Churches aren’t schools, rules Indiana Court of Appeals

By Olivia Covington . . . Three convicted Boone County sex offenders can return to their church congregations after the Indiana Court of Appeals determined that churches are not considered “school property,” so state statute cannot prohibit the offenders from going to church, even when children are present.

The appellate court handed down that decision Tuesday in John Doe 1, et al., v. The Boone County Prosecutor, in his official capacity, et al., 06A01-1612-PL-2741. The case dates to 2015, when the Indiana General Assembly passed the “unlawful entry by a serious sex offender” statute, Indiana Code section 35-42-4-14. That statute prohibits “serious sex offenders” from accessing school property.

According to the statute, “school property” is defined as any “nonprofit program or service operated to … benefit children who are at least three years of age and not yet enrolled in kindergarten.” Based on that language, the Boone County prosecutor sent a letter to all registered sex offenders in the county informing them they could only attend church if their churches do not offer classes or services for young children.

But because each of their churches offered children’s programming simultaneously or nearly simultaneously with adult services or Bible studies, three sex offenders known as John Does 1, 2 and 3, filed suit claiming the sheriff’s letter effectively prohibited them from attending church at any time. The Does sought declaratory and injunctive relief, alleging churches don’t meet the definition of “school property,” but the Boone Superior Court denied such relief, finding instead that the churches are only “school property” when children’s programming is in session.

The trial court also rejected the Does’ argument that the statute violates Indiana’s Religious Freedom Restoration Act, which prohibits the government from substantially burdening a person’s religious exercise unless there is a compelling interest and the burden is the least restrictive means of advancing that interest. Though ACLU of Indiana Legal Director Ken Falk, who argued on appeal on behalf of the Does, claimed the offenders’ case could be won on the issue of the definition of school property alone, he also told the judges on appeal that if churches are school property, then the serious sex offender statute would violate their rights under RFRA.

The state, however, argued that because church programs operate to “benefit children,” church buildings can be considered “school property” under that statutory language. Further, Deputy Attorney General Aaron Craft said the state had a compelling interest in protecting children from being victimized by sex offenders, and prohibiting those offenders from accessing children at church was the least restrictive means of accomplishing that interest.

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    • #25327 Reply
      Tim L

      Good to hear more good news that another “affirmative disability” imposed without process has been thwarted. There is no mention of the trial court judges name, why? For me, this lack of all the specifics in reporting or not reporting the trial judges name is very curious. Are they protecting him/her or was it a simple omission? Trail court ruled in favor of the Indiana law upholding as constitutional. Makes me wonder about judges impartiality.

    • #25592 Reply

      Tim L., the Boone Superior Court Judge is the Honorable Matthew C. Kincaid. The information can be found on the first page of the Appellate Court’s opinion. Appellate Judge Margery Robb wrote the majority opinion with Judges Vaidik and Bailey, Jr., concurring.

    • #25933 Reply
      Jeremy from Indiana

      As an Indiana resident, I was researching laws recently and noticed that one. I had never seen this law before, so I’m glad you did the research so I know when the law was enacted. Since it was enacted in 2015 and the Wallace decision in 2009 declared the Indiana registry punitive, nobody convicted prior to the enactment of this law is bound to it or it would constitute ex post facto punishment. That includes me since my conviction was in 2010. My business takes me into schools occasionally, so I’m glad that I don’t have to worry about this law.

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