Sex Offender Residency Restrictions and the Right to Live Where You Want

One of the most interesting public policy developments of the last few years has been the rise of land use restrictions that regulate who your neighbors are, as opposed to what your neighbors can do.  Perhaps the most important example of this trend is the enactment, by at least twelve states, of sex offender residency restrictions.

Such laws generally prohibit registered sex offenders from residing within 1,000 or 2,000 feet of schools or day-care facilities.  Some of them, however, such as Louisiana’s and Georgia’s are broader, and include places like video arcades, swimming pools, and any location “where minors congregate.”

The constitutionality of sex offender residency restrictions was recently tested in the 8^th Circuit.  See Doe v. Miller, 405 F.3d 700 (8^th Cir. 2005).  In Doe, the court reversed a district court opinion that had invalidated Iowa’s sex offender registry requirements.  The court noted that the law prohibited sex offenders from living in many Iowa towns altogether, and rendered 77% of the state’s housing units off limits to convicted sex offenders.  Most of the remaining 23% of Iowa's housing units consisted of rural farmhouses.  Still, the court found no constitutional violation, rejecting, inter alia, ex post facto arguments, substantive due process claims, and procedural due process claims.  The opinion was controversial, as five 8^th Circuit judges voted to hear the case en banc.

To me, the most interesting part of the 8^th Circuit’s opinion was its rejection of the plaintiffs’ claim that there is a “fundamental right to live where you want.”  The court basically quoted Washington v. Glucksberg’s two-pronged test for new fundamental rights (is the right deeply rooted in the nation’s history and implicit in the concept of ordered liberty?), and said the plaintiffs failed to develop an argument for how that right satisfies those prongs.  But is it really so hard to construct such an argument?  While early American municipal ordinances sometimes confined members of certain ethnic groups to ghettos, these laws are rightly viewed today as embarrassments, though perhaps our revulsion has more to do with ethnicity than ghettoization as such.  Still, setting aside banishment laws and particularized restraining orders, I can think of little historical precedent for states preventing citizens from living in homes they can afford to buy, let alone rendering entire cities off limits to undesirables.  And it’s not far fetched to say that the right to live where one pleases (again, if one can afford to do so) is implicit in the concept of a free society, whatever that means.  Government-mandated ghetto-ization is, after all, a hallmark of un-free societies.  Unless we want to embrace a problematic “greater power (to incarcerate) includes the lesser power (to ghettoize)” tack, these laws should prompt serious reflection.  I am not entirely convinced that this right counts as fundamental under the Glucksberg framework, but it seems to me the question is close enough to warrant some scholar’s careful historical research and perhaps more sustained attention from the nation’s judges.