What’s the difference?

August 4, 2008
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This post comes from IL reporter Michael Hoskins: 

On one hand, the American Civil Liberties Union of Indiana argues against blanket, government-imposed rules restricting where sex offenders can live and places those registered individuals can visit. But when a private homeowners association takes a similar move, the line gets blurry and the civil liberties group says there isn’t much it can do. Why? An HOA is a private entity, not a governmental body treading on a person’s constitutional rights.

The issue is coming up in Greenwood, where an HOA for a 175-home subdivision has taken a step believed the first of its kind in the state: amending its governing documents to ban offenders from living in that community’s homes. Communities in Texas and Kansas City have put similar policies in place. Now, as part of the covenants, the association can evict any sex offender who buys a home there, any current resident who’s convicted of a felony sex crime in the future, or any owner who rents or sells to a sex offender. More than three-fourths of the residents voted in favor of the measure.

The legal director of the ACLU of Indiana points out that while this doesn’t appear to be a constitutional issue since offenders aren’t part of any protected class, this is a “terrible idea and policy.” Residency restrictions are already in place for registered offenders, and taking actions like this could push courts to view this as some sort of de facto punishment if a legal challenge arises, Ken Falk says.

A common theme among all these restrictions and bans on registered sex offenders is that each has a noble purpose at the heart: to protect the safety of children. But courts are wrapped up in many of these controversies, including issues regarding who’s required to register, what restrictions can be put in place, and how these regulations can be enforced. The legal community doesn’t have consensus, all the while more restrictions are being implemented. What’s the difference in this case from the others, and should it matter whether it’s a private or public entity imposing a restriction?
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  2. As an adoptive parent, I have to say this situation was as shameful as it gets. While the state government opens its wallet to the Simons and their friends, it denied payments to the most vulnerable in our state. Thanks Mitch!

  3. We as lawyers who have given up the range of First amendment freedom that other people possess, so that we can have a license to practice in the courts of the state and make gobs of money, that we agree to combat the hateful and bigoted discrimination enshrined in the law by democratic majorities, that Law Lord Posner has graciously explained for us....... We must now unhesitatingly condemn the sincerely held religious beliefs of religiously observant Catholics, Muslims, Christians, and Jewish persons alike who yet adhere to Scriptural exhortations concerning sodomites and catamites..... No tolerance will be extended to intolerance, and we must hate the haters most zealously! And in our public explanations of this constitutional garbledygook, when doing the balancing act, we must remember that the state always pushes its finger down on the individualism side of the scale at every turn and at every juncture no matter what the cost to society.....to elevate the values of a minority over the values of the majority is now the defining feature of American "Democracy..." we must remember our role in tricking Americans to think that this is desirable in spite of their own democratically expressed values being trashed. As a secular republic the United States might as well be officially atheist, religious people are now all bigots and will soon be treated with the same contempt that kluckers were in recent times..... The most important thing is that any source of moral authority besides the state be absolutely crushed.

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