Monday, October 26, 2009

Can Sex Offenders Be Barred From Church?

By Mike Dorf

As widely reported, including in this Time magazine story, sex offenders who are barred by state law from going near children have begun to invoke their free exercises rights when such state laws are used to keep them from attending religious services in houses of worhsip that also supervise children.  The Time article focuses on a North Carolina case, but the problem is broader.  Unfortunately, the article does not go into the real legal issues in any depth.  I'll take a shot at clarifying.

There is pretty clearly no federal free exercise problem here.  Back in the day, the formal doctrine from SCOTUS said that whenever the govt substantially burdened somebody's ability to practice his or her religion, the law or policy doing the burdening had to be subject to strict scrutiny: The govt had to prove that the law or policy was narrowly tailored to serve a compelling state interest.  Under Sherbert v. Verner, the strict scrutiny test applied not only to laws that specifically targeted religion as such but also to religion-neutral laws that happened to impose incidental (but nonetheless substantial) burdens on particular people.

In Employment Div. v. Smith, the Supreme Court changed its approach.  Under Smith, a law of general applicability--i.e., a law that does not single out religion or any particular religion for special burdens--can be validly applied in circumstances in which it limits the ability of someone to practice his religion; free exercise, as interpreted by the SCOTUS, simply does not require religious exemptions.  Technically, the Court distinguished rather than overruled the old cases, characterizing them as requiring exemptions only where there was already in place an administrative scheme for granting other sorts of exemptions or where the claimant's free exercise claim was coupled with some other constitutional claim, and thus posed a "hybrid" right.  A small number of lower court cases take the hybrid category seriously, but I do not.  It was pretty obviously made up in Smith so that the Court could pretend it wasn't overruling prior precedent.  There's no principled basis for the hybrid category and the particular outcome it was used to justify, Wisconsin v. Yoder, involved a hybrid of free exercise and the unenumerated right of parents to direct the upbringing of their children.  Yet Justice Scalia, the author of the Smith majority, does not even believe in that unenumerated right, so it is hard to see why he would think it adds anything--except as a way of disingenuously distinguishing rather than overruling Yoder.  Thus, the best reading of Smith is that it does not require exemptions from laws that do not specifically target religion.

The North Carolina sex offender law, like those of other states, does not single out churches.  It applies equally to bar registered sex offenders from other places children congregate, such as day-care centers, public parks, or schools that have adult education classes at the same times that they have programs for children.  Thus, under Smith, there is no federal free exercise problem.

Congress tried to overrule the Smith decision in the Religious Freedom Restoration Act (RFRA), which would have reinstated the pre-Smith requirement that even religion-neutral laws must be subject to strict judicial scrutiny when they substantially burden religion.  However, as applied to states and their subdivisions, RFRA was struck down as beyond the enumerated powers of Congress in City of Boerne v. Flores.  A subsequent federal statute, the Religious Land Use and Institutionalized Persons Act (RLUIPA), applies the RFRA rule to persons who are "residing in or confined to an institution," but registered sex offenders out on parole or probation do not meet that test, so they are stuck with Smith.  (A few prisoners have tried to challenge proposed probation conditions during parole hearings, but under the statute's plain meaning they aren't entitled to the protections of RLUIPA once they're released.  Indeed, the basis for Congressional power to enact RLUIPA is the receipt of federal funds by state prisons and jails; applying RLUIPA to a parolee/probationer's claim outside a jail or prison would render the Act unconstitutional, per Boerne.)

People like James Nichols (the protagonist in the Time Magazine story) can do much better under state law.  Some state high courts interpret their state constitutions to require religious exemptions from generally applicable laws where those laws substantially burden free exercise and do not satisfy strict scrutiny.  Other states achieve the same result via state RFRAs.

Nichols, however, appears to be out of luck on this front too, because North Carolina apparently follows the federal rule.  I say "appears" and "apparently" because the issue is not entirely free from doubt.  North Carolina has no RFRA of its own, and a 1967 North Carolina Supreme Court case, In Re Williams, had this to say about the state's constitutional protection for free exercise:
the term ‘rights of conscience’ as used in Article I, s 26, of the Constitution of North Carolina, must be construed in relation to the right to worship God according to the dictates of one's own conscience. Consequently, the freedom protected by this provision of the State Constitution is no more extensive than the freedom to exercise one's religion, which is protected by the First Amendment to the Constitution of the United States. Clearly, these constitutional provisions do not provide immunity for every act which one's conscience permits him to do, or even for every act which one's conscience classifies as required by ethics, nor do they shield the defendant from a command by the State that he do an act merely because he believes it morally or ethically wrong. It is the right to exercise one's religion, or lack of it, which is protected, not one's sense of ethics.

That language on its face adopts what state con law scholars call the "lockstep" approach, whereby the state's constitutional rights are identical to those protected by the federal Constitution.  However, in distinguishing what is required by "ethics" from the exercise of religion, the North Carolina Supreme Court could have been implying that where something truly is a matter of religious exercise--as church attendance undoubtedly is--then it is at least presumptively protected, even against laws of general applicability.  Indeed, at the time the Williams case was decided, the operative doctrine in the Supreme Court was given by Sherbert v. Verner, and the Willimans court cited and applied Sherbert's test.  So, when in Williams, the North Carolina Supreme Court equated the state constitutional protection for free exercise with the federal First Amendment's Free Exercise Clause, it was equating the former with a substantially broader notion of free exercise--one which requires exemptions if strict scrutiny is not satisfied--than we now have under Smith. It was the Sherbert test, invoked by that name, that Congress sought to restore via RFRA.  If Williams is read as adopting that test, then it was never abandoned in North Carolina.

However, at least one lower court in North Carolina has said (in an unpublished 2006 decision I found on Westlaw), that the core holding of Williams is the equation of the North Carolina right of conscience clause with the SCOTUS's First Amendment jurisprudence.  This lockstep approach is, to use the language of an article of mine in the 2008 U Penn L Rev, "dynamic" rather than "static," so that when the SCOTUS substituted the stingy Smith test for the more generous Sherbert test, it thereby changed the meaning of the North Carolina right of conscience clause as well.

Finally, let's come to the merits.  What about a case from a state that applies the Sherbert test, either as a matter of state con law or a state RFRA?  Is there a compelling interest in keeping registered sex offenders away from children?  Of course.  But it's not at all clear that banning a registered sex offender from a house of worship is narrowly tailored to advance that goal.  Certainly one can come up with alternatives: E.g., the registered sex offender must be accompanied by other adults, who assume responsibility for supervising him or her, whenever the offender comes to the house of worship.  If and when a state with a Sherbert-style free exercise regime confronts one of these cases, the law will likely be most vulnerable at this second stage of the analysis.


Douglas said...

Mike, you say: "Is there a compelling interest in keeping registered sex offenders away from children? Of course."

Is "compelling interest" analysis this easy? Some "registered sex offenders" have not harmed a child and likely pose no special threat to children. Do states so obviously have a "compelling interest" keeping these kinds of registered sex offenders away from all children in all settings?

More fundamentally, are you suggesting that any and all registered sex offenders could be categorically prohibited from ever going to a public sporting event or a political rally or a movie or even walking down the street because children might possibly be at the event or at the rally or at the movie or on the street?

I have a hard time seeing a rational basis for excluding all sex offenders from all churches at all times, but maybe this is because I am disinclined to view all sex offenders as a clear and present danger to every child nearby.

Anonymous said...

See more here:

I am totally against ANY form of abuse to any human being. And I believe anyone who murders another human being should be in prison for the rest of their life (until they die). I do not believe in the death penalty for anyone. Also, I believe that once a person has been in and out of prison and has served their probation and parole, done everything required of them, and what was signed on the "contract" when they took the plea, none of this should be required of them, none of it. The state cannot tear up a contract like this, which they are basically doing, it's unconstitutional. Many people, if they had known they would be faced with all this, they would have NOT taken a plea deal. And the courts are very aware of this and this is why they made it retroactive; thus violating ex-post facto laws! They should be allowed to get on with their life as if nothing happened. I'm not saying for it to be removed from their record, but, the crime should be removed from public view and background checks, they should not have any more restrictions, shaming, etc. If they commit another crime, then they face a lot more punishment, like everything else is treated.

When an ex-offender is forced to move from his/her home, thus having to sell it, cannot find another home within the law due to the residency "buffer" zones, get fired from their jobs due to being on the registry, cannot find a new job due to being on the registry, their husband/wife lose their jobs due to a significant other being on the registry, their children lose their friends and are harassed and bullied in school due to a family member being on the registry, thus destroying the children's lives, ex-offenders are forced into homelessness and to live under bridges, harassed by police, neighbors and probation/parole officers, have to wear "I'm a sex offender T-shirt" or have a neon green license plate on ALL their cars, have "sex offender" on their drivers license and forced to renew their licenses every year, forced from shelters during tornadoes or hurricanes, cannot give blood at some places due to being discriminated against for being on the sex offender registry, denied housing due to being on the registry, signs placed in their yards inviting harassment and ridicule from the neighbors, forced to move when the neighbors start picketing outside the ex-offenders home, the list is endless.


Letsgetreal said...

An Open Letter to the Church and Ministers - A Home Missions Project

egarber said...
This comment has been removed by the author.
egarber said...
This comment has been removed by the author.
egarber said...

>>More fundamentally, are you suggesting that any and all registered sex offenders could be categorically prohibited from ever going to a public sporting event or a political rally or a movie or even walking down the street because children might possibly be at the event or at the rally or at the movie or on the street?

As I read the post, I think Mike was only answering the first question -- i.e., does the state have a compelling interest in keeping offenders away from children? Even if the answer there is "yes", you still have to contend with the second prong: making sure any action is narrowly tailored.

So in the end, outright bans at sporting events, etc. would arguably NOT be narrowly tailored; but requiring other adults (or maybe a court-appointed designee) to be there with him could be.

RWVNRAL said...

Notwithstanding your cogent analysis of the Court's free-exercising balancing act, I believe this entire debate will come down to common sense. The problem we face as a nation is that the label "sex offender" has become synonymous with "child predator". The media (as well as John Walsh, Oprah, Dr. Phil, et al.) are largely to blame for their constant interchangeable use of the terms "sex offender" with "predator"--which you well know are legally distinguishable. SCOTUS has even crafted a test to apply in determining who is, and who isn't, a predator.

I am a registered sex offender. I am not a predator. There is no rational justification from either keeping me out of a house of worship or in keeping me out of the pulpit. The very idea that someone can "prey" on a child during the course of a worship-service is absolutely ridiculous. And, I feel certain most appellate courts will naturally agree.

Michael C. Dorf said...

Let me echo Eric Garber's reply on my behalf. If the category of "registered sex offender" is defined so broadly as to include many people whose offenses did not involve predation (such as people with convictions for statutory rape of consenting 17-year-olds), as it is in many states, then the application of a state law to bar such a person from a house of worship would not be narrowly tailored to advance the compelling interest in protecting children from sexual predators.

Douglas said...

Mike, in this last comment you've now altered your phrasing to be more precise when speaking of a "compelling interest in protecting children from sexual predators." But your main post references "a compelling interest in keeping registered sex offenders away from children."

The main point of my comment was to suggest more attention to the significant distinction between "registered sex offenders" and "sexual predators." Of course, even "sexual predator is a vague and tricky term --- might one sensibly view Roman Polanski and Mike Tyson and Bill Clinton to be "sexual predators"?

In addition, I see a very important conceptual difference between "protecting children" from something potentially risky and "keeping children away" from something potentially risky. (E.g., we all likely want to protect children from getting hurt while on swingsets, but I doubt many want to keep children away from swingsets.)

I wish the public would be more precise with their use of these various terms, and I am pleased to see your clarification via the comments.

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