Eleventh Circuit finds unconstitutional, as applied, Alabama law outlawing certain sex offenders from residing with a minor

I just saw a remarkable ruling handed down last week by a unanimous Eleventh Circuit panel in Henry v. Sheriff of Tuscaloosa, Alabama, No. 24-10139 (11th Cir. April 23, 2025) (available here).  The full 111-page opinion gets started this way:

Alabama Code § 15-20A-11(d)(4) prohibits “adult sex offender[s]” who have been convicted of a sex offense involving a child from “resid[ing] or conduct[ing] an overnight visit with a minor,” including their own child.  No exceptions. Plaintiff-Appellee Bruce Henry, who pled guilty to one count of possessing child pornography in 2013, challenges Section 15-20A-11(d)(4) facially and as applied to him.

Henry has completed his term of imprisonment, married, and fathered a son.  But Section 15-20A-11(d)(4) doesn’t allow Henry to live with his son. Henry asserts that Section 15-20A11(d)(4) violates his First Amendment right of intimate association and the Fourteenth Amendment’s guarantees of equal protection of the laws and due process of law. In particular, he argues that Section 15-20A-11(d)(4) interferes with “perhaps the oldest of the fundamental liberty interests” that the Fourteenth Amendment secures, the “fundamental right of parents to make decisions concerning the care, custody, and control of their children,” Troxel v. Granville, 530 U.S. 57, 65–66 (2000) (plurality opinion), which includes the right to “establish a home and bring up children,” Meyer v. Nebraska, 262 U.S. 390, 399 (1923).

We agree. To be sure, Alabama has a compelling reason for its law: to protect children.  And certainly some sex offenders should never have the chance to be near children, including their own.

But Alabama has not narrowly tailored its law to achieve its goal.  The law offers no escape hatch whatsoever. So a person who’s been convicted of a qualifying offense has no chance to avoid the law’s prohibition by proving that they wouldn’t be dangerous to their child. Rather, in every case without fail, Alabama’s law prohibits sex offenders who’ve been convicted of a qualifying offense from residing with their child, even if the individual can prove they present no risk to their child.  As a result, it deprives some individuals convicted of qualifying offenses of their fundamental right to establish a home and bring up their own children, in violation of the Fourteenth Amendment.  And it deprives some children in Alabama of the presence of a parent who may be fit to lovingly care for and raise them.

To understand the vast breadth of Section 15-20A-11(d)(4), consider, for instance, a college freshman convicted of downloading sexually explicit photos their high-school partner sent them.  Under Alabama’s law, that person will necessarily never be able to reside with their child, even if that college freshman does not become a parent until decades after graduating and even if that college freshman never engages in any other sex offense.  The Fourteenth Amendment doesn’t allow for the automatic removal of a parent’s fundamental right to establish a home and raise their child in every circumstance that Section 15-20A-11(d)(4) imposes that penalty.

So after careful consideration, and with the benefit of oral argument, we affirm the district court’s holding that Section 1520A-11(d)(4) impermissibly burdens Henry’s fundamental rights to “establish a home and bring up children.” Id. at 399.

But there’s an easy fix for Alabama to defeat as-applied challenges like Henry’s: Alabama can amend its statute to provide parents with a meaningful chance to show that they are fit despite their conviction.  See also infra note 10 (addressing other possible less restrictive alternatives).  Indeed, as far as we can tell, that’s what every other state that strips unfit parents — including those who are sex offenders — of the right to live with their children does.

As this introduction reveals, the panel here concludes that Alabam law violates Bruce Henry's substantive due process rights. And the opinion includes many extended discussions in support of the constitutional conclusion that a "parent’s right to live with their child is deeply rooted in this Nation’s history and tradition."