FAC Weekly Update 2026-03-24-When Florida Laws Fail the Rational Basis Test

Weekly update for March 24, 2026. This is recording number 361

Dear Members and Advocates,

In recent posts we’ve been highlighting some troubling developments across the United States, restrictions being imposed on persons required to register as sex offenders that have completely no tie to public safety whatsoever. Consider the City of Fresno, California, where officials are taking measures to ban registrants from attending public city commission meetings. Consider also the federal bill that would deny Medicaid and Affordable Care Act subsidies to registrants. We all know there’s no rash of sexual assaults that are taking place at legislative meetings, and no tie between sexual assaults and healthcare, but despite any public safety reasons, lawmakers are brazenly taking alarming steps toward silencing participation in civic life and denying registrants public health benefits.

The “Rational Basis Test” is the most deferential standard courts use when deciding whether a law violates the Constitution, especially under the Equal Protection or Due Process Clauses. In simple terms, a law will be upheld as long as it is rationally related to a legitimate government interest. It’s a two-part test. The first question a court must ask is;  “is there a legitimate government purpose for this law?”. That’s generally an easy part to pass. The government just has to say they are trying to improve public safety. The second question is a bit tougher to pass. The Court must ask;  “is this law rationally related to achieving that purpose?”. In other words, is there a connection between public safety and the conduct this law seeks to prevent.

The “rational basis” doesn’t have to be incredibly strong. In fact, it’s the easiest standard for the government to win under. However, it can’t be totally arbitrary or irrational either. The City of Fresno is trying to say that kids hang out at legislative meetings, so the Commissioners want to protect them from being sexually abused while they are attending these meetings. But come on! Really?!? City Hall isn’t exactly an arcade or Chuck-E-Cheese’s. And what’s with the health care? Are you saying that if registrants aren’t able to access healthcare and medication, they will be too sick to offend? Is that where this country is heading?

To guide the Courts, we have to look at cases where the Supreme Court of the United States had found there was no rational basis between a law and a legitimate state interest. Take, for example, Romer v. Evans, 517 U.S. 620 (1996), where the SCOTUS struck down a Colorado law that targeted same sex couples. The Court held that Colorado’s Amendment 2 imposed a broad and undifferentiated disability on a single named group, making it more difficult for one group of citizens than for all others to seek aid from the government. Sounds like this ban on healthcare benefits, doesn’t it? But the government might say that same sex couples are a protected class, whereas registered sex offenders are not. OK, well how about City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985), where the Court invalidated a city ordinance that required a special use permit for a group home for intellectually disabled adults, holding that the law was based on irrational prejudice. Doesn’t that remind you instantly of what’s going on in Kennewick, Washington, where the City is scrambling to pass a law making it harder for less restrictive alternative (LRA) housing facilities for registered sex offenders to operate? Or here in Putnam County, where a new ordinance prevents two registrants from residing within 500 feet of each other and effectively shutting down Justice Transitions, a Putnam County non-profit that successfully transitioned dozens of registrants over the past couple decades?

In both Romer and Cleburne, the Court clearly saw that the motivation for the laws was a bias against the targeted population and no nexus to the government’s purpose. What makes our argument stronger is the fact that the liberties being taken away in many of these cases are constitutionally protected. The right to speak at a public meeting before the legislature is protected by the First Amendment. And even though there’s no right to public healthcare, in Estelle v. Gamble, 429 U.S. 97 (1976), even though Gamble didn’t win, the SCOTUS set a standard that denial of medical care in prisons (or “deliberate indifference” to an inmate’s serious medical needs) constitutes cruel and unusual punishment in violation of the Eighth Amendment. It ties into the Clements case that was recently decided by the 11^th Circuit, which considered whether elements of registration are sufficiently restrictive of one’s liberty to constitute “in custody”.

Taken together, this recent wave of legislation paints a fundamentally different constitutional landscape than the one the Supreme Court evaluated when it deemed registration schemes non-punitive in Smith v. Doe. Today’s laws do far more than track individuals. They exclude them from vast portions of the community, restrict their ability to engage in civic life, and impede access to essential services like healthcare. These compounded restrictions raise serious constitutional concerns: they restrict liberty of movement, burden the right to petition and participate in government, they risk denying meaningful access to medical care, and they resemble the kind of broad, exclusionary measures driven by bias and animus that the Courts have historically rejected. In short, what exists Today is not merely an extension of past registry schemes. It is a qualitatively different and far more restrictive regime, one that calls into question whether the “non-punitive” label still holds under modern constitutional scrutiny. Which ties in the “walks like a duck” case of Ellingburg v. United States.

Our goal in this Weekly Update is not to bore you with case law or legal arguments, but to suggest that the discussions taking place around these new laws need to include discussions on their constitutionality. And those discussions are taking place. Not just among advocacy groups, but among the public itself. This past weekend, we were extremely pleased to read an editorial board roundtable out of Cleveland, Ohio, examining a new ordinance in Middleburg Heights which  takes a hard look at laws that ban individuals with past convictions from public spaces. The editorial board members reached a striking and unified conclusion: these laws are not just ineffective, they may be counterproductive, overbroad, and constitutionally suspect.

Several editors emphasized that we already have tools in place to address risk, and that real public safety comes from stability, not exclusion. As one member explained, pushing people “to the margins of society with broad bans may feel protective, but it can backfire,” warning that policies should reinforce rehabilitation, not undermine it. Others highlighted just how absurdly overinclusive these laws can be. One columnist pointed out that even a decades-old, minor offense could subject an otherwise law-abiding, respected member of the community to sweeping bans from parks and public spaces, calling the law silly and in need of change. The board also took aim at what it described as a growing culture of “safetyism” – the unrealistic belief that all risk can be eliminated through increasingly aggressive restrictions. As one editor noted, such measures are not only unfair to those who have already paid their debt to society, but may actually create a false sense of security, leaving the public less vigilant to real, undetected threats.

Importantly, the discussion challenged common misconceptions driving these laws. Editors pushed back against the stereotype of anonymous predators lurking in public spaces, noting that most offenses involve known individuals, not strangers in parks. In that sense, broad geographic bans are not just excessive – they are misaligned with reality. Concerns were also raised about how such laws could even be enforced without fundamentally changing the nature of public life. Questions about the use of surveillance tools, facial recognition, license plate readers, and random ID checks, highlighted the risk that these policies could usher in a form of pervasive monitoring, all under the justification of public safety. Finally, some members went even further, warning that the ordinance may cross serious constitutional lines, effectively punishing individuals without individualized judicial process, and cautioned that it represents a dangerous step toward government overreach of the highest order.

The takeaway is clear: even outside advocacy circles, there is growing recognition that these sweeping restrictions are too broad, poorly targeted, and potentially unconstitutional. Rather than making communities safer, they risk undermining the very principles of fairness, proportionality, and evidence-based policy that true public safety depends on.

So rather than focusing on FAC’s talking points, this week we want to arm you with the talking points generated from this editorial roundtable: (1) These laws are overly broad, sweeping in individuals who pose little or no risk. (2) They fail to account for time, rehabilitation, or individual circumstances. (3) They exclude people from civic life, including access to government buildings and public forums. And (4) most importantly, there is little evidence they actually improve public safety – and lots of evidence they undermine it.

Is it a coincidence that these public comments mirror what we have been saying all along? Or can it be that we’ve been right?  Does it even matter? FAC doesn’t want or need credit. What we want is the same thing everyone should want; to live productive, successful lives, have safer communities, protection of our constitutional rights, and the same ‘life, liberty and pursuit of happiness’ afforded all “free” citizens. This shouldn’t be an advocacy position, this should be a mainstream, bipartisan concern, echoed by all Americans.

Sincerely,

The Florida Action Committee