This is a guest post by Andrew Seidel. He is an attorney for the Freedom From Religion Foundation.
Last week, we announced that the ACLU is officially opposed to Religious Freedom Restoration Acts, such as the one Indiana recently adopted amid public outcry about the potential for discrimination against gay people. That same week, the ACLU of Indiana filed an interesting lawsuit that both uses and challenges the state’s RFRA.
A new Indiana law that took effect on July 1 prohibits “serious sex offenders” from entering “school property,” including to vote or to attend a worship service at a church renting a public school, even though that worship, by definition, takes place when children are not in school. (The plaintiffs in this case were attending church at religious schools, but this will apply to churches in public schools too. And if you’re wondering about whether churches can legally rent schools for worship, see here.)
The ACLU is challenging that law using the state’s RFRA since the prohibition prevents the plaintiffs — anonymous in this case, but representing the entire class of sex offenders in this class action against the state — from worshiping as, when, and where they desire. In other words, the religious freedom law could let sex offenders into churches and our public schools.
This suit is brilliant for three reasons.
First, it shows how dangerous RFRAs can be. One of the sponsors of the sex offender ban, State Rep. Christina Hale, D-Indianapolis, said this about Indiana’s RFRA: “Clearly nobody had thought through what all the negative ramifications might be for people.” She’s right. Legislators aren’t thinking these laws through. I’m sure Indiana didn’t expect the Church of Cannabis to spring up under RFRA, but it happened — and was entirely predictable given that the original RFRA Congress passed in 1993 was in response to a Supreme Court decision involving religious freedom and peyote use.
Second, this suit shows that churches renting schools can be — to a very limited extent — regulated by the government in ways that entirely private churches cannot be. Churches that want to rent public schools ought to consider that carefully beforehand.
And finally, the ACLU is protecting the rights of a hated minority without regard to anything but the rights of that hated minority. No matter how awful we think sex offenders are, everyone deserves legal representation.
The most enjoyable aspect of this lawsuit is its delicious irony. It appears to be the first lawsuit brought under Indiana’s new RFRA — the very same RFRA that FFRF warned that state about repeatedly and that we tried to stop. If anything will highlight the problems with politicians who elevate religious belief above the law, it’s lawsuits like this one.
The radical use of RFRAs, although it was entirely foreseeable, really began when Hobby Lobby won its challenge to the contraception mandate before the Supreme Court. So, in a way, the sex offenders of Indiana should thank Hobby Lobby and the Green family for helping them to worship according to their own consciences. Way to go, Green family.
(Image via Shutterstock)
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