SEX OFFENDERS AND THE FREE EXERCISE OF RELIGION.

• Author: Lund, Christopher C.

INTRODUCTION 1026 I. THE RULES REGARDING SEX OFFENDERS 1029 II. SEX OFFENDERS AND THE FREE EXERCISE OF RELIGION 1033 A. Sex Offenders and Church Attendance 1033 B. The Basic Problem 1041 C. Other Problems 1043 1. Vagueness 1043 2. Licensing, Delegation, Bargaining, Selective Enforcement, and Discrimination 1046 III. LEGAL RESPONSES 1049 A. An Introduction to Free Exercise Jurisprudence 1050 B. Sex Offenders and Religious Exemptions 1052 C. Three Analogies 1055 1. Speech 1056 2. Familial Association 1057 3. Bodily Integrity 1059 D. The Mechanics of Individualized Consideration 1060 IV. POSTSCRIPT: IS RELIGION SPECIAL? 1063 CONCLUSION 1065 INTRODUCTION

If you were to ask a judge or a law professor whether people in this country have a right to go to church, you would get a strange look. (1) After all, the Constitution and a host of statutes protect the free exercise of religion, and it is hard to think of anything more constitutive of that right than the ability to attend religious services without getting arrested by the police and thrown in jail. (2)

Recently our society has seen an increasing number of disputes about what the free exercise of religion entails. Two terms ago, the Supreme Court asked whether religious objectors could refuse to make cakes for gay weddings. (3) A few years earlier, the Court had asked whether corporate owners could refuse to provide insurance coverage for religiously forbidden contraceptives. (4) Besides their practical importance, these cases posed difficult conceptual questions about the scope of free exercise. Should for-profit corporations have religious rights? (5) Can merely being forced to provide contraceptive coverage amount to a cognizable burden on religious liberty? (6) Can the government's interest in preventing discrimination ever be outweighed by religious interests on the other side? (7) These debates have not been over the core of free exercise but its boundaries, and they have been extremely public and dramatic.

At the same time though, something has been happening at the core of free exercise, something neither public nor dramatic. Here, in America, in the twenty-first century, a large group of people find themselves legally prohibited from attending religious services. These people are sex offenders, who are barred from being places where children are present (or likely to be present). As children are usually present at religious services, this means that sex offenders cannot attend them.

Some cases here are striking. In North Carolina, a sex offender had gone to church services regularly for ten years following his release from prison. He was completely open about his past with the church, but was arrested after an anonymous person saw him in church and called the police. (8) In Virginia, a woman brought suit after she found herself barred from church for life, because of a statutory-rape conviction from twenty years earlier. (9) Some Americans now face the possibility of arrest, conviction, and incarceration for walking into a church, synagogue, or mosque. And these rules often prevent them from going to church not just for a week or a month, but often for decades and sometimes for life.

This is a serious problem that carries with it a bitter irony. For while they are still inside prison, sex offenders can go to church freely with others. (10) But once outside prison's walls, everything changes, and sex offenders find themselves locked out of religious life. When it comes to their religious options, as strange as it sounds, sex offenders are better off in prison. Besides creating some bad incentives, this seriously undermines the attempt to reintegrate sex offenders back into society. Churches can be, and often are, valuable sites of rehabilitation and redemption for people earnestly trying to get their lives back on track. It is bad enough that the law contributes so little to the rehabilitative project. The least the law could do, one would think, is get out of the way.

Arising from this basic problem is a set of other ones-problems that First Amendment theorists will find familiar. The laws limiting sex offenders are often vague and overbroad, which causes chilling effects. They are also quite restrictive-so restrictive in fact that they are often relaxed or ignored on the ground by low-level administrators like probation officers, sheriffs departments, and ordinary police. But this ends up acting as a kind of licensing scheme, under which government officials decide-on their own without any formal or written criteria-who gets to attend church, who does not, and under what conditions. Instances of selective enforcement, discrimination, and abuse are entirely foreseeable and probably inevitable.

But this Article means to do more than just identify these problems and diagnose their roots. It seeks to suggest some possible ways forward. These rules came into existence as if this were a rights-free zone, as if there were no legal protections in this country for the free exercise of religion. But this is not so. The Constitution and related bodies of law (like the federal Religious Freedom Restoration Act and various state-law analogues) guarantee the free exercise of religion, and presumptively require religious exemptions from generally applicable laws. Like other Americans, sex offenders in fact have rights to go to church that cannot be overlooked. This requires a fundamental rethinking of the whole topic-these restrictions are not simply limitations on sex offenders that are debatable matters of social policy. Instead, there are questions here about fundamental legal rights that cannot simply be swept under the conceptual rug. (11)

Now this is not to say that any and all sex offenders will be universally exempt from any and all restrictions relating to church attendance. There are probably people who pose too much of a threat to children. The best solution, therefore, would be a regime of individualized consideration-sex offenders would have their individual situations considered in a judicial process to decide whether they can attend religious services. But this is not just the best solution all things considered; it is actually the legally required one as well. For one thing, it flows naturally from the ordinary principles of religious exemptions, which require judicial consideration and evaluation of an individual's particular circumstances. For another, it fits with the bodies of law relating to restrictions on sex offenders in other constitutionally sensitive areas-like freedom of speech, family rights, and bodily integrity. Finally, this solution has practical virtues: it is contextually sensitive, it is judicially manageable, and it is practically realizable.

This Article opens in Part I with a general description of the legal restrictions presently imposed on sex offenders in America. Part II examines how these restrictions affect the free exercise of religion and unpacks the various resulting problems. Part III opens with the law relating to the free exercise of religion and explains how the law should apply in these contexts. Part IV responds to an important objection, namely that this whole piece tacidy depends on the idea that religion is special-that religion should be treated differently than other human concerns. Part V offers some concluding thoughts.

1. THE RULES REGARDING SEX OFFENDERS

   The legal rules relating to sex offenders are complicated, although most of them are quite recent. (12) In 1994, Congress passed the first nationwide legislation on the subject, requiring states to create systems in which sex offenders would periodically report to law enforcement. (13) Two years later, Congress revised the legislation to make sure that some of that information would be made public. (14)

   Things changed significantly in 2006 with the passage of the Sex Offender Registration and Notification Act (SORNA). (15) Among other things, SORNA revamped the registration requirements for sex offenders. (16) It expanded who had to register (by adding to the list of crimes requiring registration), made registration requirements more onerous, lengthened registration periods, and backed it all up with new criminal penalties. (17) SORNA has led to a number of thorny issues requiring Supreme Court intervention-like whether sex offenders have due process rights to a hearing before being put on registries, (18) what happens to sex offenders who leave a jurisdiction, (19) and what happens to those whose sex-offense convictions predate SORNA's enactment. (20)

   Now, SORNA is just the tip of the iceberg in the sense that SORNA simply sets minimums for state sex-offender systems. States could, for example, choose to require registration for more crimes, or they could choose to have-longer registration periods, more frequent updates, or more detailed disclosures. (21) SORNA establishes floors not ceilings. (22)

   Yet SORNA is limited in one important respect: its regime is one of registration and reporting only. SORNA does not impose primary obligations on sex offenders. So while SORNA requires sex offenders to keep the authorities updated about where they reside, work, or study, it does not actually limit where sex offenders reside, work, or study. (23) Those kinds of primary restrictions-which had probably had the most serious consequences on the daily lives of sex offenders-instead have come from state and local law. (24)

   Many states and localities have adopted such rules. More than half the states, for example, have residency restrictions prohibiting sex offenders from living within a certain distance of protected sites. (25) While some only prohibit sex offenders from living near schools, others also establish daycares, playgrounds, and other places as protected sites. (26) In some states, sex offenders are barred from being within 500 feet of a protected site; in other states, the radius can go up to 3000 feet. (27)

   The cumulative effect of these...