Brian Hope v. Commissioner of Indiana Depart

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 19-2523

BRIAN HOPE, et al.,

Plaintiffs-Appellees,

v.

COMMISSIONER OF INDIANA DEPARTMENT

OF CORRECTION, et al,

Defendants-Appellants.

____________________

Appeal from the United States District Court for the

Southern District of Indiana, Indianapolis Division.

No. 1:16-cv-02865-RLY-TAB — Richard L. Young, Judge.

____________________

ARGUED JANUARY 14, 2020 — DECIDED JANUARY 6, 2021

____________________

Before ROVNER, WOOD, and ST. EVE, Circuit Judges.

ROVNER, Circuit Judge. Sex offender registration and noti-

fication laws have a unique place at the intersection of crimi-

nal and civil law. These civil laws impose cumbersome and

often lifelong burdens on former criminal perpetrators, many

of whom have finished all forms of imprisonment and post-

imprisonment supervision. For this reason, they are fre-

quently challenged as unconstitutional. In this case, the

2 No. 19-2523

plaintiffs have challenged Indiana’s Sex Offender Registra-

tion Act (SORA) as it applies to offenders who have relocated

to Indiana from other states after the enactment of SORA, and

who are forced to register under the law, but would not have

been required to do so had they committed their crimes as

residents of Indiana prior to the enactment of the relevant

portions of SORA and maintained citizenship there. The dis-

trict court found the registration requirements to be unconsti-

tutional, and we uphold the district court’s finding that this

application of SORA violates the plaintiffs’ right to travel.

I.

Although sex offender registries had been around for

some time prior, they proliferated in the early 1990’s due to a

few high profile and highly publicized heinous crimes against

children by repeat sex offenders. We can assume that more

widespread access to the internet in the 1990’s also contrib-

uted to the proliferations of these laws. For the first time, an-

yone with an internet connection could access the information

in these registries from their homes with a few mouse clicks

and find out the location of convicted sex offenders in their

communities. In 1994, Indiana enacted its own version of a sex

offender registry, SORA, also called “Zachary’s Law,” after a

10-year-old boy who was tragically sexually assaulted and

murdered by a neighbor with a previous criminal conviction

for sexual assault of a child. 1994 Ind. P.L. 11 § 7 (codified as

Indiana Code §§ 5-2-12-1 through 5-2-12-13) (current version

at Ind. Code §§ 11-8-8-1 through 11-8-8-23).

Around the same time, in the federal arena, Congress was

enacting sex offender registration and notification laws, cul-

minating in 2006 with the federal Sex Offender Registration

and Notification Act (SORNA), 34 U.S.C.A. § 20901 et. seq.,

No. 19-2523 3

which requires states to maintain public registries with spec-

ified sex offender information. Indiana has periodically

amended its SORA to remain in compliance with changing

requirements of the federal SORNA, and, according to Indi-

ana’s brief, to target those most likely to recidivate. In 1996,

the Indiana General Assembly revised SORA to require regis-

tration by one convicted elsewhere of a state offense that is

substantially equivalent to an Indiana offense that triggers a

duty to register. 1996 Ind. P.L. 33 § 2; see also 2001 Ind. P.L. 238

§ 4 (making substantial equivalency provision retrospective).1

And, most relevantly, in 2006, the legislature amended SORA

to apply the statute’s requirements to any “person who is re-

quired to register as a sex offender in any jurisdiction.” 2006

P.L. 140 § 5(b)(1) (codified at Ind. Code §§ 11-8-8-4.5(b)(1), 11-

8-8-5(b)(1)).

Those amendments have greatly expanded both the list of

persons required to register and the information those regis-

trants are required to provide. The current SORA require-

ments are many. A person required to register under SORA

must report in person at least once annually to the local sher-

iff’s office in the county of residence, and if the registrant is

employed or attends school in a different county, the regis-

trant must report to the sheriff’s office in each of those coun-

ties as well. Sexual offenders who have committed one of nine

specified offenses are considered to be “sexually violent pred-

ators” and must report to the local sheriff’s office every ninety

days. Ind. Code. § 11-8-8-14(b). A person who is homeless or

1During the briefing of this case, this provision was codified at Ind. Code

§§ 11-8-8-4.5(a)(22), 11-8-8-5(a)(24). As of July 1, 2020, the “substantial

equivalency” provision has been moved to Ind. Code 1-1-2-4(b) and made

more generally applicable across Indiana’s Code.

4 No. 19-2523

lives in transitional or temporary housing must appear in per-

son at least once every seven days. Id. at § 11-8-8-12(b)(2).

Registration requires more than simply appearing at the

sheriff’s office. The person registering must be photographed

and provide information including their name, date of birth,

race, height, weight, hair color, eye color, identifying features

such as scars and tattoos, social security number, driver’s

license or state identification card number, vehicle

description and license plate number of any vehicle the

registrant might operate regularly, principal address, name

and address of any employer or educational institution, any

electronic mail addresses, any instant messaging user names,

any social networking website user name and “[a]ny other

information required by the [Department of Corrections

(DOC)].” Ind. Code § 11-8-8-8(a).2 Most of this information is

published on the public registry, although some of the

information (such as an individual’s e-mail address) is not

available to the public. If any of this information changes, the

registrant must go in person to the sheriff’s office, within

seventy-two hours, to report it. Ind. Code. § 11-8-8-8(c). That

means, for example, if a registrant gets a Pinterest account,

that person must report the new account, in person, at the

local sheriff’s office, within seventy-two hours. Convicted sex

offenders are required to maintain a valid driver’s license or

state identification card and are prohibited from seeking a

name change. Ind. Code. §§ 11-8-8-15(b), 16.

In addition to all of these requirements, a sexually violent

predator must inform law enforcement of any absences away

2 This is a simplified list. The full version can be found at Ind. Code

§ 11-8-8.

No. 19-2523 5

from home that are longer than seventy-two hours. Ind. Code

§ 11-8-8-18.3 And an “offender against children” may not

work, volunteer, or reside within 1,000 feet of a school, a

youth program center, or a public park. Ind. Code

§§ 35-42-4-10, 11.4 A person who is a “serious sex offender”

may not enter school property. Ind. Code. § 35-42-4-14(b).5

To verify addresses, a local law enforcement officer must

visit a registrant’s home at least once per year, and at least

once every ninety days if the offender is a “sexually violent

predator.” Ind. Code § 11-8-8-13(a). As of March 16, 2018,

there were close to 10,000 persons required to register as sex

or violent offenders in Indiana. R. 100-2 at 9.

After cataloguing the burdens that we have just enumer-

ated, the Indiana Supreme Court concluded that “the Act im-

poses significant affirmative obligations and a severe stigma

on every person to whom it applies. … [and the] duties im-

posed on offenders are significant and intrusive.” Wallace v.

State, 905 N.E.2d 371, 379 (Ind. 2009). As a result, the Indiana

Supreme Court concluded that the Act had the “effect of add-

ing punishment beyond that which could have been imposed

when his crime was committed,” and therefore the State could

not impose the requirements of SORA on anyone whose of-

fense predated the enactment of that statute. Id. at 384. To do

so, it held, would violate the ex post facto clause of the Indiana

Constitution. Id. As a result, Indiana does not require any

3 A “sexually violent predator” is defined in Ind. Code § 35-38-1-7.5.

4 An “offender against children” is defined in Ind. Code § 35-42-4-11.

5 A “serious sex offender” is defined in Ind. Code § 35-42-4-14(a).

6 No. 19-2523

person to register if the offense occurred prior to SORA—

provided that person remains a resident of Indiana.

This case is before us now, however, because, despite the

Wallace decision, persons with pre-SORA convictions who re-

locate to Indiana from another state where registration was

required or relocate from Indiana to another state requiring

registration and then back again, must register in Indiana,

even if Indiana would not have required them to register had

they committed their offenses in Indiana and never left.

We must pause here, before getting to the State’s reasons

for requiring these registrations, in order to untangle a Gor-

dian knot in this case. The State has argued in its briefs that

there are two situations in which the DOC decides that a per-

son is required to register upon moving to Indiana.6 Those cir-

cumstances are as follows:

(1) The substantial equivalency requirement: If an individual

relocates to Indiana after the offense of which that individual

was convicted, or its out-of-state-equivalent, became a regis-

trable offense, the DOC requires that individual to register

based on its determination that, at the time that the individual

relocated to Indiana, he was “on notice” that the offense re-

quires registration. (R. 100-1 at 24–25, R. 100-2 at 15–16). Indi-

ana requires the person to register whether or not that person

was obligated to register in the state from which that person

came.

6 The DOC and local county sheriff’s offices jointly maintain SORA and

the DOC makes a final determination as to who is required to register and

for how long each offender must register. Ind. Code, §§ 11-8-2-12.4, 11-8-

2-13(b), 36-2-13-5.5.

No. 19-2523 7

(2) The other jurisdiction requirement: If the individual is re-

quired to register in another jurisdiction and relocates to In-

diana after July 1, 2006, the DOC requires the individual to

register pursuant to Indiana Code § 11-8-8-5(b)(1), which de-

fines a “sex or violent offender” to include an individual “re-

quired to register as a sex or violent offender in any jurisdic-

tion.” (R. 100-1 at 24-25, 39; R. 100-2 at 16–17).7 Of course, one

can be required to register in another state as a result of one’s

employment or school enrollment in that state, even if he does

not live there. E.g., 730 ILCS 150/3(a-5). Thus, the State points

out that “[a] lifelong Indiana resident who would otherwise

fall within the Wallace rule will be required to register if he

works in another state that requires him to register;” State Br.

at 5. But that particular application of the other jurisdiction

requirement is not at issue here: So far as the briefing reveals,

none of the six plaintiffs was subject to registration in another

jurisdiction as a result of work, study, or some conduct apart

from residence in that jurisdiction.

In its fact section generally, and in the description of each

plaintiff, and throughout its brief, the State maintains that all

of the plaintiffs must register because of both of the statutory

requirements we have just identified. State’s Brief at 22, 23, 24,

25. As an example, the State asserts in its brief that Gary

Snider must register because of both the substantial equiva-

lency requirement (the crime he committed in Michigan in

1988 is substantially equivalent to an Indiana registrable of-

fense), and because of the other jurisdiction requirement (he

7 July 1, 2006 is the date that the Indiana General Assembly amended

SORA to apply the statute’s requirements to any “person who is required

to register as a sex offender in any jurisdiction.” See 2006 Ind. P.L. 140

§ 5(b)(1) (codified at Ind. Code §§ 11-8-8-4.5(b)(1), 11-8-8-5(b)(1)).

8 No. 19-2523

was required to register in Michigan). State’s Brief at 23–24.

Snider committed his crime in 1988, long before Indiana’s

SORA was enacted, and moved to Indiana in 2003—three

years before Indiana enacted the other jurisdiction require-

ment of SORA. Nevertheless, the State’s brief asserts that he

was required to register under both provisions. This is but one

of several conflicting assertations that the State makes about

Snider. It also presents two others. In its representative depo-

sition pursuant to Federal Rule of Civil Procedure 30(b)(6),

the State asserted that because Snider moved to Indiana be-

fore the other jurisdiction requirement was added to SORA,

he would only have to register on the basis of the substantial

equivalency requirement. R. 100-1 at 25. And at oral argu-

ment, the State asserted that Indiana’s ex post facto clause

would not allow the state to require registration from some-

one whose only basis for that registration was a pre-SORA of-

fense that is the substantial equivalent of an Indiana offense

made registrable by SORA. Oral argument at 8:57–12:00. To

put this all together, the State’s briefs assert that Snider had to

register for both reasons. At the 30(b)(6) deposition the State

maintained that Snider would not have to register under the

other jurisdiction prong because he arrived in Indiana before

that requirement was added. And at oral argument, the State

asserted that Snider could not be required to register because

of the substantial equivalency requirement alone because of

the Supreme Court decision in Wallace. We do not what else

to call this other than “a mess.”

Part of this confusion stems from the odd manner in which

Indiana describes the operation of SORA. It refers to the stat-

utory requirements of SORA as one aspect of the law, and

then distinguishes the statutory law from the rulings by the

Indiana Supreme Court invalidating certain applications of

No. 19-2523 9

those laws. This, however, is not how we ordinarily describe

operative state law. For example, in 2003, the U.S. Supreme

Court declared unconstitutional the Texas statute making it a

crime for two persons of the same sex to engage in certain in-

timate sexual conduct. Lawrence v. Texas, 539 U.S. 558, 123

S. Ct. 2472 (2003). Despite this ruling, the Texas statute that

makes it a crime if a person “engages in deviate sexual inter-

course with another individual of the same sex” remains on

the books in Texas to this day. See Tx. Penal Code § 21.06. Yet

no one ought to write a brief which describes same sex behav-

ior as illegal in Texas under the statute but allowed by the Su-

preme Court’s interpretation of the Constitution. Legisla-

tively enacted laws, modified by case law, together as a whole

become the law of the land and we do not continue to refer to

the statutory law of Texas separately from the law of Texas as

limited, clarified, or modified by the judiciary.

From this we can make several brief conclusions before

continuing on with the facts, with the promise for more anal-

ysis later. First, the decision in Wallace prevents the State from

requiring new (or returning) residents to Indiana to register

under the substantial equivalency prong alone, if their crime

occurred before the date that SORA would have required reg-

istration for the substantially equivalent crime in Indiana. The

State concedes this in its brief, at oral argument, and in a sup-

plemental filing. See State’s brief at 21 (“[A]n offender who

committed his registrable offense prior to the adoption of

SORA and who would not have any registration obligations

but for SORA cannot be required to register; under Wallace,

the marginal effects of such an application would be puni-

tive.); id. at 38 (“[A] pre-SORA offender who moves to Indiana

from a State where he was not required to register will also

not be required to register in Indiana.”); State’s Reply Brief at

10 No. 19-2523

6 (“[W]hether SORA can be applied to an offender whose

criminal conduct predates the statute turns on whether he has

already been required to register[;] … these decisions would

thus permit applying SORA if he were a lifelong Hoosier

whose out-of-state travel triggered another State’s registra-

tion requirement, while they would prohibit applying SORA

if he were a recent resident whose prior State did not require

registration.”) (emphasis removed); Oral argument at 3:28–

3:44 and 8:57–12:00 (asserting that if a pre-SORA offender

moved to Indiana from a state where he was not required to

register, he would not be required to register in Indiana even

if his crime was a substantially equivalent offense); State’s

Rule 28(j) letter dated April 13, 2020 at 1–2 (“Under the Indi-

ana Supreme Court’s decisions, Indiana’s Ex Post Facto

Clause prohibits applying SORA to someone whose offense

predates SORA and who is not required to register in another

State.”)

Second, as we will explain later, Wallace also prevents the

State from requiring registration under the other jurisdiction

prong alone if the new (or returning) resident relocated to In-

diana before 2006, when the other jurisdiction requirement

was added to SORA. With this in mind, we can continue with

the remaining facts.

The plaintiffs maintain that five of them have been re-

quired to register as sex offenders in Indiana because of both

the substantial equivalency determination and the other juris-

diction requirement, and that Snider had to register solely be-

cause of the substantial equivalency requirement.8 As we

8 Hope has to register because of the “registrable offense” part of the sub-

stantial equivalency/registrable offense requirement. Because he

No. 19-2523 11

noted above, we cannot understand why the State maintains

that each plaintiff had to register for both reasons under the

statute, but at the same time oddly concedes that it cannot re-

quire a pre-SORA offender to register on the basis of the sub-

stantial equivalency requirement alone.

As we shall see, ultimately these distinctions about why

an offender was required to register are not relevant to the

outcome of this case. Instead, our outcome depends on the

fact that two people who committed the same crime at the

same time have different registration requirements depend-

ing on their history of residency in Indiana. Nevertheless, be-

cause the State has created much confusion with its bifurca-

tion of the “statutory law” and the “constitutional law,” we

will make clear that we are proceeding with our analysis of

the case with the understanding that the State cannot apply

the substantial equivalency registration requirement to any

plaintiff who committed his offense before that offense be-

came registrable in Indiana.9 As a matter of Indiana law, it

may only require registration of pre-SORA offenders by those

who were required to register in another jurisdiction.10 This

committed his crime in Indiana it need not be compared to Indiana crime

to establish equivalence.

9 The first iteration of SORA became effective on March 2, 1994. All of the

plaintiffs committed their offenses prior to this date, with the exception of

Standish, who committed his offense on February 1, 1995. But the offense

Standish committed did not become a registrable offense in Indiana until

the statute was amended years later.

10 We conclude, as we discuss further below, that this creates an over-

looked problem with requiring registration from Snider and Bash, both of

whom arrived in Indiana prior to the addition of the other jurisdiction re-

quirement. We address this problem later.

12 No. 19-2523

in turn is what gives rise to the plaintiffs’ right-to-travel claim:

having relocated from other states that required them to reg-

ister, they are burdened with an obligation to register in Indi-

ana that would not be imposed on a similarly-situated of-

fender who has lived in Indiana continuously since commit-

ting his offense.

Before we turn to the individual circumstances of the

plaintiffs, we can describe the generalized facts that apply to

all of them. As a historical matter, it appears that all six of the

plaintiffs were required to register in Indiana based on a

determination by the DOC and local sheriff’s departments

that they had committed a registrable offense or the out-of-

state equivalent to such an offense and that they had been

required to register in another jurisdiction. Although they

committed their offenses before SORA was amended to

require registration on these grounds, the State deemed the

amendments applicable to the plaintiffs because they had

relocated (or returned) to Indiana after SORA was revised to

include these registration requirements. Indiana would not

have required them to register on these grounds had they

been living in the State at the time they committed their

offenses and remained there continuously thereafter. The

State now concedes that, as a matter of Indiana law (including

the Indiana Supreme Court’s decision in Wallace), the

plaintiffs can only be compelled to register based on the other

jurisdiction requirement—that is, because they were required

to register in another state. (We will discuss below why this

theory is problematic as it relates to Snider and Bash, who

moved to Indiana before the other jurisdiction requirement

was enacted). All of the plaintiffs committed their crimes a

long time ago—between approximately twenty-five to thirty-

five years ago. All have fully served their sentences resulting

No. 19-2523 13

from their sex-offense conviction.11 All qualify as an “offender

against children,” and as a “serious sex offender.” All have

lifelong labels, which are prominently displayed on the

publicly available registry. Snider is now in his mid-sixties

and committed his crime thirty-two years ago. Hope was

nineteen when he committed his crime—twenty-four years

ago. Mr. Bash was in his early teens or even younger when,

about thirty-five years ago, in the mid-1980’s, he committed

his crime. Standish, Rice, and Rush, like Snider, are all over

fifty years old, and have families that include children (and in

at least one case, grandchildren) of their own.

Brian Hope pled guilty to child molestation in 1996 for a

crime that occurred in 1993 (twenty-seven years ago). He

completed his probation in 2000 and has not been under any

form of supervised release since then. In 2004 he left Indiana

and relocated to California and then Texas, where he was re-

quired to register as a sex offender.12 He returned to Indiana

in 2013 to help care for a sick grandfather. Hope is the only

plaintiff who committed his offense in Indiana before the

11 Consequently, there is no restriction on their right to travel resulting

from the restraints of parole or probation. See Jones v. Helms, 452 U.S. 412,

420–21, 101 S. Ct. 2434, 2441 (1981); Williams v. Wis., 336 F.3d 576, 581 (7th

Cir. 2003).

12 There are conflicting explanations in the briefs about why Hope was

required to register in Texas. Hope claimed that it was because he was

required to register in Indiana. The State asserts that he was required to

register in Texas because his offense in Indiana was “substantially similar”

to a Texas offense and thus required registration under Texas Penal Code

Ann. § 21.11. In any event, the relevant facts here are that Hope is now

required to register in Indiana because he had been required to register in

Texas. For purposes of the application of Indiana’s SORA, the reasons for

the initial registration elsewhere are not relevant.

14 No. 19-2523

enactment of SORA, left, and then returned after SORA. Upon

his return, the state required him to register for the remainder

of his life as an “offender against children” because he was

required to register in Texas. Ind. Code § 11-8-8-5(b)(1). Be-

cause he is homeless, every seven days he must walk one to

two miles each way to the Sheriff’s office and wait in line to

register. The whole process—including travel, wait time, and

registration—can take several hours. Hope cannot live within

1,000 feet of a park, daycare, or certain other facilities. On at

least one occasion, he had to relocate from a homeless shelter

because it was located within 800 feet of a park. It is uncon-

troverted that had he remained a resident of Indiana, Wallace

would have relieved him of any obligation to register. He un-

successfully appealed the determination that he must do so to

both the Marion County Sheriff’s Department and the DOC.

A Michigan jury convicted Gary Snider in 1994 of criminal

sexual conduct in the first degree. Snider continues to deny

liability for his offense but stated in his affidavit that it was

his recollection that, at trial, the victim did not have a precise

memory of when the offense took place but testified that it

occurred in the first half of 1988 (thirty-two years ago). R. 100-

4 at 1. He married his wife while in prison, and the day he

completed his prison term in 2003, he moved to Indiana

where his wife lived and worked—three years before the In-

diana legislature added the other jurisdiction requirement to

SORA. Prior to the decision in Wallace, Snider was registered

as a sex offender. In 2006, he moved away from his wife be-

cause their home was located within 1,000 feet of a daycare.

In 2010, the Huntington County Sheriff’s Department in-

formed him that he was no longer required to register because

of the decision in Wallace (his offense predated the enactment

of that statute). In 2016, the DOC told him that Wallace no

No. 19-2523 15

longer applied and he would have to register as both a “sex-

ually violent predator” and an “offender against children”

every ninety days for the remainder of his life. He cannot en-

ter school property to see any of his five grandchildren or

great grandchildren perform in school activities.

In 1996, Joseph Standish pleaded no contest to attempted

criminal sexual conduct which occurred in Michigan in 1995

(25 years ago). He completed probation in 2001, and, when his

wife received a job in Indiana in 2013, he moved with her. In-

itially DOC did not require him to register but changed course

in 2016. He is now required to register as an “offender against

children” and a “sexually violent predator,” and must do so

at least every ninety days. Mr. Standish cannot watch his chil-

dren participate in school activities and cannot take them to

and from school.

In 1989, an Illinois court convicted and sentenced Patrick

Rice for an aggravated criminal sexual assault that took place

that year (31 years ago). Lacking a home or resources after his

release from prison in 2017, he relocated to Indiana to live

with his sister. Although Illinois required that Rice register

only for ten years, Indiana requires him to register for life

because he qualifies as a “sexually violent predator.” The

registration process for Madison County, where he first

settled, required him to pay an initial registration fee of fifty

dollars and to make multiple trips within a seventy-two-hour

period. Shortly after he was released from prison and arrived

in Indiana, he had to make eight to ten trips to the local

sheriff’s office—to register initially, to provide a copy of his

newly obtained government identification, then his newly

obtained social security card, his new telephone number, a

new e-mail address, and a Facebook account. He must repeat

16 No. 19-2523

the process any time he changes any of the listed information.

Without reliable transportation, he has to rely on other people

and their schedules to take him the six or seven miles to

register, and he must often wait an hour or more before

registering. A few months after registering in Madison

County, he had to repeat the process in Delaware County

after moving there with a partner. As an “offender against

children” and a “sexually violent predator,” he must repeat

this process every ninety days for the remainder of his life.

In 1990, Adam Bash pleaded guilty but mentally ill to the

Kentucky crime of rape in the first degree and sodomy in the

first degree for crimes committed in the mid-1980s, when he

was somewhere between a pre-teen and an early teen. In 1998,

he completed his prison sentence—which he spent mostly in

psychiatric or medical facilities—without any required parole

or probation. Upon his release, he relocated to Ohio, where he

was required to register, before settling in Indiana around

1999 or 2000, about six years before SORA’s other jurisdiction

requirement was enacted. Nevertheless, he is required to reg-

ister in Indiana annually as an “offender against children.”

Bash subsists on social security benefits, and because of his

conviction, does not qualify for any public housing assistance.

His housing options also have been limited by the prohibition

on living within 800 feet of certain facilities. All of this makes

it difficult for him to pay the fifty-dollar registration fee and

the five-dollar change-of-address fee, the latter of which, de-

spite its name, has been imposed when he registered a change

in car and haircut. Because of his precarious financial situa-

tion, he sometimes has to go on a payment plan. Bash has full

legal custody of his young son, but he cannot enter school

property for his activities or for parent-teacher conferences.

No. 19-2523 17

In 1992, Scott Rush was charged and convicted in a Florida

state court of sexual battery of a child less than twelve years

old. He completed his sentence in 1995, and his probation in

2005. In 2017 his employer closed its Florida office and offered

him a position in Indiana, which required him to relocate.

Rush qualifies as a sexually violent predator and an offender

against children and must register every ninety days (or

sooner if his information changes). He lives approximately six

miles from the sheriff’s office where he must register, and the

process generally takes more than an hour, but he must take

an entire day off of work to complete the process, as his job is

not flexible enough to allow him to come and go. Mr. Rush

has been affected most significantly from the prohibition on

entering school property, as his daughter has a learning disa-

bility, and every two to three months he must miss the school

meeting convened to discuss her needs and individualized

educational program.

Hope and Snider filed suit for declaratory and injunctive

relief against the Commissioner of the DOC, their respective

county prosecutors’ offices and respective county sheriffs

challenging the constitutionality of the statute, later adding

Standish as a plaintiff. The district court entered a preliminary

injunction on April 6, 2017, enjoining Indiana’s enforcement

of SORA against all three plaintiffs. A few months after Hope

and Snider filed their complaint, Rice, Bash, and Rush filed a

similar complaint. By agreement, the cases were consolidated,

and the preliminary injunction was extended to the new

plaintiffs. On July 9, 2019, the district court issued its Entry on

Cross-Motions for Summary Judgment holding that “SORA

violates Plaintiffs’ fundamental right to travel, Plaintiffs’ right

to equal protection of the laws, and the Constitution’s prohi-

bition against retroactive punishment.” R. 118 at 36.

18 No. 19-2523

Indiana’s rule that those moving into the state

must register while similarly situated residents

do not have to register violates Plaintiffs’ funda-

mental right to travel and guarantee to equal

protection of the laws. The application of

SORA’s requirements retroactively also violates

the Constitution’s prohibition against retroac-

tive punishment. That means the registration re-

quirements as applied here cannot stand.

Id. at 2. The State defendants appealed. We now affirm the

district court’s finding that application of SORA to this class

of offenders violates their fundamental right to travel in that

it treats them less favorably than Indiana citizens with com-

parable criminal histories who lived in Indiana before the

other jurisdiction requirement of SORA was enacted.

II.

We review the district court’s summary judgment deci-

sion de novo. E.g., Johnson v. Enhanced Recovery Co., 961 F.3d

975, 982 (7th Cir. 2020). Because we conclude that the State’s

application of SORA to the plaintiffs impermissibly interferes

with their right to travel, we do not reach the district court’s

alternative finding that it also violates their rights under the

ex post facto clause of the United States Constitution.

Although all six of the plaintiffs were convicted of sex of-

fenses before SORA would have required them to register for

those offenses, Indiana nonetheless requires each of them to

register based on subsequent amendments to SORA. As we

have noted, throughout this litigation, Indiana has repre-

sented that each of the plaintiffs is required to register on ei-

ther of two independent grounds: (1) he relocated to Indiana

No. 19-2523 19

after his offense (or its out-of-state equivalent) became a reg-

istrable offense under SORA (the substantial equivalency re-

quirement); or (2) he was required to register in his previous

state of residence (the other jurisdiction requirement). But the

State’s appellate briefs defend the plaintiffs’ registration obli-

gation solely on the basis of the other jurisdiction require-

ment, and as noted the State’s lawyer conceded at oral argu-

ment that Indiana’s ex post facto clause precludes application

of the substantial equivalency requirement to the plaintiffs. It

is therefore clear that Indiana places no reliance on the sub-

stantial equivalency requirement as a basis for demanding

that the plaintiffs register as sex offenders.

As to the plaintiffs’ claim that Indiana has interfered with

their right to travel by requiring them to register, the State’s

legal theory is that SORA does not make the sort of distinction

between newer and more longstanding citizens that the per-

tinent line of Supreme Court right-to-travel cases forbids.

What triggers SORA’s application to the plaintiffs, the State

emphasizes, is not the timing of their arrival in Indiana but

rather the fact that they were subject to a registration require-

ment in another jurisdiction. Thus, someone relocating to In-

diana today will have no obligation to register there if he was

under no such obligation in his former state of residence,

whereas a lifelong Indiana citizen will incur an obligation to

register in Indiana if he becomes obligated to register in an-

other state by virtue of taking a job or enrolling in school in

that state. Our dissenting colleague makes essentially the

same point: Application of the other jurisdiction requirement

turns not on whether or when an offender moved to Indiana

from another state but rather on another state’s imposition of

a duty to register, period. Indiana is not intentionally treating

newly arrived offenders differently and thus burdening their

20 No. 19-2523

right to travel; at most, the burden that an offender incurs on

relocating to Indiana is incidental to his interstate travel.

Whatever superficial appeal this line of reasoning might

have in the abstract, it does not defeat the plaintiff’s right-to-

travel claim. Indiana is not contending that the plaintiffs must

register because they committed a registrable offense or its

equivalent, nor is Indiana relying on some other aspect of the

plaintiffs’ conduct in another state signaling a danger that

warrants the plaintiffs’ registration in Indiana. It instead relies

solely on the fact that another state, in the exercise of its inde-

pendent judgment, required each of the plaintiffs to register,

although Indiana itself would not have required the plaintiffs

to do so in the first instance. Because Indiana is placing exclu-

sive reliance upon another state’s decision to require an of-

fender to register, it is necessarily (if implicitly) using an of-

fender’s travel as the trigger for its own registration require-

ment. It is true that there are two types of travel implicated by

the other jurisdiction requirement: relocation to Indiana from

another state and commuting from Indiana to another state

for work or study. All six of the plaintiffs have relocated to

Indiana, and it is that particular type of travel, and its unique

place in the Supreme Court’s right-to-travel jurisprudence,

that is at issue here. Indiana commuters who have picked up

registration obligations elsewhere may or may not have their

own constitutional claim—theirs is a different form of travel

for constitutional purposes—but no such claim has been

raised or briefed in this case. For the plaintiffs, all of whom

committed sex offenses before those offenses became registra-

ble in Indiana, it is the fact of their subsequent relocation that

gives rise to a duty to register in Indiana; had they lived in

Indiana at the time of their offenses and never left, they would

not be required to register today. True enough, their former

No. 19-2523 21

states of residence also required them to register. Indiana is

choosing to continue (or as to Bash and Snider, resurrect)

those obligations. But what matters for purposes of the plain-

tiffs’ constitutional claim is that they are now Indiana citizens.

And because they are citizens who relocated (traveled) to In-

diana from other jurisdictions, they are subject to burdens

that Indiana pre-SORA offenders are not by virtue of the Wal-

lace decision. Indiana has thus created two classes of other-

wise similarly situated citizens based on whether or not they

previously lived (or were otherwise present) in a state that re-

quired them to register. The distinction is purposeful, as it ex-

pressly looks to what obligations have been imposed on a per-

son elsewhere to determine what obligations he will now

have within the borders of Indiana. This disparate treatment

is incompatible with the Supreme Court’s right-to-travel ju-

risprudence, as we now explain.

Although a right to travel is not expressly mentioned in

the Constitution, it is nonetheless firmly embedded in federal

jurisprudence. Saenz v. Roe, 526 U.S. 489, 498, 119 S. Ct. 1518,

1524 (1999). See also Attorney General of N.Y. v. Soto-Lopez, 476

U.S. 898, 901, 106 S. Ct. 2317, 2320 (1986) (“Freedom to travel

throughout the United States has long been recognized as a

basic right under the Constitution.”) (cleaned up); Shapiro v.

Thompson, 394 U.S. 618, 629, 89 S. Ct. 1322, 1329 (1969) (“This

Court long ago recognized that the nature of our Federal Un-

ion and our constitutional concepts of personal liberty unite

to require that all citizens be free to travel throughout the

length and breadth of our land uninhibited by statutes, rules,

or regulations which unreasonably burden this movement.”),

overruled in part on other grounds by Edelman v. Jordan, 415 U.S.

651, 671, 94 S. Ct. 1347, 1359–60 (1974). Indeed, the short-lived

Articles of Confederation expressly recognized a right of “free

22 No. 19-2523

ingress and regress to and from any other State” and entitled

the free inhabitants of each state to “all privileges and immun-

ities of free citizens in the several States.” Articles of Confed-

eration, art. IV, § 1 (1778).

As the cases have defined it, the right to travel encom-

passes at least three distinct, but related, components: (1) the

right of a citizen of one state to enter and leave another state;

(2) the right of a citizen of the first state to be treated as a wel-

come visitor rather than an unfriendly alien by the second

state; and (3) the right of a traveler who elects to settle in and

become a permanent resident of another state to be treated on

par with other citizens of that state. Saenz, 526 U.S. at 500, 119

S. Ct. at 1525.

The parties agree it is the third right, if any, that is impli-

cated here. So far as the plaintiffs in this case are concerned,

whether or not SORA imposes a duty to register depends

upon whether one settled (or re-settled) in Indiana after the

relevant provision of SORA was enacted: A sex offender who

lived in Indiana before the other jurisdiction requirement was

adopted and has remained a citizen of Indiana since that time,

without taking a job or engaging in some other activity in an-

other state that triggers a duty to register in that state, is ex-

empt from SORA’s other jurisdiction requirement, whereas

an individual with the identical criminal history who relo-

cated to Indiana after that requirement was adopted in 2006,

from a state that compelled him to register there, is subject to

SORA’s registration requirement.

Historically, there has been some uncertainty as to the con-

stitutional underpinning of the right to travel and thus as to

the appropriate framework for evaluating claims that a state

provision like SORA intrudes upon that right. The right to

No. 19-2523 23

travel has been variously ascribed to the Privileges and Im-

munities Clause of Article IV of the Constitution (the succes-

sor to a kindred provision in the Articles of Confederation),

the Commerce Clause, and the Privileges or Immunities

Clause of the Fourteenth Amendment. Soto-Lopez, 476 U.S. at

902, 106 S. Ct. at 2320. And, as relevant here, a number of cases

evaluating the legitimacy of state statutes according benefits

to residents based on the date of their arrival to or the dura-

tion of their residence within a state have examined those

classifications under the Equal Protection Clause of the Four-

teenth Amendment. See, e.g., Hooper v. Bernalillo Cnty. Asses-

sor, 472 U.S. 612, 618 & n.6, 623, 105 S. Ct. 2862, 2866 & n.6,

2869 (1985); Zobel v. Williams, 457 U.S. 55, 60–64 & n.6, 102

S. Ct. 2309, 2112–2315 & n.6 (1982); Shapiro, 394 U.S. at 632–33,

89 S. Ct. at 1330 (1969).13

But the Court’s decision in Saenz placed the third compo-

nent of the right to travel squarely within the domain of the

Privileges or Immunities Clause of the Fourteenth Amend-

ment, which provides:

All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are

citizens of the United States and of the State

13 “Durational residency requirements are those that demand a person re-

side in a state for a given period of time before gaining benefits. Fixed-

point residency requirements demand that at a legislatively determined

moment (a specific date or event, for example, a veteran’s date of enlist-

ment) the applicant was a resident in the state. While an unsuccessful ap-

plicant can satisfy a durational residence requirement in the future, an ap-

plicant who fails to satisfy a fixed-point residence requirement cannot

cure the defect with the passage of time.” Harris v. Hahn, 827 F.3d 359, 362

n.4 (5th Cir. 2016).

24 No. 19-2523

wherein they reside. No State shall make or en-

force any law which shall abridge the privileges

or immunities of citizens of the United States;

….

U.S. Const., amend. XIV, § 1. Saenz, 526 U.S. at 502–03, 119

S. Ct. at 1526. Saenz concerned a California statute which, for

a period of twelve months after a new resident’s arrival, lim-

ited the maximum welfare benefits available to that resident

to the amount he was eligible to receive in the state where he

formerly resided (assuming that amount was less than Cali-

fornia’s relatively generous benefits). This durational resi-

dency provision, the Court observed, implicated “the right of

the newly arrived citizen to the same privileges and immuni-

ties enjoyed by other citizens of the same State. That right is

protected not only by the new arrival’s status as a state citizen,

but also by her status as a citizen of the United States.” Id. at

502, 119 S. Ct. at 1526. And it is this latter right that the Four-

teenth Amendment’s Privileges or Immunities Clause ex-

pressly addresses:

Despite fundamentally differing views concern-

ing the coverage of the Privileges or Immunities

Clause of the Fourteenth Amendment, most no-

tably expressed in the Slaughter-House Cases, 16

Wall. 36, 21 L. Ed. 394 (1872), it has always been

common ground that this Clause protects the

third component of the right to travel. Writing

for the majority in the Slaughter-House Cases,

Justice Miller explained that one of the privi-

leges conferred by this Clause “is that a citizen

of the United States can, of his own volition, be-

come a citizen of any State of the Union by a

No. 19-2523 25

bonâ fide residence therein, with the same rights

as other citizens of the State. Id., at 80. Justice

Bradley, in dissent, used even stronger lan-

guage to make the same point:

The states have not now, if they

ever had, any power to restrict

their citizenship to any classes or

persons. A citizen of the United

States has a perfect constitutional

right to go to and reside in any

State he chooses, and to claim citi-

zenship therein, and an equality

of rights with every other citizen;

and the whole power of the nation

is pledged to sustain him in that

right. He is not bound to cringe to

any superior, or to pray for any act

of grace, as a means of enjoying all

the rights and privileges enjoyed

by other citizens. Id., at 112–113.

That newly arrived citizens “have two political

capacities, one state and one federal,” adds spe-

cial force to their claim that they have the same

rights as others who share their citizenship. Nei-

ther mere rationality nor some intermediate

standard should be used to judge the constitu-

tionality of a state rule that discriminates

against some of its citizens because they have

been domiciled in the State for less than a year.

The appropriate standard may be more

26 No. 19-2523

categorical than that articulated in Shapiro, …

but it is surely no less strict.

Saenz, 526 U.S. at 503–04, 119 S. Ct. at 1526–27 (footnote omit-

ted). See also A.W. by & through Doe v. Neb., 865 F.3d 1014, 1020

n.3 (8th Cir. 2017); Harris v. Hahn, 827 F.3d 359, 370 (5th Cir.

2016); Selevan v. N.Y. Thruway Auth., 584 F.3d 82, 103 (2d Cir.

2009); Gean v. Hattaway, 330 F.3d 758, 771 (6th Cir. 2003); Rus-

sell v. Hug, 275 F.3d 812, 822 (9th Cir. 2002).

Insofar as the plaintiffs here are concerned, Indiana’s

SORA creates two classes of Indiana citizens, with the 2006

adoption of the other jurisdiction requirement marking the di-

viding line between the two classes: those who resided in In-

diana prior to the enactment of SORA’s other jurisdiction re-

quirement (and remained residents thereafter without incur-

ring a registration obligation in any other state), and those

who arrived later. The former enjoy the full protection of In-

diana’s ex post facto clause as interpreted by Wallace and may

not be burdened with the various aspects of the duty to regis-

ter that Wallace deemed to be penalties, so long as they do not

venture out of the State to engage in activity that might sub-

ject them to a registration requirement elsewhere. If, however,

they settled in Indiana after the other jurisdiction provision of

SORA was enacted, they may be subject to those very penal-

ties, regardless of when they committed their offenses.

This sets up the very sort of multi-tiered state citizenship

that the Supreme Court’s right-to-travel cases prohibit. See

Saenz, 526 U.S. at 507, 119 S. Ct. at 1528 (“Neither the duration

of respondents’ California residence, nor the identity of their

prior States of residence, has any relevance to their need for

benefits. Nor do those factors bear any relationship to the

State’s interest in making an equitable allocation of the funds

No. 19-2523 27

to be distributed among its needy citizens.”); Soto-Lopez, 476

U.S. at 904, 106 S. Ct. at 2322 (civil service employment pref-

erence granted only to those veterans who resided in state at

time they entered military service) (“The analysis in all of

these cases … is informed by the same guiding principle—the

right to migrate protects residents of a State from being dis-

advantaged, or from being treated differently, simply because

of the timing of their migration, from other similarly situated

residents.”); Hooper, 472 U.S. at 623, 105 S. Ct. at 2868 (prop-

erty tax exemption limited to veterans who resided in state

prior to specified date) (“The State may not favor established

residents over new residents based on the view that the State

may take care of ’its own,’ if such is defined by prior resi-

dence. Newcomers, by establishing bona fide residence in the

State, become the State’s ’own’ and may not be discriminated

against solely on the basis of their arrival in the State after

May 8, 1976.”); Zobel, 457 U.S. at 64, 102 S. Ct. at 2314–15 (pub-

lic oil dividends distributed to state residents based on the

length of their residence) (“If the states can make the amount

of a cash dividend depend on length of residence, what would

preclude varying university tuition on a sliding scale based

on years of residence—or even limiting access to finite public

facilities, eligibility for student loans, for civil service jobs, or

for government contracts by length of domicile? Could states

impose different taxes based on length of residence? Alaska’s

reasoning could open the door to state apportionment of

other rights, benefits, and services according to length of res-

idency. It would permit the states to divide citizens into ex-

panding numbers of permanent classes. Such a result would

be clearly impermissible.”) (footnotes omitted); Mem. Hosp. v.

Maricopa Cnty., 415 U.S. 250, 261–62, 94 S. Ct. 1076, 1084 (1974)

(requiring one year’s residence to be eligible for non-

28 No. 19-2523

emergency medical care at public expense) (“Not unlike the

admonition of the Bible that, ‘Ye shall have one manner of

law, as well for the stranger, as for one of your own country,’

Leviticus 24:22 (King James Version), the right of interstate

travel must be seen as insuring new residents the same right

to vital government benefits and privileges in the States to

which they migrate as are enjoyed by other residents. The

State of Arizona’s durational residence requirement for free

medical care penalizes indigents for exercising their right to

migrate to and settle in that State.”); Shapiro, 394 U.S. at 633,

89 S. Ct. at 1330 (various state provisions requiring one year’s

residence to be eligible for welfare assistance) (“We recognize

that a State has a valid interest in preserving the fiscal integ-

rity of its programs. … But a State may not accomplish such a

purpose by invidious distinctions between classes of its citi-

zens.”).

Just as in those cases, Indiana’s decision to make the ap-

plicability of SORA dependent upon the date of a citizens’ ar-

rival to the State (before or after the relevant statutory provi-

sion took effect) implicates the right to travel by imposing

greater burdens on newly arrived residents. In this respect,

newer citizens of Indiana—including the plaintiffs—are not

accorded the same rights as more longstanding residents who

are otherwise similarly situated in terms of their criminal his-

tory. This discriminatory classification is a penalty in and of

itself and can only survive if it satisfies strict scrutiny. See

Saenz, 526 U.S. at 504–05, 119 S. Ct. at 1527. Accordingly, the

State must demonstrate that its differential treatment of Indi-

ana citizens is necessary to promote a compelling governmen-

tal interest. Id. at 499, 119 S. Ct. at 1524 (citing Shapiro, 394 U.S.

at 634, 89 S. Ct. at 1331).

No. 19-2523 29

The discriminatory application of SORA to newer resi-

dents does not satisfy this demanding standard and, indeed,

the State’s counsel conceded at oral argument that it cannot

do so. Indiana surely has a strong interest in protecting its res-

idents from the potential predations of convicted sex offend-

ers. We may assume arguendo that SORA’s requirements fur-

ther that interest. But singling out only newer citizens with a

history of sex offenses to the exclusion of more longstanding

citizens with the same criminal history does not further that

interest: the distinction is not even rational. Cf. F.C.C. v. Beach

Commc’ns, Inc., 508 U.S. 307, 313, 113 S. Ct. 2096, 2101 (1993)

(statutory classification that neither proceeds along suspect

lines nor infringes on fundamental constitutional rights is re-

viewed for rational basis); see Doe v. Penn. Bd. of Prob. & Parole,

513 F.3d 95, 108–112 (3d Cir. 2008) (subjecting an out-of-state

sex offender to community notification if he transfers his su-

pervision to Pennsylvania, but subjecting Pennsylvania of-

fender to community notification only if, following a hearing,

he is designated a “sexually violent predator,” lacks rational

basis and therefore violates equal protection); Hendricks v.

Jones ex rel. Okla. Dep’t of Corr., 349 P.3d 531, 536 (Okla. 2013)

(requiring Oklahoma resident convicted of sex offense in an-

other jurisdiction to register regardless of offense date, but re-

quiring Oklahoma resident convicted of comparable offense

in Oklahoma to register only if convicted after enactment of

Oklahoma’s SORA, was irrational and violates equal protec-

tion); A.C.L.U. of N.M. v. City of Albuquerque, 137 P.3d 1215,

1226–27 (N.M. Ct. App. 2006) (requiring sex offenders visiting

city to register depending on whether they committed their

offenses out of state or in state was irrational and violated

equal protection); see also Williams v. Vt., 472 U.S. 14, 23, 105

S. Ct. 2465, 2472 (1985) (restricting Vermont tax credit for

30 No. 19-2523

taxes paid to another state on automobile purchase in that

state solely to Vermont residents who lived in Vermont at

time of purchase violates equal protection: “residence at the

time of purchase is a wholly arbitrary basis on which to dis-

tinguish among present Vermont registrants …”). We are

pointed to no evidence indicating, nor does the State suggest,

that individuals who began to reside in Indiana after the other

jurisdiction provision of SORA was enacted are more likely to

re-offend than those who were already residents prior to that

time. Below, the State suggested that absent this arrangement,

an individual currently living in another state whose sex of-

fense predates SORA’s other jurisdiction provision but who is

subject to registration in that other state might have an incen-

tive to relocate to Indiana in order to evade registration. But

we have no reason to suspect that a move to Indiana would

be prompted by that incentive as opposed to the prospect of

a better job, a wish to be close to family, or Indiana’s lower

cost of living, and the State itself has abandoned this argu-

ment on appeal. In any case, the aim of deterring in-migration

to Indiana from other states is constitutionally impermissible.

See Saenz, 526 U.S. at 506, 119 S. Ct. at 1527–28 (citing Shapiro,

394 U.S. at 631, 89 S. Ct. at 1329).

We recognize, as the district court did, that the Indiana

legislature may have wished to avoid this discriminatory clas-

sification and instead apply SORA’s requirements to all sex

offenders residing in Indiana, regardless of the date of their

convictions, but that it was precluded from doing so by Wal-

lace’s holding that imposing a registration requirement on of-

fenders whose convictions pre-dated SORA’s regulatory re-

quirements violated Indiana’s ex post facto provision. So the

distinction may well be driven more by the Indiana Supreme

Court’s holding in Wallace than by any legislative judgment

No. 19-2523 31

as to the relative risks posed by newer and more longstanding

residents. But that merely makes plain the point that the clas-

sification deprives newer residents of a valuable right granted

by the Indiana Constitution—the right not to be penalized for

offenses of which they were convicted before the other juris-

diction provision of SORA was enacted.

Against all of this, the State as noted argues that the right

to travel as recognized in cases like Saenz is, in reality, not bur-

dened here, in that the applicability of SORA is tied not to the

duration of one’s residency in Indiana but rather to the SORA-

like requirements to which arriving citizens were subject in

their former states of residence. In other words, from the

State’s point of view, what triggers SORA is not the recency

of one’s arrival to Indiana but the registration requirement to

which the new resident was subject in his former state; and in

that respect, Indiana is simply choosing to leave in effect (or

reimpose) the very requirement that would have burdened

the offender had he never traveled across state lines at all.

And if the new arrival was not subject to a registration re-

quirement in his former state of residence, Indiana will not

impose one. The fact that the other jurisdiction requirement

can also apply to a lifelong Indiana resident who becomes

subject to a registration requirement in another state by virtue

of his work, study, or other activity in that state reinforces the

State’s point.

But for at least three reasons, the argument is unavailing.

First, notwithstanding Indiana’s insistence that its scheme is

not tied to the duration of one’s residency, for individuals like

the plaintiffs, the fact of one’s relocation from another

jurisdiction is necessarily and implicitly an element of the

other jurisdiction requirement, as one cannot become subject

32 No. 19-2523

to this provision of SORA without having moved to Indiana

from another state (where he was required to register); it is

this relocation from one state to another that brings the third

component of the right to travel into play. See A.W., 865 F.3d

at 1020 n.3 (noting that construing Nebraska’s SORA to

compel juvenile to register based on registration obligation

imposed by Michigan before he relocated to Nebraska would

“raise[ ] troubling implications under the third prong of the

right to travel”). That connection is most clearly illustrated by

application of the other jurisdiction requirement to Hope:

Hope, having committed his offense in Indiana pre-SORA,

would not have been required to register but for the fact that

he later relocated to Texas and was required to register there;

his subsequent decision to return to Indiana was what

triggered a duty to register under SORA’s other jurisdiction

requirement. Had he never left Indiana, he would not have

been required to register. Furthermore, the timing of a

person’s relocation to Indiana is a critically important factor

in the application of SORA. As we have said, for the Indiana

citizen who was living in Indiana before the other jurisdiction

requirement was added to SORA in 2006, there will be no

obligation to register unless he chooses to leave the State for

work or other activity which might trigger a registration

requirement elsewhere. But for the individual who moves to

Indiana after 2006, the other jurisdiction requirement will

come into play and trigger a duty to register so long as he was

subject to registration in his former state. In this respect, this

case is not unlike Hooper, 472 U.S. 612, 105 S. Ct. 2862, in which

a fixed-point residency requirement made one’s eligibility for

a veteran’s tax exemption turn upon whether he was a

resident of New Mexico as of a particular date. The Supreme

Court held unequivocally that the State could not

No. 19-2523 33

discriminate against its own citizens based on the timing of

their arrival in the State. Id. at 623, 105 S. Ct. at 2868.14 Here,

relocation to Indiana after 2006 will not always trigger a

requirement to register under SORA: If one was not required

to register in his former home state, the move by itself will not

require registration in Indiana. At the same time, relocation to

Indiana from a jurisdiction where one was required to register

is not the only way in which the other jurisdiction requirement

is triggered: work, study, or other activity engaged in by an

Indiana resident (however long-tenured) in another

jurisdiction that requires him to register there will trigger a

duty to register in Indiana. Even so, as to relocating citizens

who arrive in Indiana after 2006, the other jurisdiction

requirement operates to create two classes of otherwise

similarly-situated residents, one of which must register and

one of which need not. Cf. Saenz, 526 U.S. at 497 & n.8, 119 S.

Ct. at 1523 & n.8 (because California public benefit levels were

sixth highest in nation, its one-year cap on benefits for new

residents would not adversely affect all persons relocating to

California but only those arriving from one of 44 states or

14 By contrast, in Sklar v. Byrne, 727 F.2d 633 (7th Cir. 1984), the City of

Chicago had banned the possession of handguns beginning on April 10,

1982, while grandfathering the rights of city residents who had registered

their handguns before that date. The plaintiff, who had moved to Chicago

from a suburb shortly after the handgun ordinance took effect and thus

could not lawfully possess a gun, argued that the ordinance disadvan-

taged new residents of the city and in that way interfered with his right to

travel. We held to the contrary, noting that the ordinance did not “single

out new residents of Chicago for discriminatory treatment.” Id. at 638. Ra-

ther, any Chicago resident, new or longstanding, who did not possess a

registered handgun before the ordinance took effect would be unable to

do so thereafter. Id. Any impact on the travel rights of new Chicago resi-

dents was “only indirect.” Id.

34 No. 19-2523

District of Columbia that had lower benefit levels). Creating

such classes of citizens based on the fact and timing of their

relocation is directly at odds with the Fourteenth

Amendment’s Privileges or Immunities Clause. See id. at 504–

07, 119 S. Ct. at 1527–28.

Second, to the extent the State’s theory presumes that the

other jurisdiction requirement applies to plaintiffs Bash and

Snider, who relocated to Indiana before that requirement was

added to SORA in 2006, a few additional words are in order.

The State’s counsel has insisted that the other jurisdiction re-

quirement applies to them as it does to the other plaintiffs be-

cause Snider and Bash were required to register in their for-

mer states of residence (Ohio in Bash’s case, Michigan in

Snider’s). This is obviously consistent with the State’s broader

point that the timing of one’s arrival in Indiana does not mat-

ter. Our dissenting colleague shares this understanding. But

we cannot see any possible reason why the Indiana Supreme

Court’s Wallace decision permits this application given the

timing of Bash’s and Snider’s arrival in Indiana. When Bash

and Snider arrived in Indiana pre-2006, the other jurisdiction

requirement was not yet in effect and, of course, that is the

only provision on which the State now relies to justify their

obligation to register. So, at the time they relocated to Indiana,

they were in the same position as a lifelong resident of Indi-

ana with a similar criminal history: there was no provision re-

quiring them to register (at least not one the State is willing to

rely upon now, or one that the Indiana Supreme Court has not

found to be unconstitutional).15 Whatever registration

15 As a factual matter, we know that Snider was nonetheless required to

register when he moved to Indiana in 2003, presumably on the basis that

his offense was the substantial equivalent of one that SORA deems

No. 19-2523 35

requirements to which Bash and Snider had been subject else-

where came to an end upon their becoming citizens of Indi-

ana.16 Re-imposing a duty to register in 2006, when SORA was

amended to include the other jurisdiction requirement, would

not constitute a mere continuation of the registration obliga-

tions to which these men were subject in their former states,

which the Indiana Supreme Court has permitted; it would in-

stead constitute a resurrection of an expired obligation and,

to that extent, a material and detrimental change in their obli-

gations as Indiana citizens. Compare Wallace, 905 N.E.2d at

384 (“[SORA] violates the prohibition on ex post facto laws

contained in the Indiana Constitution because it imposes bur-

dens that have the effect of adding punishment beyond that

which could have been imposed when [Wallace’s] crime was

committed”), with Tyson v. State, 51 N.E.3d 88, 96 (Ind. 2016)

(“[U]nlike Wallace, where the offender had no obligation to

register anywhere before the Act was passed, Tyson was re-

quired to register in Texas years before our statutory defini-

tion was amended to include him …; the challenged

registrable. But that was before the Wallace decision in 2009 made clear

that this was not permissible under Indiana’s ex post facto clause. After

Wallace was decided, Indiana freed Snider from any registration obligation

until 2016, when, upon inquiry from Michigan (Snider’s former State of

residence), Indiana again required him to register—this time, apparently,

on the basis of the other jurisdiction requirement.

16 New York’s SORA has been interpreted to require an offender’s contin-

uing registration in that state notwithstanding his relocation to another

state. Doe v. O’Donnell, 924 N.Y.S.2d 684, 686–87 (App. Div. 2011). It is

likely an outlier in that regard, however. See Samantha R. Millar, Note,

Doe v. O’Donnell and New York’s Sex Offender Registration Act: The Problem

of Continued Registration under SORA After Leaving the State, 38 CARDOZO

L. REV. 337, 359–61 (2016) (contrasting New York’s law with those of Mich-

igan, California, and New Jersey in this respect).

36 No. 19-2523

amendments merely lengthened that requirement. We simply

cannot say that transferring the obligation upon moving is

any more punitive than lengthening it to potentially last a life-

time.”) (emphasis in original), State v. Zerbe, 50 N.E.3d 368,

371 (Ind. 2016) (“the significant responsibilities with respect

to Zerbe’s registration are merely maintained across state

lines, to be fulfilled where he currently lives and works”), and

Ammons v. State, 50 N.E.3d 143, 145 (Ind. 2016) (per curiam)

(“Because Ammons was already under an obligation to regis-

ter [in Iowa] and [SORA’s other jurisdiction provisions] do

not impose any additional punishment on him, we find no ex

post facto violation.”). Why the State believes it is lawful to

effect such a material change in their obligations years after

they became Indiana citizens is a puzzle, and one it never ex-

plains: If Indiana’s ex post facto clause would forbid the appli-

cation of the substantial equivalency requirement to any of

the plaintiffs, as the State has conceded it would, why would

it not also preclude the application of the other jurisdiction

requirement to Snider and Bash, who relocated to Indiana be-

fore there was any such requirement? The district court made

no findings as to how SORA’s other jurisdiction requirement

operates, in light of Wallace, vis-à-vis persons who arrived in

Indiana before the requirement’s enactment (so far as we can

discern, it was not asked to do so). But we can see no rationale

for allowing the other jurisdiction prong to be applied to per-

sons who arrived before the enactment of that provision and

who were, in the years between their arrival and the enact-

ment, free and clear of any lawful registration obligation. Cer-

tainly, no Indiana case cited by the State or the dissent con-

dones a revival, as opposed to a continuation across state

lines, of a duty to register. Ultimately, we need not reduce this

conclusion about Indiana law to a holding, as, at the end of

No. 19-2523 37

the day, our conclusion about the right to travel precludes the

State from imposing a registration requirement on any of

these plaintiffs. It is worth noting, however, that even without

our consideration of federal constitutional law, it seems that

under the Indiana Supreme Court’s holding in Wallace, nei-

ther Snider nor Bash (both of who arrived in Indiana prior to

the enactment of the other jurisdiction requirement) should

ever have been subject to a registration requirement in Indi-

ana.

Even if the State and the dissent are correct that, as a mat-

ter of state law, the other jurisdiction requirement is fully ret-

rospective and can properly apply to individuals like Bash

and Snider, there remains a dichotomy among Indiana resi-

dents based on the date of their arrival in Indiana. One who

was a resident of Indiana before SORA required registration

for his offense and remains so thereafter is not subject to a

duty to register, period (Wallace leaves no doubt in that regard

at all), whereas one who arrived in Indiana later may be sub-

ject to registration pursuant to the other jurisdiction require-

ment. In that respect, the timing of one’s relocation to Indiana

still matters.

Third, although the applicability of SORA as relevant here

depends on whether or not a new citizen was subject to com-

parable requirements elsewhere, the State’s theory that it is

merely recognizing and choosing to continue a burden im-

posed by another jurisdiction cannot somehow obviate the ef-

fect that its actions have on the right to travel. Indiana may

not be burdening newly-arrived sex offenders vis-à-vis the re-

quirements that their former states of residence imposed on

38 No. 19-2523

them, as our dissenting colleague emphasizes,17 but Indiana

certainly is treating them less favorably as compared with sex

offenders who lived in the State before SORA’s other jurisdic-

tion requirement was enacted; and the relative burden Indi-

ana imposes on new arrivals is necessarily one that penalizes

the exercise of one’s constitutional right to relocate to another

state. Indiana’s statutory scheme is no different in kind from

California’s effort to temporarily cap a new citizen’s welfare

benefits at the amount of assistance she received in her former

state of residence (assuming that amount was lower than

what California would otherwise provide). Nominally, that

cap did not penalize and therefore did not dis-incentivize an

indigent person’s decision to relocate to California, because

she would not receive less than what she had in her former

home state; in that sense, there was no direct burden imposed

on the exercise of one’s right to travel from state to state. 526

U.S. at 504, 119 S. Ct. at 1527. But that was “beside the point”

as far as the Supreme Court was concerned. Ibid.

17 It bears noting that in at least some cases, SORA’s other jurisdiction re-

quirement increases the burden upon a newly arriving sex offender as

compared with what would have been required of him in his former home

State. Recall that Illinois required Rice to register only for a period of ten

years following his release from prison. But because Rice qualifies as a

“sexually violent predator” under SORA, Indiana requires him to register

for life (although he does have the ability to petition for removal of this

designation). But the Indiana Supreme Court has deemed such marginal

effects on an offender’s obligations to be insufficient to trigger the state’s

ex post facto clause. See Jensen v. State, 905 N.E.2d 384 (Ind. 2009); Lemmon

v. Harris, 949 N.E.2d 803 (Ind. 2011); but cf. Gonzalez v. State, 980 N.E.2d

312 (Ind. 2013) (increase of registration obligation from ten years to life

violates ex post facto clause where limited opportunity to file petition for

removal did not permit offender to argue he was rehabilitated and no

longer posed a threat to the public).

No. 19-2523 39

Were we concerned solely with actual deter-

rence to migration, we might be persuaded that

a partial withholding of benefits constitutes a

lesser incursion on the right to travel than an

outright denial of all benefits. See Dunn v. Blum-

stein, 405 U.S. 330, 339, 92 S. Ct. 995, 31 L.Ed.2d

274 (1972). But since the right to travel embraces

the citizen’s right to be treated equally in her

new State of residence, the discriminatory clas-

sification is itself a penalty.

Saenz, 526 U.S. at 504–05, 119 S. Ct. at 1527. That is precisely

the problem here: As to relocating individuals, Indiana has

established a two-tiered system of regulating offenders that is

tied in the first instance to when the individual became a citi-

zen of Indiana. For constitutional purposes, the relevant com-

parison is not how Indiana treats an offender versus how his

former state of residence treated him, but rather how Indiana

distinguishes among its own citizens based on whether they

arrived pre- or post-enactment of SORA’s other jurisdiction

provision. Indiana grants the former the full protection of its

ex post facto clause but deprives newer arrivals of the same

protection. See Saenz, 526 U.S. at 502, 119 S. Ct. at 1526 (third

aspect of the right to travel encompasses “the right of the

newly arrived citizen to the same privileges and immunities

enjoyed by other citizens of the same State”); Soto-Lopez, 476

U.S. at 904, 106 S. Ct. at 2322 (“the right to migrate protects

residents of a State from being disadvantaged, or from being

treated differently, simply because of the timing of their mi-

gration, from other similarly situated residents”). And, unlike

the California scheme at issue in Saenz, the burden that one

incurs by arriving in Indiana after the enactment of SORA is

not temporary, insofar as the plaintiffs here are concerned,

40 No. 19-2523

but permanent. See Hooper, 472 U.S. at 623, 105 S. Ct. at 2869

(“the Constitution will not tolerate a state benefit program

that ‘creates fixed, permanent distinctions … between … clas-

ses of concededly bona fide residents, based on how long they

have been in the State”) (quoting Zobel, 457 U.S. at 59, 102

S. Ct. at 2312). Indeed, on what we might call the State’s

“lesser of two state citizenships” theory, Indiana would be

free to create a boundless array of classes among its citizens

tied to the greater regulatory burdens imposed by their for-

mer home states (theoretically subjecting them to differential

treatment on anything from tax rates to minimum drinking

ages). The Supreme Court’s right-to-travel jurisprudence

plainly forecloses such scenarios. See Saenz, 526 U.S. at 507,

119 S. Ct. at 1528; Zobel, 457 U.S. at 64, 102 S. Ct. at 2314–15.

To return to a key point of the dissent: No, the overlap be-

tween the set of offenders whom SORA burdens with a regis-

tration requirement and the set of offenders who relocate to

Indiana is not complete. Some number of relocating individ-

uals will not be affected by the other jurisdiction requirement

because their former domiciles did not require them to regis-

ter. And some number of offenders will be required to register

not because they are relocating from other states where they

registered but because they have commuted from Indiana for

work or study to other states that mandated their registration.

The latter group, as we have noted, has still engaged in inter-

state travel, but not the sort of travel for relocation to another

state that Saenz and the other residency cases address. Mem-

bers of that group may have their own constitutional claim,

but it is not one that is presented here. But the fact that relo-

cation from one state to another is not the exclusive means of

triggering the other jurisdiction requirement and does not in-

variably result in a registration obligation in Indiana does not

No. 19-2523 41

detract from the inescapable point that for the six plaintiffs

here, relocating to Indiana from other states has yielded them

a set of rights and obligations that is concretely different from,

and more burdensome than, the rights and obligations of of-

fenders who arrived in Indiana before they did.

Our dissenting colleague cites Connelly v. Steel Valley Sch.

Dist., 706 F.3d 209 (3d Cir. 2013), in an effort to demonstrate

that it is not the plaintiffs’ travel that explains their differen-

tial treatment by Indiana. But key distinctions between Con-

nelly and this case actually demonstrate the opposite.

In Connelly, a Pennsylvania school district gave less credit

to its teachers for prior out-of-state teaching experience than

it did for in-state experience in establishing starting salaries.

The plaintiff, who had lived and taught in Maryland before

relocating to Pennsylvania, argued that he was being treated

differently based on his former domicile in Maryland, in vio-

lation of his right to travel. In rejecting that claim, the court

emphasized that the school district was not treating its

teacher-citizens differently based on where they came from.

Rather, what mattered was where they gained their prior ex-

perience. As a result, a former Maryland citizen whose prior

teaching experience was in neighboring Pennsylvania (the

two states share a border along the Mason-Dixon line) would

receive full credit for his experience, whereas a lifelong Penn-

sylvania citizen who previously taught in Maryland would

receive only partial credit. 706 F.3d at 214–15. “[O]nly the

teacher’s lack of Pennsylvania teaching experience—not his

residency—would adversely affect his starting pay.” Id. at

215. Any burden this scheme imposed on interstate travel

was, at most, “incidental.” Id. The court went on to hold that

the school district had a rational basis for paying its teachers

42 No. 19-2523

differently based on the extent of their teaching experience in

Pennsylvania: Teachers with experience working at Pennsyl-

vania schools have a greater familiarity with the state’s edu-

cational policies, procedures, and regulations and are likely

to have a better grasp of what teaching methods are likely to

be successful in achieving the state’s educational goals. Id. at

216–17.

Our colleague analogizes the registration obligation that

an offender has borne in another state to the teaching experi-

ence that the plaintiff in Connelly acquired in another state:

both are historical facts, on their face unconnected to an indi-

vidual’s travel, that may legitimately inform a state’s judg-

ment as to how the individual should be treated as a newly-

arrived citizen.

The difference is that when other states required the

plaintiffs to register, they did so based on the very same

criminal history that Indiana itself would not treat as

sufficient to require registration. Individual states are, of

course, free to reach different conclusions about what offenses

require registration—that is a feature of our federalist system

of government. And just as states may compile their own lists

of registrable offenses, they may (and do) reach different

conclusions as to whether the ex post facto provisions in their

own constitutions permit the retrospective imposition of a

duty to register. Indiana has conceded that its own ex post facto

provision, as construed by Wallace, prohibits the application

of the Indiana SORA’s substantial equivalence requirement to

the plaintiffs: they were all convicted before their offenses

were identified as registrable offenses by the Indiana

Legislature. Had they been Indiana citizens at the time of

No. 19-2523 43

those offenses, and remained in Indiana thereafter, they could

not have been required to register.

So unlike the school district in Connelly, which relied on

the mise en scène of one’s prior experience and the perceived

qualitative differences between in-state and out-of-state

teaching experience, Indiana is not relying on something that

any of the plaintiffs did in another state that distinguishes him

from an otherwise similarly-situated Indiana sex offender—

e.g., commit another offense, violate the terms of his proba-

tion, or fail to comply with his registration and reporting ob-

ligations. No plaintiff did anything outside of Indiana that

would have triggered an obligation to register under SORA

had he done it in Indiana. Indiana is relying solely on another

state’s judgment that registration was required in that other

state, so long as the offender was present in that state. Upon

his relocation to Indiana, the State requires each plaintiff to

carry that obligation with him, notwithstanding the fact that

Indiana itself would not have imposed that obligation in the

first instance.

A simplified hypothetical helps to make clear why it is the

offender’s relocation to Indiana from another state that is the

real trigger for the mandate that he register in Indiana. Con-

sider two offenders, A and B, who are similar in all respects

but for the fact that A lives in Indiana and B lives in Illinois.

In 1993, both commit the same sex offense, are convicted in

their respective states, and commence six-year prison terms.

In 1994, both states enact laws requiring lifetime registration

for the sex offense that A and B committed; but the Indiana

legislature makes its registration obligation prospective only,

whereas Illinois makes the obligation fully retrospective.

Thus, when A is released from prison in 2000, he is not

44 No. 19-2523

obliged to register in Indiana, but B must register in Illinois.

In 2006, Indiana adopts a requirement obliging an Indiana

resident who has been required to register in another jurisdic-

tion to register in Indiana. In 2008, B moves to Indiana. Rely-

ing on the other jurisdiction provision, Indiana demands that

he register. Compare A and B, who are now both Indiana cit-

izens. There is no difference in their criminal histories: They

committed the same offense in the same year (and in all other

respects are similar) so the danger that they pose to Indiana

citizens is the same. But Indiana, in the exercise of its judg-

ment, has not deemed the 1993 offense to be registrable, so A

has never been required to register. Illinois required B to reg-

ister for life, but now that he has moved to Indiana, that obli-

gation is no longer operative. As a newly arrived citizen of

Indiana, what distinguishes B from A? The answer is plain: B

relocated from a state that required him to register. His travel

is the one and only cause of his duty to register in Indiana,

and in that regard, he is being treated differently from A, a

lifelong resident of Indiana.

The point is more clearly made if we assume that both A

and B were Indiana citizens from the beginning and commit-

ted the same sex offense in Indiana in 1993 and that B in 2008

relocated briefly to (and established residency in) Illinois,

which required him to register, before returning to Indiana

the following year. Indiana, relying on the other jurisdiction

provision, now requires B to register in Indiana as well. Has

B’s criminal history changed? No. Did he do anything that

materially changed the risk that he might pose to his fellow

Indiana citizens? No. All that occurred was his move to an-

other state that required him to register before he returned to

and re-established residency in Indiana.

No. 19-2523 45

The plaintiffs no doubt belong to a relatively small class:

They all committed their crimes before those offenses became

registrable in Indiana (twenty-five or more years ago) and be-

fore Indiana adopted the other jurisdiction requirement (four-

teen years ago). With the passage of time, this class will dis-

appear, and any individual who commits a sex offense will

have been on constructive notice that registration is an obli-

gation that he will have to shoulder.

But however small in number the plaintiffs may be, Indi-

ana has assigned them to a class of citizenship that is inferior

to that enjoyed by other, similarly situated Indianans, and for

the plaintiffs, it is their relocation from other states that has

resulted in that second-class status. Indiana, as a matter of its

own statutes and judicial precedents, would not have re-

quired the plaintiffs to register had they lived in Indiana prior

to 2006, when the other jurisdiction requirement was enacted.

Only their travel from states that did require them to register

has triggered this burden. The Supreme Court’s right-to-

travel jurisprudence instructs that this two-tiered model of

state citizenship is not permissible under the Fourteenth

Amendment’s Privileges or Immunities Clause. A sex of-

fender who has paid his debt to society has the right to relo-

cate to Indiana like any other individual and be treated on

equal terms with other similarly-situated citizens. These

plaintiffs have been denied that equitable treatment. Indiana

has, in effect, told the plaintiffs, “You are not from here. In-

stead of applying our rules to you, we will apply your former

state’s rules.” In this way, the plaintiffs remain outsiders in

Indiana’s regulatory framework.

Indiana nonetheless argues that because it is not denying

newer arrivals a public benefit, a tax exemption, or the right

46 No. 19-2523

to vote,18 the Supreme Court’s right-to-travel cases are inap-

plicable. It may be true as a factual matter that the Court’s du-

rational and fixed-point residency cases have not addressed

the right to travel beyond these sorts of factual contexts.19 But

to return to first principles, the right at issue here is the right

18 See, e.g., Dunn v. Blumstein, 405 U.S. 330, 92 S. Ct. 995 (1972) (state laws

requiring prospective voter to have been resident for one year in state and

three months in county penalize individuals who have migrated to state

in order to establish new residence during qualifying period, thereby in-

terfering with right to travel and violating equal protection).

19 It is worth noting, however, that the Court’s decision in Edwards v. Cal.,

314 U.S. 160, 62 S. Ct. 164 (1941) invalidated a California statute that made

it a criminal offense to bring a non-resident indigent person into the state.

The statute was born of fears triggered by the massive influx of migrants

from other states as a result of the Dust Bowl and the Great Depression

and the “problems of health, morals, and especially finance” attributed to

that influx. Id. at 173, 62 S. C.t at 167. The Court pointed out that among

the opportunities this exclusionary statute deprived indigent persons was

“the opportunity to exert political pressure upon the California legislature

in order to obtain a change in policy.” Id.at 174, 62 S. Ct. at 167. Because

the statute was aimed at excluding indigents from the state, it arguably

implicated all three components of the right to travel; and, indeed, the

Court’s majority concluded that the statute interfered with interstate com-

merce and as such was inconsistent with the Commerce Clause. Id. at 172–

77, 62 S. Ct. at 166–68. But the concurrences invoked the Fourteenth

Amendment’s Privileges or Immunities Clause, making clear that among

the rights implicated by the statute was a right of national citizenship that

precludes a state from creating different classes among its residents with

different rights. See id. at 181, 62 S. Ct. at 170 (Douglas, J., concurring)

(state’s restriction of free movement “would permit those who were stig-

matized by a State as indigents, paupers, or vagabonds to be relegated to

an inferior class of citizenship”); id. at 184, 62 S. Ct. at 172 (Jackson, J., con-

curring) (“We should say now, and in no uncertain terms, that a man’s

mere property status, without more, cannot be used by a state to test, qual-

ify, or limit his rights as a citizen of the United States.”).

No. 19-2523 47

of a newly arrived citizen of Indiana to the same privileges

and immunities enjoyed by other citizens of the state. See, e.g.,

Saenz, 526 U.S. at 502–05, 119 S. Ct. at 1526–27. Nothing in the

Supreme Court’s jurisprudence concerning this right is tied to

the nature of the particular benefit at issue; the right is one to

citizenship on the same terms as other residents of the state.

See ibid.; Soto Lopez, 476 U.S. at 904, 106 S. Ct. at 2322; Hooper,

472 U.S. at 623, 105 S. Ct. at 2868–69. SORA imposes a signifi-

cant and lasting burden on a class of citizens who are other-

wise similarly situated to those whose Indiana citizenship

pre-dates the statute’s other jurisdiction requirement. As we

have said many times now, those persons who were citizens

of Indiana and were convicted of sex offenses before SORA’s

other jurisdiction requirement was enacted enjoy the full pro-

tection of the State’s ex post facto clause as construed in Wal-

lace, and they are exempt from the various registration and

reporting requirements that SORA imposes on such offend-

ers. But those persons who were convicted of sex offenses be-

fore the other jurisdiction requirement was enacted but have

since relocated to Indiana are deemed subject to SORA’s reg-

istration and other requirements—provisions that Wallace

deemed punitive—so long as their former states imposed

comparable requirements on them. In no sense are these two

classes of Indiana citizens being treated equally: one is af-

forded a valuable, constitutionally mandated protection

against the after-the-fact imposition of what the Indiana Su-

preme Court has labeled penalties, and one is not.

Finally, Indiana posits that any understanding that a state

cannot classify its citizens differently depending on whether

they have engaged in interstate travel is inconsistent with the

many federal criminal laws that apply precisely on that basis.

This is a misguided argument. First, the sort of interstate

48 No. 19-2523

travel to which Indiana is referring implicates a different com-

ponent of the constitutional right to travel than the right,

upon relocating from one state to another, to be treated on

equal terms with other citizens in one’s new home state. The

latter component is the only one at issue here. Second, federal

criminal law does not create separate classes of citizens within

a state who enjoy lesser or greater rights depending upon

when they became citizens of that state. It simply employs the

jurisdictional “hook” of conduct within interstate commerce

to regulate, on equal terms, all who move or act across state

lines. This has nothing to do with the classes Indiana has es-

tablished within its own citizenry.

III.

The other jurisdiction requirement of Indiana’s SORA im-

poses a duty to register and its attendant burdens upon a re-

locating citizen that it would not impose upon a lifelong Indi-

ana resident. The Privileges or Immunities Clause of the Four-

teenth Amendment prohibits this differential treatment. We

affirm the district court’s judgment on this basis, without

reaching the separate question of whether application of the

other jurisdiction requirement also violates the ex post facto

clause of the U.S. Constitution.

AFFIRMED

No. 19-2523 49

ST. EVE, Circuit Judge, dissenting. I disagree with the ma-

jority’s conclusion that the Indiana Supreme Court’s interpre-

tation of the Indiana Constitution’s Ex Post Facto Clause as

applied to Indiana’s Sex Offender Registration Act (SORA)

implicates plaintiffs’ right to travel under the Privileges or Im-

munities Clause of the Fourteenth Amendment of the United

States Constitution. I write separately to explain my reason-

ing.

I.

A.

Addressing the plaintiffs’ federal claims requires a deep

dive into Indiana law and the reasons for Indiana’s complex

rules surrounding SORA. The majority starts off on the wrong

foot by misunderstanding those rules.

Like other states, Indiana requires persons convicted of

sex offenses to register as sex offenders. Ind. Code § 11-8-8-1

to -23. Under SORA, a person must register if he (1) commit-

ted a registrable offense under Indiana law, (2) committed a

crime under the laws of another jurisdiction that is substan-

tially equivalent to Indiana’s registrable offenses, Ind. Code

§ 1-1-2-4(b)(3) (formerly Ind. Code § 11-8-8-5(a)(24)), or (3) is

required to register in any other jurisdiction, Ind. Code § 11-

8-8-5(b)(1).

As a statutory matter, SORA is fully retrospective and

does not depend on when someone was convicted of an of-

fense. And as a federal constitutional matter, this retrospec-

tive application is not inherently suspect under the Federal Ex

Post Facto Clause. See Smith v. Doe, 538 U.S. 84, 90 (2003). The

Indiana Supreme Court, however, has interpreted its state

constitution’s Ex Post Facto Clause such that persons who

50 No. 19-2523

would be required to register as a statutory matter are not re-

quired to register as a constitutional matter. This began with

Wallace v. State, 905 N.E.2d 371 (Ind. 2009), in which the court,

applying its own version of the U.S. Supreme Court’s “intent-

effects” test, held that SORA had a punitive effect on those

who had been charged, convicted, and served their sentences

before SORA was enacted. Id. at 379, 384.

Even after Wallace, however, not all applications of SORA

to prior convictions offend the Indiana Constitution. On the

same day as Wallace, the Indiana Supreme Court decided Jen-

sen v. State, 905 N.E.2d 384 (Ind. 2009). Jensen was convicted

of a sex offense in 2000, and at the time, SORA required him

to register as a sex offender for ten years. Id. at 389. Before

Jensen’s ten years were up, the Indiana General Assembly

amended SORA in 2006 to mandate that he now register for

life. He argued that this extension violated the state’s Ex Post

Facto Clause, but the Indiana Supreme Court disagreed. Un-

like Wallace, who had no obligations before SORA was

amended to cover him, the “‘broad and sweeping’ disclosure

requirements were in place and applied to Jensen at the time

of his guilty plea in January 2000. Nothing in that regard was

changed by the 2006 amendments.” Id. at 394. The marginal

effect of increasing only the length of an existing registration

obligation did not rise to the level of “punishment” such that

it violated the Indiana constitution. Id. at 391–93.

After Jensen, the Indiana Supreme Court continued to fo-

cus on the marginal effects of SORA and its amendments. In

State v. Pollard, 908 N.E.2d 1145 (Ind. 2009), it said that a new

residency restriction was “adding punishment.” Id. at 1154.

The court’s decision in Lemmon v. Harris, 949 N.E.2d 803 (Ind.

2011), though, concluded that an amendment that reclassified

No. 19-2523 51

someone from a sex offender to a “sexually violent predator”

was not punitive because, just like for Jensen, it amounted

only to an extension of pre-existing obligations and was not

“any more punitive.” Id. at 810–11, 813 n.19.

Up to this point, however, each case had asked whether

the Indiana SORA had a marginal punitive effective com-

pared to those requirements already imposed by Indiana law.

In 2016, the Indiana Supreme Court encountered three cases

challenging SORA’s effect on those who had been required to

register under another state’s laws.

Applying the same marginal-effects test, the Indiana Su-

preme Court concluded that the effect of maintaining an out-

of-state registration in Indiana was not punitive, regardless of

when or where the registrable crime had been committed.

First, in Tyson v. State, 51 N.E.3d 88 (Ind. 2016), the court up-

held registration for a man obligated to register under Texas

law at the time of his conviction, before Indiana’s SORA cov-

ered his offense. Id. at 92. The court concluded that the mar-

ginal effect of “maintaining a registry requirement across

state lines does not amount to a punitive burden” in violation

of the state constitution. Id. at 90.

The court extended this reasoning in State v. Zerbe, 50

N.E.3d 368 (Ind. 2016). Zerbe was convicted in Michigan in

1992, before either Michigan or Indiana had enacted sex of-

fender registration laws. Id. at 369. Zerbe was nevertheless re-

quired to register under Michigan law upon release from

prison because Michigan did not share Indiana’s stricter Ex

Post Facto Clause. Id. at 371. This twist changed nothing; the

marginal effect of maintaining that registration was not puni-

tive. Id. at 370–71. As the court clarified, “it is not Zerbe’s crime

that triggers his obligation to register as a sex offender in

52 No. 19-2523

Indiana; rather, it is his Michigan registry requirement that does

so.” Id. at 370 (emphasis in original). The trilogy finished with

Ammons v. State, 50 N.E.3d 143 (Ind. 2016) (per curiam). Am-

mons had been convicted in Indiana before SORA, but he

moved to Iowa, which obligated him to register for his Indi-

ana crime. Id. When he moved back to Indiana, the Indiana

Supreme Court confirmed that, just like for Tyson and Zerbe,

maintaining Ammons’s Iowa registration for his Indiana

crime did not amount to “additional punishment.” Id. at 145.

In sum, the question under SORA and Indiana’s Ex Post

Facto Clause is always whether SORA’s marginal effect is pu-

nitive. Maintaining, extending, or modifying a duty under

SORA generally is not punitive, but imposing a new duty is.

It is immaterial to the analysis whether Indiana law is main-

taining, extending, or modifying its own duties or those of an-

other state. Likewise, it is immaterial where or when the con-

viction occurred, as long as some state imposed a lawful reg-

istration obligation on the offender and SORA does not so sig-

nificantly alter that obligation to result in added punishment.

B.

Plaintiffs argue that the Indiana Supreme Court’s

marginal-effects rule violates their right to travel under the

Federal Constitution. While the majority aptly summarizes

the development of the law regarding this right, it overreads

the right to travel as articulated by the Supreme Court.

The U.S. Supreme Court has identified three components

to the right to travel: (1) “the right of a citizen of one State to

enter and to leave another State,” (2) “the right to be treated

as a welcome visitor rather than an unfriendly alien when

temporarily present in the second State,” and (3) “for those

No. 19-2523 53

travelers who elect to become permanent residents, the right

to be treated like the other citizens of that State.” Saenz v. Roe,

526 U.S. 489, 500 (1999). Everyone agrees that only the third

facet of the right is at issue here. That aspect is derived from

the Privileges or Immunities Clause of the Fourteenth

Amendment. U.S. Const. amend. XIV, § 2; Saenz, 526 U.S. at

502–03.

In Saenz, the plaintiffs challenged the constitutionality of a

California statute that limited new residents to only the wel-

fare benefits to which they would have been entitled in their

prior state of residence. 526 U.S. at 492. The Supreme Court

held that this rule violated the third aspect of the right to

travel. The Court was not concerned with whether California

was trying to penalize or deter travel or even if it was suc-

ceeding. Id. at 504. Instead, the Court found that “the right to

travel embraces the citizen’s right to be treated equally in her

new State of residence” and that “the discriminatory classifi-

cation is itself a penalty.” Id. at 505. In addressing this discrim-

ination, the Court applied strict scrutiny, which California’s

law failed. Id. at 504–05. The duration of a citizen’s residency

and the location of his or her prior residence had no relevance

to the citizen’s welfare needs, and the bare desire to reduce

the state’s budget was not compelling enough to justify a

complex layered hierarchy among bona fide California resi-

dents. Id. at 507.

Saenz broadly stands for the proposition that durational

residency requirements violate the right to travel unless they

pass strict scrutiny. The full scope of that right, however, is

uncertain. There have been no Supreme Court decisions inter-

preting the right to travel after Saenz. Decisions before it held

other durational residency requirements unlawful but did so

54 No. 19-2523

under the Equal Protection Clause. See Mem'l Hosp. v. Mari-

copa Cty., 415 U.S. 250, 251, 261–62 (1974) (striking down a

state law requiring an indigent person to be a county resident

for one year to receive free medical care); Dunn v. Blumstein,

405 U.S. 330, 334–35, 360 (1972) (holding unlawful a state law

permitting only residents who have lived in state for one year

to vote); Shapiro v. Thompson, 394 U.S. 618, 622 (1969) (invali-

dating statutes that deny welfare assistance to individuals

during their first year of residency). But see Sosna v. Iowa, 419

U.S. 393, 396, 409 (1975) (upholding an Iowa law requiring

resident to live in state for one year to obtain a divorce de-

cree).

I agree with the majority, however, that the right to travel

should be understood to go beyond prohibiting only

durational residency requirements that place a waiting period

on benefits. It seems unlikely that a permanent distinction

between bona fide residents would be any more lawful than

a temporary one. The Supreme Court’s cases illustrate this

point, though a majority of the Court has yet to endorse it. In

Zobel v. Williams, 457 U.S. 55 (1982), Alaska implemented a

natural resource dividend statute that created “fixed,

permanent distinctions between an ever-increasing number

of perpetual classes of concededly bona fide residents, based

on how long they have been in the State.” Id. at 59. The

Supreme Court held that this scheme was improper even

under rational-basis review. Id. at 64. The Court did the same

thing with a New Mexico tax exemption for Vietnam veterans

who were state residents before a specific date. Hooper v.

Bernalillo Cty. Assessor, 472 U.S. 612, 624 (1985).

Although the Supreme Court did not directly hold that the

laws at issue in Zobel and Hooper implicated the right to travel,

No. 19-2523 55

a plurality of the Court later concluded that the right was re-

ally driving those decisions. See Att’y Gen. of N.Y. v. Soto-

Lopez, 476 U.S. 898, 907–08 (1986) (plurality opinion). In the

plurality’s view, “a permanent deprivation of a significant

benefit, based only on the fact of nonresidence at a past point

in time, clearly operates to penalize appellees for exercising

their right to migrate” and thus mandated strict scrutiny. Id.

at 909.

All of the Supreme Court’s decisions in this area have

something in common. Each involved a rule that explicitly

discriminated between old and new residents. As the Court

noted, the challenged classifications in Saenz were “defined

entirely by (a) the period of residency in California and (b) the

location of the prior residences of the [plaintiffs].” 526 U.S. at

505 (emphasis added). Likewise, in Soto-Lopez, the plurality

emphasized that New York was depriving the plaintiffs “of a

significant benefit, based only on the fact of nonresidence at a

past point in time.” 476 U.S. at 909 (emphasis added). In each

case, there was a direct causal connection between a person’s

status as a new resident and the deprivation of a benefit. In

legal parlance, each was a “disparate treatment” claim.

II.

The question in this case is whether Indiana’s registration

requirement, as applied through the marginal-effects test, vi-

olates the right to travel identified by the Supreme Court. In

other words, does the marginal-effects test treat bona fide res-

idents differently based on when they became residents.

I part ways with the majority because I conclude it does

not. Neither SORA nor Indiana’s Ex Post Facto Clause dis-

criminates based on residency. Neither even mentions

56 No. 19-2523

residency. As a statutory matter, SORA obligates all people—

both old and new residents—to register based on prior con-

victions. Indiana’s Ex Post Facto Clause then relieves a subset

of those who must register from that statutory obligation.

Who receives the clause’s benefits, though, does not depend

on when one became an Indiana resident but on whether one

is subject to an existing registration requirement. That re-

quirement can come from Indiana or from another state. The

twist in this case is that for those like the plaintiffs, convicted

before Indiana’s SORA covered their crimes, such a registra-

tion obligation must come from elsewhere. For the majority,

that fact is determinative.

The majority offers two theories to support its view that

Indiana violated the plaintiffs’ right to travel. The primary

argument is that the other-jurisdiction provision in SORA

“creates two classes of Indiana citizens”: those who were

Indiana residents prior to the provision’s enactment on July 1,

2006, and those who moved to Indiana after that date. Because

the provision applies only to newer Indiana residents who

moved to the state after July 1, 2006, the argument goes, the

provision impermissibly classifies Indiana residents based on

the length of their residency in the state and generally treats

newer residents worse than long-term Indianans. I disagree

because the underlying premise to this conclusion is

incorrect—the other-jurisdiction provision does apply

retroactively to offenders who became Indiana residents prior

to July 1, 2006.

The majority’s conclusion to the contrary is rooted in its

narrow reading of Indiana caselaw applying the state’s Ex

Post Facto Clause to SORA. It suggests that any gap in time

between the placement of an initial registration requirement

No. 19-2523 57

and the later imposition of a related requirement transforms

Indiana’s subsequent requirement into a “material change” in

obligations rather than a “mere continuation” of them, failing

the marginal-effects test. Under this logic, offenders who

relocated to Indiana prior to July 1, 2006, and who were not

required to register in Indiana until 2006 would be exempt

from a later registration requirement under Wallace. That

interpretation misapprehends Wallace’s more recent progeny:

Tyson, Zerbe, and Ammons. While those cases dealt with

plaintiffs who moved to Indiana after it enacted SORA’s

other-jurisdiction provision in 2006, the Indiana Supreme

Court did not base its decisions on that factor. Rather, it held,

across three distinct factual patterns, that SORA’s retroactive

application does not violate the state’s Ex Post Facto Clause

as long as the offender is “already required to register in

another jurisdiction.” Zerbe, 50 N.E.3d at 369–70. That

condition is satisfied here. Because SORA’s other-jurisdiction

provision may apply equally to Indianans who became

residents prior to July 1, 2006, as well as those who move to

the state after that date, the majority’s argument that SORA

classifies Indiana residents by date of residency is

unpersuasive.1

The majority’s second, more implicit argument is that as a

practical effect of Indiana’s SORA, out-of-state residency is a

determinative factor in the plaintiffs’ case and that of other

offenders like them. Undoubtedly having a registration obli-

gation in another state is correlated with changing one’s state

1 I likewise depart from the majority’s suggestion that Bash and Snider

cannot be required to register under Indiana law; that conclusion depends

upon an interpretation of Indiana law that bars retroactive application of

SORA’s other-jurisdiction provision, which I reject.

58 No. 19-2523

of residence, as we can see not only from the six plaintiffs here

but also from Tyson, Zerbe, and Ammons, all of whom had to

register after moving to Indiana. But the correlation is imper-

fect. Some lifelong Indiana residents who committed crimes

before SORA might well have a registration obligation based

on their employment or schooling in an adjacent state. See,

e.g., 730 ILCS 150/3(a-5) (requiring out-of-state students or

employees to register in Illinois). On the flipside, some new

Indiana residents who committed their crimes elsewhere

might have no registration requirement in their prior state be-

cause of state-law protection against retroactivity. See, e.g.,

Doe v. State, 189 P.3d 999, 1004 (Alaska 2008) (holding that the

state’s Ex Post Facto Clause prohibits retroactive application

of SORA). While prior, out-of-state residency is often an ele-

ment in the application of SORA’s registration requirements,

residency is not the trigger for the other-jurisdiction provi-

sion.

The majority acknowledges this but suggests that the fact

that some new residents are not adversely affected by SORA’s

requirements does not immunize the law from unconstitu-

tionality. For support, the majority points to Saenz. There, the

Supreme Court struck down the law, even though some of the

new residents experienced more favorable welfare benefits

than long-term Californians. Saenz, 526 U.S. at 497. What mat-

tered, the Court concluded, was that California explicitly

based its provision of benefits to new Californians—favorable

or not—on the duration of their residence in California. Id. at

497, 505. The implication of the majority’s citation to Saenz is

that SORA likewise cannot be saved by the fact that some new

Indianans may not be subject to the registration requirements

while some lifelong Indianans may be covered. That is a false

equivalence. California employed an express, durational-

No. 19-2523 59

residency classification; it applied to all persons who had re-

sided in California for less than a year and happened to pro-

duce a favorable effect for some of them. In contrast, SORA

by its terms does not base its application on any length of res-

idency in Indiana; new Indiana residents who arrive in Indi-

ana without any prior registration requirements do not expe-

rience a favorable effect under SORA—the law simply does

not apply to them at all. In sum, Saenz involved a discrimina-

tory test that some new residents passed, while SORA in-

volves a non-discriminatory test that some new residents fail.

Prior, out-of-state residency represents neither causation

nor perfect correlation for the application of SORA’s

registration requirements, and there is no evidence that

anyone in Indiana intended to deter travel through the other-

jurisdiction provision. The result? A disparate-treatment

claim under the right to travel necessarily must fail. All that

is left is a disparate-impact claim—an argument that, as a

practical matter, more new residents than old residents must

register under the law. The Supreme Court, though, has never

extended the right to travel this far. Cf. Washington v. Davis,

426 U.S. 229, 239 (1976) (holding that only disparate treatment

or discriminatory purpose violates the Equal Protection

Clause). Nor, to my knowledge, has any other court of

appeals before today.

The Third Circuit has actively refused to take this step,

and I would follow its lead. In Connelly v. Steel Valley Sch. Dist.,

706 F.3d 209 (3d Cir. 2013), a Pennsylvania school district set

its teachers’ salaries based on years of teaching experience but

gave full credit for years teaching in the district, partial credit

for years teaching in Pennsylvania, and reduced credit for

years teaching elsewhere. Id. at 211–12. A teacher who taught

60 No. 19-2523

nine years in Maryland and received one year of credit argued

that the school district’s salary scheme violated his right to

travel. Id. at 213. The Third Circuit recognized that the district

was not discriminating based on duration of residency but on

location of teaching experience. Id. at 214. A lifelong Pennsyl-

vania resident who taught across the border in Maryland

would have received the same treatment as a similar Mary-

land resident who moved to Pennsylvania. Id. at 214–15. In

the Third Circuit’s view, “[t]he right to travel simply is not

implicated when there is no discrimination based on the du-

ration of one's residency." Id. at 215. Because SORA likewise

does not discriminate based on the duration of one’s resi-

dency but rather on the existence of a registration obligation,

I would conclude that it does not implicate the right to travel

or merit strict scrutiny.

There are good reasons for limiting the right to travel to

actual discrimination, as we recognized more than a decade

before Saenz. In Sklar v. Byrne, 727 F.2d 633 (7th Cir. 1984), we

considered a right-to-travel objection to an ordinance banning

unregistered handguns in the City of Chicago. Because one

needed to be a Chicago resident to register a handgun for law-

ful possession—and Chicago stopped new registrations after

1982—Sklar argued that the ordinance violated the right to

travel. Id. We recognized then that this could not be how the

right to travel functions, for applying strict scrutiny “based

merely on a showing that newer residents would not benefit”

would make huge swaths of the law vulnerable. Id. at 639.

Like in Sklar, the plaintiffs here want to apply strict scrutiny

on the showing that they, as new residents, are “merely one

group among several who do not benefit” from the protec-

tions of Indiana’s Ex Post Facto Clause. Id. at 639. We refused

the invitation in 1984, and I would refuse it again now.

No. 19-2523 61

The Privileges or Immunities Clause of the Fourteenth

Amendment simply does not prohibit a state from inci-

dentally burdening travel to or from the state. It guarantees

only “the right of the newly arrived citizen to the same privi-

leges and immunities enjoyed by other citizens of the same

State.” Saenz, 526 U.S. at 502. Because both old and new Indi-

ana residents are treated equally under SORA and Indiana’s

Ex Post Facto Clause, I respectfully dissent from the major-

ity’s holding that either law violates the right to travel.

III.

Because Indiana’s law does not implicate a fundamental

right, it is subject to rational basis review. To survive this level

of scrutiny, the Supreme Court has required that there be a

rational basis for the classification. See FCC v. Beach Commc’ns

Inc., 508 U.S. 307, 313 (1993) (stating that a statutory classifi-

cation will survive rational-basis scrutiny “if there is any rea-

sonably conceivable state of facts that could provide a rational

basis for the classification”). Because the district court did not

undertake a rational-basis review, I would remand this case

to the district court to determine whether this level of scrutiny

has been met.