What happened
The Eleventh Circuit sitting en banc said Monday that Alabama may not treat all parents convicted of certain sex offenses as having no fundamental right to live with their children, holding that Bruce Henry has such a right despite his child-pornography conviction.
The court said Alabama can regulate or even abrogate that right only if the state shows its law is narrowly tailored to further a compelling interest in child safety. Rather than finally resolve the injunction dispute, the en banc majority remanded the case to the panel for further proceedings consistent with its conclusion that Henry has a fundamental right to live with his children.
Henry sued Alabama officials after he and his wife had a son, seeking to block enforcement of the Alabama Sex Offender Registration and Community Notification Act's prohibition on his living with the child. The district court granted Henry summary judgment, declared the parental-residency prohibition facially unconstitutional and entered a universal injunction, but a prior panel later narrowed that relief before the en banc court vacated the panel opinion.
Alabama's law generally bars sex offenders from residing or conducting overnight visits with minors. Although the statute contains an exception for parents and certain relatives, that exception does not apply to offenders convicted of sex offenses involving a child, including child-pornography offenses, which the majority said brought Henry within the bar.
The majority emphasized that the restriction is permanent and that Alabama provides no mechanism for offenders to seek relief from the bar on residing or staying overnight with their own children. Henry, who pleaded guilty in 2013, served prison time and was released in 2018, had a son with his wife in 2021 and challenged the law after it prevented him from living with the child.
In recognizing the right at issue, the court said Supreme Court precedent has long protected the right to establish a home and bring up children, describing parental rights as among the oldest fundamental liberty interests protected by the Fourteenth Amendment. The majority rejected Alabama's argument that a state may define an entire class of parents out of that right based on past misconduct.
Chief Judge William Pryor dissented, joined by Judges Newsom, Branch and Lagoa, with Judge Luck joining parts of the dissent. The dissent argued the Alabama restriction was a tailored response to child-safety concerns and would have vacated the district court's injunction and instructed the lower court to enter judgment for the state officials.