Indiana Court of Appeals considers RFRA’s application to registered citizens

By Olivia Covington . . . Shortly after the controversial Religious Freedom Restoration Act went into effect in Indiana in 2015, the unlawful entry by a serious sex offender statute, which prohibits certain sex offenders from accessing school property, also became law. Now, those two statutes are at odds with each other as the Indiana Court of Appeals decides whether an interpretation of the statute that prohibits three men from going to church constitutes a RFRA violation.

Under the unlawful entry by a serious sex offender statute, Indiana Code 35-42-4-14, offenders convicted of certain sex offenses cannot knowingly or intentionally enter school property without committing a Level 6 felony. The Boone County sheriff determined that statute meant sex offenders in the county, including John Does 1, 2 and 3, could not attend church if their churches offered programs for children at least 3 years old who are not yet in kindergarten. The Boone Superior Court agreed, determining that anytime churches offer such programs, they are considered “school property,” and, thus, are unavailable to the John Does.

But because each of their churches offer children’s programming simultaneously or nearly simultaneously with adult services or Bible studies, the three men told the Indiana Court of Appeals during oral arguments in the case of John Doe, et al. v. The Boone County Prosecutor, et al., 06A01-1612-PL-02741, the sheriff’s letter effectively prohibits them from attending church at any time. The appellate case turns on two central issues that divided counsel for the state and the offenders: whether churches can be considered “school property” and whether the prohibition against the Does attending church violates their rights under RFRA.

According to the ACLU of Indiana legal director Ken Falk, who brought the case on behalf of the sex offenders, the trial court erroneously determined that churches can be considered school property because they are not “owned or rented by” an educational institution, language used in I.C. 35-31.5-2-285, which defines “school property.” Further, that statutory definition does not permit a building to cease to be considered school property when children are no longer present, Falk said, so the trial court erred in determining the Does are only prohibited from attending church when children’s programming is in session.

While deputy attorney general Aaron Craft agreed with Falk on the latter point, he pointed to additional language in the school property statute that defines such property as owned or rented by a “program or service operated to … benefit children … .” Churches that offer programming for kids would qualify as school property under that portion of the statutory definition, Craft said.

But Judge Margret Robb pushed Craft on that assertion, telling him that church babysitting services don’t seem to qualify as the “developmental” programs defined in section (D)(iii) of the school property statute. Similarly, Dan Conkle, a constitutional law professor at the Indiana University Maurer School of Law, said the statute defining “school property” is ambiguous as it applies to churches. If the statute were to apply to churches, then it would seemingly ban sex offenders from attending any church at all, because nearly every church offers classes for kids, Conkle said.

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