A federal appeals court ruled July 6 that convicted sex offenders retain a fundamental constitutional right to live with their own children.

The new ruling by the U.S. Court of Appeals for the 11th Circuit arises out of an Alabama case but could help reshape strict sex offender residency laws in the other two states in the circuit—Florida and Georgia—and serve as persuasive authority elsewhere.

At the heart of the case is the constitutional doctrine of substantive due process, which protects certain fundamental rights that are not explicitly listed in the U.S. Constitution but deeply rooted in U.S. history and tradition, including the right of parents to live with and raise their children.

The court ruled 8–5 in favor of the plaintiff, Bruce Henry, in the case known as Henry v. Sheriff of Tuscaloosa County.

The majority opinion was authored by Circuit Judge Robin Rosenbaum.

In 2013, Henry pleaded guilty to “knowingly possess[ing] ... any book, magazine, periodical, film, videotape, computer disk, or any other material that contains an image of child pornography.”

The opinion recounts that the federal district court sentenced him to 70 months in prison and 60 months of supervised release.

He served five years before being released in March 2018.

He finished a qualified Sex Offender Treatment Program, along with individual and group counseling, and continues to attend weekly meetings of Sex Addicts Anonymous. In addition, he has a steady job, attends church, and volunteers.

He violated the terms of supervised release twice by viewing pornography. He reported the violations to his sexual offender treatment provider but did not inform his probation officer. The officer filed a petition to revoke his supervised release, but the district court declined, choosing instead to extend the duration of the supervised release period through March of this year, according to the opinion.

Since the last incident in December 2019, Henry has followed the terms of his release. In August 2021, he and his wife had a son, but because he was a sex offender, the Alabama Sex Offender Registration and Community Notification Act barred him from living with the child.

The Act prohibits a sex offender from residing with or conducting overnight visits with any minor, but it contains a family exception that allows the offender to live with or stay overnight with their own children, grandchildren, step-children, siblings, or step-siblings.

That protection is removed for any adult convicted of a sex offense involving a child or any offense involving child sexual abuse material, legally referred to as child pornography.

“Alabama law affords no offramp to Henry or anyone else: the Act contains no mechanism for offenders to challenge its prohibitions on residing or staying overnight with their own children,” the opinion said.

After Henry’s son was born, he sued officials in Alabama under federal law to block enforcement of the Act’s prohibition against him living with his son. The district court agreed that the prohibition was unconstitutional and enjoined its enforcement.

A panel of the U.S. Court of Appeals for the 11th Circuit ruled largely for Henry, finding that the Act’s prohibition against a parent living with his own child interfered with Henry’s “fundamental right to live with and raise [his] child,” and vacated the district court’s injunction.

The full 11th Circuit then reheard the case and ruled for Henry.

The Supreme Court has recognized that parents have a fundamental right to live with their children, and this right is “perhaps the oldest of the fundamental liberty interests” that the 14th Amendment protects, the opinion said.

By contrast, Alabama argued that not all parents enjoy this right and that entire categories of parents enjoy “no fundamental rights at all because they committed state-defined ‘misconduct’ years before their children were even born.” The Supreme Court has recognized that even a parent convicted of possessing “child pornography” still retains a fundamental right to live with his son, the opinion said.

“That does not mean that Alabama can’t regulate or even abrogate that right. But to do so, Alabama must show that its legislation is narrowly tailored to further its compelling interest in the safety of children,” the appeals court said. Abrogation is the act of formally annulling a law or legal provision.

The appeals court returned the case to the district court for reconsideration.

Chief Circuit Judge William Pryor filed a dissenting opinion, criticizing the majority for undermining Alabama’s child-protection efforts.

“All agree that parents generally enjoy a fundamental right to ‘make decisions concerning the care, custody, and control of their children,’” Pryor said.

“But this appeal presents a different question: whether the Due Process Clause [in the 14th Amendment] grants child-sex convicts, not parents generally, a fundamental right to reside with their children. Of course not.”

Pryor said that using the majority’s reasoning, a father who raped his young child still enjoys the fundamental right to live with that child unless he has been judicially determined to be dangerous.

Pryor also said the doctrine of substantive due process creates a “treacherous field,” and the Supreme Court has directed courts to “exercise the utmost care whenever ... asked to break new ground,” to avoid usurping the authority that the Constitution entrusts to elected legislatures.