Analysis
1. Substantive due process and the governing level of scrutiny
The Fourteenth Amendment’s Due Process Clause contains both procedural and substantive protections. Under Washington v. Glucksberg, a right is fundamental when it is deeply rooted in the Nation’s history and tradition and implicit in ordered liberty. Because the en banc court had already classified Henry’s right to live with his child as fundamental, the panel did not revisit that issue.
Reno v. Flores supplied the governing strict-scrutiny formulation: Alabama had to prove that its restriction was narrowly tailored to serve a compelling state interest. Lofton v. Sec’y of Dep’t of Child. & Fam. Servs. identified this demanding review as strict scrutiny.
The court contrasted strict scrutiny with the rational-basis review described in FCC v. Beach Commcn’s, Inc. and Williamson v. Lee Optical of Okla. Inc.. Under rational-basis review, a law generally survives if any reasonably conceivable facts support it. That deferential standard did not apply because a fundamental parental right was burdened.
The court also distinguished the “shocks the conscience” standard from County of Sacramento v. Lewis. That test generally concerns executive misconduct, whereas Henry challenged legislation.
2. Child safety is a compelling interest
Alabama easily satisfied the first component of strict scrutiny. Relying on Otto v. City of Boca Raton and New York v. Ferber, the court recognized that safeguarding minors’ physical and psychological welfare is indisputably compelling.
The dispute therefore concerned tailoring, not the legitimacy or importance of Alabama’s objective.
3. The Act is overinclusive
A law is overinclusive when it restricts people who do not present the danger that supposedly justifies the restriction. The Act treated every qualifying offender as permanently dangerous to his or her own children, regardless of the underlying offense, the passage of time, treatment, expert assessments, or evidence of parental fitness.
The court illustrated the breadth of the statute with a hypothetical 19-year-old convicted after downloading sexually explicit material sent by a 16-year-old high-school partner. The person would remain forever barred from living with a future child, even after decades of lawful conduct. Alabama gave no justification for treating that person identically to someone recently convicted of raping or trafficking children.
The court drew heavily from Stanley v. Illinois, which held that the State gains nothing toward protecting children when it separates them from fit parents and may not presume all members of a parental category to be unfit. Santosky v. Kramer likewise established the shared interest of parents and children in preserving their relationship unless parental unfitness is proved, ordinarily by clear and convincing evidence.
Alabama’s own parental-fitness authorities reinforced this principle. Ex parte Sullivan, quoting Chandler v. Whatley, recognized the need for clear and convincing evidence that a person is unfit to provide a safe home. The challenged Act required no comparable evidence.
Recidivism evidence did not establish a sufficiently close fit
Alabama argued that child-pornography offenders posed continuing risks. It estimated that 9.2% to 46% would commit another sexual offense within five years, asserted that many had previously committed undisclosed contact offenses, and contended that some recidivism occurred after long periods in the community. United States v. Kebodeaux was cited to acknowledge conflicting evidence concerning sex-offender recidivism.
Henry responded that fewer than 2% of possession-only offenders commit a later contact offense and that risk diminishes with years of lawful behavior. Although the summary-judgment standard required the court to draw reasonable inferences for Alabama, the State’s evidence still failed to connect Henry’s non-contact conviction to a substantial risk of harm to his own child.
The court identified two defects. First, Alabama relied on distinctions the statute itself ignored, particularly the difference between offenders with prior contact offenses and possession-only offenders like Henry. Second, even Alabama’s highest estimate suggested that more than half of affected parents would not recidivate, while the estimate addressed sexual recidivism generally rather than danger to the offender’s own child. Narrow tailoring required more than what the court characterized as effectively a “coin flip.”
Williams-Yulee v. Fla. Bar confirms that strict scrutiny does not demand perfect tailoring. Nevertheless, Brown v. Ent. Merchs. Ass’n and Stanley v. Illinois establish that advancing a compelling interest in only some applications is insufficient when fundamental rights are broadly restricted.
Persuasive authority involving parental-contact restrictions
The opinion relied on several federal appellate decisions holding that a child-pornography conviction, without additional evidence, does not establish danger to an offender’s own children:
- United States v. Davis found plain error in prohibiting unsupervised contact with the offender’s daughter when there was no evidence of child abuse.
- United States v. Bear vacated restrictions on residing with the offender’s children because the record did not establish danger to them.
- United States v. Del Valle-Cruz similarly rejected restrictions unsupported by individualized evidence.
- United States v. Worley reached the same general conclusion concerning parental-contact restrictions.
Although those decisions involved supervised-release conditions rather than Alabama’s statute, they supported the proposition that a non-contact conviction is not automatically a reliable proxy for danger to one’s own child.
The court also cited In re Amanda D., affirmed under the title In re D.W., which held that a prior conviction was not an adequate proxy for parental unfitness because it failed to account for factors relevant to the actual fitness determination.
4. The Act is underinclusive
Under Reed v. Town of Gilbert, a law is underinclusive when it leaves materially similar threats unregulated. Underinclusiveness can weaken the claimed connection between the law and the compelling interest, as explained in Republican Party of Minn. v. White and City of Ladue v. Gilleo.
Alabama’s law was underinclusive because it prohibited residence and overnight presence while leaving substantial daytime access unregulated. Under the statute’s definitions, even an offender who actually posed a danger could have unsupervised access for periods that did not cross the residence or overnight thresholds.
S.A.N. v. S.E.N. interpreted Alabama law as permitting visitation at the offender’s residence when the child did not reside there. Henry v. Abernathy similarly observed that the statute allowed recurring periods of daytime access. Thus, the Act could permanently separate fit parents from their children while failing to prevent significant unsupervised contact by dangerous offenders.
The court did not question Alabama’s sincerity. It recognized that legislatures need not address every aspect of a problem at once, a principle stated in Williams-Yulee v. Fla. Bar. Still, TikTok Inc. v. Garland requires a sound reason for singling out particular conduct, and Alabama did not explain why residence was categorically prohibited while potentially dangerous daytime access remained possible.
5. Plausible, less restrictive alternatives were available
Under Reno v. ACLU, a restriction fails strict scrutiny if a less restrictive alternative would achieve the government’s objective at least as effectively. Lynch v. Baxley, quoting Shelton v. Tucker, similarly instructs that the government may not broadly suppress fundamental liberty when narrower means are available.
Henry identified several alternatives:
- Individualized judicial hearings concerning present fitness and dangerousness;
- A rebuttable presumption against cohabitation;
- Residence conditioned on the presence of a qualified caregiver;
- Monitoring by child-welfare authorities;
- A narrower list of qualifying offenses;
- Time limits or periodic review; and
- Reinstatement criteria based on treatment, rehabilitation, and lawful conduct.
The court did not require Alabama to adopt any particular alternative. It held only that plausible alternatives existed and that the State had not proved them ineffective.
United States v. Playboy Ent. Grp. provides that once a plaintiff presents a plausible, less restrictive alternative, the government must show that it would be ineffective. United States v. Grady applied a comparable rule while noting that the government need not initially invent and rebut every conceivable alternative. Knight v. Thompson acknowledged differing approaches among the circuits concerning how extensively a government must demonstrate that it considered alternatives.
Why individualized hearings matter
Under K.E.W. v. T.W.E., Alabama’s Act foreclosed relief even where experts, lay witnesses, and a trial court agreed that an offender posed no threat. That rigidity was central to the constitutional defect.
Stanley v. Illinois supports a parent’s entitlement to a fitness hearing before loss of custody, while Doe v. Kearney recognizes that removal from parental custody ordinarily requires judicial authorization unless imminent harm exists. Those decisions demonstrated that individualized adjudication is a familiar means of balancing child safety and parental liberty.
Alabama characterized Henry’s request for a hearing as a procedural-due-process argument. The court disagreed. Henry did not challenge the mechanics of an existing hearing under Mathews v. Eldridge, the standard of proof under Santosky v. Kramer, or the absence of appointed counsel under Lassiter v. Dep’t of Soc. Servs.. Instead, he invoked individualized review to demonstrate that the substantive law was poorly fitted to its objective.
Michael H. v. Gerald D. framed the issue as whether there was an adequate fit between the statutory classification and its policy. Conn. Dep’t of Pub. Safety v. Doe further explained that when current dangerousness is irrelevant under a statutory scheme, a challenge based on the plaintiff’s lack of dangerousness is ultimately substantive rather than merely procedural.
The opinion also relied on Cleveland Bd. of Educ. v. LaFleur for the proposition that an irrebuttable presumption may violate substantive due process. Cruzan ex rel. Cruzan v. Dir., Mo. Dep’t of Health and United States v. Salerno showed that procedural protections can help make a substantive deprivation constitutionally acceptable by carefully limiting when the deprivation may occur.
Alabama did not prove that individualized review would be less effective
Alabama argued that risk-assessment tools are imperfect and that some dangerous parents could receive relief. The court rejected this as insufficient for three reasons:
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Alabama defined its goal too narrowly. Protecting children includes preserving relationships with fit parents, not merely preventing every conceivable instance of recidivism.
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Alabama supplied no evidence concerning the likely error rate of individualized hearings or showing that such hearings would expose more children to harm than the current underinclusive statute.
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Alabama already relied on trial courts to restrict visitation when a parent posed an actual danger, undermining its claim that individualized adjudication was inherently unreliable.
Lehr v. Robertson supported distinguishing between persons who decline an opportunity to establish their parental claim and those who affirmatively seek review. The court suggested that a revised regime could apply restrictions to offenders who did not seek relief or who were adjudicated dangerous.
Alabama’s law as a national outlier
The parties and district court were unaware of any other state with a substantially similar categorical lifetime restriction. That exceptional breadth reinforced the availability of workable alternatives.
The court cited Justice Harlan’s dissent in Poe v. Ullman for the significance of a law’s novelty and Packingham v. North Carolina for the relevance of an unusually broad statutory reach. McCullen v. Coakley demonstrated that less restrictive practices successfully used in other jurisdictions can show that a challenged law burdens more liberty than necessary. TikTok Inc. v. Garland similarly recognized that practices used elsewhere may establish the effectiveness of an alternative.
6. Summary-judgment authorities
The court reviewed the district court’s judgment de novo under Marbury v. Warden. Celotex Corp. v. Catrett established that summary judgment is appropriate when no genuine issue of material fact exists, while Anderson v. Liberty Lobby, Inc. defined a genuine issue as one on which a reasonable factfinder could rule for the nonmoving party and a material fact as one capable of affecting the result.
Even after drawing reasonable inferences in Alabama’s favor, the court concluded that the State’s evidence could not satisfy its constitutional burden.