COA considers whether ban on sex offenders attending church violates RFRA

Three Boone County men convicted of serious sex offenses are looking to the Indiana Court of Appeals to determine if they can return to their churches as the court considers whether a ruling that the men cannot attend church when children’s programming is in session violates their rights under the Religious Freedom Restoration Act.

That legal dilemma came before the appellate court Thursday morning in the case of John Doe, et al. v. The Boone County Prosecutor, et al., 06A01-1612-PL-02741, which the ACLU of Indiana brought on behalf of John Does 1, 2 and 3. Each of the three men have been convicted of serious sex offenses that, under Indiana Code 35-42-4-14, prohibits them from entering school property.

Based on that statute, known as the serious sex offender law, the Boone County Sheriff sent letters in 2015 to the Does and all serious sex offenders in the county informing them they could not enter a building that provides programming for children under three years of age, including churches, as these buildings met the definition of “school property.” Upon further inquiry, John Doe 2 was allegedly told by another Boone County Sheriff’s Office employee that under the statute, he could not attend any church in Boone County because all county churches offered children’s programming.

The Does, who each regularly attended church, ceased attending and instead brought suit seeking declaratory and injunctive relief. The Boone Superior Court ultimately agreed that churches are considered “school property,” but only when children’s programming was in session. However, because each of the Does’ churches offered children’s programs simultaneously or almost simultaneously, they argued on appeal that the trial court’s ruling prohibits them from attending church at any time.

Specifically, ACLU Legal Director Ken Falk first rejected the notion that a building could be considered “school property” only when children are present. Both Falk and the state agreed that ruling could not stand, as the statute defining school property, I.C. 35-31.5-2-285, does not allow for such fluidity.

But the agreement between the parties ended there, as Falk went on to argue that churches cannot be considered school property because they are not “owned or rented by” an educational institution, language used in the statute. But Deputy Attorney General Aaron Craft, counsel for the state, pointed to other language in the statute that defined school property as properties owned or rented by nonprofit organizations that operate to benefit children. Churches would fall under that definition, Craft said, so the trial court properly determined the Does are prohibited from attending church under the serious sex offender statute.

Judge Margret Robb, however, noted that some church children’s programs are simply babysitting programs, which she said did not seem to fall under the standard of “developmental care” laid out in the statute. Craft responded that babysitting can be developmental if it allows for socialization, but Robb and Judge Mark Bailey struggled with where to draw the line on what meets the “developmental” standard.

Though Falk argued his clients’ case could be won on the definition of “school property” alone, he also argued that the prohibition against the Does attending church violated Indiana’s RFRA. Under RFRA, the government cannot substantially burden a person’s exercise of religion unless the burden furthers a compelling governmental interest in the least restrictive means possible, a standard which was not met here, Falk said.

Craft defended against the RFRA challenge by arguing the interest at stake is the protection of children in “safe havens,” such as schools and churches. But without evidence to prove the Does are at risk of reoffending in church, Falk argued the state has failed to prove its compelling interest.

Falk also argued the prohibition against the Does attending church is the most restrictive, rather than the least restrictive, means of furthering that stated interest. He said a less restrictive way of protecting children would be to prohibit the Does from entering the rooms where children’s programs are taking place.

Craft, however, said the point of the serious sex offender statute is to prevent the victimization of children, so if a system is devised in which offenders are able to access and harm a child, the damage will have already been done. Thus, a total prohibition is the least restrictive means of compelling the interest of protecting children.

Due to the complicated and, at times, contentious nature of the oral arguments, Chief Judge Nancy Vaidik gave both Falk and Craft an additional 10 minutes each to present their cases, leading to an hour-long oral argument. The full arguments can be watched here.