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October 25, 2009

Extended First Amendment analysis of whether sex offenders can be banned from church

Over at Dorf on Law, Mike Dorf has this post with an extended discussion of the question in the title of his post: "Can Sex Offenders Be Barred From Church?"  Because I am not a First Amendment expert, I cannot take issue with the much of his constitutional analysis, but I was both struck and troubled troubled by Mike's apparent willingness to embrace the idea that a state always has a strong justification for seeking to keep any and all sex offenders away from any and all places in which children might be found. 

Specifically, at the end of his post, Mike says this: "Is there a compelling interest in keeping registered sex offenders away from children?  Of course."  I am left wondering if "compelling interest" analysis is this easy.  Some (perhaps many) "registered sex offenders" have not harmed a child and likely pose no special threat to children.  Registered sex offenders include  folks whose only victim was an adult and who engaged in fully consentual sex acts (such as a female prison guard who had sex with one of her prisoners).  Do states so obviously have a "compelling interest" keeping these kinds of registered sex offenders away from all children in all settings?

More fundamentally, is Mike 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 the rally or the movie or the street?  I fully understand the gut instinct that we want to protect children from even marginally risky people in inherently risky places, but I am troubled by any analysis that is so quick to assume that all registered sex offenders are always so risky that they can and should be treated as if they were radioactive. 

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October 25, 2009 at 05:44 PM | Permalink


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I think Mr. Dorff misreads Smith. A law of "general applicability" is not merely a law where the burden on the free exercise of religion is incidental. It is further, as the plain language suggests, a law that must be generally applicable to a large category of citizens. The example used in Smith is a general tax and Smith directly compares Grosjean v. American Press Co where a tax was struck down because it targeted a specific class of newspaper as opposed to Citizen Publishing Co. v. United States where antitrust laws were upheld against the press. The question then is the class labeled "sex offenders" akin to a specific type of newspaper or a more general class such as the press.

In my opinion the North Carolina law is not a "generally applicable" law as defined in Smith. It does not seek to regulate the behavior of all criminals, or of all adults, or of all children. Rather it seeks to impose a burden on the free exercise rights of a select group of people that is by analogy much closer to a specific kind of newspaper than it is to a general class like the press. All the examples used in Smith such a child labor, marriage, and Selective Service represent very broad categories of people. As I see it, the problem with the NC law is not that the burden on religion is incidental but that the law targets a narrow class of people.

In protecting the right of the minority a heightened scrutiny needs to be applied. I think the plain language of Smith supports the understanding that even an incidental burden on the free exercise right can still be unconstitutional if that burden impacts a narrow class of people. At a minimum, the language in Smith does not allow one to leap to the conclusion that a law targeting sex offenders is a law of general applicability. And if the NC law is not a law of general applicability then Smith is not dispositive of the constitutional question.

Posted by: Daniel | Oct 26, 2009 1:57:10 AM


It's even worse than you state. In many states, registered sex offenders include folks who were convicted for taking a leak in the bushes or other minor crimes tangentially connected to sex or the sex organs.

At the very least, it would seem that compelling interest analysis should involve some level of individual scrutiny or an opportunity to demonstrate that your individual case is not of the type that causes legitimate fear for children's safety.

Posted by: Observer | Oct 26, 2009 10:06:41 AM

No you cant be barred from going to church but to be a part of the churh as a teacher pastor minister they wont let you do that. but you can go to church i do i go 4 times a week yes im in service to an extent im not practicing or behind the pulpit (thats holy ground ) e

Posted by: John Doe | Oct 29, 2009 12:20:31 PM

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