Background
Bruce Henry was convicted in 2013 of possessing child pornography (348 photos and 2 videos of minors downloaded from the internet). He served five years of a 70-month sentence and was released in 2018. After release, Henry completed a qualified sex offender treatment program, attends weekly counseling, maintains steady employment, and volunteers in his community. During supervised release, he violated restrictions twice in 2019 by accessing pornography, leading to an extension of his supervised release term.
In August 2021, Henry and his wife had a son. However, Alabama’s Sex Offender Registration and Community Notification Act (2011) permanently prohibits any sex offender convicted of “any sex offense involving a child”—including child pornography—from residing or conducting overnight visits with minors, even their own children. Under Alabama law, this creates an absolute bar: there is no mechanism for offenders to seek relief, and the restriction lasts for life. Henry sued seeking to enjoin enforcement of this prohibition as applied to him.
The Court’s Holding
The Eleventh Circuit, in a majority opinion, held that parents possess a fundamental constitutional right to live with their children, rooted in over 100 years of Supreme Court precedent and deeply embedded in American history and tradition. Citing Meyer v. Nebraska (1923), Moore v. City of East Cleveland (1977), and the recent Mirabelli v. Bonta (2026), the court emphasized that this right to “establish a home and bring up children” is “perhaps the oldest of the fundamental liberty interests” protected by the Fourteenth Amendment’s Due Process Clause.
The court rejected Alabama’s and the dissent’s argument that this fundamental right can be stripped from an entire class of parents who have committed certain crimes. The opinion found no Supreme Court or Circuit precedent supporting such a categorical exception based on prior “misconduct.” The court recognized that while fundamental rights can be regulated—and states can even abrogate them—such action requires strict scrutiny: the government must demonstrate the regulation is narrowly tailored to serve a compelling state interest. Alabama articulated a compelling interest in child safety, but the court remanded to the panel to determine whether the blanket prohibition satisfies strict scrutiny.
Key Takeaways
- Parents have a fundamental constitutional right to live with their children, regardless of prior criminal convictions, including sex offenses.
- Fundamental rights analysis does not end with finding a right “fundamental”—states can still regulate such rights if they meet strict scrutiny (compelling interest + narrow tailoring).
- Categorical bans on parental cohabitation based solely on conviction categories violate due process unless the state can show the ban is narrowly tailored to serve a compelling interest.
- The longstanding American tradition of family unity and parent-child relationships cannot be entirely displaced by legislative classification, even for serious crimes.
Why It Matters
This decision has significant implications for sex offender registration laws nationwide. While affirming that states have legitimate interests in protecting children, the court rejects one-size-fits-all prohibitions in favor of individualized scrutiny under strict constitutional review. The opinion reinforces that even when a person has committed serious crimes, fundamental family rights do not evaporate permanently. For sex offender policy, this means states cannot simply declare entire classes of offenders permanently unable to live with their own biological children without a more particularized showing of narrow tailoring to specific child-safety concerns.
The decision also signals the courts’ commitment to the historical primacy of parent-child relationships as a cornerstone of liberty. Importantly, the majority emphasized that recognizing a fundamental right does not prevent states from regulating it—rather, states must do so carefully and deliberately, not through blanket categorical exclusions. The case is remanded to examine whether Alabama’s specific statutory scheme survives strict scrutiny review.