Do parents who are also sex offenders have a fundamental right to live with their children? According to the Eleventh Circuit’s en banc decision in Henry v. Sheriff of Tuscaloosa County, Alabama, et al, the answer is yes. All parents have that right as a matter of substantive due process.
In 2011, the Alabama legislature enacted the Alabama Sex Offender Registration and Community Notification Act, otherwise known as SORNA. According to the Legislature, the goal is not to further punish sex offenders but to protect the public and promote child safety. Under § 15-20A-11(d) of that law, no sex offender may reside or visit overnight with a minor unless the offender is the parent, grandparent, stepparent, sibling or stepsibling of the minor. But, that statute then explains that no person who has been convicted of a sex offense involving a child may reside or visit overnight with a minor regardless of whether the child was the victim of the sex offense. Moreover, Alabama defines sex offenses involving a child to include offenses related to child pornography. The law does not offer anyway to remove the restriction—it applies for the rest of the offender’s life.
In 2013, Bruce Henry pleaded guilty to possession of child pornography in federal court. In 2021, Henry and his wife had a son, but under Alabama’s restrictions he was not allowed to:
be present in the same home as his son (1) at any time between the hours of 10:30 p.m. and 6:00 a.m.; (2) for more than four hours a day on three consecutive days; (3) for more than four hours a day on ten or more days during a calendar month; or (4) in any other circumstance where he is habitually and systematically present at his son’s home.
Henry later sued in federal court to bar enforcement of § 15-20A-11(d)’s restriction on his ability to live with his son.
The federal district court found that § 15-20A-11(d) was facially unconstitutional and entered an injunction prohibiting Alabama from enforcing the provision against anyone. On appeal, the Eleventh Circuit affirmed the district court’s decision in part but also vacated in part. The Eleventh Circuit affirmed the part of the order finding that § 15-20A-11(d) was unconstitutional as applied to Henry because it impaired his fundamental right to live with his children. The reversed the part of the order finding that § 15-20A-11(d) was facially unconstitutional and the universal injunction. Essentially, the Court held that § 15-20A-11(d) violated Henry’s rights (unconstitutional as applied), but that doesn’t mean it violated the rights of all sex offenders in situations like Henry’s (facially unconstitutional).
Following that decision, the Eleventh Circuit voted to rehear the case en banc. Normally, cases on appeal in federal court are considered by a panel of three judges who make a decision, and a party that loses before the panel has the right to ask for rehearing. When the losing party asks for rehearing they may ask for that same panel to rehear the case or ask for en banc review—meaning that all of the judges on the Eleventh Circuit consider the case.
When the Eleventh Circuit agreed to en banc review, it limited the rehearing to a single issue: Would applying Alabama Code section 15-20A-11(d) to bar Bruce Henry from residing or conducting overnight visits with his minor child violate his right to substantive due process?” When the Court released its decision in the case on July 6, 2026, however, it sidestepped that question.
The en banc majority opinion focused on the question of whether all parents—including sex offenders—have a fundamental right to live with their children. In determining that all parents do have that right, the majority looked at previous decisions by the Supreme Court and its own prior cases as well as the history and traditions regarding parental rights. The majority opinion held that all parents have this right and that there is no exception to this right that allows Alabama to identify a group of parents for whom the right does not exist due to what Alabama considers misconduct. In other words, Alabama does not have the authority to say that a group of parents—like sex offenders—do not have the same fundamental right to live with their children that all other parents possess.
While the majority determined that all parents have this fundamental right, that does not mean Alabama’s law violates that right. When a state enacts a law that conflicts with a fundamental right but does so in a way sufficiently narrowly tailored to serve a compelling state interest—like protecting children—that law does not necessarily violate the fundamental right. Determining whether a law is sufficiently narrowly tailored is called strict scrutiny—the strictest level of review applied to laws. If a reviewing court determines that the law is not sufficiently narrowly tailored, then the law violates the fundamental right in question.
The en banc majority, however, did not conduct this strict scrutiny analysis in Henry’s case. Instead, the majority remanded the case to the panel who initially considered the case to determine whether § 15-20A-11(d)’s restrictions are sufficiently narrowly tailored enough to satisfy substantive due process.
While this decision is a win for Henry in some respects, it does mean that the case isn’t resolved and that the State has a chance to prove that its law is sufficiently narrow to the goal of protecting children.
