NC- Can Sex Offenders be Barred from Church?

10-25-2009 North Carolina:

As widely reported, including in this Time magazine story, sex offenders who are barred by state law from going near children have begun to invoke their free exercises rights when such state laws are used to keep them from attending religious services in houses of worhsip that also supervise children. The Time article focuses on a North Carolina case, but the problem is broader. Unfortunately, the article does not go into the real legal issues in any depth. I'll take a shot at clarifying.

There is pretty clearly no federal free exercise problem here. Back in the day, the formal doctrine from SCOTUS said that whenever the govt substantially burdened somebody's ability to practice his or her religion, the law or policy doing the burdening had to be subject to strict scrutiny: The govt had to prove that the law or policy was narrowly tailored to serve a compelling state interest. Under Sherbert v. Verner, the strict scrutiny test applied not only to laws that specifically targeted religion as such but also to religion-neutral laws that happened to impose incidental (but nonetheless substantial) burdens on particular people.

In Employment Div. v. Smith, the Supreme Court changed its approach. Under Smith, a law of general applicability--i.e., a law that does not single out religion or any particular religion for special burdens--can be validly applied in circumstances in which it limits the ability of someone to practice his religion; free exercise, as interpreted by the SCOTUS, simply does not require religious exemptions. Technically, the Court distinguished rather than overruled the old cases, characterizing them as requiring exemptions only where there was already in place an administrative scheme for granting other sorts of exemptions or where the claimant's free exercise claim was coupled with some other constitutional claim, and thus posed a "hybrid" right. A small number of lower court cases take the hybrid category seriously, but I do not.

It was pretty obviously made up in Smith so that the Court could pretend it wasn't overruling prior precedent. There's no principled basis for the hybrid category and the particular outcome it was used to justify, Wisconsin v. Yoder, involved a hybrid of free exercise and the unenumerated right of parents to direct the upbringing of their children. Yet Justice Scalia, the author of the Smith majority, does not even believe in that unenumerated right, so it is hard to see why he would think it adds anything--except as a way of disingenuously distinguishing rather than overruling Yoder. Thus, the best reading of Smith is that it does not require exemptions from laws that do not specifically target religion.

The North Carolina sex offender law, like those of other states, does not single out churches. It applies equally to bar registered sex offenders from other places children congregate, such as day-care centers, public parks, or schools that have adult education classes at the same times that they have programs for children. Thus, under Smith, there is no federal free exercise problem.

For the remainder of this discussion: by Mike Dorf