Sex Offenders and the Free Exercise of Religion
41 Pages Posted: 18 Feb 2021 Last revised: 4 Aug 2021
Date Written: February 8, 2021
In a variety of ways, sex offenders in the United States find themselves in a difficult position. One of the lesser-known ways relates to the free exercise of religion. Sometimes by categorical statute, and sometimes by individualized parole, probation, or supervised-release condition, sex offenders can find themselves legally barred from places where children are present (or likely to be present). Because children are usually present at religious services, sex offenders can find themselves unable to attend them altogether. And this hardship has a bit of irony in it too. Back in prison, sex offenders could worship freely with others; now ostensibly free, they can no longer do so.
This simple problem has real scope—tens (maybe hundreds) of thousands of people barred from essentially all religious services, sometimes for decades, sometimes for life. Moreover, these prohibitions are often vague and overbroad—and so restrictive that low-level administrators (like sheriffs and probation officers) are often pushed into softening or waiving them. But this ends up creating a kind of licensing scheme, whereby low-level government officials make—on their own, without any formal criteria—ad-hoc and practically unreviewable decisions about who gets to go to church and under what conditions. Risks of selective enforcement, discrimination, and abuse are obvious.
These rules have come into being as if concerns about the free exercise of religion have no weight at all. But this is not the case. And, in fact, a robust body of law protects the free exercise of religion, requiring exemptions from religiously burdensome laws. Now this does not mean that sex offenders should be universally exempt from any and all restrictions regarding church attendance. There are probably some people who pose such a threat to children that they should be kept away from churches. Courts will have to answer tricky questions—who should be barred, who should decide who is barred, and on what criteria?—that require nuanced and elaborate answers. Yet informed by analogies from other areas of law (like freedom of speech) where courts have wrestled with similar issues, this Article offers some recommendations that are analytically rigorous, practically realizable, and judicially manageable.
Keywords: religion; sex offenders; free exercise; church
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