¶1NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and official text of the opinion.
¶2In the Supreme Court of Georgia
¶3 Decided: May 2, 2023
¶4 S23A0022, S23A0023. SESSION v. THE STATE.
¶5 PETERSON, Presiding Justice.
¶6 In these companion appeals, Derrick Session challenges his
¶7convictions for failure to register as a sex offender in Georgia based
¶8on a conviction he received in Louisiana. He argues that the
¶9evidence was insufficient to support his Georgia convictions. He also
¶10argues that the Georgia registration statute as applied to him
¶11violates his federal rights to travel and equal protection, and he
¶12raises a facial challenge to the registration statute under the
¶13Georgia constitutional prohibition against legislation regarding the
¶14social status of citizens.
¶15 After thorough consideration, we reject those arguments. First,
¶16Session has not shown that the evidence was insufficient to support
¶17his convictions, because he has conceded that the only argument as to sufficiency that he made in his primary appellate brief — that the
¶18convictions violated ex post facto principles — is at odds with
¶19controlling case law. Next, his arguments that the registration
¶20statute violated his federal rights to travel and to equal protection
¶21fail because they are based on the unduly speculative assumption
¶22that if he had committed the underlying sexual offense in Georgia,
¶23he would have been convicted of only a misdemeanor and thus not
¶24subject to registration. And finally, although Session makes an
¶25interesting argument that Georgia’s constitutional prohibition
¶26against legislation regarding citizens’ social status must mean
¶27something different than the repugnantly racist — and patently
¶28unconstitutional — meaning that this Court ascribed to it shortly
¶29after its first adoption in 1868, he has not shown that any different
¶30meaning that provision has today is inconsistent with the
¶31requirements of the Georgia sexual offender registry. We therefore
¶32affirm.
¶33 1. Background.
¶34 Viewed in the light most favorable to the verdicts, the evidence
¶35 2 admitted at trial — much of which came from Louisiana court
¶36documents or stipulated facts — was as follows. In May 1994,
¶37Session was indicted in Louisiana for the aggravated rape of a four-
¶38year-old child. Session was 15 years old at the time of the alleged
¶39offense. On May 18, 1995, Session entered a plea of guilty to an
¶40amended charge of sexual battery. The Louisiana trial court
¶41accepted that plea and, at a hearing on August 15, 1995, sentenced
¶42Session to ten years to serve at hard labor. In 2004, after completing
¶43his sentence, Session received a first-offender pardon pursuant to
¶44Louisiana R.S. 15:572.
¶45 At some point, Session moved to Texas. Session later moved to
¶46Paulding County and registered on the Georgia sex offender registry
¶47(“the Registry”) with the Paulding County Sheriff’s Office in April
¶482017. In March 2019, a detective conducted a residence check at a
¶49Dallas, Georgia, address that Session had provided to the Paulding
¶50County Sheriff’s Office, and was told that Session was not living
¶51there. Session, who was living in Kennesaw at the time, was
¶52arrested for failure to register. He appeared at the Paulding County
¶53 3 Sheriff’s Office in March 2020 to update his registration; he
¶54apparently was arrested while completing his paperwork.
¶55 On October 28, 2020, a Paulding County grand jury returned
¶56two separate indictments against Session, each charging him with
¶57two counts of failure to register as a sex offender under OCGA § 42-
¶581-12, with one indictment alleging violations in March 2019 and the
¶59other alleging violations in February and/or March 2020. Session
¶60filed an identical general demurrer and plea in bar in each case. In
¶61those filings, Session demurred generally to all counts in the
¶62indictments as failing to charge him with a crime and argued that
¶63his prior first-offender pardon barred the Paulding County
¶64prosecution. 1 He also “demur[red] to the Registry as-applied to his
¶65case” on three federal constitutional grounds. First, he argued that
¶66the Registry violated his fundamental right to travel under the
¶67Privileges and Immunities Clause by treating him worse than a
¶68native Georgian, because the conduct that was the basis for his
¶69 1 On appeal, Session does not rely on the first-offender pardon received from Louisiana in seeking reversal of his Georgia convictions. 4 underlying offense would have constituted a misdemeanor not
¶70subject to registration if committed in Georgia. Second, he argued
¶71that the application of the Registry to him violated the Equal
¶72Protection Clause by distinguishing between in-state and out-of-
¶73state convictions. Third, he argued that his due process rights had
¶74been violated by lack of notice that he would have to register, given
¶75that he was a minor at the time of the offense, was convicted of
¶76something that would be a misdemeanor in Georgia, and was
¶77pardoned by Louisiana. Apart from his as-applied federal
¶78constitutional challenges, Session also raised facial and as-applied
¶79challenges to the Registry under Paragraph XXV of the Georgia Bill
¶80of Rights, which provides, “The social status of a citizen shall never
¶81be the subject of legislation.” Ga. Const. of 1983, Art. I, Sec. I, Par.
¶82XXV.
¶83 The case proceeded to a bench trial of both cases in July 2022;
¶84the trial court received both stipulated facts and evidence. In his
¶85closing argument, Session argued that OCGA § 42-1-12 violated the
¶86United States Constitution, as applied to him, and the Georgia
¶87 5 Constitution, both facially and as applied. The trial court orally
¶88denied Session’s demurrer and plea in bar in each case and
¶89adjudicated him guilty on all counts (except for one count that the
¶90State nolle prossed). The court imposed an aggregate sentence of 20
¶91years, to serve five in confinement, with the incarceration time to be
¶92suspended, conditioned upon Session paying $6,000 in fines within
¶93six months and fully complying with the registration requirements
¶94of the sex offender statute. Session filed timely notices of appeal.
¶95 2. Session has not shown that the evidence is insufficient to support his convictions.
¶96 Because “[w]e do not unnecessarily decide the constitutionality
¶97of statutes,” In the Interest of C.C., 314 Ga.446, 451 (2) (a) (877 SE2d
¶98555) (2022), we consider first Session’s argument that the evidence
¶99was insufficient to support his convictions. We conclude that Session
¶100has not shown that the evidence was insufficient to support his
¶101convictions.
¶102 When evaluating the sufficiency of evidence, “the relevant
¶103question is whether, after viewing the evidence in the light most
¶104favorable to the prosecution, any rational trier of fact could have 6 found the essential elements of the crime beyond a reasonable
¶105doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (99 SCt 2781, 61 LE2d
¶106560) (1979) (emphasis omitted).
¶107 Similar to appeals from a jury trial resulting in a criminal conviction, on appeal from a bench trial, we view all evidence in the light most favorable to the trial court’s verdict, and the defendant no longer enjoys the presumption of innocence. We do not re-weigh testimony, determine witness credibility, or address assertions of conflicting evidence.
¶108Jones v. State, 307 Ga. 505, 506 (1) (837 SE2d 288) (2019) (citation
¶109and punctuation omitted). “On appeal, it is the defendant’s burden
¶110to show that the trial evidence was insufficient as a matter of
¶111constitutional due process to support his convictions.” Charles v.
¶112State, 315 Ga. 651, 653 (2) (884 SE2d 363) (2023); see also Davis v.
¶113State, 312 Ga. 870, 873 (1) n.2 (866 SE2d 390) (2021) (affirming a
¶114defendant’s convictions where his “only” sufficiency argument
¶115lacked merit and he “ha[d] not otherwise shown that the evidence
¶116supporting the child cruelty convictions was insufficient as a matter
¶117of constitutional due process”).
¶118 [T]he provisions of OCGA § 42-1-12 require that
¶119 7 convicted sex offenders falling within its purview provide a substantial amount of personal information, including name, social security number, age, detailed physical description, fingerprints, photograph, date and place of employment, and vehicle identification, to the sheriff of the county of his residence. OCGA § 42-1-12 (a) (16); (f) (2). After initially registering in person, the offender must renew registration in person once a year, OCGA § 42-1-12 (f) (4), and update the sheriff within 72 hours of any change to the required information. OCGA § 42-1-12 (f) (5). These requirements must be complied with until death, except for periods of subsequent incarceration. OCGA § 42-1-12 (f) (6). This information is maintained and made accessible to the public by the Georgia Bureau of Investigation and the relevant county sheriff, OCGA § 42-1-12 (h), (i), and submitted to “each school in this state.” OCGA § 42-1-12 (l). And violation of the requirements of this Code section constitutes a felony punishable by up to 30 years imprisonment. OCGA § 42- 1-12 (n) (1).
¶120State v. Davis, 303 Ga. 684, 690 (2) (814 SE2d 701) (2018).
¶121 The State in this case charged Session with failing to register
¶122in violation of OCGA § 42-1-12 (n). The indictments of Session
¶123alleged that he was required to register “pursuant to the provisions
¶124of OCGA 42-1-12 (e) by virtue of having previously been convicted of
¶125the offense of Sexual Battery on August 15, 1995 in the Parish of
¶126Franklin, Louisiana, said offense being a criminal offense against a
¶127victim who is a minor and having been placed on supervised release 8 on August 15, 1995[.]” OCGA § 42-1-12 (e) lists several categories of
¶128persons for whom registration is required. The State provides two
¶129alternative bases on which Session was required to register: the
¶130registration requirement for any individual who “[h]as previously
¶131been convicted of a criminal offense against a victim who is a minor
¶132and may be released from prison or placed on parole, supervised
¶133release, or probation on or after July 1, 1996[,]” OCGA § 42-1-12 (e)
¶134(3), and the registration requirement for any individual who “is a
¶135nonresident who changes residence from another state . . . to Georgia
¶136who is required to register as a sexual offender under the laws of
¶137another state or territory[,]” OCGA § 42-1-12 (e) (6). Whether or not
¶138the evidence supports a conclusion that Session was required to
¶139register pursuant to OCGA § 42-1-12 (e) (3), we conclude that
¶140Session has not shown that the evidence was insufficient to support
¶141a conclusion that he was required to register pursuant to OCGA §
¶14242-1-12 (e) (6).
¶143 Louisiana law requires (and required at the time that Session
¶144allegedly failed to register in Georgia, as well as at the time of
¶145 9 Session’s underlying offense) registration by any adult residing in
¶146the state who had been convicted of a “sex offense.” La. R.S. 15:542
¶147(A) (1) (a); La. R.S. 15:542 (A) (1992). The statute explicitly defines
¶148“sex offense” as including the crime of sexual battery, and it did so
¶149at the time that Session allegedly failed to register in Georgia. See
¶150La. R.S. 15:541 (24) (a) (2018). The crime of sexual battery also fell
¶151within the Louisiana registration statute’s definition of a “sex
¶152offense” at the time of the underlying crime and at the time of
¶153sentencing for sexual battery in Louisiana. See La. R.S. 15:542 (E)
¶154(1995); La. R.S. 15:544 (E) (1992). At the time of Session’s
¶155underlying offense, as well as when he was sentenced for sexual
¶156battery, the Louisiana registration statute required those subject to
¶157the statute to register for ten years after their release from prison.
¶158See La. R.S. 15:544 (A) (1995); La. R.S. 15:544 (A) (1992). The
¶159Louisiana legislature in 2007 extended that requirement to 15
¶160years, with a 25-year registration requirement for those “convicted
¶161of a sexual offense of a victim who is a minor” and a lifetime
¶162registration requirement for certain other offenders. See 2007 La.
¶163 10 Acts, No. 460, § 2 (effective Jan. 1, 2008). Under this amendment,
¶164sexual battery was (and is) generally included in the definition of
¶165“sexual offense against a victim who is a minor” when the victim is
¶166under the age of 18. See id.; see also La. R.S. 15:541 (25) (a). The
¶167State takes the position here that because Louisiana required
¶168Session to register for 25 years, he thus has been required to register
¶169in Louisiana (were he to move back to that state) since the time that
¶170he moved to Georgia, and so he has been required to register in
¶171Georgia pursuant to OCGA § 42-1-12 (e) (6).
¶172 On appeal, Session argues that he was not required to register
¶173pursuant to OCGA § 42-1-12 (e) (6) because extending his Louisiana
¶174registration requirement via an enactment after the commission of
¶175his underlying offense would constitute an impermissible ex post
¶176facto law. But the Louisiana Supreme Court has rejected the notion
¶177that lengthening a registrant’s registration period violates ex post
¶178facto principles as a matter of both federal and Louisiana
¶179constitutional law, at least where the change was made during the
¶180registrant’s original reporting period. See Smith v. State, 84 S3d
¶181 11 487, 497-499 (La. 2012); see also State v. Clark, 117 S3d 1246, 1248
¶182(La. 2013) (noting Section 6 of 2007 La. Acts 460 specifically
¶183provided that “[t]he provisions of this Act shall apply to all persons
¶184convicted of a sex offense or a criminal offense against a victim who
¶185is a minor . . . regardless of the date of conviction, with the exception
¶186of those persons required to register under previous provisions of
¶187law whose obligations to register have been fulfilled and
¶188extinguished by operation of law”). This is consistent with similar
¶189rulings by this Court and the United States Supreme Court. See
¶190Smith v. Doe, 538 U.S. 84, 105-106 (123 SCt 1140, 155 LE2d 164)
¶191(2003) (statutory requirement for retroactive registration of sex
¶192offenders was “nonpunitive” and did not itself constitute an ex post
¶193facto law); Frazier v. State, 284 Ga. 638, 640 (1) (668 SE2d 646)
¶194(2008) (rejecting argument that sexual offender registration
¶195requirement in conjunction with criminal penalty provision enacted
¶196after appellant’s underlying conviction violates state and federal
¶197prohibitions of ex post facto laws). Session’s counsel conceded at oral
¶198argument that Session’s ex post facto argument cannot succeed.
¶199 12 Except to say that he could not alternatively be required to
¶200register in Georgia by virtue of a requirement that he register in
¶201Texas, this ex post facto argument about the Louisiana statutory
¶202change was the only argument that Session raised in his primary
¶203appellate brief as to why the State had not shown that he was
¶204required to register under OCGA § 42-1-12 (e) (6). And the only
¶205argument that Session made as to why the evidence was insufficient
¶206to support his failure-to-register convictions was that the State had
¶207not shown that he was required to register under either OCGA § 42-
¶2081-12 (e) (3) or OCGA § 42-1-12 (e) (6).
¶209 At oral argument before this Court, Session tried to pivot to an
¶210argument different from that which he made in his brief, arguing
¶211that the State had not presented sufficient evidence that he was still
¶212required to register in Louisiana when he moved to Georgia, even
¶213assuming that the 2007 legislative change could apply to him
¶214consistent with ex post facto principles. Session expounds on that
¶215argument in a supplemental brief filed after oral argument. But this
¶216argument is nowhere contained in Session’s primary brief before
¶217 13 this Court. And “[i]t is improper to use a supplemental brief to
¶218expand upon the issues to be decided by this Court.” Saint v.
¶219Williams, 287 Ga. 746, 747 (2) (699 SE2d 312) (2010).
¶220 And even if the tack that Session took at oral argument and
¶221the brief that followed is theoretically within the bounds of the
¶222(rather broad) enumeration of error stated in his brief — “The Trial
¶223Court Erred in Convicting Session because the Registry Statute did
¶224not Apply to Him” — it is not reasonably so. The argument Session
¶225made at oral argument as to why the State had not proven that he
¶226was required to register under OCGA § 42-1-12 (e) (6) raises at least
¶227one question (whether his Louisiana conviction constitutes a “sexual
¶228offense against a victim who is a minor” triggering Louisiana’s 25-
¶229year registration term) that is nowhere addressed in Session’s
¶230primary appellate brief. We require appellants to file a principal
¶231brief by a certain date, and we dismiss appeals of appellants who fail
¶232to file briefs. See Supreme Court Rule 10. And we require all
¶233enumerated errors to be supported by argument or citation of
¶234authority; otherwise, the enumeration will be deemed abandoned.
¶235 14 See Supreme Court Rule 22.
¶236 Here, Session timely filed a brief containing enumerations of
¶237error supported by argument and citation of authorities. But his
¶238brief contained no argument or citation of authority in support of the
¶239argument that he makes now. To consider this completely different
¶240issue, raised at oral argument for the first time, would render our
¶241rules a dead letter, and we will not allow that. Cf. Cox v. U.S.
¶242Markets, Inc., 278 Ga. App. 287, 291 (4) (628 SE2d 701) (2006) (“One
¶243cannot expand the scope of review or supply additional issues
¶244through a process of switching, shifting, and mending your hold.”
¶245(citation and punctuation omitted)). 2 Having conceded the only basis
¶246on which he made a claim supported by argument and citation of
¶247authority in his primary appellate brief as to why he did not need to
¶248register pursuant to OCGA § 42-1-12 (e) (6), Session has not shown
¶249that the evidence was insufficient to support his Georgia
¶250convictions.
¶251 2 Apparently, the phrase “mend the hold” is a nineteenth-century wrestling term, meaning to get a better grip on one’s opponent. See Harbor Ins. Co. v. Continental Bank Corp., 922 F2d 357, 362 (7th Cir. 1990). 15 3. Session has not shown that requiring him to register violates his federal rights to travel and equal protection.
¶252 Session raises two federal constitutional arguments, arguing
¶253that applying the registration requirement to him violates his right
¶254to travel and his equal protection rights. We conclude that Session
¶255has not shown a violation of these federal rights.
¶256 (a) Right to travel.
¶257 The Privileges and Immunities Clause of the Fourteenth
¶258Amendment protects the right to travel, which includes “the right of
¶259a citizen of one State to enter and leave another State . . . , and, for
¶260those travelers who elect to become permanent residents, the right
¶261to be treated like other citizens of that State.” Saenz v. Roe, 526 U.S.
¶262489, 500-504 (119 SCt 1518, 143 LE2d 689) (1999).
¶263 Session argues that requiring him to register violates his right
¶264to travel because he is being treated differently than he would be
¶265had the underlying crime in question been committed in Georgia, as
¶266he would not have been required to register had he been convicted
¶267of sexual battery in Georgia. The Registry statute exempts “a
¶268conviction for a misdemeanor” from the definition of “a criminal 16 offense against a victim who is a minor.” OCGA § 42-1-12 (a) (9) (C).
¶269The Louisiana offense of which Session was convicted, sexual
¶270battery, is a felony. See La. R.S. 14:43.1 (C) (1991); see also La. R.S.
¶27114:2 (4) (1992) (defining “felony” as “any crime for which an offender
¶272may be sentenced to death or imprisonment at hard labor”). But at
¶273the time that Session committed his underlying offense in
¶274Louisiana, Georgia treated sexual battery as a misdemeanor. See
¶275OCGA § 16-6-22.1 (c) (1990).3
¶276 None of the United States Supreme Court decisions on which
¶277Session relies for his right-to-travel claim involved an argument
¶278that a new state resident’s right to travel is being burdened by a sex
¶279offender registration requirement on the basis that, if he had
¶280committed the crime in his new state, he would have been treated
¶281differently in the underlying criminal case, and thereby not be
¶282required to register. Rather, these cases involved public benefits
¶283schemes that allocated benefits differently depending on how long a
¶284 3 Today, by contrast, the statute provides that a person convicted of the offense of sexual battery of a child under the age of 16 years is guilty of a felony. See OCGA § 16-6-22.1 (d). 17 person had been residing in the state. See Saenz, 526 U.S. at 500-
¶285507 (state statute limiting welfare benefits through recipient’s first
¶286year of residency to the amount payable by the State of the
¶287recipient’s prior residence violated Fourteenth Amendment right to
¶288travel); Hooper v. Bernalilo County Assessor, 472 U.S. 612, 618 n.6,
¶289622-623 (105 SCt 2862, 86 LE2d 487) (1985) (applying equal-
¶290protection analysis to conclude that state statute that granted tax
¶291exemption limited to those Vietnam veterans who resided in the
¶292state before a certain date violated newer residents’ right to travel);
¶293see also Williams v. Vermont, 472 U.S. 14, 27 (105 SCt 2465, 86
¶294LE2d 11) (1985) (finding it unnecessary to consider appellants’
¶295arguments based on right to travel).
¶296 Here, the Registry does distinguish between “residents” and
¶297“nonresidents.” See OCGA § 42-1-12 (e). It treats persons with
¶298foreign convictions differently depending on whether the convict is
¶299a Georgia resident, a new resident, or a nonresident who enters the
¶300state for significant periods of time for employment, schooling, or
¶301other purposes. See id. In particular, the statute requires
¶302 18 registration by those convicted of certain crimes on or after July 1,
¶3031996, or those who are convicted of such crimes and who “may be
¶304released from prison or placed on parole, supervised release, or
¶305probation on or after July 1, 1996.” OCGA § 42-1-12 (e) (1)-(4). A
¶306resident of Georgia convicted of certain crimes under the laws of
¶307another jurisdiction on or after certain dates is required to register.
¶308See OCGA § 42-1-12 (e) (5). On the other hand, a nonresident who
¶309moves to Georgia who is required to register in another jurisdiction,
¶310as well as “a nonresident sexual offender” who visits the state for
¶311certain purposes for certain lengths of time, may be required to
¶312register, irrespective of when the underlying conviction was entered,
¶313or when the person was released or placed on parole, supervised
¶314release, or probation. See OCGA § 42-1-12 (e) (6)-(8). 4
¶315 4 The statute requires registration by a resident of Georgia “who intends to reside in this state” if that person “is convicted under the laws of another state or the United States, under the Uniform Code of Military Justice, or in a tribal court of a sexually violent offense, a criminal offense against a victim who is a minor on or after July 1, 1999, or a dangerous sexual offense on or after July 1, 1996[.]” OCGA § 42-1-12 (e) (5). For a nonresident who moves to Georgia, registration is required if the person “is required to register as a sexual offender under federal law, military law, tribal law, or the laws of another state or territory or who has been convicted in this state of a criminal
¶316 19 But Session does not ground his right-to-travel claim in the
¶317Registry’s different treatment of residents, new residents, and
¶318nonresidents generally. His as-applied right-to-travel challenge to
¶319the statute is very specific to him. He claims that “the Registry
¶320imposes disabilities on Session for a conviction that, if occurring
¶321simultaneously in Georgia, would not require registration[,]” with
¶322“[t]he only reason for the differential treatment” being that
¶323“Louisiana punished Session for a felony, even though the same
¶324crime in Georgia at the time was only a high and aggravated
¶325misdemeanor.” This, Session argues, quoting a separate writing in
¶326Hope v. Comm’r of Ind. Dept. of Corr., 9 F4th 513 (7th Cir. 2021) (en
¶327banc), amounts to “assign[ing] different obligations to Georgians
¶328‘based not on what they have done but where they have been. It is
¶329relying on another state’s handling of a particular criminal history
¶330offense against a victim who is a minor or any dangerous sexual offense.” OCGA § 42-1-12 (e) (6). Nonresidents who enter the state for schooling or some purpose such as employment for a period exceeding 14 consecutive days or an aggregate of 30 days during any calendar year must register if they fit the definition of a “sexual offender” — defined as anyone who “is convicted of a criminal offense against a victim who is a minor or any dangerous sexual offense” or who is otherwise required to register under the statute. OCGA § 42- 1-12 (a) (20), (e) (7)-(8). 20 to determine how that individual will be treated in’ Georgia.” Id. at
¶331536 (Rovner, J., concurring in part and dissenting in part).
¶332 But this argument depends on the highly speculative
¶333assumption that if Session had engaged in the underlying conduct
¶334in Georgia, he would be have been convicted of a mere misdemeanor
¶335and thus not required to register. The Louisiana sexual battery
¶336crime of which Session was convicted and the Georgia crime of
¶337sexual battery that existed in 1994 are not identical. The Louisiana
¶338sexual battery statute under which Session was convicted defined
¶339the offense as follows:
¶340 Sexual battery is the intentional engaging in any of the following acts with another person, who is not the spouse of the offender, where the offender acts without the consent of the victim, or where the other person has not yet attained fifteen years of age and is at least three years younger than the offender:
¶341 (1) The touching of the anus or genitals of the victim by the offender using any instrumentality or any part of the body of the offender; or
¶342 (2) The touching of the anus or genitals of the offender by the victim using any instrumentality or any part of the body of the victim.
¶343La. R.S. 14:43.1 (A) (1991). At the time of Session’s Louisiana
¶344 21 offense, Georgia’s crime of sexual battery was defined as
¶345“intentionally mak[ing] physical contact with the intimate body
¶346parts of the body of another person without the consent of that
¶347person.” OCGA § 16-6-22.1 (b). Perhaps most notably, the range of
¶348body parts the touching of which could bring an action within the
¶349ambit of the offense was broader in the Georgia offense; the Georgia
¶350statute defined “intimate parts” as “the primary genital area, anus,
¶351groin, inner thighs, or buttocks of a male or female and the breasts
¶352of a female.” OCGA § 16-6-22.1 (a) (1990). 5
¶353 But apart from any particular differences, it is pure
¶354speculation to say of what particular crime Session would have been
¶355convicted, let alone to say that it would have been a misdemeanor,
¶356had he engaged in the same conduct in Georgia. Session’s argument
¶357assumes that, notwithstanding the differences in the elements and
¶358punishment accompanying the Louisiana and Georgia sexual
¶359battery offenses at the time, a Georgia prosecutor would have offered
¶360 5 These definitions remain the same under the current Code. See OCGA § 16-6-22.1. 22 a plea deal in which Session would have pleaded guilty to a
¶361misdemeanor sexual battery offense, and the trial court would have
¶362accepted such a bargain. The limited factual record regarding the
¶363underlying crime makes engaging in such speculation particularly
¶364difficult. And such a speculative argument is not nearly as strong as
¶365the argument rejected by the Seventh Circuit sitting en banc in
¶366Hope; in that case, all of the plaintiffs committed their crimes before
¶367Indiana enacted its registration statute, such that registration for
¶368any in-state offense was prohibited under the Indiana Supreme
¶369Court’s interpretation of the state’s own ex post facto clause. See 9
¶370F4th at 522, 525-526; see also Hope, 9 F4th at 538 (Rovner, J.,
¶371concurring in part and dissenting in part). It is also no stronger than
¶372other right-to-travel challenges to other sex offender statutes that
¶373appellate courts have rejected. See Doe v. Peterson, 43 F4th 838, 841-
¶374842 (8th Cir. 2022) (rejecting federal right-to-travel challenge to
¶375Nebraska sex offender law that required registration by those
¶376obligated to register in another state, even if the offense was
¶377committed as a juvenile, but did not require registration for those
¶378 23 who committed offenses in Nebraska as juveniles); State v. Yeoman,
¶379236 P3d 1265, 1268-1269 (Idaho 2010) (rejecting federal right-to-
¶380travel challenge to Idaho sex offender statute that required
¶381registration for out-of-state convictions regardless of when they
¶382occurred, but only those in-state convictions that occurred after a
¶383certain date, given that registration based on out-of-state
¶384convictions also depended upon being required to register in the
¶385state of conviction at the time of relocation to Idaho).6 Session has
¶386not shown that requiring him to register violated his right to travel
¶387under the federal Constitution.
¶388 (b) Equal protection.
¶389 Similarly, Session’s equal-protection argument is based on the
¶390assumption that if he had committed the same underlying offense in
¶391 6 We observe that the Idaho Supreme Court has reversed on federal right-to-travel grounds a conviction under a prior Idaho sex offender registration law that provided that a longer-term resident with a pre-1993 conviction from Idaho or elsewhere did not have to register, while a person with such a conviction who moved to Idaho after June 1993 was required to do so, no matter how old the conviction. See State v. Dickerson, 129 P3d 1263, 1266- 1271 (Idaho 2006). Nothing in the Georgia registry statute makes such a distinction, and the sort of distinctions between residents and non-residents discussed above are, again, not the basis for Session’s argument. 24 Georgia, he would have been convicted of only a misdemeanor.
¶392 “[A]n equal protection challenge to a criminal statute is
¶393examined under the rational basis test unless the statute
¶394discriminates on racial grounds or against a suspect class.” State v.
¶395Holland, 308 Ga. 412, 415 (2) (841 SE2d 723) (2020). “An equal
¶396protection claimant must establish that he is similarly situated to
¶397members of the class who are treated differently from him” and that
¶398“there is no rational basis for such different treatment.” Id. at 415-
¶399416 (2) (citation and punctuation omitted). “In general, for equal
¶400protection purposes, criminal defendants are similarly situated if
¶401they are charged with the same crime.” Id. at 416 (2) (citation,
¶402punctuation, and emphasis omitted).
¶403 Session argues that requiring him to register based on his
¶404Louisiana conviction violates his right to equal protection because
¶405such a requirement distinguishes between persons with a foreign
¶406sexual battery conviction and similarly-situated persons convicted
¶407of sexual battery in Georgia, a distinction that he contends is not
¶408rationally related to achieving the Registry’s (admittedly) legitimate
¶409 25 purposes. But, as discussed above, Georgia’s definition of the crime
¶410of sexual battery was similar to, but not the same as, Louisiana’s
¶411definition at the time of the underlying offense. And to the extent
¶412that the underlying substantive Georgia criminal law treats certain
¶413conduct differently than another state does, this is not the sort of
¶414explicit distinction between in-state and out-of-state offenders by a
¶415sex offender registry scheme that other courts have found runs afoul
¶416of the Equal Protection Clause. Compare Doe v. Pa. Bd. of Probation
¶417& Parole, 513 F3d 95, 98, 112 (3d Cir. 2008) (equal protection
¶418violation where state law automatically subjected out-of-state sex
¶419offenders to community notification, while an individual convicted
¶420of same offense in Pennsylvania would be subject to notification only
¶421if particular designation were made after a civil hearing); ACLU of
¶422N.M. v. City of Albuquerque, 137 P3d 1215, 1226-1227 (N.M. Ct.
¶423App. 2006) (equal protection violation where city’s sex offender law
¶424required registration for those with out-of-state convictions who
¶425were in city only three consecutive days, but not for those with in-
¶426state convictions who were in the city much more often); and
¶427 26 Hendricks v. Jones ex rel. State, 349 P3d 531, 536 (Okla. 2013) (equal
¶428protection violation where state’s registration requirement applied
¶429to out-of-state offenders convicted prior to statue’s enactment, but
¶430limiting registration for in-state offenders to those whose conviction
¶431occurred after statute’s effective date); with Morales-Frometa v.
¶432Attorney General United States, 812 Fed. Appx. 95, 99 (3d Cir. 2020)
¶433(“courts have repeatedly recognized the equal protection does not
¶434require uniformity” among jurisdictions); United States v. Titley,
¶435770 F3d 1357, 1362 (10th Cir. 2014) (rejecting equal protection
¶436challenge to Armed Career Criminal Act designation based on two
¶437state drug convictions that the appellant argued “would not qualify
¶438had the predicate offenses been committed in 19 other states or the
¶439District of Columbia”); United States v. Fink, 499 F3d 81, 87 (1st Cir.
¶4402007) (rejecting claim that statutory enhancement dependent upon
¶441states’ variable treatment of drug possession violated right to equal
¶442protection). Session has not shown that requiring him to register in
¶443Georgia violated his federal equal protection rights.
¶444 4. Session has not shown that the Georgia Registry violates
¶445 27 the Georgia Constitution’s Social Status Provision.
¶446 Finally, Session argues that the Georgia Registry is
¶447unconstitutional on its face because it violates the Georgia
¶448Constitution’s Social Status Provision. We reject this claim.
¶449 As noted above, Paragraph XXV of the Georgia Bill of Rights
¶450provides that “[t]he social status of a citizen shall never be the
¶451subject of legislation.” Ga. Const. of 1983, Art. I, Sec. I, Par. XXV
¶452(the “Provision”). This Provision has been construed only rarely by
¶453Georgia’s appellate courts, and most of those cases have involved the
¶454patently racist applications of the Provision in the decades following
¶455its adoption into the Georgia Constitution in 1868. In those cases,
¶456we apparently held that the Provision prohibited any attempts by
¶457the General Assembly to remove barriers to racial integration.
¶458Session argues that the Provision cannot have that meaning
¶459anymore, that it nevertheless must still have some meaning, and
¶460thus this provision now “prohibits the State from creating favored
¶461or disfavored classes of citizens.” He argues that the Registry
¶462therefore violates this Provision because it “serves to create a lower-
¶463 28 tier citizen[.]” As we explain below, regardless of whether Session is
¶464correct that the Provision must mean something different than the
¶465meaning this Court initially ascribed to it, his claim ultimately fails
¶466because he has offered no proposed meaning of the Provision that
¶467forecloses requiring him to register.
¶468 Session’s burden on this claim is a difficult one.
¶469 We presume that statutes are constitutional, and before an act of the General Assembly can be declared unconstitutional, the conflict between it and the fundamental law must be clear and palpable and this Court must be clearly satisfied of its unconstitutionality. Because all presumptions are in favor of the constitutionality of a statute, the burden is on the party claiming that is the law is unconstitutional to prove it. And [Session]’s task is made all the more difficult because, to make this argument, [he] is asserting a novel and quite expansive construction of a provision of the Georgia Constitution that has received little attention since it was enacted.
¶470Ammons v. State, 315 Ga. 149, 163 (3) (880 SE3d 544) (2022)
¶471(citations and punctuation omitted).
¶472 It is well established that “we interpret the Georgia
¶473Constitution according to its original public meaning.” Elliott v.
¶474State, 305 Ga. 179, 181 (II) (824 SE2d 265) (2019). “And, of course,
¶475 29 the Georgia Constitution that we interpret today is the Constitution
¶476of 1983; the original public meaning of that Constitution is the
¶477public meaning that it had at the time of its ratification in 1982.” Id.
¶478And when a provision has been “retained from a previous
¶479constitution without material change,” we generally presume that
¶480the provision “has retained the original public meaning that
¶481provision had at the time it first entered a Georgia Constitution,
¶482absent some indication to the contrary.” Id. at 183 (II) (A). In
¶483addition, “[a] constitutional clause that is readopted into a new
¶484constitution and that has received a consistent and definitive
¶485construction is presumed to carry the same meaning as that
¶486consistent construction.” Id. at 184 (II) (B).
¶487 The Provision first entered the Georgia Constitution in 1868,
¶488part of the new constitution ratified by Georgians to satisfy the
¶489conditions set by Congress for readmission to the Union. See Ga.
¶490Const. of 1868, Art. I, Sec. XI (“The social status of the citizen shall
¶491never be the subject of legislation.”); see also Ammons, 315 Ga. at
¶492164-165 (3) (discussing context of ratification of 1868 Constitution).
¶493 30 That text has remained materially unchanged since its adoption.
¶494See Ga. Const. of 1983, Art. I, Sec. I, Par. XXV (changing “the
¶495citizen” to “a citizen”); Ga. Const. of 1976, Art. I, Sec. I, Par. XXII;
¶496Ga. Const. of 1945, Art. I, Sec. I, Par. XVIII; Ga. Const. of 1877, Art.
¶497I, Sec. I, Par. XVIII.
¶498 The 1868 Constitutional Convention’s charge was in part to
¶499advance racial equality. See Ammons, 315 Ga. at 165 (3) (citing First
¶500Reconstruction Act of 1867, § 5 (1867), to note that Congress directed
¶501that Georgia’s 1868 Constitution had to both “conform[] with the
¶502Constitution of the United States in all respects” and ensure “that
¶503the elective franchise shall be enjoyed by all persons [male and at
¶504least 21 years old] of whatever race, color, or previous condition”).
¶505But almost immediately, Georgia courts began interpreting the
¶506Provision in a very different way. The year after the Provision was
¶507ratified, a black woman criminally charged for cohabitating with a
¶508white man argued that the statutory prohibition on interracial
¶509marriage violated the Provision. This Court vehemently rejected
¶510that argument:
¶511 31 [T]he very reverse is true. That section of the Constitution forever prohibits legislation of any character regulating or interfering with the social status. It leaves social rights and status where it finds them. It prohibits the Legislature from repealing any laws in existence, which protects persons in the free regulation among themselves of matters properly termed social, and it also prohibits the enactment of any new laws on that subject in the future.
¶512Scott v. Georgia, 39 Ga. 321, 324 (2) (1869). Noting the various forms
¶513of segregation in effect at the time of the adoption of the new
¶514Constitution, the Court continued: “In all of this they were protected
¶515by the common law of this State. The new Constitution forever
¶516guarantees this protection, by denying to the Legislature the power
¶517to pass any law withdrawing it or regulating the social status in such
¶519 The Georgia Court of Appeals later said that the Provision did
¶520not constrain the judicial branch’s ability to “take judicial notice of
¶521an intrinsic difference between the two races[,]” when it employed
¶522the Provision to allow a white railroad passenger to seek damages
¶523from a railroad company whose conductor mistakenly referred to the
¶524passenger as black:
¶525 Our Constitution . . . declares that the social status of the 32 citizen shall never be the subject-matter of legislation. It has been said that this language was used for the express purpose of leaving the social status open to judicial determination. We, however, shall not take any such fanciful position; for it can not properly be said that that which can not be the subject-matter of legislation can be judicially administered. This, however, does not affect the subject of judicial notice of matters of history, common knowledge, etc. The sounder view is, that neither Legislatures nor courts shall grade the citizen according to this social status, and yet that the courts can and must notice the meaning of words of opprobrium, as well as the connection in which these words are used.
¶526See Wolfe v. Ga. Ry. & Electric Co., 2 Ga. App. 499, 504-506 (3) (58
¶527SE 899) (1907). This Court later held that evidence about the race
¶528of a bottling company’s inspectors was not admissible to show the
¶529inspectors’ relative efficiency. See Atlanta Coca-Cola Bottling Co. v.
¶530Shipp, 170 Ga. 817, 820 (2) (154 SE 243) (1930). But the Chief
¶531Justice felt compelled in his concurrence to distinguish the case from
¶532the Court of Appeals’ prior ruling in Wolfe, which he characterized
¶533as remaining good law. See id. at 824 (Russell, C.J., concurring).
¶534 So what to make of such a provision now? Cases like this serve
¶535as a reminder that we focus on history not because it is always good,
¶536but because the rule of law requires it. To discern the meaning of
¶537 33 legal text, we must determine its original public meaning — what
¶538the language meant at the time and place in history when it was
¶539enacted. Original public meaning is an interpretive methodology
¶540that promotes the rule of law by, among other things, constraining
¶541judges. By its application, we limit ourselves to only those
¶542interpretations of legal text that can be supported by text, history,
¶543and context. The meaning produced by those interpretations can
¶544only be as good as our history.
¶545 And there is much in our history that is shameful. The racist
¶546history of this Court’s interpretation of the Provision reminds us of
¶547this truth once again. But a proper application of our interpretive
¶548methodology requires honest grappling with that history; we cannot
¶549wish it away. 7
¶550 7 The drafters of the 1983 Constitution appear not to have grappled with the history of the Provision. See Committee to Revise Article I, Subcommittee to Revise Section I, Oct. 4, 1979, meeting, at pp. 120-121; Committee to Revise Article I, Subcommittee on Rights of Persons, Oct. 25, 1979, meeting, at pp. 109-111. Justice Jesse Bowles informed confused committee members that this provision meant that the legislature could not create formal classes of persons: “They can’t name you a king or a queen to the exclusion of your neighbor or a prince or a lord.” Committee to Revise Article I, Subcommittee to Revise Section I, Oct. 4, 1979, meeting, at pp. 120; see also Committee to Revise Article
¶551 34 Here, however, that shameful history is just that — history. To
¶552the extent that the Provision’s language prohibiting legislation with
¶553respect to “social status” was thinly veiled code for preserving racial
¶554discrimination, including segregation, any such application of the
¶555Provision squarely violated the Fourteenth Amendment to the
¶556United States Constitution. See, e.g., Loving v. Virginia, 388 U.S. 1
¶557(87 SCt 1817, 18 LE2d 1010) (1967); Brown v. Board of Education,
¶558347 U.S. 483 (74 SCt 686, 98 LE 873) (1954). Any such meaning thus
¶559has no effect whatsoever.
¶560 Session thus argues that the Provision must mean something
¶561else today, and that such an alternative meaning renders the
¶562Registry unconstitutional. Whether or not the Provision has an
¶563alternative meaning is a question we need not decide today,8
¶564I, Subcommittee on Rights of Persons, Oct. 25, 1979, meeting, at pp. 109 (Justice Bowles: “It has to do with classes of individuals. You can’t be a lord or a duke or earl or duchess.”). 8 So far as we can tell, other than in Scott, we have referenced this
¶565Provision explicitly in only three other majority opinions throughout our history, and each of those only in passing. See Clark v. Wade, 273 Ga. 587, 598 (IV) & n.57 (544 SE2d 99) (2001) (citing the Provision without analysis as a “see also” in a footnote in support of the textual statement that by harm to a child for purposes of application of the best-interest-of-the-child standard, “we
¶566 35 because Session does not show that he would prevail under any such
¶567meaning.
¶568 As alluded to above, Session contends that the Provision now
¶569“can be interpreted as barring the legislature from creating
¶570preferred or reviled classes of citizens.” Session says that “society”
¶571aims “visceral animus” toward sex offenders and that “[e]ven other
¶572prisoners loathe” them. But Session fails to show how the
¶573registration requirement and related provisions, rather than the
¶574fact of being convicted of a sex offense, “created” a particular class of
¶575citizens — people convicted of sex offenses — or caused “society” to
¶576mean either physical harm or significant, long-term emotional harm; we do not mean merely social or economic disadvantages”); Livingston v. State, 264 Ga. 402, 404 & n.5 (444 SE2d 748) (1994) (citing the Provision as a “see also” in support of the phrase “we have held that it would be constitutionally impermissible for a jury to base its death penalty recommendation on the victim’s class or wealth”; a footnote stated that the Provision “was added to the Georgia Constitution in 1868 to promote equality in the eyes of the law amongst people of all races and classes” and that the principle underlying the Provision was “that an individual’s social status is not relevant to the evenhanded administration of justice,” a proposition for which we inexplicably cited Scott); State ex rel. Waring v. Ga. Med. Soc’y, 38 Ga. 608, 627-630 (1869) (leaving unaddressed argument that corporate bylaw adopted under a legislatively approved corporate charter and prohibiting “ungentlemanly conduct” violated the Provision, given there was no evidence of ungentlemanly conduct). 36 treat that class of persons differently. And Session has offered no
¶577proposed plausible construction of the Provision that would prohibit
¶578criminalizing certain types of conduct on the theory that it would
¶579create a disfavored class comprising those convicted of such crimes.
¶580Accordingly, Session’s argument fails.
¶581 Judgment affirmed. All the Justices concur.
¶582 37