On sex being the talisman in front of which the constitution fades away and disappears

I have long debated — both with myself and others — about the value of incremental reforms versus more sweeping, substantive ones. With incrementalism, you run the risk of entrenching the systems you are trying to undo. On the other hand, if you swing too hard to risk not getting anything at all.

If you read a good number of judicial opinions about sex offense registries and their paraphernalia you get used to a lot of judicial gymnastics — courts contorting themselves into improbable shapes, not unlike a linguistic game of Twister, often in order to reach the conclusion that registries are not punishment (a ridiculous proposition that I’ve written about before).

More than four years ago now, I read an astonishing opinion from the Sixth Circuit Court of Appeals. It was astonishing not just because it was one step below the United States Supreme Court, and not just because the Court’s opinion tracked so closely with the lived experience of myself and so many other individuals, but also the forcefulness with which it was delivered:

A regulatory regime that severely restricts where people can live, work, and “loiter,” that categorizes them into tiers ostensibly corresponding to present dangerousness without any individualized assessment thereof, and that requires time-consuming and cumbersome in-person reporting, all supported by—at best—scant evidence that such restrictions serve the professed purpose of keeping Michigan communities safe, is something altogether different from and more troubling than Alaska’s first-generation registry law. SORA brands registrants as moral lepers solely on the basis of a prior conviction. It consigns them to years, if not a lifetime, of existence on the margins, not only of society, but often, as the record in this case makes painfully evident, from their own families, with whom, due to school zone restrictions, they may not even live. It directly regulates where registrants may go in their daily lives and compels them to interrupt those lives with great frequency in order to appear in person before law enforcement to report even minor changes to their information.

Thus, Michigan’s SORA was struck down as unconstitutional. In the ensuing four years, a phalanx of litigators who pressed this case went back to the lower court to seek a broader injunctive order against the enforcement of the registry. Michigan’s Attorney General, Dana Nessel, filed amicus briefs in related cases in state court largely agreeing with the main points that the ACLU and others were making: that registries are ineffective, expensive, and punitive. The legislature was under a mandate: fix the law, or else the law goes away.

In short, it seemed like real, substantive change was possible in Michigan.

In the ensuing years, relatively little changed. It wasn’t until 2020, due in part to the COVID-19 pandemic, that Michigan authorities were enjoined from enforcing SORA (notably, despite this injunction being in place for most of 2020, there does not appear to have been an epidemic of sexual violence.) The Michigan legislature was finally spurred into…action of sorts.

They passed a new law, signed by Governor Whitmer, that is more or less the same as the old law. There are some important differences — notably, the legislature removed the “safety zones” that limited where people could live, work, and simply be present. To be sure, this is a welcome change, but also one that feels like low-hanging fruit: these kinds of laws are so contrary to public safety that even the United States Department of Justice recommends against their implementation.

However, other parts of the law became more burdensome, effectively meaning more opportunities for people to “fail to comply” and thus be returned to prison. It is, essentially, the same law.

Michigan was poised to lead the nation in demonstrating what real public safety could look like. There was the CA6 decision, a friendly district court judge, stellar lawyers on the plaintiffs’ side, and the state AG making their same arguments as well. To put it differently, the stars were effectively aligned — I’m not sure what more you could hope for, and the outcome is something decidedly tepid that will certainly be headed back to court for who knows how many more years of litigation (all the while, for those on Michigan’s registry and their families, relatively little will change).

A broader problem is that passing a minority tweaked law seems to reset the whole cycle: now plaintiffs will have to go back to court, the stars will have to align once more, and then maybe, 4-5 years down the line, we will see another small tweak.

It’s a calculus that arguably places a large group of unpopular people beyond the reach of the constitution. To borrow from a Supreme Court opinion, the word sex is something of a talisman in front of which the constitution fades away and disappears.

The question of incrementalism versus deeper reform might, at the end of the day, be a largely academic one when it is confronted with the realities of political expediency (or, to be somewhat less charitable, cowardice).

It’s disappointing, to be sure. But when confronted with this kind of disappointment, I try to remind myself of the simple fact that courts and constitutions are only part of the answer, as Learned Hand so eloquently remarked in 1945:

What do we mean when we say that first of all we seek liberty? I often wonder whether we do not rest our hopes too much upon constitutions, upon laws and upon courts. These are false hopes; believe me, these are false hopes. Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no constitution, no law, no court can even do much to help it.