In a decision that sent ripples through the criminal justice reform community, the full Eleventh Circuit Court of Appeals ruled en banc that Alabama’s law prohibiting sex offenders from living with their own minor children burdens a fundamental constitutional right. The case, Henry v. Sheriff of Tuscaloosa County, has now been won at every level — trial court, three-judge panel, and full appellate court. But before anyone celebrates too loudly, there’s a critical caveat: the court recognized the right without striking down the law, remanding it instead for further proceedings.
This is the kind of ruling that demands careful reading. It’s good news with an asterisk, and understanding both the victory and its limitations is essential for anyone affected by sex offense registry laws.
Who Is Bruce Henry?
Bruce Henry pled guilty in 2013 to one count of possessing child pornography. He had no prior sexual offense convictions. He received 70 months in federal prison and served it. Upon release, he completed a qualified sex offender treatment program, participated in individual and group counseling, attended weekly Sex Addicts Anonymous meetings, held a steady job, attended church, and volunteered in his community.
In August 2021, he and his wife had a son. Under Alabama’s sex offender residency restriction act, Henry cannot sleep in his own home with his child.
Henry is not a perfect plaintiff. The court record shows two incidents during supervised release where he accessed pornographic material, including searches for images depicting minors. His supervised release was extended from 60 to 96 months as a result. He has had no violations since December 2019. While these incidents weaken his sympathetic appeal, the court found them legally irrelevant to the fundamental rights question.
What Alabama’s Law Actually Does
The mechanics of Alabama Code Section 15-20A-11(D) are worth examining in detail, because they illustrate the kind of legislative architecture that creates impossible conditions under the banner of “protection.”
On its face, the law prohibits sex offenders from residing or conducting overnight visits with minors — unless the offender is the parent, grandparent, step-parent, sibling, or step-sibling. That sounds reasonable. Henry is the father, so the exemption should apply.
Except it doesn’t. The parent exemption itself contains five sub-exceptions, and exception number four strips the exemption from anyone whose sex offense “involved a child” — a category that includes child pornography possession. The court noted that these exemptions are “substantially less inclusive than they appear at first glance.”
The definitions compound the absurdity:
- Overnight visit: Any presence between 10:30 PM and 6:00 AM
- Residing: Being present more than four hours per day on three consecutive days, or more than four hours per day on ten or more aggregate days in a month, or being “habitually or systematically present”
The practical effect is that Bruce Henry cannot sleep in his own house. He cannot be home during bedtime hours. And there is no process — none — to ever earn his way back. The restriction is permanent, with no off-ramp, no petition mechanism, and no judicial review. Even if an offender lives a law-abiding life for decades and then has a child, the ban applies for life.
Alabama classifies all of this not as punishment but as a “civil regulatory scheme” aimed at child safety.
The Legal Framework: How the Court Got Here
The procedural history spans years. After his son’s birth, Henry filed suit under 42 U.S.C. § 1983, the federal statute for challenging constitutional violations. The district court declared the prohibition facially unconstitutional and issued a universal injunction.
Alabama appealed. A three-judge panel of the Eleventh Circuit affirmed in part, agreeing that the law burdened Henry’s fundamental right and didn’t survive strict scrutiny. However, the panel reversed the facial ruling and vacated the universal injunction, finding the lower court had overreached.
Alabama then sought en banc review — a rare step where the full court rehears the case. The en banc court took up a single question: Does applying this statute to bar Henry from living with his son violate his right to substantive due process?
The Two-Step Test
The court applied the framework from Washington v. Glucksberg:
Step One: Is this a fundamental right? A right qualifies as fundamental if it is “objectively, deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.”
The court answered emphatically yes, citing precedent stretching back more than a century — from Meyer v. Nebraska (1923) to Troxel v. Granville (2000). The right of parents to live with and raise their children is, in the court’s words, “perhaps the oldest of the fundamental liberty interests.”
Step Two: Apply the appropriate level of scrutiny. Because the right is fundamental, the government’s action is “presumptively wrongful.” The state must demonstrate that the law is narrowly tailored to serve a compelling government interest. This is strict scrutiny — the most demanding standard in constitutional law.
Alabama’s argument was notably aggressive. The state didn’t merely argue it could regulate parental rights; it argued that these parents have no fundamental rights at all. The court flatly rejected this, writing: “Parents, even those who have committed state-defined misconduct, enjoy the fundamental right to live with their children.”
What Was Actually Won — and What Wasn’t
Here’s where the nuance matters enormously.
What was won: The court established that parental rights remain fundamental even after a sex offense conviction. The burden now shifts to Alabama to prove its law is narrowly tailored. This burden shift is significant — it’s the difference between the challenger having to prove the law is irrational (nearly impossible to win) versus the state having to prove the law is precisely calibrated (much harder for the state).
What was not won: The court did not strike down the law. It remanded the case to the three-judge panel “to consider the best way to proceed.” Alabama has articulated a compelling interest — child safety — and the court explicitly left room for the state to justify the restriction under strict scrutiny.
As the opinion states: “This does not mean Alabama cannot regulate or even abrogate that right. But to do so, Alabama must show that the legislation is narrowly tailored to further its compelling interest in the safety of children.”
The Dissent and What Comes Next
Judge Pryor filed a dissent joined by Judges Newsom, Branch, and Lagoa, with Judge Luck partially joining. This dissent matters beyond academic interest — it provides the roadmap Alabama will cite in any petition for certiorari to the U.S. Supreme Court. The kind of well-developed circuit split this case represents is precisely what the Supreme Court tends to take up.
On remand, the panel will likely apply strict scrutiny and find the categorical, no-off-ramp ban is not narrowly tailored. But Alabama will fight that determination aggressively. The more sophisticated legislative response would be to convert the categorical ban into a discretionary one — adding a narrow off-ramp that makes the law harder to challenge while still restricting most people.
Who Does This Help?
The scope of this ruling is limited:
- Named plaintiff only: The universal injunction was vacated. This is as-applied relief for Bruce Henry. Everyone else must bring their own case.
- Three states: If it holds, this precedent binds only Alabama, Georgia, and Florida (the Eleventh Circuit). Other jurisdictions can cite it as persuasive authority, but it carries no binding force.
- Post-supervision primarily: Individuals still under supervised release will face a tougher challenge. Courts generally extend less sympathy to people still being actively punished.
Key Takeaways
-
The burden shift is the real victory. Forcing the government to justify its restrictions under strict scrutiny changes the entire dynamic of future litigation.
-
Recognizing a right is not the same as winning a case. The law remains in effect, and Alabama will vigorously defend it on remand.
-
Watch the legislature, not just the courts. Alabama may amend the statute to create a narrow discretionary off-ramp, making the law harder to challenge while preserving most of its restrictions.
The fight over parental rights for people on the sex offense registry is far from over. But for the first time in a long time, the legal terrain has shifted — and the government now bears the burden of proof.