by Douglas Ankney

Sitting en banc, the United States Court of Appeals for the Eleventh Circuit held that all parents, including a parent convicted of possessing child pornography, enjoy a fundamental right under the Fourteenth Amendment to live with their children so that legislation burdening that right is subject to strict scrutiny. The Court determined that at the “careful description” step of substantive-due-process analysis, the asserted right is described without reference to the parent’s criminal status or other state-defined “misconduct,” and it rejected Alabama’s contention that entire classes of parents permanently forfeit fundamental rights by reason of conduct predating their children’s births. Because Alabama articulated a compelling interest in child safety, the Court did not decide whether the prohibition is constitutional and remanded.

Background

In 2013, Bruce Henry pleaded guilty in federal court to knowingly possessing material containing an image of child pornography. 18 U.S.C. § 2252A(a)(5)(B). Officers recovered two videos and 348 photographs of prepubescent and adolescent girls. Henry had no prior history of sexual offenses. He was sentenced to 70 months of imprisonment and 60 months of supervised release and was released in March 2018. He completed a qualified sex offender treatment program and attends weekly Sex Addicts Anonymous meetings. Henry accessed pornography twice in 2019 while on supervised release. The U.S. District Court for the Middle District of Alabama declined to revoke his release and extended its term to 96 months. He has not violated the terms since. Henry and his wife had a son in August 2021.

The Act

The Alabama Sex Offender Registration and Community Notification Act (“Act”) generally permits a sex offender to reside or conduct an overnight visit with the offender’s minor child. Ala. Code § 15-20A-11(d). But it denies that exception to an offender convicted of a sex offense involving a child, a category that includes offenses involving child pornography. §§ 15-20A-11(d)(4), 15-20A-4(27). The prohibition permanently bars Henry from living or spending the night with his son, and the Act provides no mechanism through which he may obtain relief.

Procedural History

Henry sued the Sheriff and District Attorney of Tuscaloosa County and the Attorney General of Alabama to enjoin enforcement of the prohibition. 42 U.S.C. § 1983. The District Court granted him summary judgment, declared the prohibition facially unconstitutional, and universally enjoined it. A panel of the Eleventh Circuit ruled that the prohibition as applied burdened Henry’s “fundamental right to live with and raise [his] child” and failed strict scrutiny but vacated the universal injunction. The Court vacated the panel opinion and granted rehearing en banc on whether applying § 15-20A-11(d) to bar Henry from residing or conducting overnight visits with his son would violate substantive due process.

Analysis

Reviewing the grant of summary judgment de novo, the Court began its analysis by reviewing the two-step framework governing substantive-due-process challenges to legislation. The first step asks whether the asserted right is fundamental, which it is if “objectively, deeply rooted in this Nation’s history and tradition, and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed,” an inquiry that begins with a “‘careful description’ of the asserted fundamental liberty interest.” Washington v. Glucksberg, 521 U.S. 702 (1997). Where the right is fundamental, the challenged action is presumptively wrongful, and the government must show it “narrowly tailored to serve a compelling state interest.” Flores; Lofton v. Secretary of Department of Children & Family Services, 358 F.3d 804 (11th Cir. 2004). Otherwise, courts reject the claim so long as the action is “rationally related to legitimate government interests.” Glucksberg; FCC v. Beach Communications, Inc., 508 U.S. 307 (1993). The Court stated that fundamental status does not end the inquiry, because government may regulate and even abrogate such a right by invoking a compelling interest and narrowly tailoring its legislation.

Fundamental Right of Parents
to Live With Their Children

The Court next examined the precedent describing the right Henry asserted. The right to “establish a home and bring up children” is among the first fundamental rights the Supreme Court acknowledged, Meyer v. Nebraska, 262 U.S. 390 (1923), and is “perhaps the oldest of the fundamental liberty interests” the Fourteenth Amendment secures. Troxel v. Granville, 530 U.S. 57 (2000) (plurality opinion). Moore v. City of East Cleveland, 431 U.S. 494 (1977) (plurality opinion), invalidated an ordinance limiting occupancy to members of a single family, recognizing that the right of parents and children to share a household lies at the core of the American family. Later decisions reaffirmed it. Roberts v. United States Jaycees, 468 U.S. 609 (1984); Dolan v. City of Tigard, 512 U.S. 374 (1994); Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215 (2022).

No Exception for
State-Defined “Misconduct”

Alabama argued that a parent who has engaged in “misconduct,” however the state defines it, forever loses that right as to current and future children, relying on Michael H. v. Gerald D., 491 U.S. 110 (1989), Quilloin v. Walcott, 434 U.S. 246 (1978), and Lehr v. Robertson, 463 U.S. 248 (1983). The Court disagreed, stating that no Supreme Court or circuit decision has framed the asserted right as the right of a parent who has either been convicted of a child-sex offense or otherwise engaged in state-defined misconduct to live with their children. It read those decisions against the baseline of Stanley v. Illinois, 405 U.S. 645 (1972), where Illinois made the children of an unwed father wards of the state without any showing of unfitness. The Supreme Court invalidated that presumption, explaining that a procedure that “forecloses the determinative issues of competence and care” and “explicitly disdains present realities in deference to past formalities” endangers parent and child alike. Stanley identifies the right as that of a father rather than of an unwed father and focuses on a parent’s present ability to parent, the Court observed.

In contrast, Michael H., Quilloin, and Lehr involved competing claims of two putative parents to the same child. In Michael H., the plurality found no tradition of granting substantive parental rights to a biological father whose child was conceived and born to a woman in an intact marriage that she and her husband wished to preserve. In the adoption cases, the Supreme Court favored the existing marital family over an unwed biological father who had not obtained custody or established the kind of parental relationship protected by the Constitution, the Court explained.

The Court distinguished Doe v. Moore, 410 F.3d 1337 (11th Cir. 2005), where conviction status was itself the information the plaintiffs sought to keep unpublished, and Eknes-Tucker v. Governor of Alabama, 80 F.4th 1205 (11th Cir. 2023), where no binding authority established the asserted right at all. Alabama’s own Court of Criminal Appeals had described the right without a misconduct exception. Herring v. State, 100 So. 3d 616 (Ala. Ct. Crim. App. 2011).

History and Tradition

The Court next examined the history and tradition relied upon by Alabama. It concluded that common-law and nineteenth-century courts did not automatically or permanently deny parents custody because of past misconduct. Instead, they made individualized, totality-of-the-circumstances determinations focused on the parent’s present fitness and the child’s welfare. In Mercein v. People ex rel. Barry, 25 Wend. 64 (N.Y. Ct. for the Correction of Errors 1840), for example, the court stated that a father’s right “may be forfeited by misconduct.” The Court stressed the discretionary word “may,” reasoning that misconduct was relevant only insofar as it affected the child’s welfare at the time of the custody determination.

Other historical authorities followed the same pattern, according to the Court. In Dumain v. Gwynne, 92 Mass. (10 Allen) 270 (1865), a father’s burglary conviction and imprisonment prevented him from retaining custody while incarcerated, but the court did not treat the conviction as permanently extinguishing his parental rights after release. Although competing rights arising from an adoption agreement ultimately controlled the case, the decision left open the possibility that a parent who had completed his sentence could regain custody in the absence of those competing rights.

The Court also rejected Alabama’s reliance on historical laws authorizing capital punishment for certain sex offenses. The severity of those punishments did not establish a historical tradition of categorically and permanently extinguishing the parental right at issue. Historically analogous child-custody laws instead required individualized consideration and permitted a parent to demonstrate present fitness and seek the return of a child, the Court explained.

The Nature of
Fundamental Rights

The proposed exception also cannot be reconciled with the nature of fundamental rights, according to the Court. It reasoned that were the fundamental character of the right to depend on what a legislature classifies as “misconduct,” the right could be legislated away and would not be fundamental in any real sense. Alabama would take the reason for burdening a fundamental right and mistake it for a reason the right is not fundamental at all, the Court explained.

The Court stressed the limits of its holding. Precedent alone establishes Henry’s fundamental right and suffices to subject the Act to strict scrutiny. The history-and-tradition analysis was undertaken only to show that Alabama’s arguments are misguided, and the Court recognized that Henry did not ask it to “break new ground in this field.” Glucksberg. Fundamental status does not resolve the appeal, because Alabama articulated a compelling reason for its law, the safety of children, and laws vindicating that interest can be constitutional if narrowly tailored to further it. Thus, the Court did not decide whether the Act violates Henry’s rights.

Conclusion

Accordingly, the Court affirmed in part and remanded to the panel in part for further proceedings consistent with its opinion. See: Henry v. Sheriff of Tuscaloosa County, 180 F.4th 1294 (11th Cir. 2026) (en banc).  

Subscribe today

Already a subscriber? Login