismissed the state's argument that it has a compelling interest in protecting its residents. And Posner rejects the idea that the policy is based solely on the threat Pence thinks the refugees might pose to the safety of the citizens of Indiana.
"(Pence) argues that his policy of excluding Syrian refugees is based not on nationality and thus is not discriminatory, but is based solely on the threat he thinks they pose to the safety of residents of Indiana," Posner wrote. "But that's the equivalent of his saying (not that he does say) that he wants to forbid black people to settle in Indiana not because they're black but because he's afraid of them, and since race is therefore not his motive he isn't discriminating. But that of course would be racial discrimination, just as his targeting Syrian refugees is discrimination on the basis of nationality."
He added that the refugees coming from war-torn Syria are required to undergo multiple layers of screening by the federal government.
The ruling is a victory for a private agency named Exodus that assists refugees in the state. The Immigration and Nationality Act authorizes the president to determine how many refugees to admit annually, and in 2016 fixed the number at 85,000, 10,000 of whom came from Syria. To receive federal money, a state submits to the Office of Refugee Resettlement a plan for using the money to assist refugees. Under the plan, the state contracts with a private resettlement agency for the provision of social services. But Pence refused to pay for the services for any refugee whose country of origin is Syria.
Without the payments, Exodus would be unable to provide assistance to the refugees.
Pence spokeswoman Kara Brooks defended the governor's actions.
"The safety and security of the people of Indiana is Gov. Pence's highest priority. The state of Indiana took decisive action last year to suspend resettlement of Syrian refugees after the terrorist attack in Paris and because the FBI and the Department of Homeland Security acknowledged security gaps with regard to screening refugees from Syria," Brooks said. "In addition, as recently as September 21, the State Department spokesman is quoted as saying he 'wouldn't debate the fact that there's the potential for ISIS terrorists to try to insert themselves' into the refugee program."
The ACLU praised the ruling.
"A court has once again rejected Indiana's efforts to block the resettlement of Syrian refugees," said Omar Jadwat of the ACLU's Immigrants' Rights project. "This ruling is a stinging rebuke of Gov. Mike Pence's anti-refugee actions," he said.
Posner, who was appointed to the bench by Ronald Reagan, was joined in the unanimous opinion by another Reagan appointee Frank H. Easterbrook as well as Diane Sykes who was nominated by George W. Bush. Sykes was one of the judges listed as a potential Supreme Court nominee
by Trump earlier this year.