All Parents Retain a Fundamental Right to Cohabit with Their Children; “Misconduct” Cannot Defundamentalize the Right (Strict Scrutiny Applies)

1. Introduction

Bruce Henry v. Sheriff of Tuscaloosa County, Alabama is an en banc Eleventh Circuit substantive-due-process decision addressing whether Alabama may treat certain parents as having no fundamental parental right to live with their children because of long-ago, state-defined “misconduct.”

Plaintiff-appellee Bruce Henry was federally convicted of possessing child pornography, served his sentence, remained subject to supervised-release conditions, and later had a child. Alabama’s Sex Offender Registration and Community Notification Act (the “Act”) permanently bars some sex offenders—including parents convicted of “any sex offense involving a child,” including child-pornography offenses—from residing with or conducting overnight visits with any minor, including their own children. Henry sued state and local officials in their official capacities under 42 U.S.C. § 1983 seeking to enjoin enforcement as unconstitutional.

The en banc court granted rehearing on a narrow question: “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?” The key issue became threshold and structural: how to define the asserted right and whether Alabama can categorically “defundamentalize” the parental cohabitation right for a class of parents based on prior convictions.

2. Summary of the Opinion

The en banc majority holds that parents—including those who have committed state-defined “misconduct”—possess a fundamental right to live with their children protected by the Fourteenth Amendment. The State may regulate or even abrogate that right only if it satisfies strict scrutiny: it must show the law is narrowly tailored to further a compelling interest.

The court rejects Alabama’s and the dissent’s proposed rule that certain “classes of parents” (here, those with specified sex-offense convictions) lack the fundamental right altogether. The majority remands to the panel to determine how to proceed under strict scrutiny given Alabama’s asserted compelling interest in child safety.

Disposition: AFFIRMED IN PART; REMANDED TO THE PANEL IN PART.

3. Analysis

3.1. Precedents Cited

A. The substantive-due-process framework and levels of scrutiny

  • Washington v. Glucksberg supplies the two-step substantive-due-process framework: (1) identify whether the asserted right is “fundamental” by asking whether it is “objectively, deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty”; (2) apply strict scrutiny for fundamental rights, rational-basis review otherwise. The majority relies on Glucksberg’s methodology but emphasizes that this case does not require “defin[ing] a new right”; it applies existing parental-rights doctrine.
  • Reno v. Flores is cited for the strict-scrutiny formulation (“narrowly tailored to serve a compelling state interest”) once a fundamental right is burdened.
  • County of Sacramento v. Lewis is cited to distinguish executive-action substantive due process (“shocks the conscience”) from legislative burdens (the track used here).
  • The rational-basis articulation is supported by FCC v. Beach Commcn's, Inc. and Williamson v. Lee Optical of Oklahoma Inc., but the majority’s conclusion that the right is fundamental places the case on the strict-scrutiny track.

B. The parental right to establish a home and cohabit with children

  • Meyer v. Nebraska anchors the modern constitutional recognition of the parental liberty to “establish a home and bring up children.” The majority treats Meyer as foundational and long-recognized at common law.
  • Troxel v. Granville is used to characterize parental rights as “perhaps the oldest of the fundamental liberty interests.”
  • Obergefell is invoked to situate marriage, establishing a home, and childrearing as a “unified whole” within due-process liberty.
  • Moore v. City of East Cleveland is central because it frames family cohabitation as constitutionally protected and explicitly recognizes the right of “parents and children” to “shar[e] a household.” The majority treats Moore as directly controlling on the “live together” dimension, not merely “upbringing” in the abstract.
  • Roberts v. United States Jaycees reinforces family relationships as receiving “sanctuary from unjustified interference,” and it is cited for expressly including “cohabitat[ion]” in the protected associational sphere.
  • Dolan v. City of Tigard and Dobbs v. Jackson Women's Health Organization are cited as later reaffirmations that Moore recognized a protected “right to reside with relatives” and that Dobbs did not undermine Moore.
  • Mirabelli v. Bonta (2026) is used as a contemporary reaffirmation that parents have rights “to direct the upbringing and education of their children,” underscoring that parental substantive due process remains robust post-Dobbs.

C. The State’s “misconduct” carveout argument and the “competing parental rights” cases

  • Stanley v. Illinois is pivotal for the majority’s “baseline”: even where the State claims administrative convenience and uses categorical presumptions, parents are entitled to constitutional protection and individualized consideration before family dismemberment. The majority reads Stanley as incompatible with blanket, irrebuttable “status” rules that foreclose present fitness.
  • Alabama’s reliance on Michael H. v. Gerald D., Quilloin v. Walcott, and Lehr v. Robertson is rejected. The majority distinguishes them as cases involving clashing claims of parenthood (two putative fathers / formal vs biological father) where the Court had to decide whose asserted parental status and relationship tradition prevailed. Because Henry’s case features no competing parent and concerns a married, intact family unit, the majority holds those cases do not justify redefining the right as “the right of a parent who has not engaged in misconduct.”
  • Doe v. Moore is treated as inapposite: it addressed disclosure/registration and the “publication of truthful information,” where the nature of the information (including conviction status) is intrinsic to the right asserted. The majority says that logic does not translate to the distinct, historically protected right to cohabit with one’s child.
  • Eknes-Tucker v. Governor of Ala. is distinguished because it rejected a claimed parental right to access a specific medical intervention; in contrast, Supreme Court precedent directly supports the specific right at issue here—cohabitation with one’s child—as part of the family-liberty tradition.
  • The majority also notes Alabama precedent Herring v. State, where Alabama’s own court characterized the asserted interest as the right “to reside with his children” and acknowledged parental rights are fundamental.

D. Methodological and historical materials

  • The majority canvasses common-law and 19th-century sources (including treatises and cases such as Mercein v. People ex rel. Barry, People ex rel. Ordronaux v. Chegaray, Ex Parte Boaz, Lovell v. House of the Good Shepard, Cocke v. Hannum, Chapsky v. Wood, Dumain v. Gwynne, State ex rel. Herrick v. Richardson, and English chancery matters including Anonymous and Shelley v. Westbrooke) to show historical practice did not implement permanent, automatic forfeiture of custody/cohabitation rights based solely on past misconduct; instead it used individualized welfare-focused determinations.
  • In rebutting the dissent’s “death penalty therefore lesser burdens are fine” logic, the majority invokes caution against overly general historical analogies, citing modern Second Amendment analogical method discussions, including United States v. Dubois, United States v. Rahimi, and related citations, to emphasize that “the dead enjoy no rights” does not answer what rights remain for those who have completed punishment and reentered society.

3.2. Legal Reasoning

  1. Identify the right. The majority insists the “careful description” is the traditional one: the parental right to “establish a home and bring up children” includes the right for “parents and children” to “shar[e] a household” (Meyer; Moore). This is framed as an application of entrenched precedent, not a novel right-creation exercise.
  2. Reject “status-based defundamentalization.” Alabama’s theory is not merely that the Act is a permissible regulation, but that an entire class of parents has no fundamental right at all because of past misconduct. The majority rejects this as conceptually backward: it conflates the State’s justification for burdening a right (child safety) with the antecedent question whether the right is fundamental. If accepted, the State could extinguish strict-scrutiny protection simply by labeling targeted parents as “misconduct” parents—turning fundamental rights into permissions contingent on legislative grace.
  3. Use the “competing-parent” cases correctly. The majority treats Michael H., Quilloin, and Lehr as conflict-resolution cases where tradition prefers the formal marital family in certain contested-parenthood settings. Outside that context—where there is no rival claimant parent—those decisions do not support downgrading the right itself.
  4. History and tradition confirm individualized assessment, not permanent categorical bans. The majority’s historical review functions as a rebuttal: even where courts removed children from parents, it was via case-specific determinations about welfare and current fitness, not irrevocable civil-death-type removal of parental cohabitation rights for all future children, without an “off-ramp.”
  5. Strict scrutiny is triggered; constitutionality is not finally resolved. Having established a fundamental right, the court recognizes Alabama’s interest in child safety as compelling in the abstract, but remands for the panel to determine the appropriate next steps under strict scrutiny (including tailoring questions).

3.3. Impact

1) Doctrinal clarification: fundamental-rights “status stripping” is rejected.
The core precedential contribution is the court’s explicit rejection of an approach that would redefine the right so narrowly (e.g., “the right of a child-sex-offense convict to live with his child”) that it collapses strict scrutiny at step one. The opinion signals that, at least for parental cohabitation, courts should not allow the State to evade strict scrutiny by recasting the right around the regulated class’s “misconduct.”

2) Litigation consequences for sex-offender family restrictions.
Laws that categorically and permanently restrict a parent’s ability to live with their children—especially without any individualized mechanism to seek relief—are more likely to be analyzed under strict scrutiny in the Eleventh Circuit after this decision. The decision does not invalidate Alabama’s Act outright, but it sets the terrain: the State must prove narrow tailoring to child safety for this particular burden.

3) Emphasis on “off-ramps” and individualized mechanisms.
A recurring factual feature is the Act’s permanence and lack of any challenge mechanism. Future legislatures and litigants should expect narrow-tailoring analysis to focus on whether there are time limits, individualized assessments, review procedures, and less restrictive alternatives consistent with child protection.

4) Internal judicial debate preserved for future cases.
The dissent (Chief Judge William Pryor) would define the right by reference to “criminal status” and uphold the law under rational-basis review (and alternatively argues it satisfies strict scrutiny). The en banc majority’s remand leaves open how strict scrutiny will apply concretely, ensuring continued litigation over what tailoring demands in this setting.

4. Complex Concepts Simplified

  • Substantive due process: a doctrine under the Fourteenth Amendment that protects certain liberties from government interference, even when the government uses fair procedures.
  • Fundamental right: a liberty interest deemed so important—because it is deeply rooted in U.S. history and essential to ordered liberty—that government burdens are presumed unconstitutional unless justified at the highest level.
  • Strict scrutiny: the toughest constitutional test. The State must show (1) a compelling interest (very important), and (2) the law is narrowly tailored (no broader than necessary) to achieve it.
  • Rational-basis review: a very deferential test. A law stands if it is reasonably related to any legitimate governmental purpose.
  • “Careful description” of the right: courts must accurately identify what liberty is being claimed before deciding whether it is fundamental. This case draws a line between describing the right as “parents’ right to live with their children” versus describing it as “the right of convicted offenders to live with children,” because the latter framing can predetermine the outcome.
  • Irrebuttable presumption: a rule that treats a person as unfit (or ineligible) without allowing proof to the contrary. The majority views Alabama’s permanent ban with no relief mechanism as akin to an irrebuttable presumption against parental cohabitation for a class.

5. Conclusion

The en banc Eleventh Circuit holds that the fundamental parental right to live with one’s children belongs to all parents, including parents with prior criminal “misconduct.” The State cannot evade strict scrutiny by redefining the right to exclude disfavored classes of parents. Alabama may still burden or even abrogate parental cohabitation rights to protect children, but it must do so through a law that survives strict scrutiny—i.e., is narrowly tailored to a compelling interest.

The decision’s immediate effect is procedural and doctrinal: it locks in the applicability of strict scrutiny and remands for further proceedings. Its broader significance is structural: it rejects “status-based defundamentalization” as incompatible with Supreme Court parental-rights tradition and with the very concept of a fundamental right.