Individualized Fitness Hearings Required: Categorical Ban on Parent–Child Cohabitation Unconstitutional

Introduction

This case arises from Alabama’s Sex Offender Registration and Community Notification Act (ASORCNA), specifically Ala. Code § 15-20A-11(d)(4), which permanently bars any “adult sex offender” convicted of an offense involving a child from residing or conducting overnight visits with minors—even their own children. Bruce Henry, who pled guilty in federal court in 2013 to possessing child pornography, challenges this absolute prohibition under 42 U.S.C. § 1983. Henry asserts the statute violates his substantive due process right to intimate association and his fundamental Fourteenth Amendment rights to family cohabitation and child‐rearing. The Eleventh Circuit considered whether (1) parents convicted of child‐related sex offenses retain a constitutional right to live with their children, and (2) whether Alabama’s total ban survives the exacting standard of strict scrutiny.

Summary of the Judgment

The United States Court of Appeals for the Eleventh Circuit held that Ala. Code § 15-20A-11(d)(4) unconstitutionally burdens a parent’s fundamental liberty interest in “establish[ing] a home and bring[ing] up children” (Meyer v. Nebraska, 262 U.S. 390 (1923)). Although the State’s interest in protecting minors from sexual abuse is compelling, the statute is not narrowly tailored: it is both overinclusive (it treats low‐risk parents the same as violent recidivists) and underinclusive (it allows substantial unsupervised contact for other dangerous offenders). The Court also found less restrictive alternatives—most notably, an opportunity for individualized hearings in which a parent may prove fitness—were both available and widely adopted by other states. Because the statute fails strict scrutiny, it is unconstitutional as applied to Henry. However, the appeals court vacated the district court’s facial injunction—refusing to strike the law in all possible contexts—because Henry had not shown that the statute is unconstitutional in every application (for example, as applied to non‐parental relatives). The case was remanded for proceedings consistent with that opinion.

Analysis

1. Precedents Cited

Meyer v. Nebraska (262 U.S. 390 (1923)) – Established the liberty interest in “establish[ing] a home and bring[ing] up children.”
Pierce v. Society of Sisters (268 U.S. 510 (1925)) – Reinforced parental control over education and child‐rearing decisions.
Moore v. City of East Cleveland (431 U.S. 494 (1977)) – Recognized family cohabitation as a fundamental right; struck down zoning that arbitrarily selected which relatives could live together.
Troxel v. Granville (530 U.S. 57 (2000)) – Affirmed the “fundamental right of parents to make decisions concerning the care, custody, and control of their children.”
Zablocki v. Redhail (434 U.S. 374 (1978)) – Applied strict scrutiny to a statute burdening marriage and cohabitation without narrowly tailoring to a compelling state interest.
Washington v. Glucksberg (521 U.S. 702 (1997)) – Set the two‐step substantive due process framework: identifying a deeply rooted liberty interest and applying appropriate scrutiny.
Reno v. Flores (507 U.S. 292 (1993)) – Defined the strict scrutiny standard for fundamental rights.
Santosky v. Kramer (455 U.S. 745 (1982)) – Required “clear and convincing” proof before terminating parental rights.

2. Legal Reasoning

The court applied the two‐step substantive due process test:

Step One: Is the asserted right “deeply rooted in this Nation’s history and tradition”? The Court answered yes. From the Founding to Reconstruction, English and American law recognized the father’s (and later the mother’s) paramount right to custody and cohabitation with children, disrupted only upon a judicial finding of unfitness or danger to the child.
Step Two: Does the statute withstand strict scrutiny? Because the law directly and substantially interferes with the fundamental right to family cohabitation, it must be narrowly tailored to serve a compelling interest. Although protecting minors is unquestionably a compelling state objective, § 15-20A-11(d)(4) fails on three grounds:
- Overinclusiveness: It sweeps up low‐risk, rehabilitated parents (e.g., those convicted only of viewing illicit images decades before) alongside dangerous recidivists, without regard to individual circumstances.
- Underinclusiveness: It allows substantial daytime, unsupervised access (four hours per day on consecutive or aggregate days) for certain offenders who may pose a serious risk.
- Less Restrictive Alternatives: Alabama presented no evidence that an individualized hearing regime—permitting each parent to prove present fitness—would be any less effective. Indeed, every other state with similar statutes provides such relief.

Because § 15-20A-11(d)(4) fails strict scrutiny and departs from the American tradition of safeguarding children while preserving parental rights through case‐by‐case court review, it cannot be enforced as applied to Henry.

3. Impact

This decision signals a shift in sex‐offender law and parental‐rights jurisprudence:

States with categorical bans on convicted child‐sex oﬀenders living with their children must now provide an individualized assessment process.
Legislatures drafting registration, notification, and residency restrictions for sex oﬀenders will need to insert procedural safeguards—fitness hearings, judicial review, or similar tools—to pass constitutional muster.
Family‐law attorneys and trial courts will see more challenges to absolute, conviction‐based custody and cohabitation restrictions on due process and equal protection grounds.
Broadly, it reaffirms that even those who have committed serious crimes retain their core constitutional liberties unless the State narrowly tailors restrictions after individual hearings.

Complex Concepts Simplified

Substantive Due Process: A principle that protects fundamental rights—like family privacy and child‐rearing—even if procedures are followed. State action that burdens such rights must satisfy strict scrutiny.
Strict Scrutiny: The highest level of judicial review. To survive, a law must serve a “compelling state interest” and be “narrowly tailored” to achieve that interest using the least restrictive means.
Overinclusive vs. Underinclusive: An overinclusive law sweeps in people who pose no real threat; an underinclusive law leaves dangerous people unregulated.
Facial vs. As‐Applied Challenge: A facial challenge argues a statute is unconstitutional in all its applications; an as‐applied challenge argues it is unconstitutional only in specific contexts.
Automatic Ban vs. Individualized Assessment: An automatic ban bars all covered oﬀenders, no matter how low-risk. An individualized assessment lets each person prove whether cohabitation is safe and in the child’s best interest.

Conclusion

The Eleventh Circuit has drawn a bright line: blanket prohibitions that permanently sever a parent’s right to live with their child—based solely on a qualifying conviction—violate the Fourteenth Amendment unless the State provides a narrow, individualized procedure to prove present fitness. Alabama must amend its statute to allow parents like Bruce Henry a meaningful opportunity to show they are no threat to their own children. This ruling preserves the balance between two profound state interests—protecting vulnerable minors and safeguarding parental liberty—and will guide reforms of sex-offender residency laws nationwide.