POLITICS

ACLU: RFRA must let sex offenders worship at churches with schools

Stephanie Wang
stephanie.wang@indystar.com
Ken Falk, legal director for the American Civil Liberties Union of Indiana, says that under the Religious Freedom Restoration Act, the government is placing an undue burden on the religious beliefs of sex offenders.The ACLU of Indiana filed a lawsuit on July 1, 2015, on behalf of two unnamed sex offenders.

The American Civil Liberties Union of Indiana filed Wednesday what appears to be the first lawsuit that invokes the state's new new Religious Freedom Restoration Act.

Their clients? Registered sex offenders who believe their religious freedom is being denied by another new law that bans them from attending any church located on the same property as a school.

"This is a prime example as a place where people's religious rights are being burdened, and therefore under RFRA the state has to justify that," said ACLU of Indiana legal director Ken Falk. "It makes no sense to ban people on a Sunday if there are kids there on a Thursday."

For example, that would be the case with church preschools or parochial schools with adjacent churches.

Serious sex offenders include sexually violent predators and those convicted of crimes such as child molestation, possession of child pornography or sexual misconduct with a minor.

The lawsuit was filed in Elkhart Superior Court, on behalf of two unnamed sex offenders, against the prosecutors and sheriffs of Allen and Elkhart counties. When reached by The Indianapolis Star, the sheriff's departments declined to comment.

Indiana's new religious freedom law, which went into effect Wednesday, says if the government imposes an undue burden on the religious rights of individuals, businesses or religious organizations, it must prove a compelling interest and that it is using the least restrictive means possible.

For sex offenders who have served their time, religion may be instrumental to their rehabilitation, says Indiana University law professor David Orentlicher. "If your goal is to protect kids, with these people, you want to maximize their chances for rehabilitation."

"I think this is exactly the kind of case RFRA was about," said Indiana University law professor David Orentlicher. "You've got this sex offender law that's designed to protect children. It wasn't passed with the intent to interfere with religious practice, but it turns out there are a fair number of schools on church grounds. These people now can't go to pray without running afoul of the law."

Some in Indiana — including the ACLU — opposed the state RFRA, arguing that the law would allow discrimination against lesbians, gays, bisexuals and transgender individuals. That led to a "fix" to the law to clarify that an RFRA defense could not be used to trump local and state civil rights laws.

But with the heated debate over how RFRA would apply in wedding services for same-sex couples, "what got lost was there are a lot of good reasons for these statutes," Orentlicher said.

"That's what this case should remind us — that RFRAs can be misused, but we don't want to throw the baby out with the bathwater," he added.

Falk of the ACLU said the lawsuit uses RFRA "as it was originally contemplated" to protect religious freedoms.

"We're not going to pretend it doesn't exist now," Falk said. "It does exist. The legislature said it wants to protect religious liberties, and that's exactly what we're trying to do."

Still, state Senate President Pro Tempore David Long, a Fort Wayne Republican, criticized the ACLU for the lawsuit.

"The ACLU used to be a staunch supporter of religious liberty," he said in a statement. "Now they've reduced themselves to making a mockery of it. On top of this, they also support endangering our children while championing the rights of sex offenders. It's a sad day for the ACLU."

State Rep. Christina Hale, D-Indianapolis, co-sponsored the law prohibiting sex offenders from school grounds. "Clearly nobody had thought through what all the negative ramifications might be for people," she said of RFRA.

State Rep. Christina Hale, D-Indianapolis, co-sponsored the law prohibiting sex offenders from school grounds and reacted to the ACLU lawsuit by slamming the religious freedom law: "Clearly nobody had thought through what all the negative ramifications might be for people."

"I think that we have to keep in mind that Indiana is one of the very worst states in the nation when it comes to protecting our children from sexual violence," she added, citing national health statistics and recidivism rates. "We're second only to Wyoming. And we have to do whatever it takes to protect our kids. ... Any time we can keep a sexual predator away from a child, that's a small victory."

But Orentlicher made the point that the case may not be so simple. For sex offenders who have served their time, religion may be instrumental to their rehabilitation, he said: "If your goal is to protect kids, with these people, you want to maximize their chances for rehabilitation."

As an example, the lawsuit notes that one of the unnamed plaintiffs had his parole officer approve the church he chose after being released from jail. The lawsuit says he is now "deeply spiritually involved" with the church — one that doubles as a preschool and is adjacent to a religious school.

In addition, the ACLU argues for sex offenders to have access to the worship services when schools aren't in session. And the lawsuit says it's "not rational" that serious sex offenders can still go to church services where children are present if there's no school attached.

Orentlicher said other states, such as Missouri, have carved out religious exemptions to allow sex offenders to attend church when school is not in session.

"They're just saying, 'Let us pray when the kids aren't there,' " Orentlicher said.

Call Star reporter Stephanie Wang at (317) 444-6184. Follow her on Twitter: @stephaniewang.