Appeals Court Rules That Sex Offenders Can Attend Church with Children Present

By Fatima Hussein
Indy Star
October 26, 2017

https://www.indystar.com/story/news/2017/10/26/appeals-court-rules-sex-offenders-can-attend-church-children-present/802562001/

The Indiana Court of Appeals has ruled that sex offenders are allowed to attend church services even while children are present to attend Sunday school.

The ruling handed down Tuesday stems from a letter the Boone County sheriff sent to his county’s registered sex offenders in July 2015 informing them of the passage of Indiana’s “serious sex offender” law. The law prohibits “serious sex offenders” from entering “school property.”

School property, under the state's interpretation of the law, includes a church if the church conducts Sunday school or has child care for children of the ages described in the statute. Sex offenders faced arrest and prosecution if they attended such a church.

Citing Indiana’s Religious Freedom Restoration Act, three unnamed sex offenders sought a court injunction to attend church. They argued that preventing them from attending services, even when children are present, places "a substantial burden on their exercise of religion."

"It is a very serious infringement on rights in telling someone they cannot go to religious services," said Ken Falk, legal director of the ACLU of Indiana, who is representing the sex offenders.

"Everyone seeks religious service for different reasons — to exclude someone seems problematic."

RFRA, signed into law in March 2015 by then-Gov. Mike Pence, prohibits state or local governments from substantially burdening a person's ability to exercise religion unless the government can show that it has a compelling interest to do so and in the least restrictive way.

A Boone Superior Court judge denied the sex offenders' request for an injunction. The trial court said no violation of RFRA occurred because the sex offenders could attend church when Sunday school or child care was not being actively conducted on the premises.

The Indiana Court of Appeals disagreed with the trial court.

While the judges did not address whether the state's action amounted to a violation of RFRA, the three-judge panel ruled that the trial court abused its discretion in denying the sex offenders' motion for a permanent injunction.

"Appellants have succeeded on the merits in demonstrating their churches are not 'school property' at any time within the meaning of the statute," wrote Judge Margret G. Robb.

Robb said the trial court misinterpreted the law. "Churches and religious instruction are not schools, nor do they become so by use of the popular and common name of 'Sunday school.'

"Further, arrest and prosecution of Appellants for entering their church would constitute an unlawful act."

Judges Nancy H. Vaidik and L. Mark Bailey concurred with Robb's opinion.

A spokesman for Attorney General Curtis Hill told IndyStar that Hill's office "takes very seriously the Indiana legislature’s efforts to protect children from sexual abuse, and his office vigorously defends these efforts — such as the sex and violent offender registry."

"We are carefully reviewing the Court of Appeals’ decision and will decide how to proceed with this case by the applicable deadline," spokesman Bill McCleery said.

Other instances of RFRA being used as a legal defense have arisen since the law was passed two years ago.

In August 2016 an Indianapolis woman who beat her 7-year-old son with a coat hanger cited RFRA as a defense against felony child abuse charges. She said her choice of discipline comes from her evangelical Christian beliefs. She later pleaded guilty to felony battery.

In November 2016, a man used RFRA as a defense to avoid tax obligations. Indiana courts rejected his arguments.