10-29-2009 North Carolina:
Pittsboro, N.C. — Lawyers for a registered sex offender appeared in court Thursday to challenge the constitutionality of a law under which he was charged for going to church.
James Nichols, 31, was arrested on March 28 after he attended services at Moncure Baptist Church. He was charged under a nearly year-old state law that bans sex offenders from coming within 300 feet of any place intended for the use, care or supervision of children.
Moncure Baptist has a nursery and regularly scheduled programs for children.
In a two-hour hearing in Superior Court in Pittsboro Thursday, Nichols' lawyers argued that the law is too broad, doesn't exempt churches and violates constitutional rights to religious freedom and to assembly.
."He engages in free speech, he walks down the aisle, he sings with people, and he reads the Bible," defense attorney Glenn Gerding said. "So this is not just a case about the free exercise of religion; it is also a case about assembling together with people who want to assemble together."
Nichols has been convicted twice of indecent liberties with a teen girl and most recently of attempted second-degree rape in 2003. He spent a total of 6 years and 2 months in prison on those charges.
Nichols said that he found God in prison, and when he was released last September, Moncure Baptist welcomed him with open arms.
Prosecutor Kayley Taber said Nichols and another sex offender, Frank DeMaio, were arrested after the Chatham County Sheriff's Office received a complaint.
"This was not an investigation targeted at local churches," Taber said.
DeMaio has joined Nichols in challenging the law.
Judge Allen Baddour did not make a decision on the issue Thursday but set another hearing for Nov. 12.
If Baddour declares the law unconstitutional, the case could go all the way up to the state Supreme Court.
Thirty-six states establish zones where sex offenders cannot live or visit. Some states provide exceptions for churches, but many do not. ..Source.. by Bryan Mims
October 29, 2009
NC- UPDATE: Law challenged after sex offender arrested for going to church
October 25, 2009
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
October 13, 2009
NC- Should Sex Offenders Be Barred from Kid-Friendly Churches?
As to baring folks from attending regular services to worship God as other congregation members do, this is a most egregious violation of constitutional rights and lawmakers should be sued under a Title 42 sec. 1983 violation. However, with that said, as to other church functions there MAY BE reasons to limit or exclude a person convicted of a felony from such functions. Yet, to limit or exclude one class of felony offender and not other who are equally dangerous is a denial of equal protection of law.
10-13-2009 North Carolina:
North Carolina is a proud member of the so-called Bible Belt of states that take their religion seriously. So some eyebrows were raised when James Nichols was arrested for attending church.
His offense? Nichols, a convicted sex offender, had chosen to worship at a church that has a nursery where kids play while their parents pray. Now Nichols, 31, who only recently got out of prison, is fighting back, challenging the legality of a new law that took effect in December prohibiting registered sex offenders from coming within 300 ft. — nearly a football field's length — of any facility devoted to the use, care or supervision of minors.
As more states have adopted laws regulating where sex offenders can go, it was only a matter of time before the noble goal of protecting children butted heads with the sacrosanct First Amendment right to worship where and when you choose. Which takes precedence?
"This law makes it illegal to do things that are not wrong, like go to church," says Glen Gerding, Nichols' attorney. "When does the state stop interfering with a church's business? Will pastors be charged as an accessory for letting a known sex offender sit in a front-row pew and worship?"
Most states restrict sex offenders' movements in some way; North Carolina's law is hardly the strictest. In Georgia, registered sex offenders can't live or work within 1,000 ft. of places including schools, churches and child-care centers. Courts there have waded into questions of religion, ruling in favor of the right of offenders to partake in activities including volunteering in a church kitchen, attending adult Sunday School and singing in a church choir.
On behalf of Georgia's 16,000 registered sex offenders, the Atlanta-based Southern Center for Human Rights has sued the state over its residency and employment restrictions, including the ban on faith-based volunteering. "There are serious constitutional problems in banning someone from going to church, not to mention this runs counter to the church's mission of inclusion, hospitality and redemption," says Sara Totonchi, the center's associate director.
As soon as North Carolina's law went into effect in December, Katy Parker, legal director for the state's American Civil Liberties Union (ACLU) chapter, started fielding calls. Offenders wanted to know if the law prevented them from going to church; pastors worried it would keep worshippers away.
Parker says the law was so vague that she couldn't offer advice, but she did put out the word to defense attorneys that should they wind up representing someone accused of breaking the law, the ACLU wanted to hear about it. Nichols' March apprehension is one of two religion-based arrests that Parker is aware of.
"It's unbelievable that the N.C. state legislature and the people of North Carolina would not want someone to go to church for spiritual reasons and for rehabilitative reasons," says Parker.
But others think the ACLU is missing the point. The premise of the law is sound, says Laurence Tribe, a constitutional-law expert at Harvard. "If the moment you enter a church you don a cloak of immunity from the rule of law, then churches would become sanctuaries for crime," says Tribe.
Nichols, who was convicted of indecent liberties with a teenage girl (he was 20 at the time) and attempted second-degree rape, had prayed at Moncure Baptist Church in Moncure, N.C., where he was living, for several months before the police paid attention. Oddly enough, Nichols inadvertently outed himself, calling the cops about a fellow congregant — another offender — whom he witnessed fondling a 12-year-old girl. "I thought I was doing the right thing, and they hit me with charges," he says.
But he wasn't about to give up on God. Nichols credits religion with keeping him out of trouble. He had attended church sporadically before he went to prison; now he goes twice a day and three times on Sundays. "Church helps me to not live my old ways," says Nichols, who currently attends New Life Mission Church in Fayetteville, N.C., a hard-knock place that caters to ex-cons, former drug dealers and alcoholics.
Pastor Grace Kim welcomed Nichols to her church, which has no nursery on site and no children who attend the twice-daily services. "We want to try to give everyone a chance to rehabilitate, no matter their background."
Only time — and judges' decisions — will determine whether the new law bars offenders from attending any church (where children might attend) or just those with child-care facilities. What is clear is that those who hammered out the small print of the legislation are sticking by it.
David Hoyle, the state senator who sponsored the bill, says it took two years to pass, partly because legal advisers took care to word it to withstand legal challenges.
The law is named for Jessica Lunsford, the Florida girl who was kidnapped and killed in 2005 by a convicted sex offender. Lunsford was born in Hoyle's district and attended school in the tiny town of Dallas, where Hoyle lives. He still talks to her father regularly; her cousin will serve as a senate page for Hoyle next year.
"I got e-mails calling me the anti-Christ and saying I'm going to hell, but we want to make the law just as strong as we can," says Hoyle. "We feel it is a good law. When a person takes advantage of a child, I don't worry about their constitutional rights." ..Source.. by Bonnie Rochman
October 8, 2009
NC- Sex offenders challenge laws banning them from churches in North Carolina, Georgia
10-8-2009 North Carolina:
RALEIGH, N.C. — Convicted sex offender James Nichols said he was trying to better himself by going to church. But the police who arrested him explained: The church is off-limits because it has a daycare center.
Now Nichols is challenging North Carolina's sex-offender laws in a case that pits the constitutional right to religious freedom against the state's goal of protecting the public from child molesters.
"I just started asking the question, 'Why? Why am I being treated this way after trying to better myself?'" said Nichols, a 31-year-old who was twice convicted of indecent liberties with a teen girl and again in 2003 for attempted second-degree rape. "The law gives you no room to better yourself."
At issue in Nichols' case and a similar one in Georgia are day care centers and youth programs at houses of worship where sex offenders can come into proximity with children. Sex offender advocates agree some convicts should not be allowed around children, but they contend barring all offenders denies them support needed to become productive citizens.
"Criminalizing the practice of religion for everyone on the registry will do more harm than good," said Sara Totonchi, policy director for the Southern Center for Human Rights. "With these laws, states are driving people on the registry from their faith community and depriving them of the rehabilitative influence of the church."
Thirty-six states establish zones where sex offenders cannot live or visit. Some states provide exemptions for churches but many do not.
In December, North Carolina state legislators barred sex offenders from coming within 300 feet of any place intended primarily for the use, care or supervision of minors.
Three months later, Nichols was arrested at his home after attending Sunday services. He said he was "floored" to learn that he had been picked up because Moncure Baptist Church has a child-care center for families attending services.
"I believe wholeheartedly if it wasn't for God, I don't know where I'd be today," he said. "God's blessed me with learning how to live a better life."
In Georgia, the Southern Center for Human Rights sued the state in part because the law there prevents offenders from volunteering in places of worship. The lawsuit brought on behalf of Georgia's 16,000-plus registered sex offenders is pending in federal court.
Katherine Parker, legal director for the ACLU of North Carolina, said she was not aware of religion-based challenges to sex-offender laws in any other states. The ACLU is helping in Nichols' case.
Jonathan Turley, a law professor at George Washington University, said preventing offenders from attending religious services is another in a series of increasingly unforgiving laws adopted across the country. Some of the laws have pushed offenders out of homes and entire communities.
"This case is part of a much larger group of cases dealing with the expansive sex-offender laws," Turley said. "The state cannot sentence someone to a life of being an agnostic or an atheist without violating the constitution."
Some question whether the restrictive laws will lead to more crime.
"It's not clear that there's any public-safety purpose to these laws. They continue to ostracize previous sex offenders in a way that could be dangerous in the end," said Sarah Tofte, a legal researcher with Human Rights Watch. "If they can successfully transition to the community, to include going to church, they are less likely to reoffend."
Some lawmakers say offenders such as Nichols should blame themselves for breaking the law in the first place.
"I'm not denying him the right to go to church. He denied himself that," said state Sen. David Hoyle, the Democrat who sponsored the North Carolina bill. "If they are a convicted pedophile, they have given up a lot of their rights."
Church leaders feel caught between leading houses of worship where broken people can seek help and preventing criminals from exploiting a place of trust.
Joseph Green, pastor of a church that Nichols attended after his arrest, reached out to him while at the same time assuaging the concerns of his parishioners.
"I told him as long as he's honest with me, then we're willing to embrace him and help him focus and get his life back on track," Green said. But, he added, "The Bible talks about wolves coming in in sheep's clothing, so I've got to be watchful over everyone coming into my church."
Most church members were welcoming. "I think everybody deserves a chance," said Shawn Cox, 28, a married father of two who says his faith helped steer him away from drug dealing and crime.
"God turned my life around," said Cox. "I'm not saying that you bring the guy in and put him over the youth program or the youth ministry as soon as he walks in the door. But there's no way he can overcome these things without help and support." ..Source.. by ALYSIA PATTERSON
November 18, 2008
GA- Sex offender files new suit to stay in home
11-18-2008 Georgia:
HARLEM, Ga. - A registered sex offender isn't letting a state's court decision force her from her Columbia County home, Monday.
On Thursday, a Georgia judge ruled that Wendy Whitaker needed to move from her home because she lived within 1,000 feet of a church.
Whitaker’s attorney is now filing a new lawsuit at the county level which could prevent her from having to move.
Georgia law prohibits sex offenders from living within 1,000 feet of churches, daycares and schools.
Ten years ago, when Wendy was 17, she performed a consensual sex act on a 15-year-old boy.
She was convicted and forced to register as a sex offender under Georgia law.
Kim Cosby baby-sits several children right next door to Whitaker's home and has been her neighbor for two years.
"I don't think what she's done is threatening our children here,” says Cosby. “If it was someone that had been in trouble with a little child and they were older, it would be different, but she was just caught up in a bad situation.”
But Whitaker's other next door neighbor begs to differ.
"The only fact that really means anything is that she's living there in direct violation of a court order,” says A.L. Wells. "Never mind that there was two years between her and that young boy in school. That doesn't have nothing to do with nothing. The law is the law."
Whether that law is fair or not will soon be up to the Columbia County Superior Court to decide.
One thing both of Whitaker's neighbors have decided on is that the law needs to be updated.
The Columbia County Sheriff's Office has not decided on an exact time to force Whitaker out of her home. The department says it will make that decision later this week. ..News Source.. by Steve Kuzj skuzj@nbcaugusta.com
