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-2865 — Richard L. Young, Judge.

____________________

ARGUED MAY 20, 2021 — DECIDED AUGUST 16, 2021

____________________

Before SYKES, Chief Judge, and EASTERBROOK, KANNE, ROV-

NER, WOOD, HAMILTON, BRENNAN, SCUDDER, ST. EVE, and

KIRSCH, Circuit Judges.1

1 Circuit Judge Jackson-Akiwumi did not participate in the consider-

ation or decision of this case.

2 No. 19-2523

ST. EVE, Circuit Judge. Indiana’s Sex Offender Registration

Act (“SORA”) imposes registration requirements and re-

strictions on sex offenders who reside, work, or study in the

State. Ind. Code § 11-8-8-1 et seq. By virtue of the State su-

preme court’s construction of the Indiana Constitution, Indi-

ana’s Ex Post Facto Clause prohibits retroactive application of

SORA to offenders convicted before its enactment unless the

marginal effects of doing so would not be punitive. Wallace v.

State, 905 N.E.2d 371 (Ind. 2009); Jensen v. State, 905 N.E.2d 384

(Ind. 2009). If an offender was under no registration require-

ment prior to SORA’s passage, imposing a registration re-

quirement in the first instance is impermissibly punitive. Wal-

lace, 905 N.E.2d at 371. The Indiana Supreme Court has held,

however, that if another state previously subjected a pre-

SORA offender to a registration requirement, requiring him

to register in Indiana is not punitive. See, e.g., Tyson v. State, 51

N.E.3d 88 (Ind. 2016). Indiana caselaw thus has the peculiar

effect of permitting the State to treat similarly situated offend-

ers differently based solely on whether an offender had an

out-of-state registration obligation. That feature underlies the

present appeal.

The plaintiffs, six sex offenders residing in Indiana, were

convicted prior to SORA’s passage. Each of them had to reg-

ister in another state. After moving to Indiana, the State re-

quired them to register under SORA. Absent their out-of-state

registration obligations, Indiana’s Constitution would pro-

hibit SORA’s application to them. Plaintiffs challenge the con-

stitutionality of SORA on three fronts, arguing that it violates

their right to travel under the Privileges or Immunities

Clause, their right to equal protection under the Fourteenth

Amendment, and Article I’s prohibition on ex post facto laws.

The district court granted summary judgment for the

No. 19-2523 3

plaintiffs on all claims, and Indiana appealed. A divided

panel of this Court affirmed the district court, but we subse-

quently agreed to hear the case en banc.

We now reverse. SORA does not violate the right to travel

because it does not expressly discriminate based on residency,

as consistently required by the Supreme Court. Plaintiffs’ ex

post facto claim is likewise precluded by precedent. Applying

Smith v. Doe, 538 U.S. 84 (2003), we hold that SORA is not “so

punitive either in purpose or effect” as to surmount Indiana’s

nonpunitive intent for the law. But because the district court

did not address whether SORA passes rational basis scrutiny

under an equal protection analysis, we remand for considera-

tion of the equal protection claim.

I.

A.

The Indiana General Assembly enacted SORA, also

known as “Zachary’s Law,” in 1994. SORA establishes both

requirements and restrictions for qualifying sex offenders,

and it authorizes the Indiana Department of Correction

(“IDOC”) to collect and publish data about them. Ind. Code

§ 11-8-2-13(b). Under SORA, offenders must register by re-

porting to local law enforcement at least once annually in

every county where they reside, work, or study. §§ 11-8-8-14,

11-8-8-7. Reporting requirements are more frequent for “sex-

ually violent predators”—every 90 days—and offenders with-

out permanent housing—every 7 days. §§ 11-8-8-14, 11-8-8-

12. Registration entails providing detailed personal infor-

mation, including: a photograph; legal name, date of birth,

and physiological features; identification numbers; internet

usernames and email addresses; residential, school, and

4 No. 19-2523

workplace addresses; vehicle information and license plate

number; and any “other information required by the

[IDOC].” § 11-8-8-8(a). Offenders must report any change to

this information within 72 hours. SORA also mandates that

law enforcement officers contact offenders once a year to ver-

ify their residences (every 90 days for sexually violent offend-

ers). § 11-8-8-13(a). And offenders pay a yearly $50 registra-

tion fee, plus a $5 fee any time they must register a change of

address. § 36-2-13-5.6.

Certain offenders are subject to more stringent require-

ments. A “sexually violent predator” must notify law enforce-

ment if he plans to be absent from his residence for more than

72 hours and must register in the county that he visits. § 11-8-

8-18. An “offender against children” may not work or volun-

teer at a school, daycare, youth program center, or public park

and cannot live within 1,000 feet of these locations. §§ 35-42-

4-10(c), 35-42-4-11. A “serious sex offender” may not enter

school property. § 35-42-4-14. An offender’s failure to comply

with SORA can result in criminal sanctions.

Following its enactment, SORA underwent several expan-

sions. Indiana broadened the list of crimes that trigger regis-

tration requirements, and it amended SORA to require regis-

tration for individuals convicted of substantially similar of-

fenses in another state. On July 1, 2006, the General Assembly

extended SORA’s requirements to any “person who is re-

quired to register as a sex offender in any jurisdiction.” § 11-

8-8-5(b)(1). In its current form, SORA requires offenders to

register if they were:

(1) convicted of an enumerated Indiana criminal offense,

§§ 11-8-8-4.5, 11-8-8-5(a);

No. 19-2523 5

(2) convicted of a “substantially similar” offense in an-

other jurisdiction, § 1-1-2-4(b)(3); or

(3) required to register by another state (the “other-juris-

diction provision”), § 11-8-8-5(b)(1).

By its plain terms, SORA covers any offender who fits within

these categories—regardless of his date of conviction.

B.

While SORA is fully retrospective as a statutory matter,

the Indiana Constitution constrains its applicability to offend-

ers with pre-SORA offenses. The Indiana Supreme Court ar-

ticulated these constitutional boundaries in a series of deci-

sions, beginning with Wallace v. State. In Wallace, the court ap-

plied its own version of the Supreme Court’s “intent-effects”

test and held that SORA had a punitive effect as applied to

Wallace—who had been charged, convicted, and served his

sentence before Indiana enacted SORA—and that it thus vio-

lated Indiana’s Ex Post Facto Clause. 905 N.E.2d at 379, 384.

Wallace did not foreclose all retroactive applications of

SORA, however. Indeed, the same day that it decided Wallace,

the Indiana Supreme Court issued its opinion in Jensen v.

State. Unlike Wallace, Jensen pleaded guilty in 2000—after

SORA’s enactment. 905 N.E.2d at 388. At the time of his con-

viction, SORA required that he register as a sex offender for

ten years. Id. at 389. Before the expiration of Jensen’s ten-year

registration requirement, the Indiana General Assembly

amended SORA in 2006 to mandate that offenders like him

register for life. He argued that this extension as applied to

him violated Indiana’s Ex Post Facto Clause, but the Indiana

Supreme Court disagreed. In contrast to Wallace, who had no

obligations before the legislature amended SORA to cover

6 No. 19-2523

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. Increasing only the length of an ex-

isting registration obligation did not rise to the level of “pun-

ishment” 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 retro-

actively applying 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 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-exist-

ing obligations and was not “any more punitive.” Id. at 810–

11, 813 n.19.

Up to this point, each case had asked whether SORA had

a marginal punitive effect compared to those requirements al-

ready imposed by Indiana law. A trio of 2016 cases fleshed out

the retroactive applicability of SORA to offenders whose ini-

tial registration requirements originated in other states. In Ty-

son v. State, the court upheld the registration requirement for

an offender obligated to register under Texas law at the time

of his conviction. 51 N.E.3d at 90. It did so even though his

conviction and Texas registration obligation occurred before

Indiana’s SORA covered his offense. Id. In reaching this result,

the court concluded that the effect of “maintaining a registry

requirement across state lines does not amount to a punitive

burden” in violation of the state constitution. Id.

No. 19-2523 7

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. Michigan nevertheless re-

quired Zerbe to register upon his release from prison because

Michigan did not share Indiana’s stricter Ex Post Facto Clause

and applied its law retroactively. Id. at 371. This twist changed

nothing: the effect of maintaining that registration in Indiana

was not punitive. 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 Indiana; rather, it is his Michigan registry require-

ment that does so.” Id. at 370. The trilogy concluded with Am-

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

had been convicted in Indiana before the passage of SORA,

but he moved to Iowa, which obligated him to register for his

Indiana crime. Id. When he moved back to Indiana in 2013,

the Indiana Supreme Court confirmed that, just like for Tyson

and Zerbe, maintaining Ammon’s Iowa registration require-

ment for his Indiana crime did not amount to “additional

punishment.” Id. at 145.

To summarize, the question under Indiana’s Ex Post Facto

Clause is whether SORA’s marginal effect is punitive. Main-

taining, extending, or modifying a duty under SORA gener-

ally is not punitive, but imposing a new duty is. It is immate-

rial to the analysis whether Indiana law is maintaining, ex-

tending, or modifying its own duties or those of another state.

Likewise, it is irrelevant where or when the conviction oc-

curred, as long as another state imposed a lawful registration

obligation on the offender and SORA does not so significantly

alter that obligation to result in added punishment.

8 No. 19-2523

C.

Plaintiffs Brian Hope, Gary Snider, Joseph Standish, Adam

Bash, Patrick Rice, and Scott Rush are sex offenders whose

convictions predate the enactment of SORA. With the excep-

tion of Hope, each plaintiff’s conviction occurred in another

state, and all the plaintiffs had to register pursuant to the sex

offender registration laws of another state. Upon moving or

returning to Indiana, the State required the plaintiffs to regis-

ter as sex offenders. The circumstances leading to the plain-

tiffs’ registration obligations under SORA fall into the same

factual patterns addressed by the Indiana Supreme Court in

Zerbe and Ammons.

Hope was charged with child molestation in Indiana in

1993, prior to SORA’s passage, and pleaded guilty. He then

moved to Texas, which required him to register under its law.

As in Ammons, Indiana applied SORA’s requirements to him

upon his return to the State in 2013. Snider, Standish, Bash,

Rice, and Rush mirror Zerbe.2 Each had to register in another

state under its retroactive sex offender registration law and

2 Bash’s and Snider’s cases differ from the earlier Indiana cases in one

significant respect: both moved to Indiana before the 2006 enactment of

the other-jurisdiction provision. In all three of the Indiana cases upholding

the retroactive application of SORA to offenders with out-of-state regis-

tration requirements, the plaintiffs had moved to Indiana after July 1, 2006.

There thus was no question whether Indiana’s Constitution permits retro-

active application of the other-jurisdiction provision. This wrinkle does

not affect the remaining plaintiffs, who moved to Indiana after 2006. And

we ultimately find it nondeterminative in Bash’s and Snider’s cases. On its

face, the provision applies retroactively, and nothing in Indiana Supreme

Court caselaw suggests that the state constitution would forbid this.

No. 19-2523 9

later moved to Indiana, where Indiana required them to reg-

ister under SORA.3

The plaintiffs filed this suit alleging that as applied to

them, SORA violates their right to travel and equal protection

and that it runs afoul of the federal prohibition on ex post

facto laws.4 The plaintiffs articulated the burdens that SORA

places on them in detail. Each of them is subject to SORA’s

more onerous reporting requirements and living and working

restrictions given the nature of their offenses.5 SORA classifies

all the plaintiffs as “offender[s] against children” and as “se-

rious sex offender[s]”; four of them also qualify as “sexually

violent predator[s].” For Snider, Standish, Rush, and Bash

(who has full custody of his minor son), this means that they

cannot attend school functions or parent-teacher conferences

for their children or grandchildren or drive them to school.

Hope, who lacks a residence, has been required to leave a

3 There has been some disagreement throughout this litigation regard-

ing whether Indiana required the plaintiffs to register pursuant to the

other-jurisdiction provision or because they committed registrable of-

fenses under SORA (or substantially similar offenses under the law of an-

other state). Regardless, the State’s view of SORA when enforcing it is not

pertinent to our understanding of the law and the state constitutional lim-

its on it. We determine that SORA obligated each of the plaintiffs to regis-

ter under the other-jurisdiction provision alone.

4The plaintiffs originally filed two lawsuits, which the district court

consolidated.

5 Hope pleaded guilty to child molestation, and Standish pleaded no

contest to attempted sexual contact with a child under 13. Rush was con-

victed of sexual battery of a child under 12 years old. Snider was convicted

of criminal sexual conduct in the first degree (rape), and Rice was con-

victed of aggravated rape. Bash pleaded guilty but mentally ill to rape and

sodomy.

10 No. 19-2523

homeless shelter because it was located within 800 feet of a

park. Snider had to move from the home he shared with his

wife in 2006 because it fell within 1,000 feet of a daycare. Rush

must take a day off work every time he reports. Bash, who

relies on government financial assistance, has at times been

unable to afford SORA’s annual registration fee and been

placed on a payment plan.

The district court granted summary judgment to the plain-

tiffs on all claims and enjoined Indiana from requiring them

to register.6 On appeal, a divided panel of this Court affirmed

the district court’s summary judgment determination based

on the right to travel claim. Hope v. Comm’r of Ind. Dep’t of

Corr., 984 F.3d 532 (7th Cir. 2021). It did not reach the equal

protection or ex post facto claims. We then granted Indiana’s

petition for rehearing en banc and vacated the panel opinion.

We review the district court’s summary judgment deter-

mination de novo, drawing all reasonable inferences in favor

of the nonmovant. Peerless Network, Inc. v. MCI Commc’n Serv.,

Inc., 917 F.3d 538, 545 (7th Cir. 2019). Upon review, we reverse

and remand.

II.

A.

The plaintiffs argue that SORA violates their right to travel

by treating them differently based on their length of residency

in Indiana. We disagree. SORA may affect newer residents

disproportionately, but it does not discriminate based on

6The plaintiffs sued multiple parties, including IDOC and several

county prosecutors and sheriffs in their official capacities. We reference

the defendants collectively as “Indiana” or “the State.”

No. 19-2523 11

residency. Consequently, it does not violate the right to travel

as the Supreme Court has articulated it.

The Supreme Court has identified three components of 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 tempo-

rarily present in the second State,” and (3) “for those travelers

who elect to become permanent residents, the right to be

treated like other citizens of that State.” Saenz v. Roe, 526 U.S.

489, 500 (1999). Only the third right is at issue here.

That right has evolved over time. Although it is constitu-

tionally safeguarded, there is no mention of a right to travel

in the text of the Constitution. As early as 1872, however, the

Supreme Court recognized this right as protected by the Con-

stitution and has articulated its contours through subsequent

cases. Id. at 503 (tracing the right’s constitutional pedigree).

Throughout that caselaw development, the source of the right

to travel has shifted. In many of its earlier decisions, the Su-

preme Court discussed the right in equal protection parlance.

See, e.g., Zobel v. Williams, 457 U.S. 55, 60 n.6 (1982) (“Right to

travel cases have examined, in equal protection terms, state

distinctions between newcomers and longer term resi-

dents.”). But in its most recent right to travel case, Saenz v. Roe,

the Court underscored that the right is grounded in the Priv-

ileges or Immunities Clause of the Fourteenth Amendment.7

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

7The Court has traced the three components of the right to travel to

different parts of the Constitution. It is the third component—the right of

new residents and longer-term residents to be treated alike—that is

12 No. 19-2523

In Saenz, the plaintiffs challenged the constitutionality of a

California statute that limited new residents of one year or

less to only the welfare 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 as-

pect 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 succeeding. 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 classification is itself a penalty.” Id. at 505. In

addressing this discrimination, the Court applied strict scru-

tiny, which California’s law failed.8 Id. at 504–05. The duration

of a citizen’s residency and the location of his or her prior res-

idence 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 residents. Id. at 507.

Saenz solidified that laws infringing the right to travel

must pass strict scrutiny. See id. at 504. The full scope of the

right, however, remains uncertain. There have been no Su-

preme Court decisions interpreting the third component of

the right to travel since Saenz. Cases before it held other dura-

tional-residency requirements unlawful but did so under the

covered by the Fourteenth Amendment Privileges or Immunities Clause.

Saenz, 526 U.S. at 502–03. The second component is protected by Article

IV. Id. at 501. The Court has found support for the first component in var-

ious clauses but has not spoken definitively on it. Id.

8Like the question of the right to travel’s constitutional footing, opin-

ions discussing the appropriate scrutiny for the right have arrived at dif-

ferent answers. After Saenz, however, we apply strict scrutiny.

No. 19-2523 13

Equal Protection Clause. See, e.g., Memʹl Hosp. v. Maricopa

County, 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 per-

mitting only residents who have lived in state for one year to

vote); Shapiro v. Thompson, 394 U.S. 618, 622 (1969) (invalidat-

ing 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 a resident

to live in state for one year to obtain a divorce decree).

We agree with the plaintiffs, however, that the right to

travel should be understood to go beyond prohibiting only

durational-residency requirements that place a waiting pe-

riod on benefits. It seems unlikely that a permanent distinc-

tion between bona fide residents based on their time residing

in a state would be any more lawful than a temporary one.

The Supreme Court’s cases illustrate this point, although a

majority of the Court has yet to endorse it. In Zobel, Alaska

implemented a natural resource dividend statute that created

“fixed, permanent distinctions between an ever-increasing

number of perpetual classes of concededly bona fide resi-

dents, based on how long they have been in the State.” 457

U.S. at 59. The Supreme Court held that this scheme was im-

proper even under rational basis review. Id. at 64. The Court

did the same thing with a New Mexico tax exemption for Vi-

etnam veterans who were state residents before a specific

date. Hooper v. Bernalillo Cnty. Assessor, 472 U.S. 612 (1985).

Although the Supreme Court did not directly hold that the

laws at issue in Zobel and Hooper implicated the right to travel,

a plurality of the Court later concluded that the right drove

14 No. 19-2523

those decisions. See Attʹy 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 op-

erates to penalize appellees for exercising their right to mi-

grate” and thus mandated strict scrutiny. Id. at 909.

At bottom, the Supreme Court’s decisions in this area

share a defining feature: each involved a rule that explicitly

discriminated between old and new residents. As the Court

noted in Saenz, the challenged classifications 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. Likewise, in Soto-Lopez, the plurality emphasized that

New York had deprived the plaintiffs “of a significant benefit,

based only on the fact of nonresidence at a past point in time.”

476 U.S. at 909. In each case, there has been a direct causal

connection between a person’s status as a new resident and

the deprivation of a benefit. In legal parlance, each involved a

“disparate treatment” claim.

B.

The critical inquiry in this case is whether Indiana’s regis-

tration requirement, as applied consistently with the Indiana

Supreme Court’s marginal-effects test, violates the right to

travel as it has been identified by the Supreme Court. Put an-

other way, we ask whether SORA treats bona fide residents

differently based on when they become residents. It does not.

Neither SORA nor Indiana’s Ex Post Facto Clause discrim-

inates based on residency. As a statutory matter, SORA obli-

gates all offenders—both old and new residents—to register

based on prior convictions. Indiana’s Ex Post Facto Clause

No. 19-2523 15

then relieves a subset of those who must register from that

statutory obligation. Receiving the clause’s benefits, though,

does not depend on when an offender became an Indiana res-

ident but on whether one is subject to an existing registration

requirement. That requirement can come from Indiana, Jen-

sen, 905 N.E.2d at 391–93, or from another state, Tyson, 51

N.E.3d at 90. The twist in this case is that for those offenders

like the plaintiffs, convicted before Indiana’s SORA covered

their crimes, such a registration obligation must come from

elsewhere.

The dissent takes issue with this feature of SORA but con-

cedes that unlike Saenz and its predecessors, SORA has nei-

ther a durational-residency requirement nor a true, fixed-

point residency scheme. That distinction is fatal to the plain-

tiffs’ claim. Right to travel violations under the third compo-

nent of the right exist only when a law expressly differentiates

between residents based on their length or timing of resi-

dency. SORA does neither.

Instead, the dissent notes that SORA “does take notice of

an individual’s treatment in another jurisdiction” and argues

that it thus “necessarily implicates his travel history.” While

true, that does not constitute a violation of the right to travel.

The third component of the right—which the parties agree is

the only aspect at issue in this appeal—deals only with dis-

crimination based on residency. It is not triggered by every

law that tangentially relates to a person’s travel to or from an-

other state.

In the absence of a true durational-residency requirement

or any discriminatory purpose, the plaintiffs look to the effect

of SORA on newer residents. As a practical effect of Indiana’s

SORA, the plaintiffs argue, out-of-state residency is a

16 No. 19-2523

determinative factor for them and similar offenders. Un-

doubtedly having a registration obligation in another state is

correlated with changing one’s state of residence, as we can

see not only from the six plaintiffs here but also from those in

Tyson, Zerbe, and Ammons, all of whom had to register after

moving to Indiana. But the correlation is imperfect. Some life-

long Indiana residents who committed crimes before SORA

might well have a registration obligation based on their em-

ployment 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). The inverse is also true: some new Indiana

residents who committed their crimes elsewhere might have

no registration requirement in their prior state because 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 element in the

application of SORA’s registration requirements, residency is

not the trigger for the other-jurisdiction provision.

The dissent acknowledges this but suggests that the law

may still be unconstitutional even though some new residents

are not adversely affected by SORA’s requirements. For sup-

port, the dissent looks to Saenz. There, the Supreme Court

struck down the law, even though some of the new residents

received welfare benefits on equal footing as long-term Cali-

fornians. Saenz, 526 U.S. at 497. What mattered, the Court con-

cluded, was that California explicitly based its provision of

benefits to new Californians—favorable or not—on the dura-

tion of their residence in California. Id. at 497, 505. The upshot

of the dissent’s Saenz analogy is that SORA likewise cannot be

saved by the fact that some new Hoosiers may not be subject

to the registration requirements while some lifelong Hoosiers

No. 19-2523 17

may be covered. That is a false equivalence. California em-

ployed an express, durational-residency classification; it ap-

plied to all persons who had resided in California for less than

a year and happened to produce a favorable effect for some of

them. In contrast, as the dissent admits, SORA by its terms

does not base its application on any length of residency in In-

diana. New Indiana residents who arrive in Indiana without

any prior registration requirements do not experience a favor-

able effect under SORA—the law simply does not apply to

them at all. In sum, Saenz involved a discriminatory test that

some new residents passed, while SORA involves a nondis-

criminatory test that some new residents fail.

Prior, out-of-state residency represents neither causation

nor perfect correlation for the application of SORA’s registra-

tion requirements, and there is no evidence that anyone in In-

diana intended to deter travel through the other-jurisdiction

provision. The result? Only a disparate-impact claim re-

mains—an argument that, as a practical matter, more new res-

idents than old residents must register under the law. The dif-

ficulty with that approach, though, is that the Supreme Court

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 Pro-

tection Clause). To the contrary, every Supreme Court case in-

volving a violation of the right to travel has featured a law

that expressly imposes either a durational-residency require-

ment or a fixed-point residency restriction. See, e.g., Saenz, 526

U.S. at 505; Soto-Lopez, 476 U.S. at 905; Hooper, 472 U.S. at 621–

22; Zobel, 457 U.S. at 57; Mem’l Hosp., 415 U.S. at 251, 261–62;

Dunn, 405 U.S. at 334–35, 360. This case does not involve such

a disparate treatment claim.

18 No. 19-2523

The dissent’s approach thus expands the right to travel to

an unprecedented extent. And it does so through a legal anal-

ysis that the Court has rejected repeatedly in the analogous

Fourteenth Amendment equal protection context. Village of

Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 264–

65 (1977) (“[O]fficial action will not be held unconstitutional

solely because it results in a racially disproportionate im-

pact.”); see also Washington, 426 U.S. at 242. Equal protection

jurisprudence is unequivocal: the only relevant consideration

is a law’s express categorization and any discriminatory pur-

pose. Crawford v. Marion Cnty. Election Bd., 553 U.S. 181, 207

(2008) (Scalia, J., concurring).

The Supreme Court has never indicated that the neighbor-

ing Fourteenth Amendment Privileges or Immunities Clause

ought to be evaluated differently, and it is difficult to justify

such a distinction. It would be strange indeed if a law that

created a disparate impact based on race would be subject to

less exacting scrutiny than laws with a disparate impact on

the right to travel. Further, one of the primary bases that the

Supreme Court gave for rejecting disparate-impact theory—

the potential invalidation of many neutral laws—applies with

equal force in the right to travel context. See Washington, 426

U.S. at 248 (observing that a disparate-impact approach to

equal protection claims “would be far-reaching and would

raise serious questions about, and perhaps invalidate, a whole

range of tax, welfare, public service, regulatory, and licensing

statutes”). There is no reason for permitting disparate-impact

theory in one context but not the other, especially given how

No. 19-2523 19

historically intertwined the Supreme Court’s right to travel

jurisprudence has been with the Equal Protection Clause.9

The Third Circuit has actively refused to take this step. In

Connelly v. Steel Valley School District, 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 else-

where. Id. at 211–12. A teacher who taught for 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 Pennsylvania res-

ident who taught across the border in Maryland would have

received the same treatment as a similar Maryland resident

who moved to Pennsylvania. Id. at 214–15. In the Third Cir-

cuit’s view, “[t]he right to travel simply is not implicated

when there is no discrimination based on the duration of

one’s residency.” Id. at 215. We agree.

There are good reasons for limiting the right to travel to

disparate treatment claims, as we recognized more than a dec-

ade before Saenz. In Sklar v. Byrne, 727 F.2d 633 (7th Cir. 1984),

we rejected the suggestion that laws with a disproportionate

impact on new residents violate the right to travel. Sklar pre-

sented a right to travel objection to an ordinance banning

9 Recall that prior to Saenz, the Supreme Court often positioned the

right to travel within the Equal Protection Clause. See Zobel, 457 U.S. at 60

n.6.

20 No. 19-2523

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 explained 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. As

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 protections of

Indiana’s Ex Post Facto Clause. Id. at 639. We refused the in-

vitation in 1984 and decline it again today.

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, we hold that the law does not violate

plaintiffs’ right to travel.

III.

The plaintiffs’ equal protection claim is closely inter-

twined with their right to travel claim, but it remains distinct.

Equal protection and right to travel claims require independ-

ent analyses—even when the basis for the claims is identical.

Under the Privileges or Immunities Clause, if the right to

travel is not implicated, that is the end of the plaintiffs’ claim.

The challenged law either is reviewed under strict scrutiny or

not at all. Under the Equal Protection Clause, by contrast,

No. 19-2523 21

failure to trigger heightened scrutiny does not end the claim.

Courts still review the challenged law to ensure that the state

has a rational basis for treating similarly situated people dif-

ferently. FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 313 (1993).

The Fourteenth Amendment’s Equal Protection Clause

guarantees that “No State shall . . . deny to any person within

its jurisdiction the equal protection of the laws.” U.S. Const.

amend. XIV, § 1. Unlike the right to travel, which requires

strict scrutiny when implicated, the standard of review ap-

plied to laws in equal protection cases varies. We apply strict

scrutiny to a law if the plaintiffs’ unequal treatment is based

on membership in a protected class—race, national origin, re-

ligion, or alienage—or denial of a fundamental right. St. Joan

Antida High Sch. Inc. v. Milwaukee Pub. Sch. Dist., 919 F.3d 1003,

1008 (7th Cir. 2019). When a plaintiff’s unequal treatment is

premised on a quasi-suspect classification, like gender, we ap-

ply intermediate scrutiny. Id. at 1008 n.3. In all other cases,

courts default to rational basis review. Id. at 1008.

Here, plaintiffs argue that the district court correctly ap-

plied strict scrutiny when it evaluated SORA. That is because

their equal protection theory assumes that SORA violates a

fundamental right—the right to travel. We have already held

that it does not. SORA treats the plaintiffs differently from

other, pre-SORA offenders based on their out-of-state regis-

tration requirements—not based on their length of residency.

Because Indiana’s treatment of the plaintiffs is not based on

their membership in a protected class or the denial of a fun-

damental right, strict scrutiny is inapplicable. Nor does inter-

mediate scrutiny apply. Neither gender nor any other quasi-

suspect class serves as the catalyst for the plaintiffs’ differen-

tial treatment under SORA.

22 No. 19-2523

Our determination that heightened scrutiny is inapplica-

ble is not fatal to their equal protection claim, however. It just

means that SORA will be assessed under rational basis re-

view. The plaintiffs may still challenge Indiana’s application

of SORA to them because it treats them differently than simi-

larly situated Indiana offenders. SORA, as modified by the In-

diana Supreme Court’s constitutional overlay, creates two

classes of pre-SORA offenders—those who must register in

Indiana, and those who are free from that requirement. Indi-

ana distinguishes between the two groups based solely on

whether the pre-SORA offender had a registration obligation

in another state. For example: two lifelong Indiana residents,

both with pre-SORA convictions, will be treated differently if

one commutes into Chicago for work—and so is subject to Il-

linois’s reporting requirements—while the other never leaves

Indiana. The distinction holds true for offenders who attend

school in another state or who have lived in another state im-

posing registration obligations on them. In short, two simi-

larly situated Indiana offenders may have vastly different le-

gal obligations simply because one of them has an out-of-state

registration obligation. The question is whether Indiana’s dif-

ferential treatment on this basis is rationally related to a legit-

imate government purpose. See Armour v. City of Indianapolis,

Ind., 566 U.S. 673, 680 (2012); FCC, 508 U.S. at 313 (“[A] statu-

tory classification that neither proceeds along suspect lines

nor infringes fundamental constitutional rights must be up-

held against equal protection challenge if there is any reason-

ably conceivable state of facts that could provide a rational

basis for the classification.”).

Because the district court did not address whether SORA

satisfies rational basis review, we remand the equal protection

claim for this purpose. In doing so, we stress that this review

No. 19-2523 23

should be undertaken with care and that the district court

should thoroughly develop the factual record on this score.

Rational basis review favors the State but does not ensure an

automatic win. See, e.g., Allegheny Pittsburgh Coal Co. v. Cnty.

Comm’n, 488 U.S. 336 (1989) (invalidating a tax assessment on

equal protection grounds for failing rational basis review).

IV.

The plaintiffs’ final claim is an ex post facto challenge to

SORA. Because we determine that SORA is not a punitive

statute, it does not violate the federal Ex Post Facto Clause.

Article I, section 10, clause 1 of the United States Constitu-

tion prohibits states from passing ex post facto laws—those

which “retroactively alter the definition of crimes or increase

the punishment for criminal acts.” Cal. Dep’t of Corr. v. Mo-

rales, 514 U.S. 499, 504 (1995) (quoting Calder v. Bull, 3 U.S.

(Dall.) 386, 391–92 (1798)). Statutes that transgress the Ex Post

Facto Clause, then, share two characteristics: They are “both

retroactive and penal.” Vasquez v. Foxx, 895 F.3d 515, 520 (7th

Cir. 2018); see also Johnson v. United States, 529 U.S. 694, 699

(2000).

There is tension in the caselaw regarding the requirements

of the retroactivity prong. Compare United States v. Leach, 639

F.3d 769, 773 (7th Cir. 2011) (deciding that SORAs are pro-

spective regardless of their reach because they “merely cre-

ate[] new, prospective legal obligations based on the person’s

prior history”), with Does #1-5 v. Snyder, 834 F.3d 696, 698 (6th

Cir. 2016) (holding Michigan’s version of SORA retroactive

because it applied to offenders convicted prior to the law’s

enactment), and Shaw v. Patton, 823 F.3d 556, 560 (10th Cir.

2016) (holding the same with respect to Oklahoma’s version

24 No. 19-2523

of SORA). While we recognize this tension, we need not—and

do not—revisit our decisions on retroactivity at this time.

Here, the plaintiffs did not ask us to overrule our prior deci-

sions, and their ex post facto challenge fails regardless be-

cause SORA is not punitive.

In determining whether a statute is punitive, Smith v. Doe

is our guidepost. There, the Supreme Court addressed

whether Alaska’s sex offender registration and notification

law violated the federal Ex Post Facto Clause. The Court ap-

plied what is commonly called the intent-effects test to hold

that Alaska’s sex offender registration act was not punitive.

Smith, 538 U.S. at 105–06. Applying that two-step standard,

courts first query whether the legislature intended to enact a

punitive, rather than a civil, law. If not, the inquiry becomes

whether the law is “so punitive either in purpose or effect as

to negate [the State’s] intention to deem it civil.” Id. at 92 (in-

ternal quotation and citation omitted). To assess a law’s ef-

fects, Smith considered five of the factors originally articulated

in Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963). Those fac-

tors are “whether, in its necessary operation, the regulatory

scheme: [1] has been regarded in our history and traditions as

a punishment; [2] imposes an affirmative disability or re-

straint; [3] promotes the traditional aims of punishment; [4]

has a rational connection to a nonpunitive purpose; or [5] is

excessive with respect to this purpose.” Smith, 538 U.S. at 97.

This is a challenging standard for plaintiffs. When as-

sessing whether a law is punitive, “we ordinarily defer to the

legislature’s stated intent.” Kansas v. Hendricks, 521 U.S. 346,

361 (1997). If the legislative intent is to enact a civil law, only

the “clearest proof that the statutory scheme is so punitive in

either purpose or effect” will suffice to override it. Seling v.

No. 19-2523 25

Young, 531 U.S. 250, 261 (2001); Hudson v. United States, 522

U.S. 93, 104 (1997); see also Smith, 538 U.S. at 92.

The plaintiffs have conceded that Indiana intended to en-

act a civil, regulatory scheme when it passed SORA. We thus

consider only whether SORA is so punitive in effect as to over-

ride Indiana’s nonpunitive intent. To that end, we address the

Mendoza-Martinez factors in turn.

1. Historical and traditional forms of punishment

Plaintiffs present three historical forms of punishment—

shaming, banishment, and parole/probation—and argue that

SORA’s requirements are tantamount to these sanctions. All

three comparators suffer the same infirmity: SORA does not

actually inflict what is historically and traditionally consid-

ered punishment.

The plaintiffs first argue that SORA’s publication of their

classifications—such as “sexually violent offender” or “of-

fender against children”—is “designed to outrage” and stig-

matizes without a present assessment of individual danger-

ousness. In this regard, SORA goes further than the statute in

Smith, which assigned no categorical labels to offenders. But

SORA’s classification scheme falls short of public shaming for

the same reason as the Alaska statute in Smith. Indiana classi-

fies offenders based on offense type and in doing so, transmits

accurate information about the underlying conviction—a

matter of public record. To the extent that stigma results, it

arises “not from public display for ridicule and shaming but

from the dissemination of accurate information about a crim-

inal record.” Smith, 538 U.S. at 98. But see Does #1-5, 834 F.3d

at 703 (concluding that the “ignominy” results from the stat-

ute’s application of labels, not from conviction information).

26 No. 19-2523

The plaintiffs also suggest that SORA’s residency re-

strictions are akin to banishment, but we rejected this asser-

tion when evaluating the Illinois sex offender registration

statute. Vasquez, 895 F.3d at 521. We reasoned that although

residency restrictions limit offenders’ living and employment

options, they do not amount to banishment—which tradition-

ally meant that persons “could neither return to their original

community nor … be admitted easily into a new one.” Id. (in-

ternal quotation and citation omitted). The plaintiffs

acknowledge our precedent but note that the Indiana re-

striction is 500 feet greater than the Illinois restriction. The dif-

ference between a 500- and 1,000-foot residency restriction is

not constitutionally significant, however, because it does not

render SORA’s requirements any more similar to banishment.

Lastly, the plaintiffs contend that SORA’s restrictions on

where they may live or work, in tandem with its in-person

reporting requirements, make it analogous to parole or pro-

bation. This is a closer call. In Smith, the Supreme Court

acknowledged that a comparison between the Alaska statute

and parole “has some force.” Smith, 538 U.S. at 101. Even so,

the Court held that the statute was distinguishable because it

lacked two key characteristics of parole: (1) mandatory condi-

tions, and (2) the option for a supervisor “to seek the revoca-

tion of probation or release in case of infraction.” Id. The Court

emphasized that Alaska’s reporting requirements were not

in-person and that offenders could “move where they wish”

and live and work without supervision. Id. SORA differs from

the Alaska statute on these points.10 We conclude, however,

10

While SORA employs mechanisms like those used in parole and

probation, we note that it does not subject offenders to the same degree of

No. 19-2523 27

that it is still distinct from parole because it lacks the second

defining feature of parole discussed by Smith. To be sure,

plaintiffs may face criminal prosecution for failure to comply

with reporting requirements. But that would be a conse-

quence distinct from the plaintiffs’ original offenses; parole

and the supervisor’s ability to seek revocation of it are tied to

the terms of the original offense. A sex offender who violates

SORA is not subject to revocation—but rather a new criminal

prosecution for violating state law. Shaw, 823 F.3d at 566. But

see Snyder, 834 F.3d at 703. Thus, a sex offender covered by

SORA is not under the same type of supervision as a parolee.

On balance, SORA’s requirements do not amount to tradi-

tional forms of punishment. So, this factor, while close, tips in

favor of Indiana.

2. Affirmative disabilities or restraints

The next factor considers whether SORA subjects the

plaintiffs to an “affirmative disability or restraint.” Mendoza-

Martinez, 372 U.S. at 168. The boundaries of this factor are un-

defined. The Alaska law in Smith required offenders to regis-

ter and mandated reporting of any changes to facial features

or plans to borrow a car or procure psychiatric treatment.

Smith, 538 U.S. at 101. The Court held that these requirements

scrutiny or control. See Vasquez, 895 F.3d at 521 (concluding that Illinois’s

SORA, despite limiting where offenders could live, did not resemble the

“comprehensive control” of probation). For example, SORA entails some

supervision—law enforcement officers must do annual check-ins to verify

an offender’s physical address—but this differs in degree and type from

the monitoring of parolees and probationers. See Shaw, 823 F.3d at 564–65

(“Historically, a probation officer took a far more active role in a proba-

tioner’s life than simply collecting information for a database.”).

28 No. 19-2523

“make a valid regulatory program effective and do not im-

pose punitive restraints.” Id. at 102. In doing so, the Court un-

derscored that the statute “imposes no physical restraint, and

so does not resemble the punishment of imprisonment, which

is the paradigmatic affirmative disability or restraint.” Id. at

100. It also emphasized that the “Act’s obligations are less

harsh than the sanctions of occupational debarment, which

we have held to be nonpunitive.” Id. While the Court ob-

served that Alaska’s SORA did not require in-person report-

ing or restrict offenders’ ability to change jobs or residences,

the Court gave no indication whether such requirements

would constitute punitive disabilities or restraints. Id. at 100–

01.

Outside the “paradigmatic” example of physical restraint,

it is not evident what statutory requirements amount to a re-

straint or disability. What is clear is that very few burdens are

significant enough to tip the scale. See, e.g., Hudson, 522 U.S.

at 104 (monetary fine and occupational debarment are not af-

firmative disabilities or restraints “as that term is normally

understood”); Flemming v. Nestor, 363 U.S. 603, 617 (1960) (de-

nial of a noncontractual government benefit is not an affirma-

tive disability or restraint); see also Vasquez, 895 F.3d at 522

(“[L]ike the registration scheme at issue in Smith, the resi-

dency law imposes no physical restraint[] and so does not re-

semble the punishment of imprisonment, which is the para-

digmatic affirmative disability or restraint.” (internal quota-

tion and citation omitted)). Even when the Supreme Court

confronted a state law imposing a paradigmatic form of re-

straint—involuntary confinement—the Court held that this

did not make the law punitive. Hendricks, 521 U.S. at 363.

Here, it is sufficient to note that to the extent that SORA’s ob-

ligations amount to restraints or disabilities, standing alone

No. 19-2523 29

they are not sufficiently severe in view of Supreme Court

precedent to make SORA punitive.

3. Promotion of traditional aims of punishment

Plaintiffs next suggest that SORA has punitive aims—spe-

cifically, incapacitation, deterrence, and retribution. The Su-

preme Court has rejected these arguments in the context of

other sex offender registration laws, however. See, e.g., Smith,

538 U.S. at 102 (“Any number of governmental programs

might deter crime without imposing punishment.”); Hudson,

522 U.S. at 104–05 (holding that the involuntary commitment

of a child sex offender was not retributive because prior con-

viction was used as evidence of future dangerousness, not to

assign culpability). We similarly were unpersuaded that the

residency restrictions at issue in Vasquez furthered traditional

punitive aims in lieu of the Illinois SORA’s “obvious aim” to

“protect children.” Vasquez, 895 F.3d at 522. The Sixth Circuit

has also “accordingly give[n] this factor little weight,” recog-

nizing that civil statutes often pursue these aims, too. Does #1-

5, 834 F.3d at 704. Because the plaintiffs have failed to show

why the analyses in these cases do not apply with equal force

to the same arguments that they raise here, this factor favors

Indiana.

4. Rational connection to a nonpunitive purpose

Whether the law has a “rational connection to a nonpuni-

tive purpose” is “a most significant factor in our determina-

tion that the statute’s effects” are not punitive. Smith, 538 U.S.

at 102 (internal quotation and citation omitted). We begin by

identifying a nonpunitive purpose and then turn to whether

the law’s requirements are rationally connected to that goal.

30 No. 19-2523

One aim of SORA is to advance public safety, particularly

for vulnerable minors. See Smith, 538 U.S. at 93 (“[A]n impo-

sition of restrictive measures on sex offenders adjudged to be

dangerous is a legitimate nonpunitive governmental objective

and has been historically so regarded.” (internal quotation

and citation omitted)). No one disputes this nonpunitive pur-

pose. The disagreement centers instead on whether SORA’s

requirements are rationally related to that aim. We are satis-

fied that they are.

Laws that result in consequences for offenders’ prior con-

duct are not automatically punitive if they are connected to a

regulatory purpose that falls within the power of the state,

such as public safety. Flemming, 363 U.S. at 616. Deportation,

for example, is “an exercise of the plenary [power] of Con-

gress to fix the conditions under which aliens are permitted to

enter and remain in this country.” Id. While it presents a con-

sequence for people who have unlawfully entered the United

States, that does not convert a lawful exercise of congressional

power into a punishment. Similarly, the Supreme Court has

held that excluding former felons from practicing a profession

“is an incident of the State’s power to protect the health and

safety of its citizens”—“not a purpose to add to the punish-

ment of ex-felons.” Id. So, too, here. SORA’s registration re-

quirements rationally relate to Indiana’s power to protect the

safety of its citizens, despite its burden on sex offenders. See

Shaw, 823 F.3d at 572 (explaining that Oklahoma’s “reporting

requirements are also consistent with a non-punitive intent—

promoting public safety—by facilitating law enforcement’s

identification of sex offenders and notification to the public of

potential dangers”). This critical factor supports Indiana.

No. 19-2523 31

5. Excessive with respect to that purpose

The touchpoint for the excessiveness factor is “whether the

regulatory means chosen are reasonable in light of the nonpu-

nitive objective,” not whether “the legislature has made the

best choice possible to address the problem it seeks to rem-

edy.” Smith, 538 U.S. at 105. The burden is on the plaintiff to

establish that the law’s “nonpunitive purpose is a sham or

mere pretext.” Id. at 103 (internal quotation and citation omit-

ted).

While the plaintiffs proffer several arguments on this fac-

tor, they fall short of meeting their burden. First, they contend

that SORA does not further its goal, making its requirements

excessive. The plaintiffs cite a study showing that sex offend-

ers do not recidivate at higher rates than other felons. The im-

plication is that SORA’s registration requirements will not

bolster public safety because sex offenders do not present an

outsized threat. This conclusion is flawed. The plaintiffs’

study does not establish that sex offenders pose little risk to

the public, just that their risk of reoffending is similar to that

of other ex-felons. See Vasquez, 895 F.3d at 522 (“[S]imilar re-

cidivism rates across different categories of crime would not

establish that the nonpunitive aim of this statute—protecting

children—is a sham.”).

The plaintiffs also take issue with SORA’s application to

all offenders “without regard to their future dangerousness.”

But the Supreme Court “has upheld against ex post facto chal-

lenges laws imposing regulatory burdens on individuals con-

victed of crimes without any corresponding risk assessment.”

Smith, 538 U.S. at 104; see, e.g., De Veau v. Braisted, 363 U.S. 144,

159–60 (1960) (plurality opinion) (upholding a law that pro-

hibited former felons from working as union officers).

32 No. 19-2523

Although Smith recognized that the “magnitude of the re-

straint” could require individual assessments in some cases,

such cases are the exception. Smith, 538 U.S. at 104 (discussing

the involuntary and potentially indefinite confinement at is-

sue in Hendricks as one example). Indiana is not required to

make individualized judgments before imposing its registra-

tion requirements. This factor favors Indiana.

***

At best, the plaintiffs have shown that SORA partially re-

sembles one historical punishment and may place some af-

firmative restraints or disabilities on them. The remaining fac-

tors, including the law’s rational relation to a nonpunitive

purpose, all support Indiana. The plaintiffs have not carried

their heavy burden of proving that SORA is so punitive in ef-

fect as to override the Indiana legislature’s intent to enact a

civil law. As the plaintiffs acknowledge, “the Alaska statute at

issue in [Smith] shares several core provisions with Indiana’s

SORA.” While SORA goes farther than the Alaska law in

some respects, it is not so far afield as to warrant a different

outcome than in Smith.

V.

We hold that Indiana’s SORA neither violates plaintiffs’

right to travel nor constitutes an impermissible ex post facto

law. Accordingly, we reverse the district court’s entry of sum-

mary judgment and remand for further analysis of the equal

protection claim consistent with this opinion.

REVERSED AND REMANDED

No. 19-2523 33

SCUDDER, Circuit Judge, concurring. I join the majority

opinion and write separately to address one aspect of the

opinion—the retroactivity inquiry of the Ex Post Facto Clause.

Our case law on the retroactivity prong needs a course cor-

rection. See Vasquez v. Foxx, 895 F.3d 515 (7th Cir. 2018); United

States v. Leach, 639 F.3d 769 (7th Cir. 2011). The pertinent ret-

roactivity inquiry is whether the law “imposes a punishment

for an act which was not punishable at the time it was com-

mitted; or imposes additional punishment to that then pre-

scribed.” Carmell v. Texas, 529 U.S. 513, 540 (2000) (quoting

Cummings v. Missouri, 71 U.S. 277, 325–26 (1867) (internal quo-

tation marks omitted)).

But in Leach we suggested otherwise, determining that the

federal SORNA was not impermissibly retroactive because it

“merely creates new, prospective legal obligations based on

the person’s prior history.” 639 F.3d at 773; see also Vasquez,

895 F.3d at 520 (applying Leach’s retroactivity holding to Illi-

nois’s SORA). Though this observation about how SORNA

functions is descriptively correct, it misses the mark on the

retroactivity inquiry. What Leach and Vasquez failed to account

for is that the registration obligations did not apply at the time

the sex offenders committed the offenses triggering registra-

tion—meaning that the sex offender registration laws im-

posed obligations beyond those prescribed at the time of the

offense.

The majority opinion acknowledges this tension in our

case law but stops short of fixing it. See Maj. Op. 23. I would

take the next step and use today’s decision to align our law

with Supreme Court precedent. The issue is sure to surface in

future cases and our sitting en banc provides the perfect op-

portunity for the full court to issue the course correction.

34 No. 19-2523

There is no question that the obligations imposed by Indiana’s

SORA on the six plaintiffs in this case apply retroactively, and

we should use today’s decision to say so.

No. 19-2523 35

ROVNER, Circuit Judge, with whom WOOD and HAMILTON,

Circuit Judges, join, concurring in part and dissenting in part.

I join all but Part II of the court’s opinion today. I remain con-

vinced that Indiana’s other jurisdiction provision 1 deprives

the plaintiffs of state citizenship on equal terms with other In-

diana residents and in so doing violates their right to travel. I

therefore dissent from that part of the court’s decision.

1.

Encompassed within the right to travel is the right to relo-

cate from one state to another and, upon establishing bona

fide residence in a new state, to enjoy the same privileges and

immunities as any other citizen of that state. Saenz v. Roe, 526

U.S. 489, 502, 119 S. Ct. 1518, 1526 (1999). Each of the six plain-

tiffs in this case has been denied the benefit of Indiana’s ex post

facto provision 2 that a similarly-situated, but lifelong Indiana

resident would receive. Because each of the plaintiffs commit-

ted a sex offense before Indiana attached a registration obli-

gation to that crime, the Indiana Supreme Court’s decision in

Wallace precludes the State from relying on their convictions

as the basis for requiring them to register. Wallace v. State, 905

N.E.2d 371, 384 (Ind. 2009). What Indiana has done instead is

to rely on the fact that each of the plaintiffs previously was

required to register in another state as the basis for imposing

its own registration obligation on them. Had any of the

1 See Ind. Code § 11-8-8-4.5(b)(1) (defining “sex offender” who must

register in Indiana to include “a person who is required to register as a sex

offender in any jurisdiction”); § 11-8-8-5(b)(1) (similarly defining “sex or

violent offender” who must register).

2 Ind. Const., art. 1, § 24 (“No ex post facto law … shall ever be passed.”).

36 No. 19-2523

plaintiffs been a resident of Indiana at the time of his offense

and never traveled anywhere that burdened him with a duty

to register, Indiana itself would not have imposed such a bur-

den on him. It is thus only their travel—in this case, relocation

from another state to Indiana—that renders them subject to a

registration obligation in Indiana. This sets up the very sort of

tiered classes of state citizenship that the Supreme Court’s

travel jurisprudence forbids. 3 The fact that a lifelong Indiana

resident may also incur an obligation to register in Indiana by

working or studying in another state that imposes such a duty

on him does not obviate the problem; it simply makes clear

that Indiana is relying on the fortuity of a person’s travel to

burden its citizen with an obligation that it would not other-

wise impose.

At bottom, what Indiana is doing is assigning differential

obligations to its citizens based not on what they have done

but where they have been. It is relying on another state’s han-

dling of a particular criminal history to determine how that

3 The number of individuals who can assert the particular right-to-

travel claim the plaintiffs are asserting in this case is necessarily limited

and dwindling. Anyone convicted of a sex offense since the mid-1990s or

later (i.e., after registration requirements were first adopted in Indiana and

elsewhere) will likely be subject to registration in Indiana based on their

criminal histories. Wallace only poses an obstacle to imposing registration

obligations on someone convicted before Indiana made his crime (or its

out-of-state equivalent) a registrable offense. So, with respect to the vast

majority of offenders, Indiana will not have to rely on the other jurisdic-

tion requirement as it must with respect to the six plaintiffs in this case, all

of whom were convicted in 1994 or earlier and are now in their fifties or

sixties.

No. 19-2523 37

individual will be treated in Indiana. So a sex offender whose

crime would not otherwise trigger a registration obligation as

a matter of Indiana law will nonetheless be required to regis-

ter because another state, as a matter of its own law, required

him to register so long as he lived, worked, or studied in that

state. Indiana thus is relying on another state’s legal rules to

circumscribe his rights as an Indiana citizen. This is incompat-

ible with the holdings and the logic of the Supreme Court’s

right-to-travel cases.

2.

One point should be made clear at the outset: In taking

notice that another state has imposed a registration obligation

on one of its citizens, Indiana is not purporting to enforce an-

other state’s judgment or to implement the registration obli-

gation that state has imposed. This would be a very different

case if that were the aim and effect of Indiana’s other jurisdic-

tion provision. But it is not. Indiana instead is relying on the

historical fact that another state required an offender to regis-

ter there (whenever and for however long) as the basis for im-

posing its own registration obligation on one of its citizens. See

State v. Zerbe, 50 N.E.3d 368, 370 (Ind. 2016) (“it is not Zerbe’s

crime that triggers his obligation to register as a sex offender

in Indiana; rather it is his Michigan registry requirement that

does so”) (emphasis in original). This new obligation is not in

any way tethered to the life of the registration obligation im-

posed by the other state. It is not as if, for example, an offender

who was required by California to register for a period of 10

years and seven years into that obligation moves to Indiana

will now have to register for an additional three years in In-

diana in order to complete the 10-year term that California

imposed. It does not matter to Indiana’s other jurisdiction

38 No. 19-2523

provision for how long an offender was required to register

in another state or when that obligation expires. It only mat-

ters to Indiana’s registration scheme that there was a prior ob-

ligation, period. And how lengthy the new registration obli-

gation will be in Indiana is a matter answered by Indiana law.

Thus, whereas the other state may only have required an of-

fender to register for a period of years, Indiana may require

him to register for the remainder of his life. Take plaintiff Pat-

rick Rice, for example. Based on his 1989 conviction for aggra-

vated sexual assault, Rice was required by Illinois to register

for a period of 10 years upon his release from prison in 2017,

but when he subsequently relocated to Indiana to live with

his sister, Indiana imposed a lifetime registration obligation

on him, because his Illinois offense makes him a “sexually vi-

olent predator” under Indiana law. Cf. Jensen v. State, 905

N.E.2d 384, 394 (Ind. 2009) (statutory revisions to registration

scheme which have effect of lengthening Indiana offender’s

existing registration obligation from 10 years to life do not

amount to ex post facto violation).

So in no sense is this case one about the enforceability of

another state’s judgment or the comity that Indiana must af-

ford to that judgment. Indiana is simply relying on an of-

fender’s registration history in another state as the basis for

implementing its own, independent duty to register in Indi-

ana. And it is doing so in circumstances where the offender’s

criminal history itself would not trigger a registration obliga-

tion as a matter of Indiana law.

Over the course of this litigation, Indiana has cited two re-

lated reasons for relying on a prior registration obligation im-

posed elsewhere as the basis for imposing a duty to register

in Indiana. First, Indiana is concerned that it not become a

No. 19-2523 39

haven for sex offenders who, like the plaintiffs here, commit-

ted sex offenses before those offenses became subject to regis-

tration in Indiana and whom the state, under Wallace, cannot

require to register based on that criminal history. Second, In-

diana is using the other jurisdiction requirement as a second-

ary, catchall criterion for requiring registration of individuals

whose particular crimes happen not to fall within any of the

categories of offenses that the Indiana legislature has thus far

identified as crimes requiring registration.

It goes without saying that Indiana has a legitimate inter-

est in implementing registration obligations as a means of

protecting its citizenry from individuals who might repeat

their prior sex offenses. I can also appreciate the state’s wish

not to allow an offender to escape a duty to register in Indiana

simply because his specific sex offense is not one that the leg-

islature thought to identify in the drafting process as one war-

ranting registration. But see Edwards v. California, 314 U.S. 160,

173, 62 S. Ct. 164, 167 (1941) (“no boundar[y] to the permissi-

ble area of State legislative activity … is more certain than the

prohibition against attempts on the part of any single State to

isolate itself from difficulties common to all of them by re-

straining the transportation of persons and property across its

borders”); Shapiro v. Thompson, 394 U.S. 618, 629, 89 S. Ct. 1322,

1329 (1969) (“the purpose of inhibiting migration by needy

persons into the State is constitutionally impermissible”),

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

651, 671, 94 S. Ct. 1347, 1359–60 (1974).

But Indiana is among a minority of jurisdictions that re-

gards sex offender registration as punitive and thus subject to

40 No. 19-2523

the ex post facto clause of its constitution. 4 Thus, as a matter of

its own law, Indiana cannot require the six plaintiffs in this

case to register based solely on their criminal histories, as the

plaintiffs committed their crimes before the state legislature

first made them registrable offenses. Wallace precludes the

state from effectively increasing their punishment after the

fact.

By looking instead to a registration obligation imposed by

another state as the basis for imposing its own obligation on

the plaintiffs, Indiana nominally avoids the ex post facto prob-

lem. 5 But in doing so, it has created another, federal

Some eight state supreme courts have held that the retroactive appli-

4

cation of sex offender registration and notification laws violate their re-

spective state constitutions. See U.S. Dep’t of Justice, Office of Justice Pro-

grams, Office of Sex Offender Sentencing, Monitoring, Apprehending,

Registering, & Tracking, Sex Offender Registration and Notification in the

United States, Current Case Law and Issues—March 2019: Retroactive Applica-

tion & Ex Post Facto Considerations, at 1–2 & n.9, available at

https://smart.ojp.gov/sorna/current-law/case-law-updates.

5I say nominally because the rationale of the Indiana cases is that In-

diana is premising its registration obligation solely upon the obligation

imposed by the offender’s former domicile and not on his underlying

criminal offense, e.g., Zerbe, 50 N.E.3d at 370, with the result that his obli-

gation to register is effectively continued across state lines, Tyson v. State,

51 N.E.3d 88, 96 (Ind. 2016). (Of course, there would have been no duty to

register in the first instance but for the particular offense he committed,

and that offense would not trigger a duty to register under Indiana law.)

I am not confident this rationale holds up in all applications of Indiana’s

other jurisdiction requirement, however. Two of the plaintiffs, Gary

Snider and Adam Bash, relocated to Indiana three and six years, respec-

tively, before the Indiana legislature adopted the other jurisdiction provi-

sion in 2006. Although they had been required to register in their former

domiciles, those registration obligations would have effectively come to

an end once they moved to Indiana, at least absent an assertion of

No. 19-2523 41

constitutional problem. Relying on an obligation that another

state has imposed as a matter of its own law as the determi-

nant for how a new Indiana citizen will be treated in Indiana

interferes with his right to travel. It is only because each plain-

tiff lived somewhere else previously that he can now be re-

quired to register as a matter of Indiana law. And upon their

relocation to Indiana each finds his rights vis-à-vis registra-

tion defined by his former domicile: only because he once

lived somewhere that authorized registration for his offense

may he be required to register in Indiana, whose own law

would not have permitted a registration obligation based on

the very same criminal history. See Saenz, 526 U.S. at 505, 119

S. Ct. at 1527 (“the right to travel embraces the citizen’s right

to be treated equally in her new state of residence”); Hooper v.

Bernalillo Cnty. Assessor, 472 U.S. 612, 623, 105 S. Ct. 2862, 2868

(1985) (“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 residence. 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 [date of] arrival in the State … .”); Shapiro,

394 U.S. at 633, 89 S. Ct. at 1330 (“We recognize that a State

has a valid interest in preserving the fiscal integrity of its

extraterritorial authority by their former home states. So in their cases, it

would be difficult for Indiana to claim that application of the other juris-

diction provision simply maintained their prior registration obligations

across state lines. (Of course, we also know that Indiana initially required

Snider and Bash to register based on their criminal histories; but the 2009

decision in Wallace made plain in hindsight that the State lacked the au-

thority to require Snider and Bash to register on that basis.)

42 No. 19-2523

programs. … But a State may not accomplish such a purpose

by invidious distinctions between classes of its citizens.”).

3.

My colleagues in the majority characterize the effect of the

other jurisdiction provision on the plaintiffs as merely one of

disparate impact rather than one of disparate treatment. It is

true enough that the statute does not draw express distinc-

tions based on a person’s residency. But the statute on its face

does take notice of an individual’s treatment in another juris-

diction and uses his treatment elsewhere as the template for

how he will now be treated as an Indiana citizen, under Indi-

ana law. In doing so, the statute necessarily implicates his

travel history. More to the point, it creates distinct classes of

Indiana citizenship that turn upon what rights and obliga-

tions an individual has been assigned by another state. In

some instances, the effect is benign; in others, the individual

loses important freedoms he would have enjoyed as an Indi-

ana citizen had he never relocated from or traveled to another

state. In all applications of the statutory provision at issue

here, it is the person’s travel history, and his treatment in an-

other jurisdiction, that define his rights as an Indiana citizen

going forward. The burdens that the plaintiffs in this case, and

other Indiana offenders like them, must shoulder as a result

of the other jurisdiction provision are not the unintended con-

sequence of a statute that is otherwise neutral vis-à-vis the

right to travel. The very purpose of the statute is to use the

fact of one’s prior presence in another jurisdiction to circum-

scribe his rights as an Indiana citizen. This is not disparate im-

pact. It is, overtly and unmistakably, disparate treatment. Alt-

hough the Supreme Court has not yet confronted the particu-

lar fact pattern presented here, its teachings show us why

No. 19-2523 43

Indiana’s registration scheme unconstitutionally burdens the

plaintiffs’ right to travel.

4.

The majority relies on two features of Indiana’s other ju-

risdiction provision to distinguish it from the sorts of dura-

tional residency schemes that the Supreme Court has deemed

to violate the right to travel. First, if a sex offender relocates to

Indiana from another state that did not require him to regis-

ter, Indiana’s other jurisdiction provision will not by its terms

compel him to register in Indiana. Second, relocating to Indi-

ana is not the only way of triggering the other jurisdiction

provision: The provision also comes into play when an Indi-

ana resident—however longstanding—travels to another

state for work or study (while remaining an Indiana resident)

and is required to register in that state so long as he is present

for those purposes. To the majority’s way of thinking, these

provisions show that Indiana is not discriminating based on

the length of one’s residency in Indiana, as has typically been

the case in the Supreme Court’s jurisprudence.

Certainly the timing and duration of one’s residency in In-

diana is not the sole determinant of whether its other jurisdic-

tion provision will compel him to register as a sex offender in

Indiana. If anything, however, the way in which Indiana’s

other jurisdiction provision operates makes plain that Indiana

is relying exclusively on how one was treated in another state

to determine how he will be treated in Indiana. This cannot

be reconciled with what I understand to be the animating ra-

tionale of the Supreme Court’s right-to-travel cases. I will take

each feature of the Indiana provision, including its applica-

tion to relocating persons like the plaintiffs, in turn to explain

my view.

44 No. 19-2523

5.

Start with the benign application of the other jurisdiction

provision: If an offender relocates to Indiana from a state that

did not require him to register, then he will not be made to

register in Indiana. I agree with the majority that this is one

aspect of the provision showing that Indiana is not invariably

discriminating against residents who relocate from other

states.

Of course, as the majority recognizes, this was true in

Saenz as well. For the recipients of public benefits who were

relocating to California from other states, California capped

the amount of such benefits such individuals could receive

during their first year of residence in California at the levels

they received in their prior states of residence for a period of

one year. But not every state had public benefit levels that

were lower than California’s relatively generous payments; a

handful gave their residents equal or greater benefits. Indi-

viduals relocating from those states thus suffered no disad-

vantage as a result of their relocation; they received the same

benefit amounts upon relocation that a long-standing Califor-

nian would. 526 U.S. at 497 & n.8, 119 S. Ct. at 1523 & n.8. That

did not move the Supreme Court. It still found the scheme as

a whole one that impermissibly discriminated against new

residents based on their recent arrival in California. Id. at 505–

07, 119 S. Ct. at 1527–28.

So the fact that not every sex offender who relocates to In-

diana from another state or travels from Indiana to another

state will incur a registration obligation as a result does not

rule out the possibility that Indiana is interfering with the

right to travel—indeed, it confirms that what Indiana is doing

is using another state’s treatment of a sex offender as a proxy

No. 19-2523 45

for how he should be treated in Indiana. If an offender is for-

tunate enough to travel to or relocate from a state that does

not impose a registration obligation on him, Indiana will not

do so; but if the other state does require him to register, then

Indiana will as well. Either way, Indiana is relying on another

state’s treatment of the offender as dispositive of how he will

be treated in Indiana.

6.

This is unquestionably the case with the six plaintiffs be-

fore us. All six committed a sex offense in or before 1994,

when Indiana adopted the original version of its Sex Offense

Registration Act (SORA). Because the plaintiffs’ crimes were

committed before they became registrable offenses under In-

diana law, Wallace precludes the state from imposing a regis-

tration obligation based on their criminal histories. Wallace

treats registration as a punishment, and thus one that Indi-

ana’s ex post facto provision rules out for offenses taking place

before registration became proscribed for an individual’s of-

fense. Had the plaintiffs been living in Indiana at the time of

their offenses and remained there afterward, they would be

free today of any obligation to register under Wallace.

For the plaintiffs, it is the fact that they relocated to Indi-

ana at a later date, and from other states that required them

to register, that deprives them of the benefit of Indiana’s ex

post facto provision. Although their crimes were such that, if

committed in Indiana, they would not be registrable offenses

under Wallace, because each of the plaintiffs lived previously

in a jurisdiction that treated the offenses as registrable—and

saw no ex post facto problem with doing so—Indiana seizes on

the prior registration obligation itself to demand registration

46 No. 19-2523

in Indiana. It is thus one’s relocation from such a state that is

the trigger for the registration obligation in Indiana.

Plaintiff Brian Hope’s history makes plain the problem.

Hope in fact committed his sex offense in Indiana. He com-

mitted the offense in 1993 and pleaded guilty in 1996. In 2000,

he completed his probation. In 2004, he moved to California

and later to Texas, where he was required to register under

Texas law based on his Indiana conviction. 6 When he re-

turned to Indiana in 2013 to help care for an ailing family

member, Indiana invoked the other jurisdiction provision to

require him to register in Indiana. Given the date of his of-

fense, Indiana law does not treat his criminal history as one

requiring registration: Again, Wallace holds that the state’s ex

post facto provision forbids it. But because Hope previously

lived in Texas, which did treat his offense as one requiring reg-

istration, Indiana relies on the prior registration obligation it-

self to demand that he register in Indiana. But for his travel to

and from Texas, Hope would have no such obligation as a

matter of Indiana law. See also Ammons v. State, 50 N.E.3d 143,

144–45 (Ind. 2016) (per curiam) (no ex post facto violation

where Indiana resident committed sex offense pre-SORA,

later moved to Iowa, which required him to register based on

his Indiana conviction, and upon subsequent return to Indi-

ana was required to register based on the Iowa registration

obligation).

The same, of course, is true with respect to the other five

plaintiffs. Like Hope, they committed sex offenses (albeit not

Hope himself does not concede that Texas required him to register

6

based on his Indiana conviction. For present purposes, I am accepting In-

diana’s representation that he was required to register on this basis.

No. 19-2523 47

in Indiana) that were not registrable in Indiana when the

crimes took place. So under Wallace, Indiana’s ex post facto pro-

vision would bar the state from imposing a registration re-

quirement based on their criminal histories. Instead, the state

looks to the obligations imposed on the plaintiffs by their for-

mer states of residence as the trigger for registration in Indi-

ana.

As a consequence of this scheme, the plaintiffs arrived in

Indiana with a lesser set of rights than otherwise similarly-

situated Indiana offenders. Rather than treat the offender’s

criminal history as the dispositive factor in deciding whether

registration is required—and permitted by Indiana’s ex post

facto provision—Indiana has looked instead to what civil bur-

dens an offender’s former state of residence imposed on him

and adopts those burdens as its own.

In effect, the state is treating an offender who moved to

Indiana from, say, New York, where he was required to reg-

ister, as if he remains a citizen of New York for registration

purposes, and he cannot claim the benefit of Indiana’s ex post

facto clause in the same way that a lifelong Indiana resident

with the identical criminal history can. Even Hope, who was

an Indiana resident when he committed his sex offense, has

lost the benefit of Indiana’s ex post facto decision because he

left Indiana and for a time resided in another state which bur-

dened him with a registration obligation that Wallace fore-

closed Indiana from imposing. Because he was formerly a cit-

izen of Texas, Indiana requires Hope to carry the same burden

as a Hoosier that he carried as a Texan.

48 No. 19-2523

7.

This unique feature of Indiana’s registration scheme—re-

quiring registration based not on one’s criminal history and

on how Indiana law treats that history, but rather on how an-

other state treated that history as a matter of its own law (even

if it is an Indiana criminal history)—implicates the core con-

cerns that have animated the Supreme Court’s right-to-travel

decisions. Indiana is classifying the six plaintiffs based on

their prior domiciles and assigning them a lesser set of rights

(no ex post facto protection vis-à-vis registration obligations)

and a greater set of burdens (the duty to register as a sex of-

fender, in some cases for life) as compared with similar of-

fenders who lived in Indiana before its SORA was adopted

and have remained there since. As more recently arrived res-

idents of Indiana, the plaintiffs do not enjoy all of the same

rights and privileges as other Indiana residents. See Saenz, 526

U.S. at 505–07, 119 S. Ct. at 1527–28 (invalidating California

scheme temporarily capping amount of public aid new resi-

dents could receive to amounts they received in their former

domiciles); Attorney General of N.Y. v. Soto-Lopez, 476 U.S. 898,

911–12, 106 S. Ct. 2317, 2325–26 (1986) (invalidating civil ser-

vice employment preference limited to veterans who resided

in state at time they entered military service); Hooper, 472 U.S.

at 622–23, 105 S. Ct. at 2868–69 (invalidating property tax ex-

emption limited to veterans who resided in state prior to spec-

ified date); Zobel v. Williams, 457 U.S. 55, 64–65, 102 S. Ct. 2309,

2314–15 (1982) (invalidating distribution of public oil divi-

dends to state residents based on the length of their residency

in state); Mem. Hosp. v. Maricopa Cnty., 415 U.S. 250, 269, 94

S. Ct. 1076, 1088 (1974) (invalidating requirement that citizen

must reside in state for period of one year before becoming

eligible for non-emergency medical care at public expense);

No. 19-2523 49

Shapiro, 394 U.S. at 633, 89 S. Ct. at 1330 (invalidating various

provisions requiring one year’s residence in state to be eligi-

ble for public aid).

To be sure, there are factual differences between the of-

fender-registration scheme at issue here and the public bene-

fit schemes the Court has addressed previously. Indiana is not

imposing a durational residency requirement as California

did in Saenz: it is not requiring any and all offenders who were

required to register in their former states to register in Indiana

for a period of one year after their relocation, for example, af-

ter which the state will re-evaluate whether they must con-

tinue to register in Indiana based on their criminal histories.

Indiana’s scheme is more like a fixed-point residency scheme,

in the sense that had the plaintiffs all established residency in

Indiana by 1994 and remained there continuously thereafter,

they would have no obligation to register; but having instead

relocated to Indiana at later dates, they do have to shoulder

the burdens of registration. Cf. Soto-Lopez, 476 U.S. 898, 106

S. Ct. 2317 (veteran must have resided in state at the time he

entered military service in order to qualify for veterans’ civil

service preference); Hooper, 472 U.S. 612, 105 S. Ct. 2862 (vet-

eran must have been a state resident by specified date in order

to qualify for tax exemption). Even that analogy is imperfect

because, as the majority reminds us, any Indiana resident can

become subject to a registration obligation by commuting to

another state that requires him to register there. (More on that

aspect of Indiana’s scheme in a moment.)

But what Indiana’s registration scheme has in common

with Saenz in particular is that Indiana is looking to an indi-

vidual’s treatment by his former state of residence as the de-

terminant for how he will be treated by Indiana, and limiting

50 No. 19-2523

his rights as an Indiana citizen based on the rules of his former

domicile. Had Hope never left Indiana, he would by virtue of

the Wallace decision be free of any obligation to register today.

But because he left Indiana and for a time resided in Texas,

whose own ex post facto clause did not preclude the imposition

of a registration obligation upon him, he now occupies a dis-

tinct tier of Indiana citizenship which requires him to register

for life. In one respect, his case is like that of a veteran who

did not yet live in New Mexico as of the qualifying eligibility

date the state established for a special tax break for veterans.

Hooper. In another, he is like a public aid recipient relocating

to California, who is assigned a lesser set of benefits upon ar-

rival from another state, Saenz, except that here the benefit in

question is not public aid but one’s ability to invoke Indiana’s

ex post facto protections, and instead of being temporary, the

lesser benefit is permanent. Cf. Soto-Lopez, 476 U.S. at 909, 106

S. Ct. at 2324 (plurality) (“a permanent deprivation of a sig-

nificant 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”).

Certainly it is true that the Supreme Court has not ad-

dressed the right to travel in this particular context. But what

it has already said about a state’s obligation to treat newcom-

ers on equal terms with longer-term residents applies with

equal force here. With respect to the state’s ex post facto guar-

antee, Indiana is treating each of the plaintiffs as a stranger

rather than one of its own, relegating them to the more bur-

densome status they held in their prior domiciles as offenders

subject to punitive registration requirements. Cf. Mem. Hosp.,

415 U.S. at 261–62, 94 S. Ct. at 1084 (“Not unlike the admoni-

tion of the Bible that, ‘Ye shall have one manner of law, as well

for the stranger, as for your own country,’ Leviticus 24:22

No. 19-2523 51

(King James version), the right of interstate travel must be

seen as insuring new residents the same right to vital govern-

ment benefits and privileges in the States to which they mi-

grate as are enjoyed by other residents.”).

8.

But what of the fact that any citizen of Indiana, however

long he has resided in the state, can incur a registration obli-

gation simply by commuting to another state that requires

him to register so long as he is present there? See, e.g., 730 Ill.

Comp. Stat. 150/3(a-5) (“An out-of-state student or out-of-

state employee shall, within 3 days after beginning school or

employment in this State, register in person and provide ac-

curate information as required by the Department of State Po-

lice.”). Certainly this is another point of distinction between

this case and the Supreme Court’s precedents, and as the ma-

jority points out, this application of Indiana’s scheme shows

that residency per se is not always the triggering factor for the

obligation to register (although it is for the plaintiffs). But

one’s travel certainly is the trigger, and as in the case of relo-

cation to Indiana from another state, one’s travel for work or

study to another state that requires registration while there

again results in the permanent loss of rights vis-à-vis other

Indiana citizens. Although the commuter scenario is not pre-

sented in this case, it implicates the Supreme Court’s right-to-

travel jurisprudence just as surely as the plaintiffs’ relocation

scenario does.

Consider what happens when a lifelong Indiana resident

who was convicted of a sex offense pre-SORA commutes to

another state—neighboring Illinois, for example—for work or

study and must register there as a matter of Illinois law. Now

he has been required to register in another jurisdiction, and

52 No. 19-2523

Indiana can cite that Illinois registration requirement as the

basis for requiring him to register in Indiana. As a result of his

travel, this individual has now effectively lost the benefit of

Indiana’s ex post facto clause and the Wallace decision. His

criminal history is precisely the same as it was before. He has

not violated the terms of supervision or a protective order, or

taken some other action that suggests he poses an increased

risk of recidivism or danger to others. Nothing about his back-

ground has changed except for the fact that he traveled to an-

other jurisdiction that required him to register as a matter of

its own law (including its own ex post facto jurisprudence), so

long as he was present in that other state. Without ever sur-

rendering his Indiana citizenship, he leaves Indiana with one

set of rights and obligations and returns with another, simply

because he traveled to another state with a different set of

rules.

From the earliest days of this country, the right to travel

freely among the states has been recognized as an essential

right of national citizenship. See Articles of Confederation, art.

IV, § 1 (1778) (recognizing a right of “free ingress and regress

to and from any other State” and affording to the free inhab-

itants of each state “all privileges and immunities of free citi-

zens in the several states”); U.S. Const., art. IV, § 2, cl. 1 (“[t]he

citizens of each state shall be entitled to all Privileges and Im-

munities of Citizens in the several States”); id., amend. XIV,

§ 1 (“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 wherein they reside. No State shall

make or enforce any law that shall abridge the privileges or

immunities of citizens of the United States[.]”); Corfield v.

Coryell, 6 Fed. Cas. 546, 552 (Cir. Ct. E.D. Pa. 1823) (Bushrod

Washington, Circuit Justice) (“The right of a citizen of one

No. 19-2523 53

state to pass through, or to reside in any other state, for pur-

poses of trade, agriculture, professional pursuits, or otherwise

... may be mentioned as [one] of the particular privileges and

immunities of citizens, which are clearly embraced by the

general description of privileges deemed to be fundamen-

tal … .”); Passenger Cases, 48 U.S. 283, 492 (1849) (Taney, C.J.,

dissenting) (“We are all citizens of the United States; and, as

members of the same community, must have the right to pass

and repass through every part of it without interruption, as

freely as in our own States.”); Edwards, 314 U.S. at 178, 62 S. Ct.

at 169 (Douglas, J., concurring) (“The right to move freely

from State to State is an incident of national citizenship pro-

tected by the privileges and immunities clause of the Four-

teenth Amendment against state interference.”); id. at 183, 62

S. Ct. at 171 (Jackson, J., concurring) (“This Court should …

hold squarely that it is a privilege of citizenship of the United

States, protected from state abridgment, to enter any state of

the Union, either for temporary sojourn or for the establish-

ment of permanent residence therein and for gaining result-

ant citizenship thereof. If national citizenship means less than

this, it means nothing.”); Shapiro, 394 U.S. at 629, 89 S. Ct. at

1329 (“This Court long ago recognized that the nature of our

Federal Union and our constitutional precepts of personal lib-

erty unite to require that all citizens be free to travel through-

out the length and breadth of our land uninhibited by stat-

utes, rules, or regulations which unreasonably burden this

movement.”).

Traveling from one state to another at the cost of surren-

dering the rights one otherwise enjoys as the bona fide resi-

dent of one’s home state is not free travel. Indiana cannot, I

submit, tell one of its citizens, “You have all the rights of a

Hoosier today, but if you travel to another state that accords

54 No. 19-2523

you lesser rights, you return with only so many rights as that

state gave you.” To do so may implicate the first as well as the

third aspect of the right to travel, see ante at 11 (outlining the

three aspects), but it certainly violates the central teaching of

the Supreme Court’s right-to-travel precedents, which is that

a state cannot invidiously classify its residents, and afford

them differential rights, based on when and whence they

have come to the state.

9.

States can and do reach different conclusions about what

crimes should require registration. They also can and do reach

different conclusions about whether registration obligations

are punitive, such that they implicate their own ex post facto

provisions. What they cannot do, having settled these ques-

tions in a particular way, is to apply a different set of rules to

a citizen who has relocated from a jurisdiction that answered

the questions differently. In terms of his rights as a state citi-

zen, an Indiana citizen newly relocated from Texas is not a

former Texan, he is a Hoosier, period, and he must be treated

as such.

Indiana decided to require registration for the particular

offenses that the plaintiffs committed, but only after the plain-

tiffs committed those crimes. And because Indiana’s Supreme

Court has decided that the state’s registration obligations are

punitive, Indiana’s ex post facto provision bars the state from

requiring registration of all six plaintiffs based on their crimi-

nal histories. The state cannot pick and choose which of its

residents can claim the benefit of that provision, but that is in

effect what Indiana is doing. By placing its reliance on the fact

that an offender relocated from another state that imposed a

registration obligation as a matter of its own laws (including

No. 19-2523 55

its ex post facto jurisprudence) as the basis for requiring the

offender to register in Indiana, it is precluding the offender

from claiming the benefit of the Indiana ex post facto clause

that another citizen of Indiana would be entitled to claim. It is

saying to plaintiff Hope, “Yes, you had a right to be free from

registration when you previously lived in Indiana and com-

mitted your offense, but you lost that right when you moved

to Texas, which interpreted its own legal provisions so as to

require you to register.”

None of the six plaintiffs in this case has done a single

thing to distinguish himself from a similarly-situated Indiana

offender who, by virtue of the timing of his residency in Indi-

ana, cannot be required to register under Wallace—except re-

locate (i.e., travel) from another state that had different regis-

tration rules. The right to travel, as conceived and applied by

the Supreme Court, forbids such inconsistent and discrimina-

tory treatment of Indiana’s citizens. The express logic, if not

the fact-specific holdings, of the Supreme Court’s right-to-

travel precedents, call upon us to affirm the district court’s

decision to grant the plaintiffs declaratory and injunctive re-

lief on this point.

For the foregoing reasons, and the additional reasons set

forth in the panel’s now-vacated majority opinion, 984 F.3d

532, I respectfully dissent as to this aspect of the court’s deci-

sion.