Bruce Henry v. Sheriff of Tuscaloosa County, Alabama

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[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 24-10139

____________________

BRUCE HENRY,

Plaintiff-Appellee,

versus

SHERIFF OF TUSCALOOSA COUNTY, ALABAMA,

in his official capacity,

DISTRICT ATTORNEY OF TUSCALOOSA COUNTY,

ALABAMA,

in his official capacity,

ATTORNEY GENERAL OF THE STATE OF ALABAMA,

in his official capacity,

Defendants-Appellants.

____________________

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2 Opinion of the Court 24-10139

Appeals from the United States District Court

for the Middle District of Alabama

D.C. Docket No. 2:21-cv-00797-RAH-JTA

____________________

Before ROSENBAUM, ABUDU, and WILSON, Circuit Judges.

ROSENBAUM, Circuit Judge:

Alabama Code § 15-20A-11(d)(4) prohibits “adult sex of-

fender[s]” who have been convicted of a sex offense involving a

child from “resid[ing] or conduct[ing] an overnight visit with a mi-

nor,” including their own child. No exceptions. Plaintiff-Appellee

Bruce Henry, who pled guilty to one count of possessing child por-

nography in 2013, challenges Section 15-20A-11(d)(4) facially and as

applied to him.

Henry has completed his term of imprisonment, married,

and fathered a son. But Section 15-20A-11(d)(4) doesn’t allow

Henry to live with his son. Henry asserts that Section 15-20A-

11(d)(4) violates his First Amendment right of intimate association

and the Fourteenth Amendment’s guarantees of equal protection

of the laws and due process of law. In particular, he argues that

Section 15-20A-11(d)(4) interferes with “perhaps the oldest of the

fundamental liberty interests” that the Fourteenth Amendment se-

cures, the “fundamental right of parents to make decisions con-

cerning the care, custody, and control of their children,” Troxel v.

Granville, 530 U.S. 57, 65–66 (2000) (plurality opinion), which

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includes the right to “establish a home and bring up children,”

Meyer v. Nebraska, 262 U.S. 390, 399 (1923).

We agree. To be sure, Alabama has a compelling reason for

its law: to protect children. And certainly some sex offenders

should never have the chance to be near children, including their

own.

But Alabama has not narrowly tailored its law to achieve its

goal. The law offers no escape hatch whatsoever. So a person

who’s been convicted of a qualifying offense has no chance to avoid

the law’s prohibition by proving that they wouldn’t be dangerous

to their child. Rather, in every case without fail, Alabama’s law pro-

hibits sex offenders who’ve been convicted of a qualifying offense

from residing with their child, even if the individual can prove they

present no risk to their child. As a result, it deprives some individ-

uals convicted of qualifying offenses of their fundamental right to

establish a home and bring up their own children, in violation of

the Fourteenth Amendment. And it deprives some children in Al-

abama of the presence of a parent who may be fit to lovingly care

for and raise them.

To understand the vast breadth of Section 15-20A-11(d)(4),

consider, for instance, a college freshman convicted of download-

ing sexually explicit photos their high-school partner sent them.

Under Alabama’s law, that person will necessarily never be able to

reside with their child, even if that college freshman does not be-

come a parent until decades after graduating and even if that col-

lege freshman never engages in any other sex offense. The

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Fourteenth Amendment doesn’t allow for the automatic removal

of a parent’s fundamental right to establish a home and raise their

child in every circumstance that Section 15-20A-11(d)(4) imposes

that penalty.

So after careful consideration, and with the benefit of oral

argument, we affirm the district court’s holding that Section 15-

20A-11(d)(4) impermissibly burdens Henry’s fundamental rights to

“establish a home and bring up children.” Id. at 399.

But there’s an easy fix for Alabama to defeat as-applied chal-

lenges like Henry’s: Alabama can amend its statute to provide par-

ents with a meaningful chance to show that they are fit despite their

conviction. See also infra note 10 (addressing other possible less re-

strictive alternatives). Indeed, as far as we can tell, that’s what every

other state that strips unfit parents—including those who are sex

offenders—of the right to live with their children does.

Still, we can’t say that the Section is unconstitutional in all

its applications. For example, the Section applies to non-parental

relatives, such as stepparents and stepsiblings, who may not enjoy

the same fundamental rights of cohabitation as a parent does with

their own child. And here, Henry—a parent—is the only party to

this lawsuit challenging the facial and as-applied constitutionality

of the Section. So we do not need to pass on that complex consti-

tutional question to redress Henry’s injury. We therefore conclude

that the district court abused its discretion in facially enjoining Sec-

tion 15-20A-11(d)(4). For that reason, we vacate the district court’s

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injunction and remand the case for further proceedings consistent

with this opinion.

I. BACKGROUND

A. Factual and Statutory Background

In 2013, Henry pled guilty to one count of possessing child

pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). He had

never been convicted of a sexual offense before. At the time of his

arrest in 2011, he possessed two videos and 348 photos of prepu-

bescent and adolescent girls, which he downloaded from the inter-

net. 1 Henry’s collection focused on “girls between the ages of six

and ten” and included depictions of sadomasochism and bestiality.

The district court sentenced Henry to 70 months of prison

and 60 months of supervised release with special conditions. He

served five years of his sentence before his release in March 2018.

After release, Henry completed a qualified Sex Offender Treatment

Program, as well as individual and group counseling. Henry con-

tinues to attend weekly Sex Addicts Anonymous meetings. And he

maintains a steady job, attends church, and volunteers.

Two special conditions of Henry’s supervised release are of

note. First, Henry must participate in the United States Probation

Office’s computer restriction-and-monitoring program. That

1 That amount is significant. Still, it’s less than one-tenth of the median

amount found in child-pornography offenders’ possession. In fiscal year 2019,

for instance, non-production child-pornography offenders possessed a median

of 4,265 illegal images, according to the U.S. Sentencing Commission.

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program prohibits Henry from possessing or using certain elec-

tronic devices that may communicate with other electronic devices

without the Probation Office’s prior approval. And second, Henry

may not have “any unsupervised, one-to-one contact with any chil-

dren under the age of 18 other than his own children.”

Despite these restrictions, while on supervised release,

Henry in two instances accessed pornography. In July of 2019,

Henry admitted during a polygraphed interview that he used an

Amazon Firestick to view pornography. A forensic examination re-

vealed no saved images, but Henry had viewed images with “titles

indicating that they were of young or teenage females.” And

Henry admitted in a follow-up polygraph test that he actively

sought out images of teen girls and children posed in sexual posi-

tions.

Also, in December 2019, Henry used his wife’s unlocked

phone to search for pornographic images. He disclosed the inci-

dent to his sexual-offender-treatment provider but failed to inform

his probation officer during the officer’s home visit in January 2020.

Instead, the probation officer learned about the incident from

Henry’s supervision report for that month.

Citing these violations, Henry’s probation officer filed a pe-

tition to revoke Henry’s supervised release. A federal judge de-

clined. Instead, the district court extended Henry’s term of super-

vised release from 60 to 96 months (through March 2026).

Henry is now married and has a three-year-old son. But be-

cause of the Alabama Sex Offender Registration and Community

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Notification Act (“ASORCNA”), Henry cannot live or reside over-

night with him (and by extension, his wife).

As we’ve noted, ASORCNA prohibits any sex offender from

“resid[ing] or conduct[ing] an overnight visit with a minor” unless

the sex offender “is the parent, grandparent, stepparent, sibling, or

stepsibling of the minor.” ALA. CODE § 15-20A-11(d). But those

exemptions are substantially less inclusive than they appear on first

glance. That’s so because Section 15-20A-11(d)’s exception itself

has five exceptions.

As relevant here, a sex offender may not reside or conduct

an overnight visit with a minor, even if they are the minor’s parent,

if “[t]he adult sex offender has been convicted of any sex offense

involving a child, regardless of whether the adult sex offender was

related to or shared a residence with the child victim.”2 Id. § 15-

20A-11(d)(4). This subsection applies to Henry because a “sex of-

fense involving a child” includes “offense[s] involving child pornog-

raphy.” Id. § 15-20A-4(27); see also id. § 15-20A-4(2) (defining “child”

as a “person who has not attained the age of 12”).

2 None of the statute’s other four exceptions apply to Henry. Alabama has not

terminated (and is not currently terminating) Henry’s parental rights, ALA.

CODE § 15-20A-11(d)(1); Henry hasn’t been convicted of a sexual offense in-

volving his child or a minor with whom he resided, id. § 15-20A-11(d)(2), (3);

and he has not been convicted of a sexual offense involving the forcible com-

pulsion of a minor, id. § 15-20A-11(d)(5).

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The statute’s definitions of “reside” and “conduct an over-

night visit” effectively prevent Henry from living with his son.

Under Alabama law, a sex offender resides at a place if they

are “habitually or systematically present at” it. Id. § 15-20A-4(20).

We determine that, in turn, “by the totality of the circumstances,

including the amount of time the person spends at the place and

the nature of the person’s conduct at the place.” Id. As a baseline,

an offender resides at a place if he “spend[s] more than four hours

a day” there “on three or more consecutive days” or “more than

four hours a day” there “on 10 or more aggregate days during a

calendar month.” Id.

As for an “overnight visit,” that occurs whenever an offender

is in the same place as a minor for any part of the period “between

the hours of 10:30 p.m. and 6:00 a.m.” Id. § 15-20A-4(14) (explain-

ing “[a]ny presence” causes an overnight visit).

So to summarize, Section 15-20A-11(d) prevents Henry from

being present in the same home as his son (1) at any time between

the hours of 10:30 p.m. and 6:00 a.m.; (2) for more than four hours

a day on three consecutive days; (3) for more than four hours a day

on ten or more days during a calendar month; or (4) in any other

circumstance where he is habitually and systematically present at

his son’s home.

And those restrictions are permanent. Alabama law affords

no offramp to Henry or anyone else: the statute contains no mech-

anism for offenders to challenge its restrictions on residing or stay-

ing overnight with minors, even their own children. By contrast,

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ASORCNA offers a limited exception for sex offenders who are

“terminally ill or permanently immobile” or suffering from a “de-

bilitating medical condition.” Id. § 15-20A-23(a). Those offenders

may petition for relief from the requirement of living more 2,000

feet away from a school, childcare, or camp facility. Id.

At bottom, the Section prevents sexual offenders whose of-

fense involved a minor from living with their children until the re-

strictions expire when their children turn eighteen. See id. § 15-20A-

4(13).

B. Procedural History

In November 2021, Henry sued Defendants-Appellants Ron

Abernathy, the Sheriff of Tuscaloosa County; Hays Webb, the Dis-

trict Attorney of Tuscaloosa County; and Steve Marshall, the At-

torney General of Alabama (collectively, “Defendants,” “Alabama,”

or “the State”), in their official capacities under 42 U.S.C. § 1983.

He claimed that Section 15-20A-11(d)(4) violates his First Amend-

ment right to intimate association and Fourteenth Amendment

rights to equal protection and due process. Henry sought a declar-

atory judgment that Section 15-20A-11(d)(4) is overbroad and un-

constitutional both facially and as applied, and he requested that

the district court enter an injunction against Defendants to prevent

the law’s enforcement.

The district court denied Henry’s motion for a preliminary

injunction. But it partially granted Henry’s motion for summary

judgment, finding Section 15-20A-11(d) facially unconstitutional.

Based on that conclusion, the court enjoined Alabama from

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enforcing the statute in its current form. We recount both district-

court decisions.

1. The district court denied Henry’s motion for a preliminary

injunction.

In March 2022, Henry moved for a preliminary injunction,

requesting that the district court permit him to conduct overnight

visits with his son and reside with his wife and son for the pendency

of his lawsuit. He argued that Section “15-20A-11(d)(4), on its face,

severely restricts [his] First and Fourteenth Amendment rights of

familial association to the serious detriment not only of him but of

his infant child as well.” After holding an evidentiary hearing, the

district court denied Henry’s motion.

Henry relied principally on the testimony of three wit-

nesses: Dr. Keith Hersh, Dr. Barry Burkhart, and Jerome Wells.

Dr. Hersh is a psychologist who specializes in treatment of

and recidivism among sex offenders. And Dr. Burkhart is a clinical

psychologist with expertise in recidivism of sex offenders, sex of-

fenders’ psychology, and the psychological and development effects

of absent parents on early childhood development.

Drs. Hersh and Burkhart testified that child-pornography of-

fenders have a low recidivism rate generally (around 1–4% over a

3–5-year period); that they pose a low risk of committing a contact

sex offense specifically (around 1–2% over a 5–9 year period); and

that relevant factors, like time, treatment, and a parent-child rela-

tionship, further decrease the likelihood of recidivism. Even so, on

cross-examination, Alabama elicited testimony that sexual interest

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in children is a robust indicator of risk of committing a contact of-

fense and that the number of images a person possesses, as well as

a person’s noncompliance with terms of supervised release, in-

crease that person’s risk of committing a future contact offense.

But ultimately, both Drs. Hersh and Burkhart opined that

evaluating an offender’s risk of recidivism, particularly their risk of

harming their own child, requires an individualized assessment.

And both testified that Henry posed a low risk of harming his son.

Dr. Burkhart added that, given the detriment of an absent father to

a developing child, he would recommend that Henry live at home

with his son full time.

Wells is a counselor for those who have committed sexual

offenses. The court admitted him as an expert in risk-assessment

tools used for sexual offenders and the treatment of sexual offend-

ers.

Wells treated Henry and met with him around 150 to 200

times. He recounted Henry’s treatment programs and the results

of three risk-assessment tools that indicated Henry was a low risk

to his son. But Wells acknowledged on cross-examination that he

could not recall Henry’s August 2019 admission that Henry sought

out images of girls in sexual positions; that he did not address that

admission during Henry’s course of counseling; and that one of his

exams did not account for Henry’s admission. Nor could Wells re-

call that Henry’s supervised release had been extended. Still, Wells

concluded that, in his professional opinion, Henry is a low risk of

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being a contact or hands-on offender and that Henry would not

sexually assault his son.

For its part, Alabama called Dr. Matthew DeLisi to testify in

response to Henry’s experts. Dr. DeLisi is a professor at Iowa State

University who is a generalist researcher in criminology and crimi-

nal justice. The district court admitted him as an expert in crimi-

nology—specifically, the risk factors for crime.

Dr. DeLisi opined that sexual offenders are more likely to

commit contact offenses than non-sexual offenders, and he cited

research showing that many child-pornography offenders display

an interest in pedophilia. He cited studies suggesting 12–55% of

child-pornography offenders commit a contact offense. But DeLisi

neither evaluated Henry nor opined on his individual risk of recid-

ivism or the risk that Henry might harm his son.

After the hearing, the district court denied Henry’s motion

for a preliminary injunction. The court concluded that Henry

failed to show a substantial likelihood of success on the merits and

that the equities did not weigh in his favor. As to the merits, the

district court emphasized that the volume of Henry’s child-pornog-

raphy collection was “troubling” and that key witnesses—namely,

Henry, his wife, and his probation officer—did not testify at the pre-

liminary-injunction hearing. Because Henry’s motion would “dis-

rupt the status quo,” the court explained, Henry bore the burden

of showing that he would not pose a risk to his son if the court

permitted Henry to live with him. And in this preliminary posture,

Henry’s experts did not sufficiently abate the court’s two concerns.

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As to the balance of the harms, the district court concluded

they weighed in Alabama’s favor: the risk that Henry would recid-

ivate and thereby harm his child outweighed the risk that Henry

would be unconstitutionally deprived of his ability to live with his

child and that his son would not have a father at home during his

formative years. The court stressed in conclusion that its denial of

Henry’s motion for a preliminary injunction was “an effort to

‘avoid the error that is most costly in the circumstances’” before it

could address the complex factual and constitutional issues “at a

more mature stage of the litigation process.”

2. The district court partially granted Henry’s motion for sum-

mary judgment and issued an injunction facially enjoining

enforcement of Section 15-20A-11(d)(4).

On March 31, 2023, the parties filed cross-motions for sum-

mary judgment. The district court partially granted Henry’s mo-

tion, and it denied Defendants’ in full. The court concluded that

Section 15-20A-11(d)(4) implicated Henry’s substantive due-pro-

cess right to the “care, custody and control” of his child. 3 As a re-

sult, the court reasoned that the Section could stand only if it

3 The district court also noted that, while the summary-judgment motions

were pending, Alabama enacted House Bill 6. The law “recognized that par-

ents have a fundamental right to direct the upbringing of their children” and

that “[t]he liberty protected by the due process clause includes the fundamen-

tal right of parents to direct the education, upbringing, care, and control of

their children.” H.B. 6, Ala. 2023 Reg. Sess. (Ala. 2023). The law requires that

infringements on parental rights clear strict scrutiny, the most demanding

standard of judicial review. See id.

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survived strict scrutiny. But because the court found that the law

was not narrowly tailored to further Alabama’s compelling interest

of protecting the health and safety of minors, the court determined

the law was unconstitutional.

As the district court saw things, the law is both over- and un-

derinclusive. Concerning the law’s overinclusiveness, the court

characterized Section 15-20A-11(d)(4)’s “overbreadth” as “breath-

taking.” The law, it said, sweeps in “the worst of the worst offend-

ers” along with consensual teen sexual relationships without any

“mechanism” for “relief.” And at the underinclusiveness end of the

spectrum, the court reasoned, Section 15-20A-11(d) “allows every

qualifying adult sex offender daily unsupervised access to minors

for four hours at a time in any one place on two consecutive days

and nine aggregate days per month, as long as such access occurs

between the hours of 6:00 a.m. and 10:30 p.m.”

The district court also highlighted the Section’s novelty, both

across the United States and in Alabama. The parties and the dis-

trict court were “unaware of any statute enacted by another state

substantially similar to [Section] 15-20A-11(d)(4).” And “except for

ASORCNA, Alabama has never statutorily limited parents’ contact

or ability to live with their children based upon the single fact of

conviction.”

For those reasons, the court concluded that Section 15-20A-

11(d)(4) facially violates parents’ fundamental rights, as the Four-

teenth Amendment’s Due Process Clause secures them. The dis-

trict court partially granted Henry’s requests for declaratory and

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injunctive relief. It declared Section 15-20A-11(d)(4) facially uncon-

stitutional, and it enjoined Defendants from enforcing the law in

its current form. The district court denied as moot Henry’s re-

maining claims, including those under the Fourteenth Amend-

ment’s Equal Protection Clause.

* * *

After the district court entered judgment, Alabama timely

appealed. Alabama then moved to stay the permanent injunction

pending appeal. Henry opposed a stay. But the district court

granted Alabama’s stay motion. Then, in this Court, Henry filed

an unopposed motion to expedite the appeal. We granted that mo-

tion and now consider the appeal.

II. STANDARDS OF REVIEW

Summary judgment is appropriate when no genuine issue

of material fact exists and the moving party is entitled to judgment

as a matter of law. Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477

U.S. 317, 322–23 (1986). An issue of fact is genuine if a reasonable

trier of fact could return judgment for the non-moving party. An-

derson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). And a fact is

material if it “might affect the outcome of the suit under the gov-

erning law” and is not “irrelevant or unnecessary.” Id.

On appeal, we review de novo a district court’s grant of

summary judgment, construing all evidence in the light most fa-

vorable to the non-moving party. Marbury v. Warden, 936 F.3d 1227,

1232 (11th Cir. 2019). And we review both a district court’s decision

to grant an injunction, as well as the scope of that injunction, for

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abuse of discretion. Angel Flight of Ga., Inc. v. Angel Flight Am., Inc.,

522 F.3d 1200, 1208 (11th Cir. 2008).

III. DISCUSSION

Alabama raises three arguments on appeal.

First, it argues that Section 15-20A-11(d)(4) is constitutional

as applied to Henry because individuals convicted of a sex offense

do not have a fundamental right to reside with their child. And it

asserts that even if Henry does have such a right, the law survives

strict scrutiny because it is narrowly tailored to advance Alabama’s

compelling interest in protecting children.

Second, the State argues that Section 15-20A-11(d)(4) is fa-

cially constitutional because it covers at least some crimes for

which the fact of a conviction is narrowly tailored to advance its

compelling interest in protecting children and because it covers at

least some relatives who do not have the same fundamental rights

of cohabitation as do parents. Alabama contends that cases at the

intersection of those two edges—namely, stepsiblings or steppar-

ents who have raped or trafficked children—fall within the statute’s

plainly legitimate sweep.

Third, and relatedly, Alabama asserts that, at a minimum,

the district court erred in entering a “universal” injunction that ex-

tends to plaintiffs other than Henry, who are not party to this law-

suit.

We address each argument in turn. But to preview, we reject

Alabama’s first claim and hold that Section 15-20A-11(d)(4) is

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unconstitutional as applied to Henry. The Constitution guarantees

parents the right to live with their children. Henry did not neces-

sarily forfeit that right when he committed a sexual offense, yet Sec-

tion 15-20A-11(d)(4) automatically deprives him of that right. So

the law must pass strict scrutiny. But Section 15-20A-11(d)(4) is not

narrowly tailored to advance the State’s extremely compelling in-

terest in protecting children. Rather, it’s overinclusive—applying

to some crimes that bear little relationship to a parent’s fitness or

the likelihood that they will harm their child—and underinclu-

sive—permitting apparently dangerous child predators to spend

substantial amounts of unsupervised time with children. Plus, Al-

abama failed to rebut the effectiveness of Henry’s proffered less re-

strictive alternatives: the State did not show that an opportunity for

individualized relief would undermine its statutory scheme.

As to Alabama’s second argument, we agree that the Section

is not facially invalid. At least in this posture, Henry has not shown

that Section 15-20A-11(d)(4) is unconstitutional in all its applica-

tions. For instance, as Alabama points out, stepsiblings and step-

parents may not have the same constitutional rights to cohabitation

as do parents and children. The issue received limited briefing, so

we conclude, at least for this appeal and without conclusively pass-

ing on the merits of that question, that Henry has not met the lofty

burden that the facial-challenge standard imposes.

And finally, because we vacate the district court’s injunction,

we do not address Alabama’s argument that the district court

abused its discretion in entering a universal injunction.

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A. Section 15-20A-11(d)(4) violates parents’ fundamental rights to es-

tablish a home and live with their children.

The Due Process Clause of the Fourteenth Amendment

prohibits any state from “depriv[ing] any person of life, liberty, or

property, without due process of law.” U.S. CONST. amend. XIV, §

1. Its guarantee is both procedural and substantive. Washington v.

Glucksberg, 521 U.S. 702, 719–20 (1997). And when, as here, a plain-

tiff asserts a violation of their substantive-due-process rights, we

generally employ a two-step framework to resolve the claim.

At the first step, we determine whether a right is “fundamen-

tal.” Id. at 710. Rights are fundamental if they are “objectively,

deeply rooted in this Nation’s history and tradition, and implicit in

the concept of ordered liberty, such that neither liberty nor justice

would exist if they were sacrificed.” Id. at 720–21 (cleaned up). We

require litigants to propose a “‘careful description’ of the asserted

fundamental liberty interest.” Id. at 721 (quoting Reno v. Flores, 507

U.S. 292, 302 (1993)). We do that so we can better focus our analysis

of our “Nation’s history, legal traditions, and practices,” which re-

veal whether a right is deeply rooted in this Nation’s history and

tradition and implicit in the concept of ordered liberty. Id.

At the second step, we scrutinize the government action ei-

ther strictly or loosely depending on whether we determine the as-

serted right is fundamental. If the right is fundamental, the gov-

ernment action that burdens the right is presumptively wrongful,

and the government bears the burden to show that its action is

“narrowly tailored to serve a compelling state interest.” Flores, 507

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U.S. at 302. We call this level of review strict scrutiny. Lofton v. Sec’y

of Dep’t of Child. & Fam. Servs., 358 F.3d 804, 815 (11th Cir. 2004).

By contrast, if the asserted right is not fundamental, then

the government action is presumptively lawful, and we reject the

plaintiff’s claim so long as the government action is “rationally re-

lated to legitimate government interests.” Glucksberg, 521 U.S. at

728. We call this rational-basis review. Rational-basis review is

much like a sieve because most government action passes through

it unscathed. Indeed, we sustain the government’s action if “there

is any reasonably conceivable state of facts that could provide a ra-

tional basis” for it. FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 313

(1993); see Williamson v. Lee Optical of Oklahoma Inc., 348 U.S. 483,

488 (1955).

In applying this framework to Henry’s claim, we conclude

first, that the right of a parent to live with their child is both deeply

rooted in this Nation’s history and tradition and implicit in the con-

cept of ordered liberty. In fact, binding Supreme Court precedent

has already said so. And second, we hold that Section 15-20A-

11(d)(4) does not pass strict scrutiny because it is not narrowly tai-

lored to advance Alabama’s compelling state interest. The simple

fact of a conviction for any one of a number of crimes that the

statute covers does not necessarily and conclusively prove that a

parent, including Henry, is forever either unfit or an imminent dan-

ger to their child.

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20 Opinion of the Court 24-10139

1. Section 15-20A-11(d)(4) burdens Henry’s fundamental right

to establish a home with his son.

Our analysis proceeds in three parts. First, we recount our

Nation’s history of familial cohabitation and our precedent respect-

ing that. Binding case law properly captures that a person’s right

to live with their family is deeply rooted in our Nation’s history,

legal traditions, and practices. Second, we explain how Section 15-

20A-11(d)(4) deprives Henry of that fundamental liberty interest.

And third, we address Alabama’s counterarguments. Although

parents generally have a right to live with their children and Section

15-20A-11(d)(4) would substantially burden that right, the State ar-

gues the statute is constitutional because Henry completely lacks a

constitutional right to live with his children. Child-pornography

offenders, Alabama asserts, categorically lose their parental rights

at the moment of conviction. In the third subsection, we explain

why that approach to fundamental rights does not comport with

the Constitution’s text or Supreme Court precedent.

i. A parent’s right to live with their child is deeply rooted in

this Nation’s history and tradition.

As we’ve noted, the Supreme Court has already concluded

that parents have the constitutional right to live with their children.

See Meyer, 262 U.S. at 399. Indeed, that right is part and parcel of

“perhaps the oldest of the fundamental liberty interests” that the

Fourteenth Amendment secures, the right to raise one’s children.

Troxel, 530 U.S. at 65–66; see Obergefell v. Hodges, 576 U.S. 644, 667–

68, (2015) (explaining the rights to marry, establish a home, and

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24-10139 Opinion of the Court 21

bring up children make up a “unified whole” that is a “central part

of the liberty protected by the Due Process Clause” (citation omit-

ted)).

The right to live with one’s family is one of the first to find

judicial recognition in the United States Reports. And that right’s

privileges have been at the center of the American way of life since

our Republic’s inception. At the Founding, the family was a domi-

nant and primarily “private institution.” MICHAEL GROSSBERG,

GOVERNING THE HEARTH 6 (1985). Although cultures throughout

history had established familial arrangements “based on political,

religious, and financial concerns,” Obergefell, 576 U.S. at 659, the

American family reflected the Revolutionary ideals of individual

liberty, see id. at 659–60; GROSSBERG, supra, at 6. “[I]n the republican

household[,] parents and children became bound together by a new

egalitarianism and by affection.” GROSSBERG, supra, at 8.

Our “nation’s households . . . were seen by almost all Amer-

icans as crucial to national well-being.” Id. at 6. For it was the

home’s “domestic intimacy” that served “as a counterweight to

marketplace competition” that would come to characterize Ante-

bellum life. Id.; see SUSAN L. BROWN, FAMILIES IN AMERICA 14–15

(2017). As Alexis de Tocqueville recounted after his travels

throughout the United States, “when the American retires from

the turmoil of public life to the bosom of his family, he finds in it

the image of order and of peace.” 1 ALEXIS DE TOCQUEVILLE,

DEMOCRACY IN AMERICA 332 (Henry Reeve, transl., 4th ed. 1841);

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22 Opinion of the Court 24-10139

see also id. (“There is certainly no country in the world where the

tie of marriage is so much respected as in America . . . .”).

In turn, our Founders recognized through constitutional

guarantees “the right of a man to retreat into his own home and

there be free from unreasonable governmental intrusion.” 4 Silver-

man v. United States, 365 U.S. 505, 511 (1961) (discussing the Fourth

Amendment); see Lawrence v. Texas, 539 U.S. 558, 562 (2003) (“Lib-

erty protects the person from unwarranted government intrusions

into a dwelling or other private places. In our tradition the State is

not omnipresent in the home.”).

But our Founders’ reverence for the home did not stem

solely from its role as an intimate refuge from the public sphere.

“The home [also] derives its pre-eminence as the seat of family

life,” a seat where parents raise their children and pass to them our

4 Throughout our fundamental-rights jurisprudence, the Court has empha-

sized the home and treated invasions of it as highly suspect. See, e.g., Stanley

v. Georgia, 394 U.S. 557, 565 (1969) (“Whatever may be the justifications for

other statutes regulating obscenity, we do not think they reach into the pri-

vacy of one’s own home.”); Payton v. New York, 445 U.S. 573, 598 (1980) (rely-

ing on the common law’s “unequivocal endorsement of the tenet that ‘a man’s

house is his castle’” to conclude the Fourth Amendment prevents warrantless

home arrests); District of Columbia v. Heller, 554 U.S. 570, 634–35 (2008) (de-

scribing the Second Amendment’s “core protection” as the “use arms in de-

fense of hearth and home”); McDonald v. City of Chicago, 561 U.S. 742, 767

(2010) (“Explaining that the need for defense of self, family, and property is

most acute in the home, we found that” the Second Amendment “right applies

to handguns because they are the most preferred firearm in the nation to keep

and use for protection of one's home and family.” (cleaned up)).

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24-10139 Opinion of the Court 23

traditions and values. Poe v. Ullman, 367 U.S. 497, 551–52 (1961)

(Harlan, J., dissenting).

At common law, parents were charged with “giving” their

children “an education” that would prepare them for a successful

life. 1 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF

ENGLAND 645 (William Carey Jones ed., S.F., Bancroft-Whitney Co.

1915). That did not change after the Revolution. American parents

shouldered the “primary responsibility” of educating the next gen-

eration. GROSSBERG, supra, at 8. Indeed, the Founders “understood

parents to have a right and duty to govern their children’s growth.”

Brown v. Ent. Merchs. Ass’n, 564 U.S. 786, 828 (2011) (Thomas, J., dis-

senting). And that remains true to this day: “parents’ claim to au-

thority in their own household to direct the rearing of their chil-

dren is basic in the structure of our society.” Ginsberg v. New York,

390 U.S. 629, 639 (1968).

In short, “the importance of the familial relationship, to the

individuals involved and to the society, stems from the emotional

attachments that derive from the intimacy of daily association, and

from the role it plays in promoting a way of life through the in-

struction of children.” Smith v. Org. of Foster Fams. For Equal. & Re-

form, 431 U.S. 816, 844 (1977) (cleaned up).

Census data concretely show how Americans lived out these

sentiments about the home. They reflect the long-held and unin-

terrupted practice of the American family living together under

one roof. “In the mid-nineteenth century, about 70 percent of per-

sons aged 65 or older lived with their children or children-in-law.”

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24 Opinion of the Court 24-10139

Steven Ruggles, Multigenerational Families in Nineteenth-Century

America, 18 CONTINUITY & CHANGE 139, 141 (2003); see id. at 142–

43 (“Thus, 80 per cent of the aged population either resided with

children or in an adjacent dwelling.”); see also Matt A. Nelson, The

Decline of Patrilineal Kin Propinquity in the United States 1790–1940, 41

DEMOGRAPHIC RSCH. 501, 526 (2020) (“In 1850, 52% of 65-year-old

persons lived near someone with the same surname compared to

44% of 20-year-old persons.”). And that figure only increases when

we consider that some elderly Americans didn’t have children to

live with: in 1850, over 80 percent of elderly Americans who could

live with their children or children-in-law did so. Ruggles, supra, at

145, 151. These high rates of familial cohabitation persisted largely

because “children never moved out” of their parents’ home. Id. at

152–53.

In other words, at the Founding and through Reconstruc-

tion, Americans lived most of their lives with their families. Parents

lived with their minor children as they grew into adulthood. Then,

if those children turned into parents themselves, they raised the

family’s next generation under the same roof. And “as near as we

can measure, the practice was essentially universal.” Id. at 143.

So it’s unsurprising that the Supreme Court has repeatedly

recognized the constitutional right to live with one’s family. After

all, our Constitution secures those fundamental rights that “have,

at all times, been enjoyed by the citizens of the several states which

compose this Union.” Corfield v. Coryell, 6 F. Cas. 546, 551 (C.C.E.D.

Pa. 1825) (No. 3,230) (Washington, Circuit Justice); see Glucksberg,

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24-10139 Opinion of the Court 25

521 U.S. at 710 (“We begin, as we do in all due process cases, by

examining our Nation’s history, legal traditions, and practices.”);

Robertson v. Baldwin, 165 U.S. 275, 282 (1897) (explaining the Thir-

teenth Amendment did not “disturb the right of parents and guard-

ians to the custody of their minor children or wards” because

Americans “adopted [it] with reference to a state of affairs which

had existed in certain states of the Union since the foundation of

the government”).

Indeed, since the Founding, our courts have respected the

rights of parents to live with their children. See, e.g., Kirkpatrick v.

Lockhart, 4 S.C.L. (2 Brev.) 276, 277–79 (S.C. Const. App. 1809) (per-

mitting recovery in tort from a person who knowingly took a mi-

nor away from a parent); United States v. Anderson, 24 F. Cas. 813

(C.C.D. Tenn. 1812) (No. 14,449) (granting writ of habeas corpus

to return a child in military service to their parent); Commonwealth

v. Downes, 41 Mass. 227, 232 (1836) (same); see also Frances M.

Clarke & Rebecca Jo Plant, No Minor Matter: Underage Soldiers, Par-

ents, and the Nationalization of Habeas Corpus in Civil War America,

35 L. & HIST. REV. 881, 892–95 (2017) (explaining parents’ wide-

spread use of the writ of habeas corpus to regain custody of their

children was “rooted in common law traditions that imbued par-

ents with substantial authority over their children until they

reached the age of majority”).

As for the Supreme Court’s express recognition that the

Fourteenth Amendment protects the fundamental right to live

with one’s family, that itself traces back more than a hundred years

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26 Opinion of the Court 24-10139

to Meyer v. Nebraska, 262 U.S. 390 (1923), and Pierce v. Society of the

Sisters of the Holy Names of Jesus & Mary, 268 U.S. 510 (1925).

In Meyer, the Supreme Court invalidated a Nebraska law bar-

ring the teaching of certain foreign languages. 262 U.S. at 400–03.

The Court explained that the Due Process Clause’s guarantee of

“liberty” secures more than “mere[] freedom from bodily re-

straint.” Id. at 399. It protects “those privileges long recognized at

common law as essential to the orderly pursuit of happiness by free

men,” including the right “to engage in any of the common occu-

pations of life, to acquire useful knowledge, to marry,” and, as rel-

evant here, to “establish a home and bring up children.” Id. at 399 (em-

phasis added). And by barring children from learning certain lan-

guages, the Court explained, the law violated the children’s right to

acquire such useful knowledge and “the right of parents to . . . in-

struct their children” in languages long thought “helpful and desir-

able.” Id. at 400.

Then, in Pierce, the Court expanded on its conclusion that

parents have a fundamental right to establish a home and bring up

children. There, the Court considered a challenge to Oregon’s

Compulsory Education Act of 1922, which required parents to

send their children to public school. Pierce, 268 U.S. at 530–31. Re-

lying on Meyer, the Court concluded that Oregon’s statute “unrea-

sonably interfere[d] with the liberty of parents and guardians to di-

rect the upbringing and education of children under their control.”

Id. at 534–35. As a result, the State could not require parents to

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24-10139 Opinion of the Court 27

send their children to public school; parents had a right to educate

them privately.

We’ve explained that “Meyer and Pierce ushered in a line of

Supreme Court decisions that recognized, and further defined the

contours of, parents’ liberty interest to control the upbringing of

their children.” Eknes-Tucker v. Governor of Ala., 80 F.4th 1205, 1222

(11th Cir. 2023); see, e.g., Prince v. Massachusetts, 321 U.S. 158, 170

(1944) (upholding a child-labor law against a challenge that it vio-

lated parents’ rights to raise their children); Stanley v. Illinois, 405

U.S. 645, 646–59 (1972) (holding unconstitutional a law that desig-

nated children of unwed parents as wards of the state upon a

mother’s death because fathers have protected “interest[s] in retain-

ing custody of [their] children”); Wisconsin v. Yoder, 406 U.S. 205,

213–234 (1972) (striking down a Wisconsin law that compelled

school attendance beyond the eighth grade because it interfered

with “the traditional interest of parents with respect to the reli-

gious upbringing of their children”); Parham v. J. R., 442 U.S. 584,

604 (1979) (explaining the Constitution “permit[s] the parents to

retain a substantial, if not the dominant, role in [their children’s

medical] decision[s], absent a finding of neglect or abuse”); San-

tosky v. Kramer, 455 U.S. 745, 769 (1982) (requiring that the state

prove by clear and convincing evidence that parental rights should

be terminated); Lassiter v. Dep’t of Soc. Servs., 452 U.S. 18, 27 (1981)

(declining to require the state to appoint counsel for parents at a

termination proceeding, although explaining that “[a] parent’s in-

terest in the accuracy and justice of the decision to terminate his

or her parental status is . . . a commanding one”); Troxel, 530 U.S.

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28 Opinion of the Court 24-10139

at 60–75 (declaring unconstitutional a visitation statute because the

law interfered with parents’ fundamental right “to make decisions

concerning the care, custody, and control of their children” and in-

structed courts to disregard “the traditional presumption that a fit

parent will act in the best interest of his or her child”).

Relying on this line of precedent, and other cases establish-

ing the “private realm of family life,” Prince, 321 U.S. at 166, the

Supreme Court in Moore v. City of East Cleveland, 431 U.S. 494 (1977)

(plurality opinion), reaffirmed that family members have the fun-

damental right to live with one another. There, the plaintiffs chal-

lenged East Cleveland’s housing ordinance that limited occupancy

of a dwelling to members of a single family. Id. at 495–96. The

Supreme Court invalidated the ordinance as an unjustified intru-

sion into family life. Id. at 506.

As Moore explained, “the Constitution protects the sanctity

of the family precisely because the institution of the family is

deeply rooted in this Nation’s history and tradition,” for “[i]t is

through the family that we inculcate and pass down many of our

most cherished values, moral and cultural.” Id. at 503–04. Moore

further recognized that the right of “parents and children” and ex-

tended family members, like grandparents, to “shar[e] a house-

hold” lies at the core of the American family. Id. at 504. And East

Cleveland had no authority to deprive its citizens of that privilege.

The Court based its conclusion not only on its understand-

ing of Americans’ “practice[]” of living with their families (alt-

hough that would have been sufficient), see Glucksberg, 521 U.S. at

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24-10139 Opinion of the Court 29

710 (citing Moore, 431 U.S. at 503); cf. Ruggles, supra, at 141, 145,

151; Nelson, supra, at 526, but also on the Court’s firmly rooted

precedent establishing the rights of parents (and sometimes ex-

tended family members) to raise children, see Moore, 431 U.S. at 505

& n.15. The Court recognized that parents may not be able to “di-

rect the upbringing . . . of [their] children,” Pierce, 268 U.S. at 534,

without the corresponding ability to live and “establish a home”

with them, Meyer, 262 U.S. at 399. Those rights, though inde-

pendently worthy of constitutional protection, are interrelated and

well established. See Obergefell, 576 U.S at 667–68; GROSSBERG, su-

pra, at 8.

Since Moore, the Supreme Court has repeatedly reaffirmed

the right of parents to live with their children. 5 In Roberts v. United

States Jaycees, for instance, the Court said that the Bill of Rights af-

fords “certain kinds of highly personal relationships a substantial

measure of sanctuary from unjustified interference by the State.”

5 The Court has entertained many challenges to statutes on the ground that

they “intrude on choices concerning family living arrangements.” Bowen v.

Gilliard, 483 U.S. 587, 602 (1987) (cleaned up). And to be sure, it has rejected

some of them because only statutory classifications that “‘directly and substan-

tially’ interfere with family living arrangements” burden the fundamental

right. Lyng v. Castillo, 477 U.S. 635, 638 (1986) (quoting Zablocki v. Redhail, 434

U.S. 374, 386–387 & n.12); Lyng v. Int’l Union, United Auto., Aerospace & Agr.

Implement Workers, 485 U.S. 360, 365 (1988); Bowen, 483 U.S. at 601–02. But as

we explain in the body of this opinion, Section 15-20A-11(d)(4) “directly and

substantially” interferes with Henry’s living arrangements, Lyng, 477 U.S. at

638, by severely limiting the amount of time he can spend in the same home

as his son and by precluding him from living with his own son.

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30 Opinion of the Court 24-10139

468 U.S. 609, 618 (1984). The Court continued, explaining that

“[f ]amily relationships . . . involve deep attachments and commit-

ments to the necessarily few other individuals with whom one

shares not only a special community of thoughts, experiences, and

beliefs but also distinctively personal aspects of one’s life.” Id. at

619–20. As a result, the Court confirmed, the Constitution secures

parents’ rights to “rais[e] and educat[e]” their children and to “co-

habitat[e]” with them. Id. at 619.

We have also consistently acknowledged family members’

fundamental right to cohabitate, including a parent’s right to live

with their children. See, e.g., Picou v. Gillum, 874 F.2d 1519, 1521

(11th Cir. 1989) (recognizing that the Constitution protects “the

structure of the family unit”); Elliott v. City of Athens, 960 F.2d 975,

981 (11th Cir. 1992) (“Moore and Belle Terre, read together, indicate

that a feasible method of controlling density is to place occupancy

limitations on unrelated persons but not on related persons.”), ab-

rogated on other grounds by City of Edmonds v. Oxford House, Inc., 514

U.S. 725 (1995); Parks v. City of Warner Robins, 43 F.3d 609, 614 n.3

(11th Cir. 1995) (citing case law establishing that government may

not “directly and substantially interfere with family living arrange-

ments” (cleaned up)); Ross v. Clayton County, 173 F.3d 1305, 1311

(11th Cir. 1999) (explaining “that the First Amendment right of free

association encompasses ‘cohabitation with one’s relatives’” (quot-

ing U.S. Jaycees, 468 U.S. at 619)); Eknes-Tucker, 80 F.4th at 1221–22

(recognizing “that the ‘liberty’ guaranteed by the Due Process

Clause includes the right “to . . . establish a home and bring up chil-

dren” (emphasis in original) (quoting Meyer, 262 U.S. at 399)); cf.

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24-10139 Opinion of the Court 31

Burton v. Tampa Hous. Auth., 271 F.3d 1274, 1285 (11th Cir. 2001) (re-

jecting a claim that a zero-tolerance policy for federal housing di-

rectly and substantially interfered with family living arrange-

ments); Konikov v. Orange County, 410 F.3d 1317, 1326 (11th Cir.

2005) (acknowledging “the fundamental right to freedom of per-

sonal choice in marriage and family life” (citing Moore, 431 U.S. at

499)); Wilson v. Taylor, 733 F.2d 1539, 1544 (11th Cir. 1984) (“A state

violates the fourteenth amendment when it seeks to interfere with

the social relationship of two or more people.”).

So have our sister circuits. See, e.g., Halet v. Wend Inv. Co., 672

F.2d 1305, 1311 (9th Cir. 1982) (“A fundamental right is even more

clearly involved here because the rental policy infringes the choice

of parents to live with their children rather than the choice of more

distant relations.”); Franz v. United States, 707 F.2d 582, 595 (D.C.

Cir. 1983) (explaining the Fourteenth Amendment protects “cohab-

itation with members of one’s extended family”); Doe v. City of But-

ler, 892 F.2d 315, 321 (3d Cir. 1989) (“Zoning restrictions cannot be

applied to hinder those in a familial relationship from living to-

gether.”); Hameetman v. City of Chicago, 776 F.2d 636, 642 (7th Cir.

1985) (“A state or city that forces a man to live apart from his family

deprives him of a form of liberty protected by the due process

clause, and therefore violates the Fourteenth Amendment if due

process is denied.”); cf. Johnson v. City of Cincinnati, 310 F.3d 484,

501, 506 (6th Cir. 2002) (striking down a Cincinnati ordinance that

limited a grandparent’s access to the neighborhood where her

grandchild lived as violative of the “fundamental right to

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32 Opinion of the Court 24-10139

participate in child-rearing,” including the “right to ‘establish a

home and bring up children’” (quoting Meyer, 262 U.S. at 398)).

Not only that, but Alabama courts have also recognized a

parent’s fundamental right to live with their children. See Alabama

v. C.M., 746 So. 2d 410, 415 n.7 (Ala. Crim. App. 1999) (acknowledg-

ing the “right to live with relatives”). In fact, in rejecting a challenge

to ASORCNA’s precursor, Alabama’s Court of Criminal Appeals

recognized that the statute “directly infringe[d]” the plaintiff-sex-

offender’s fundamental rights by prohibiting him “from choosing

to reside with his children.” Herring v. State, 100 So. 3d 616, 624

(Ala. Crim. App. 2011). And so the court applied “the strict-scru-

tiny test to determine whether th[e] [relevant] sections violate[d]

Herring’s due-process and equal-protection rights.” Id. at 625. Alt-

hough, as we explain later, we disagree with Herring’s result and

conclude that Section 15-20A-11(d)(4) can’t survive strict scrutiny,

Herring shows Alabama’s recognition that statutes that restrict a

parent’s ability to live with their child burden a fundamental right

that the Fourteenth Amendment protects.

In sum, precedent instructs that the government may not in-

terfere with how a parent raises their minor child, target the cus-

tody of one’s minor child, Robertson v. Hecksel, 420 F.3d 1254, 1259–

60 (11th Cir. 2005), or restrict a parent’s ability to live with their

child, see, e.g., Meyer, 431 U.S. at 399; Moore, 431 U.S. at 499; Bowen,

483 U.S. at 602, without a compelling state interest that the state

action is narrowly tailored to further, Flores, 507 U.S. at 302. So we

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24-10139 Opinion of the Court 33

turn next to whether Section 15-20A-11(d)(4) inappropriately bur-

dens a parent’s fundamental right to live with and raise their child.

ii. Section 15-20A-11(d)(4) directly and substantially infringes

Henry’s ability to live with his son.

In this section, we consider whether Section 15-20A-11(d)(4)

substantially burdens Henry’s constitutional rights, which would

require us to apply strict scrutiny in our review of it. We conclude

that it does. Although we show our work below, we note that the

parties don’t dispute that Section 15-20A-11(d)(4) substantially bur-

dens a parent’s right to live with their child. After all, the statute’s

plain text criminalizes that conduct. But a body of law addresses

the extent to which state action may burden people’s living ar-

rangements without inviting stringent constitutional review. So we

summarize it below, in showing our work and explaining why we

conclude that we must apply strict scrutiny to Section 15-20A-

11(d)(4).

Although the Fourteenth Amendment secures individuals’

rights to live with their family members, not all state action affect-

ing their ability to do so requires heightened constitutional scru-

tiny. After all, who someone lives with or where someone lives are

important financial decisions. And many government programs or

policies could have effects on the costs of such decisions. But we

afford the government a great deal of latitude in crafting social and

economic policy. See Lee Optical, 348 U.S. at 488. So only those laws

that “‘directly and substantially’ interfere with family living ar-

rangements” warrant careful judicial review. Castillo, 477 U.S. at

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34 Opinion of the Court 24-10139

638 (quoting Zablocki, 434 U.S. at 387). As the Court has summa-

rized, “that some families may decide to modify their living ar-

rangements in order to avoid the effect of ” a given law “does not

transform” that law “into an act whose design and direct effect are

to intrude on choices concerning family living arrangements.”

Bowen, 483 U.S. at 601–02 (cleaned up).

So in assessing claims that state action interferes with a fam-

ily’s living arrangements, courts generally have not applied height-

ened scrutiny to those regulations that have an “incidental and un-

intended effect” on the family, Hameetman, 776 F.2d at 643, or that

“affect[] or encourage[] decisions on family matters,” Doe v. Miller,

405 F.3d 700, 710 (8th Cir. 2005) (quoting Gorrie v. Bowen, 809 F.2d

508, 523 (8th Cir. 1987)). When that’s the case, the rational-basis

test controls.

Conditions on benefits typify the incidental or nudging ef-

fect government may permissibly have on familial arrangements.

For example, the Supreme Court took no issue with the “allotment

of food stamps” based on the statute’s definition of a “household”

because the definition did not “prevent any group of persons from

dining together” or substantially increase the chance that “relatives

would choose to live apart.” Castillo, 477 U.S. at 638; see also Int’l

Union, United Auto., Aerospace & Agr. Implement Workers, 485 U.S. at

365 (holding that an amendment preventing individuals on strike

from receiving food stamps did not directly and substantially im-

pact familial living arrangements). Nor, the Supreme Court has

concluded, did the consideration of a household’s collective

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24-10139 Opinion of the Court 35

income as a condition of eligibility for federal aid violate Ameri-

cans’ right to cohabitate. Bowen, 483 U.S. at 601–02. And a housing

authority did not violate the Constitution when it evicted a person

under a policy that prevented any member of a tenant’s household

from engaging in drug-related criminal activity at or near the pub-

lic housing. Burton, 271 F.3d at 1285.

Courts have also been less likely to apply strict scrutiny if the

challenged state action primarily affects where someone lives with-

out directly altering whom someone lives with. For instance, in

Hameetman v. City of Chicago, the Seventh Circuit found no consti-

tutional infirmity in Chicago’s requirement that firefighters live

within the City’s limits. 776 F.2d at 642–43. As the court explained,

the requirement was “not a regulation of the composition or loca-

tion of the family.” Id. at 643. Instead, any impact on Hameetman’s

family was “indirect,” a consequence of his family’s unique circum-

stances and preference for suburban life. Id. Although in some

cases an indirect impact on family living arrangements “would be

so cruel and arbitrary . . . as to be deemed a denial of due process

of law,” the Seventh Circuit concluded that the one before it was

not so “extreme.” Id.; see id. (explaining also that Hameetman did

not request an accommodation from the City and that he failed to

show why his family could not live in Chicago).

On similar logic, the Eighth Circuit upheld restrictions pre-

venting an adult convicted of sex offenses involving minors from

residing within 2,000 feet of a school or child-care facility. Doe v.

Miller, 405 F.3d 700, 704–05 (8th Cir. 2005); see also Doe v. Moore, 410

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36 Opinion of the Court 24-10139

F.3d 1337, 1344 & n.5 (11th Cir. 2005) (acknowledging Miller in a

decision rejecting a substantive-due-process challenge to the publi-

cation of sex offenders’ personal information); McGuire v. Marshall,

50 F.4th 986, 1024–25 (11th Cir. 2022) (concluding Alabama’s law

restricting certain sex offenders from residing near a school or

child-care facility was not an ex-post-facto law).

The court upheld the statute because it did “not operate di-

rectly on the family relationship.” Miller, 405 F.3d at 710. As the

court explained, “[a]lthough the law restricts where a residence

may be located, nothing in the statute limits who may live with the

Does in their residences.” Id. (emphasis added); cf. McGuire, 50 F.4th

at 1009 (explaining similar residency restrictions were not an ex-

post-facto law, in part, because offenders may still “go into exclu-

sion zones to . . . visit friends or family”). To be sure, the statute

limited some from living with family, like parents who already re-

sided within a prohibited area. Miller, 405 F.3d at 711. But on the

whole, the statute did not infringe upon offenders’ liberties “in a

fashion” so direct and pervasive that it “require[d] heightened scru-

tiny.” Id.; cf. Johnson, 310 F.3d at 503 (concluding an ordinance that

“broadly excludes individuals from Over the Rhine without regard

to their reason for travel in the neighborhood” violated Johnson’s

right to raise a grandchild).

As Hameetman and Miller expressly state, they upheld laws

that stand in contrast to those that facially restrict who, or some-

times how many, may inhabit a dwelling. Cf. City of Santa Barbara v.

Adamson, 27 Cal. 3d 123, 133 (1980) (“In general, zoning ordinances

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are much less suspect when they focus on the use than when they

command inquiry into who are the users.” (emphasis omitted)). So

for instance, in Moore, the Supreme Court explained that East

Cleveland’s ordinance directly infringed Moore’s fundamental

rights because “[o]n its face it selects certain categories of relatives

who may live together and declares that others may not.” 431 U.S.

at 498–99. That rendered “the usual judicial deference to the legis-

lature . . . inappropriate.” Id. at 499.

Here, there’s no reasonable dispute—indeed, the parties do

not dispute—that Section 15-20A-11(d)(4) falls into the Moore

camp—that is, the category of laws whose “design and direct effect

are to intrude on choices concerning family living arrangements.”

Bowen, 483 U.S. at 601–02 (cleaned up). By its plain terms, Ala-

bama’s statutory scheme stops Henry from “resid[ing]” with his

child. ALA. CODE § 15-20A-11(d). Its restrictions do “not merely

‘inconvenience’” Henry “in exercising his fundamental right as a

parent”; they “directly infringe on that right by removing his free-

dom of choice regarding family matters.” Herring, 100 So. 3d at

624; see R.E.H. v. C.T., 327 So. 3d 248, 253 (Ala. Civ. App. 2020) (“This

state-imposed separation of offenders and children necessarily ren-

ders the father unable to assume physical custody of the

child . . . .”). Just as East Cleveland made “a crime of a grand-

mother’s choice to live with her grandson,” Moore, 431 U.S. at 499,

Alabama makes a crime, punishable up to ten years in jail, ALA.

CODE §§ 13A-5-6(a)(3), 15-20A-11(i), of Henry’s cho[ice] to reside

with his” son, Herring, 100 So. 3d at 624. In short, Section 15-20A-

11(d)(4) “‘directly and substantially’ interfere[s] with” Henry’s

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38 Opinion of the Court 24-10139

“family living arrangements.” Castillo, 477 U.S. at 638 (quoting

Zablocki, 434 U.S. at 387).

As a result, we must carefully review its statutory scheme to

ensure it is narrowly tailored to advance a compelling governmen-

tal interest. Flores, 507 U.S. at 302.

iii. Alabama’s arguments for why the Fourteenth Amendment

does not secure Henry’s right to live with his son find little

support in the Constitution’s text or our precedent.

But before we consider the tailoring of Alabama’s statutory

scheme, we take a moment to address Alabama’s arguments that

strict scrutiny does not apply here, even though Section 15-20A-

11(d)(4) is the type of law that falls into the Moore camp and would

otherwise be subject to strict scrutiny. As Alabama sees it, Henry’s

past conviction entirely removes this case from Moore and other pa-

rental-rights decisions. Alabama argues that we do not need to

strictly scrutinize Section 15-20A-11(d)(4) because Henry, as a con-

victed sex offender, lacks the constitutional right to direct the up-

bringing of his child. In the State’s view, Henry’s claimed right

“break[s] new ground” under substantive due process, so it requires

a new “careful description of the asserted right,” Flores, 507 U.S. at

302 (quoting Collins v. City of Harker Heights, 503 U.S. 115, 125

(1992))—one that includes in its definition the fact of Henry’s con-

viction.

In support of its position, Alabama asserts that Henry hasn’t

identified a binding case or a historical tradition affording sex of-

fenders parental rights. In Alabama’s view, under the Supreme

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24-10139 Opinion of the Court 39

Court precedent, only “fit parents” have such rights, Troxel, 530 U.S.

at 68, so even “the loosest description of the asserted right neces-

sary includes” Henry’s “qualifying conviction.” And without a tra-

dition of affording sex offenders parental rights, the State con-

cludes, Henry’s substantive-due-process claim fails, for Section 15-

20A-11(d)(4) is rationally related to its legitimate governmental in-

terest in securing children.

We disagree with Alabama’s evaluation of Henry’s substan-

tive-due-process claim. 6 Broadly, Alabama conflates the identifica-

tion of the right at issue with the tailoring analysis. Whether a

right exists is a different question from whether the state may con-

stitutionally restrict the exercise of that right. And the Constitu-

tion’s text as well as the Court’s fundamental-rights precedents

confirm this point. “The traditional restrictions” on a constitu-

tional right “go to show the scope of the right, not its lack of fun-

damental character.” McDonald v. City of Chicago, 561 U.S. 742, 802

(2010) (Scalia, J., concurring). In other words, Henry’s status as a

sex offender may give Alabama a compelling reason to limit his

6 Alabama also misidentifies the relevant rights that Henry asserts. Henry

claims that Section 15-20A-11(d)(4) unconstitutionally prevents him from liv-

ing with his child, not just, as Alabama seems to suggest, that it undermines

Henry’s parental right to exercise physical custody over his son. Although

those rights overlap, they are constitutionally distinct. And the right to live

with family is one that has long been “carefully described” and repeatedly af-

firmed by precedent, none of which suggests the right to live with family is

definitionally qualified by a prior conviction.

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40 Opinion of the Court 24-10139

constitutional rights, but it does not eliminate those rights whole-

sale.

Three points illustrate this general problem in Alabama’s ar-

gument. We discuss them as follows. First, we establish that the

Constitution’s text does not support Alabama’s contention that

Henry’s prior conviction automatically deprives him of a well-es-

tablished fundamental right. Second, we explain why the funda-

mental-rights case law does not enable Alabama to avoid strict scru-

tiny solely because of Henry’s conviction. Third, we show how the

parental-rights cases support our reading of the Constitution’s text

and the general principles our fundamental-rights jurisprudence

has set forth.

The Constitution’s Text. We begin with the relevant provi-

sion: the Fourteenth Amendment’s Due Process Clause. That

Clause prevents state and local governments from “depriv[ing] any

person of . . . liberty . . . without due process of law.” U.S. CONST.

amend. XIV, § 1 (emphasis added). For three reasons, the best read-

ing of that language requires the conclusion that Henry’s convic-

tion bears on the state’s justification for depriving him of his fun-

damental rights, not whether he has them in the first place.

First, the clause’s structure does not support Alabama’s ar-

gument. The main clue comes from the provision’s object: “any

person.” It’s by now beyond debate that that phrase is broad. The

Supreme Court has repeatedly confirmed that the use of “any per-

son” makes the Due Process Clause’s reach “universal . . . in appli-

cation.” Plyler v. Doe, 457 U.S. 202, 212 (1982) (emphasis omitted)

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24-10139 Opinion of the Court 41

(quoting Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886)). So the Clause

covers Henry. After all, he is a “person,” and his conviction does

not change that fact. As a result, the Constitution’s plain terms

guarantee him certain liberties. See United States v. Jimenez-Shilon,

34 F.4th 1042, 1046 (11th Cir. 2022) (explaining “dangerous felons”

“are indisputably part of ‘the people’” who the Second Amend-

ment protects); Kanter v. Barr, 919 F.3d 437, 453 (7th Cir. 2019) (Bar-

rett, J., dissenting) (same). That means that the right to “establish

a home and bring up children,” Meyer, 262 U.S. at 399—a liberty

within the meaning of the Due Process Clause—is a right guaran-

teed to all “person[s],” including Henry. And the only remaining

question is whether restricting a “person[’s]” (in this case, Henry’s)

liberties comports with due process of law.

Second, Alabama’s reading of the Due Process Clause—or

any other rights-securing provision—does not make much sense in

application. “It is one thing to say that” certain liberties “fall out-

side the scope” of the Fourteenth Amendment, but it “is another

thing to say that certain people fall outside the Amendment’s

scope.” Kanter, 919 F.3d at 452 (Barrett, J., dissenting). To suggest

the latter, as Alabama does, would imply that “a person could be in

one day and out the next: the moment he was convicted of a [sex]

crime . . . , his rights would be stripped as a self-executing conse-

quence of his new status.” Id. To put it mildly, that is “an unusual

way of thinking about rights.” Id.

And it is not one that the Constitution adopts. The Four-

teenth Amendment anticipates that state action will deprive

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42 Opinion of the Court 24-10139

individuals of their constitutional rights and that state action will

determine the scope of the deprivation. Id. In this respect, the

Fourteenth Amendment provides that “[n]o State shall make or en-

force any law which shall abridge the privileges or immunities of

citizens of the United States; nor . . . deprive any person of life, lib-

erty, or property, without due process of law; nor deny” them “the

equal protection of the laws.” U.S. CONST. amend. XIV, § 1 (em-

phasis added).

“Felon voting rights are a good example: a state can disen-

franchise felons, but if it refrains from doing so, their voting rights

remain constitutionally protected.” Kanter, 919 F.3d at 453 (Barrett,

J., dissenting); accord Jones v. Governor of Fla., 975 F.3d 1016, 1028–29

(11th Cir. 2020) (en banc). So too with the right to keep and bear

arms. We’ve explained that “dangerous felons” are part of “the

people” the Second Amendment protects but that they “may be

prohibited from possessing firearms without offending” the preex-

isting right the Second Amendment secures. Jimenez-Shilon, 34

F.4th at 1046. In both instances, “a person convicted of a qualifying

crime does not automatically lose his right[s] . . . but instead be-

comes eligible to lose” them, Kanter, 919 F.3d at 453 (Barrett, J., dis-

senting), in appropriate circumstances.

Third, Alabama’s view of the Constitution leads to some

perverse results. If Alabama were right that a possible reason for

regulating fundamental rights precluded stringent judicial review,

nothing would stop Alabama from disregarding the usual limita-

tions on states’ power to infringe constitutional rights. That’s so

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24-10139 Opinion of the Court 43

because, as we’ve noted, rational-basis review applies when the

right involved is not “fundamental.” And under rational-basis re-

view, courts generally don’t strike down legislation—regardless of

how poorly tailored restrictions are or how much of a historical

outlier they may be. See Beach Commc’ns, Inc., 508 U.S. at 313–15.

But that is not how courts usually assess fundamental-rights claims;

a valid reason for limiting rights does not justify every means of lim-

iting rights. See United States v. Rahimi, 602 U.S. 680, 692 (2024)

(“Why and how the regulation burdens the right are central to this

inquiry.” (emphasis added)); Flores, 507 U.S. at 302 (permitting state

action that is “narrowly tailored to serve a compelling state inter-

est”). Yet Alabama seeks to turn a potential justification for tar-

geted regulation of persons’ fundamental rights into a regulatory

blank check. The Constitution does not allow states to evade judi-

cial review in that way when fundamental rights are at issue.

When we consider these three points together, the text of

the Due Process Clause dispatches Alabama’s argument: the Con-

stitution secures fundamental rights for all persons, but the govern-

ment may deprive individuals of those fundamental rights under

only very limited circumstances. See Flores, 507 U.S. at 301–02

(“[O]ur . . . cases . . . interpret[] the Fifth and Fourteenth Amend-

ments’ guarantee of ‘due process of law’ to include a substantive

component, which forbids the government to infringe certain ‘fun-

damental’ liberty interests at all, no matter what process is pro-

vided, unless the infringement is narrowly tailored to serve a com-

pelling state interest.”). So whether Henry’s conviction is a

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44 Opinion of the Court 24-10139

“qualifying” one that renders him “eligible” to be deprived of his

rights, Kanter, 919 F.3d at 453 (Barrett, J., dissenting), raises a ques-

tion of tailoring, see Flores, 507 U.S. at 301–02, or history, see Kerry v.

Din, 576 U.S. 86, 95 (2015) (plurality opinion).

Fundamental-Rights Precedent. Our fundamental-rights ju-

risprudence confirms the conclusion we draw from the text of the

Due Process Clause: Henry’s conviction bears on the State’s justifi-

cation for restricting his constitutional rights, not on the existence

or definition of Henry’s constitutional rights in the first place.

In fact, the Supreme Court has squarely rejected Alabama’s

position—which would wholesale deprive certain “person[s]” of

fundamental rights—as “inconsistent with the approach” it “has

used in discussing” well-established fundamental rights, “including

marriage and intimacy.” Obergefell, 576 U.S. at 671. Rights are not

“defined by who exercised them in the past.” Id. (emphasis added).

Indeed, “Loving did not ask about a ‘right to interracial marriage’;

Turner did not ask about a ‘right of inmates to marry’; and Zablocki

did not ask about a ‘right of fathers with unpaid child support du-

ties to marry.’” Id. When governments have attempted to deprive

certain groups of people of their fundamental rights, the Court has

“inquired about the right . . . in its comprehensive sense, asking if

there was a sufficient justification for excluding the relevant class

from the right.” Id. So the question in cases like Henry’s is whether

the state has a sufficient justification for and appropriate means of

denying the right to certain individuals. And it’s not, as Alabama

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24-10139 Opinion of the Court 45

attempts to frame the dispute, whether Henry has the right in the

first place.

To be sure, in some cases, the Supreme Court has found the

status of the person “who[m]” the government is regulating im-

portant to its careful description of the fundamental right. But it

has normally done so because that fact informs what right the

plaintiff is asserting. Cf. id.

The Supreme Court’s recent substantive-due-process case,

Department of State v. Muñoz, offers an example. 602 U.S. 899 (2024).

Muñoz filed suit after the United States prevented her husband, a

noncitizen, from entering the country. She argued that the deci-

sion undermined her right to marriage and the right to live with

her family. Id. at 903–07, 910. The Court rejected Muñoz’s claim

and, as relevant here, her framing of the dispute. As the Court saw

things, Muñoz claimed “something distinct: the right to reside with

her noncitizen spouse in the United States.” Id. at 910. Because

Muñoz’s husband, a noncitizen, did not have the right to reside in

the United States, her claim “involve[d] more than marriage and

more than spousal cohabitation.” Id. In turn, the Court concluded

that Muñoz failed to show “that the right to bring a noncitizen

spouse to the United States is deeply rooted in this Nation’s history

and tradition.” Id. at 911 (cleaned up).

But Henry’s case is unlike Muñoz. Muñoz’s husband’s status

as a noncitizen required her to establish something “more than

spousal cohabitation”—the right to have her husband enter and

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46 Opinion of the Court 24-10139

reside in the United States. Id. at 910. By contrast, it’s hard to see,

and Alabama does not explain, how Henry’s status as a sex offender

requires him to assert “something distinct” from or something

“more than . . . cohabitation” with his family. Id. Rather, living

with his family is the core relief Henry seeks through his com-

plaint. So precedent detailing how to carefully describe fundamen-

tal-rights claims does not suggest Henry’s status as a felon is mate-

rial to whether the Fourteenth Amendment guarantees him the

fundamental right to live with his family in the first place.

Decisions from cases on more analogous facts prove the

point. Consider prisoners’ attempts to enforce their fundamental

rights. As the Court has repeatedly explained, “[p]rison walls do

not form a barrier separating prison inmates from the protections

of the Constitution.” Turner v. Safley, 482 U.S. 78, 84 (1987).

Convicted individuals, even when they are serving their sen-

tences, retain, for instance, the right to petition the government for

redress, Johnson v. Avery, 393 U.S. 483, 486 (1969), the right to be free

of racial discrimination, Lee v. Washington, 390 U.S. 333, 333–34

(1968), the right to the freedom of speech, Procunier v. Martinez, 416

U.S. 396, 418 (1974), overruled on other grounds by Thornburgh v. Ab-

bott, 490 U.S. 401 (1989), the right to the free exercise of religion,

O’Lone v. Est. of Shabazz, 482 U.S. 342, 348 (1987), and the right to

marry, Turner, 582 U.S. at 95–96. Each is undoubtedly a “‘liberty’

interest within the meaning of the Fourteenth Amendment,” and

each does not fade away upon conviction “even though” a right

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24-10139 Opinion of the Court 47

may be “qualified of necessity by the circumstance of imprison-

ment.” Martinez, 416 U.S. at 418.

And if prisoners retain their constitutional rights, so too do

those who have served their terms of incarceration and are rejoin-

ing society. Cf. Doe v. Harris, 772 F.3d 563, 572 (9th Cir. 2014) (con-

cluding “registered sex offenders who have completed their terms

of probation and parole enjoy the full protection of the First

Amendment” (cleaned up)).

Our sister circuits have uniformly recognized that principle

in cases directly analogous to Henry’s. When district courts im-

pose special conditions of supervised release that interfere with a

felon’s, including a sex offender’s, ability to raise or live with their

child, the courts of appeals have acknowledged that such re-

strictions interfere with “a fundamental liberty interest.” United

States v. Bear, 769 F.3d 1221, 1229 (10th Cir. 2014) (quoting United

States v. Edgin, 92 F.3d 1044, 1049 (10th Cir. 1996)); United States v.

Del Valle-Cruz, 785 F.3d 48, 56–57, 64 (1st Cir. 2015); United States v.

Myers, 426 F.3d 117, 125–26, 130 (2d Cir. 2005) (Sotomayor, J.);

United States v. Voelker, 489 F.3d 139, 154–55 (3d Cir. 2007); United

States v. Worley, 685 F.3d 404, 408 (4th Cir. 2012); United States v.

Widmer, 785 F.3d 200, 208 (6th Cir. 2015); United States v. Quinn, 698

F.3d 651, 652 (7th Cir. 2012) (Easterbrook, C.J.); United States v. Da-

vis, 452 F.3d 991, 995 (8th Cir. 2006); United States v. Wolf Child, 699

F.3d 1082, 1092–93 (9th Cir. 2012).

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48 Opinion of the Court 24-10139

As a result, many courts review the challenged conditions to

ensure they “interfere with the right of familial association . . . only

in compelling circumstances” through means that are “‘especially

fine-tuned’ to achieve the statutory purposes of sentencing.” Bear,

769 F.3d at 1229 (first quoting United States v. Smith, 606 F.3d 1270,

1284 (10th Cir. 2010); and then quoting Edgin, 92 F.3d at 1049); ac-

cord Quinn, 698 F.3d at 652 (“Putting the parent-child relationship

under governmental supervision for long periods (under this judg-

ment, until the son turns 18) requires strong justification.”); Wid-

mer, 785 F.3d at 208 (“Special conditions of supervised release that

implicate parental rights are considered more intrusive and require

explicit consideration by the sentencing court.”); United States v.

Cabrera-Rivera, 893 F.3d 14, 33 (1st Cir. 2018) (“Because impairment

of a defendant’s relationship with his child involves a very signifi-

cant deprivation of liberty, it requires a greater justification.”

(cleaned up)).7 So even after a person has been convicted of a sex

7 We have not articulated a special standard of review for conditions of super-

vised release that infringe individuals’ constitutional rights. All special condi-

tions of supervised release must be “reasonably related to the statutory sen-

tencing factors,” involve “no greater deprivation of liberty than is reasonably

necessary for the purposes set forth in” 18 U.S.C. § 3553(a), and remain “con-

sistent with any pertinent policy statements issued by the Sentencing Com-

mission.” United States v. Etienne, 102 F.4th 1139, 1146 (11th Cir. 2024). So we

generally consider claims that a condition violates a constitutional right as an

argument that the condition “is more restrictive than necessary.” Id. We have

“affirmed restrictive conditions of supervised release that burden constitu-

tional rights so long as the conditions are tempered by reasonable exceptions.”

Id. at 1446–47. In other words, we generally don’t impose “absolute bar[s]” on

individuals’ exercise of their constitutional rights, id. at 1147, and we attempt

to ensure that restrictions on such rights are “narrowly prescribed,” id. at 1149.

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24-10139 Opinion of the Court 49

offense, including those involving child pornography, courts uni-

versally view those individuals as still enjoying their fundamental

rights, including their rights to live with and contact family, subject

to limits based on appropriate tailoring.

Our precedent comports with this principle. In Doe v. Moore,

we rejected a substantive-due-process challenge to Florida’s regis-

tration and notification scheme and DNA-collection statute. 410

F.3d at 1344–45. We did so for two reasons. First, we concluded

the plaintiffs had no liberty interest in preventing “a state’s publica-

tion of truthful information that is already available to the public.” 8

Id. at 1345. No history or tradition supported such a proposition.

And second, as relevant here, we confirmed the challenged

provision did not “fall under a fundamental right classification.” Id.

That was so, we explained, because the law didn’t “restrict

See, e.g., United States v. Zinn, 321 F.3d 1084, 1093 (11th Cir. 2003) (upholding

a restriction on access to the internet in a child-pornography prosecution be-

cause the supervisee could still use the internet for valid purposes with his

probation officer’s permission); United States v. Coglianese, 34 F.4th 1002, 1010–

11 (11th Cir. 2022) (same).

8 To be sure, in Doe v. Moore, our careful description of the asserted right in-

cluded the plaintiffs’ convictions. See 410 F.3d at 1344 (defining the right as

“the right of a person, convicted of ‘sexual offenses,’ to refuse subsequent reg-

istration of his or her personal information with Florida law enforcement and

prevent publication of this information on Florida’s Sexual Offender/Predator

website”); see also United States v. Ambert, 561 F.3d 1202, 1209 (11th Cir. 2009).

But, as we explain above, that definition had no impact on how we ultimately

resolved the claim, nor did it lead us to discount the importance of a sex of-

fender’s familial rights.

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50 Opinion of the Court 24-10139

plaintiffs’ freedom of action with respect to their families,” nor did

it otherwise “intrude upon the aspect of the right to privacy that

protects an individual’s independence in making certain types of

important decisions.” Id. (quoting Paul P. v. Verniero, 170 F.3d 396,

405 (3d Cir. 1999)); see id. at 1345 n.6 (recognizing “limitations on

state regulatory power in areas regarding ‘marriage, procreation,

contraception, family relationships, and child rearing and educa-

tion’” (quoting Paul v. Davis, 424 U.S. 693, 713 (1976))).

The dispositive factor wasn’t that sex offenders lacked famil-

ial rights. To the contrary, we emphasized that these rights, which

we described as “privacy interests,” were important to our decision.

See id. at 1344 n.4. But we upheld the challenged provision because

Florida’s laws had only “indirect effects” “on the offender’s relation-

ship with his family,” and those effects just “did not rise to the in-

fringement of a fundamental right.” Id. at 1344–45; see id. at 1344

n.5 (citing Miller, 405 F.3d at 710–11, which upheld a location-based

residency restriction on sex offenders because it did not limit who

may live with the offenders in their residences). But as we’ve ex-

plained, that’s not the case here. Section 15-20A-11(d)(4) criminal-

izes conduct at the core of “family relationships,” id. at 1345 n.6

(citation omitted)—namely a person’s ability to live with and raise

their own child.

So Supreme Court precedent, case law from our sister cir-

cuits, and our own decisions point to and compel the conclusion

that Henry enjoys the right to live with his child.

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24-10139 Opinion of the Court 51

Parental-Rights Precedent. Despite the Constitution’s text

and the general principles that guide our inquiry into fundamental-

rights claims, Alabama argues the Supreme Court’s parental-rights

cases require that Henry prove our society has “traditionally ac-

corded such a father” (that is, a father with a child-pornography con-

viction) the rights he asserts. Michael H. v. Gerald D., 491 U.S. 110,

126 (1989) (plurality opinion) (emphasis added). Alabama also cites

Stanley, 405 U.S. at 649, Lehr v. Robertson, 463 U.S. 248 (1983), and

Troxel, 530 U.S. at 69, in support of its position.

But Alabama overreads Michael H. and misinterprets the

other cases on which it relies. Rather than support Alabama’s po-

sition, Michael H., Stanley, Lehr, and Troxel confirm that Henry has

a right to live with his son, at least and until the State limits that

right through a means consistent with due process. We discuss Mi-

chael H. first and then address the remaining cases on which Ala-

bama relies.

In Michael H., Michael, a putative father, sought parental and

visitation rights for his purported natural child. That child was

born into a woman’s marriage with another man and had been ac-

cepted and raised as the legitimate child of that marriage. 491 U.S.

at 113, 127. California law presumed a child born of wedlock, like

the one in Micheal H., was the natural child of the married couple,

and it disallowed collateral attacks on the legal status of that family.

Id. So Michael argued the statutory scheme was unconstitutional.

But the Court rejected the challenge. Id. at 116–17, 130.

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52 Opinion of the Court 24-10139

Contrary to Alabama’s assertion, the Court did not do so be-

cause states may generally deny the parental rights of “an adulter-

ous natural father.” Id. at 130. Rather, a plurality rejected Mi-

chael’s claim because “California law, like nature itself, ma[d]e[] no

provision for dual fatherhood.” Id. at 118. Michael’s claim that the

Constitution ought to protect his parental rights was necessarily a

claim that the Constitution had to “deny protection to [the] marital

father.” Id. at 130. And in the situation of competing claims to

parental rights, Michael could offer no evidence showing that states

traditionally preferred his parental-rights claim over those of a mar-

ried father who “wishes to embrace the child.” Id. at 127. To the

contrary, “our traditions ha[d] protected the marital family . . .

against the sort of claim Michael assert[ed].” Id. at 124. The “pre-

sumption of legitimacy,” to which California adhered and which

Michael challenged, “was a fundamental principle at common law.”

Id.

So Alabama’s reliance on Michael H. is misplaced. 9 The

Court was not concerned with Michael’s status as an adulterous

9 The Michael H. coalition fractured sharply. Only four Justices joined Justice

Scalia’s plurality opinion. See Michael H., 491 U.S. at 113. And two of those

Justices disagreed with the analytical approach Justice Scalia took. See id. at

132 (O’Connor, J., concurring in part) (explaining the “relevant traditions pro-

tecting asserted rights” “might not be” articulated at “‘the most specific level’

available” (citation omitted)); cf. Obergefell, 576 U.S. at 671. So at its narrow-

est—where it is firmly binding, see Marks v. United States, 430 U.S. 188, 193

(1977)—Michael H. is a narrow-tailoring case. Justice Stevens affirmed because

California afforded Michael a sufficient opportunity to establish paternity and

that his parentage would be in the child’s best interest. Michael H., 491 U.S. at

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24-10139 Opinion of the Court 53

natural father for its own sake but because that status required Mi-

chael to prove something “distinct” and “more than” a right to pa-

ternity, Muñoz, 602 U.S. at 910—that the Constitution grants natu-

ral fathers parental rights at the expense of marital fathers, see Mi-

chael H., 491 U.S. at 127, 130. But Alabama again fails to show how

Henry’s status as a sex offender requires that he claim a “distinct”

right or something “more than . . . cohabitation.” Muñoz, 602 U.S.

at 910.

Tradition and history also doomed Michael’s claim. Mi-

chael’s claim ran headlong into the common law’s “presumption

of legitimacy” that had protected “the marital family . . . against

the sort of claim Michael assert[ed].” Michael H., 491 U.S. at 124.

So whatever rights Michael generally had as a natural father were

historically circumscribed by “a tradition denying the specific appli-

cation of ” them. Din, 576 U.S. at 95; see Muñoz, 602 U.S. at 911–12.

In other words, California prevailed because it adhered to tradi-

tional restrictions on parental rights, not necessarily because Mi-

chael lacked parental rights in the first place. See Michael H., 491

U.S. at 127 n.6 (explaining “a more specific tradition . . . unquali-

fiedly denies protection to” the “natural father of a child adulter-

ously conceived”); see also id. at 127 n.6, 129 n.7 (acknowledging

that in the absence of a “more specific tradition,” courts may have

135–36 (Stevens, J., concurring in the judgment). Still, for purposes of this

opinion, we accept the plurality opinion’s logic as controlling. But even then,

the plurality opinion does not support Alabama’s argument that Henry lacks

a fundamental right to live with his son.

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54 Opinion of the Court 24-10139

to “reason from[] the traditions regarding natural fathers in gen-

eral”).

So at most, Michael H. stands for the unremarkable proposi-

tion that states may limit a person’s exercise of a fundamental right

if the state’s action accords with our Nation’s history and tradition.

See Rahimi, 602 U.S. at 691 (explaining “if a challenged regulation

fits within [our regulatory] tradition, it is lawful”). But that’s not

the case here. On Michael H.’s own terms, Henry is indisputably a

member of a “unitary family” that Americans have “historic[ally]

respect[ed].” Id. at 123. And as we will discuss, Alabama has not

shown a history and tradition of extinguishing familial rights

merely because of the fact of conviction.

The remaining cases on which Alabama relies affirmatively

undermine its claim that Michael lacks a constitutional right to live

with his child. Stanley, Lehr, and Troxel make clear that broad, stat-

utory classifications abrogating parental rights are presumptively

improper.

True, in Stanley, the Court framed the relevant question as

whether “a presumption that distinguishes and burdens all unwed

fathers [is] constitutionally repugnant.” 405 U.S. at 649. But it im-

mediately concluded that “as a matter of due process of law, Stan-

ley was entitled to a hearing on his fitness as a parent before his

children were taken from him.” Id.

Then, in Lehr, another case involving an unwed parent, the

Supreme Court applied Stanley. New York “adopted a special

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24-10139 Opinion of the Court 55

statutory scheme to protect the unmarried father’s interest in as-

suming a responsible role in the future of his child.” 463 U.S. at

263. But the absentee father failed to avail himself of the scheme’s

protections, so the Court rejected his bid to establish his parental

rights through a constitutional claim. Id. at 263–65.

And in Troxel, the Court described the plaintiff as a “fit cus-

todial parent” because “no court . . . found[] that Granville was an

unfit parent.” 530 U.S. at 68. In turn, the “presumption that fit

parents act in the best interests of their children” attached. Id.

In each of these three cases, the Court presumed the puta-

tive parent had a constitutional right unless an adequate state pro-

cedure terminated those rights for appropriate reasons. In other

words, the Fourteenth Amendment prevented the state from de-

priving the parents of the right to the care, custody, and control of

their child unless and until the state afforded them due process.

None of the cases Alabama marshals establishes that a prior

child-pornography conviction eliminates Henry’s fundamental

rights as a matter of law. To the contrary, Supreme Court prece-

dent generally requires an individualized finding to terminate pa-

rental rights: when state law “forecloses the determinative issues of

competence and care, when it explicitly disdains present realities in

deference to past formalities, it needlessly risks running roughshod

over the important interests of both parent and child.” Stanley, 405

U.S. at 657. In sum, state regulation of parental rights based on

status alone is constitutionally suspect.

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56 Opinion of the Court 24-10139

* * *

Henry has a fundamental right to live with his family, includ-

ing his son. Alabama Code § 15-20A-11(d)(4) directly and substan-

tially interferes with that right by making it a crime for Henry to

reside with him. So we must closely examine Alabama’s law to en-

sure it passes constitutional muster.

2. Section 15-20A-11(d)(4) does not pass constitutional review

because it is neither narrowly tailored to further Alabama’s

compelling governmental interest nor consistent with our

Nation’s history and tradition of regulating familial cohabi-

tation.

The next step in our analysis asks whether, even if Section

15-20A-11(d)(4) infringes Henry’s fundamental right to live with his

son, it does so unconstitutionally. Alabama argues that the law sur-

vives constitutional review because it passes strict scrutiny and

comports with this Nation’s history and tradition of regulating pa-

rental rights.

We disagree. Alabama certainly has a compelling interest in

protecting its youth from sexual abuse. But the challenged provi-

sion is not narrowly tailored to further that interest. And our Na-

tion’s history and tradition of regulating parental rights confirms

that conclusion: we have given parents the chance to show that

physical custody of their children is in the children’s best interest.

Alabama’s law offers no such opportunity for anyone convicted of

a qualifying “sex offense” under any circumstances. Because

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Alabama’s law fails strict scrutiny and departs from our traditions,

we conclude that it is unconstitutional.

We begin with strict scrutiny and then address Alabama’s

historical arguments.

i. Section 15-20A-11(d)(4) is not narrowly tailored to further

Alabama’s compelling governmental interests.

To satisfy strict scrutiny, the government bears the burden

to prove that it has “narrowly tailored” its state action “to serve a

compelling state interest.” Flores, 507 U.S. at 302. Alabama has

surely shown it has a “compelling interest.” Indeed, it “is indisput-

able ‘that a State’s interest in safeguarding the physical and psycho-

logical well-being of a minor is compelling.’” Otto v. City of Boca

Raton, 981 F.3d 854, 868 (11th Cir. 2020) (quoting New York v. Ferber,

458 U.S. 747, 756–57 (1982)).

But “it is not enough for the [State] to identify a compelling

interest.” Id. “To survive strict scrutiny,” Alabama “must prove”

that Section 15-20A-11(d)(4) furthers “that compelling interest and”

is “narrowly tailored to that end.” Id. (cleaned up). Tailoring is

especially important in cases like this one, where familial rights are

involved. That’s so because the State has no compelling interest in

removing children from parents who are in fact competent to love

and care for them. See Stanley, 405 U.S. at 652 (“[T]he State registers

no gain towards its declared goals when it separates children from

the custody of fit parents.”); Santosky, 455 U.S. at 760 (“[U]ntil the

State proves parental unfitness, the child and his parents share a

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58 Opinion of the Court 24-10139

vital interest in preventing erroneous termination of their natural

relationship.”).

Three factors guide our determination on whether state ac-

tion is sufficiently tailored: overinclusiveness, underinclusiveness,

and the opportunity to enact less restrictive alternatives. See Ent.

Merchs. Ass’n, 564 U.S. at 805 (explaining that compelling interests

“must be pursued by means that are neither seriously underinclu-

sive nor seriously overinclusive”); Muñoz, 602 U.S. at 919 (acknowl-

edging that a burden on a fundamental right “trigger[s]” the gov-

ernment’s “obligation to demonstrate” that its action “is the least

restrictive means of serving” its compelling “interest”).

Overinclusiveness. A law is overinclusive when it regulates

too much conduct. In other words, the law applies to individuals

whom the government does not have a compelling interest in reg-

ulating. Overinclusive cases present the greatest constitutional

concern because the government abridges constitutional rights

without justification. See Zablocki, 434 U.S. at 390 (concluding a

statute forbidding marriage without a court order was “substan-

tially overinclusive” because it possibly prevented individuals,

through marriage to wealthy spouses, from “improving their abil-

ity to satisfy” the prior familial support obligations that Wisconsin

claimed to enact the statute to secure); cf. City of Cleburne v. Cleburne

Living Ctr., 473 U.S. 432, 448 (1985) (“[T]he record does not reveal

any rational basis for believing that the Featherston home would

pose any special threat to the city’s legitimate interests.”). After all,

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24-10139 Opinion of the Court 59

the government may not “burn the house to roast the pig.” Butler

v. Michigan, 352 U.S. 380, 383 (1957).

Still, narrow tailoring does not require “perfect tailoring.”

Williams-Yulee v. Fla. Bar, 575 U.S. 433, 454 (2015).

At bottom, when we account for these considerations, state

action is not narrowly tailored if it advances the state’s compelling

interest in only “some” cases. Stanley, 405 U.S. at 654; Ent. Merchs.

Ass’n, 564 U.S. at 804.

Underinclusiveness. On the flip side, a law is underinclusive

if it leaves unregulated similar conduct that also threatens the com-

pelling interest that the state action purports to advance. Reed v.

Town of Gilbert, 576 U.S. 155, 172 (2015). We assess a state action’s

underinclusiveness because a “woefully underinclusive” act may

undermine our belief that the government truly wishes to advance

its asserted interest. Republican Party of Minn. v. White, 536 U.S. 765,

780 (2002); see City of Ladue v. Gilleo, 512 U.S. 43, 52–53 (1994) (ex-

plaining underinclusiveness “diminish[es] the credibility of the gov-

ernment’s rationale” for regulating fundamental rights).

Underinclusiveness doesn’t raise the same constitutional

concerns as does overinclusiveness. And some underinclusive situ-

ations may arise, as here, where no reasonable person would doubt

that the government is genuine in its efforts to advance its asserted

interest. Plus, the government “need not address all aspects of a

problem in one fell swoop.” Williams-Yulee, 575 U.S. at 449. But

even so, the state bears the burden of identifying “good reason[s]”

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60 Opinion of the Court 24-10139

for “singl[ing] out” the conduct it did regulate. TikTok Inc. v. Gar-

land, 145 S. Ct. 57, 70 (2025). And to the extent the government

leaves unregulated some conduct that may undermine its asserted

interest, that fact may hamper the government’s ability to disprove

the viability of proffered less restrictive alternatives.

Less Restrictive Alternatives. That brings us to the next fac-

tor. State action infringing fundamental rights fails strict scrutiny

“if less restrictive alternatives would be at least as effective in

achieving the legitimate purpose that the statute was enacted to

serve.” Reno v. ACLU, 521 U.S. 844, 874 (1997). Put simply, “the

government cannot” advance a compelling interest “by means that

‘broadly stifle fundamental personal liberties when the end can be

more narrowly achieved.’” Lynch v. Baxley, 744 F.2d 1452, 1459 (11th

Cir. 1984) (quoting Shelton v. Tucker, 364 U.S. 479, 488 (1960)).

This does not mean that states must affirmatively proffer

and then rebut less restrictive alternatives. United States v. Grady, 18

F.4th 1275, 1286 n.12 (11th Cir. 2021) (discussing least-restrictive al-

ternatives under the Religious Freedom and Restoration Act); see

also Knight v. Thompson, 797 F.3d 934, 946 (11th Cir. 2015) (acknowl-

edging that, at least under the Religious Land Use and Institution-

alized Persons Act, we split on this issue with the First and Third

Circuits, which require that governments show they considered

and rejected less restrictive alternatives). But if a plaintiff “pre-

sent[s]” the government “with a plausible, less restrictive alterna-

tive,” it is “for the Government . . . to prove the alternative to be

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24-10139 Opinion of the Court 61

ineffective.” United States v. Playboy Ent. Grp., 529 U.S. 803, 823

(2000); Grady, 18 F.4th at 1286.

Section 15-20A-11(d)(4) flunks each of these three tests—

overinclusiveness, underinclusiveness, and less restrictive alterna-

tives—so it fails strict scrutiny.

Overinclusiveness. The statute is vastly overinclusive. De-

fendants assert that their “interest in protecting children is ad-

vanced by preventing ‘sexual recidivism,’ which is the commission

of another sex crime . . . .” Appellants’ Reply Br. at 16. But a con-

viction that satisfies Section 15-20A-11(d)(4)’s criteria does not

alone predict with substantial precision an offender’s likelihood of

harming their own child. Nor does such a conviction offer, as Ala-

bama law and our Constitution usually require, “clear and convinc-

ing evidence” that the regulated individual “is unsuited or unfit to

assume the place of a [parent] in providing a safe and comfortable

home . . . .” Ex parte Sullivan, 407 So. 2d 559, 563 (Ala. 1981) (quot-

ing Chandler v. Whatley, 238 Ala. 206, 209 (1939)); see Santosky, 455

U.S. at 769 (requiring the clear-and-convincing standard of proof to

terminate parental rights).

At its broadest, Section 15-20A-11(d)(4) covers some crimes

that sustain little to no rational inference that a parent is likely to

harm their child. For instance, as we’ve mentioned, Section 15-

20A-11(d)(4) would bar from residing with their child a 19-year-old

college freshman convicted of downloading sexually explicit con-

tent that their 16-year-old high-school sweetheart sent them. And

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62 Opinion of the Court 24-10139

because Section 15-20A-11(d)(4) operates forever without excep-

tion, that categorical bar would remain even if the 19-year-old col-

lege freshman later fathered a child at the age of fifty or sixty and

after living several decades of a law-abiding life. Alabama offers no

justification for treating that person exactly like one who just last

week trafficked or raped children.

And for at least some of the core conduct Section 15-20A-

11(d)(4) targets, the sole fact of a conviction is not sufficiently tai-

lored to advance Alabama’s interests in protecting children. The

parties hotly contest whether a qualifying conviction, specifically a

child-pornography conviction, may adequately stand in for the dan-

ger that a parent poses to a child. They do so primarily through

expert testimony on the recidivism rates for sex offenders generally

and child-pornography offenders specifically. Cf. United States v. Ke-

bodeaux, 570 U.S. 387, 396 (2013) (acknowledging that, generally,

there is “conflicting evidence” on sex offenders’ recidivism rates).

We briefly recount that evidentiary debate, and we credit the evi-

dence Alabama marshaled. But even applying our summary-judg-

ment standard of review, Alabama has not shown the Section is

narrowly tailored.

Alabama relies mostly on three figures to argue that child-

pornography offenders recidivate at a high rate and therefore pose

a continuing danger to their own children. First, Alabama suggests

that within five years of release, an estimated 9.2% to 46% of child-

pornography offenders will commit another sex offense. It reaches

that estimate by multiplying a five-year sex-offense recidivism rate

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24-10139 Opinion of the Court 63

for child-pornography offenders (4.6%) by its experts’ claim that

actual recidivism rates are undercounted at a multiple of two to ten

times the reported figures. Second, the State asserts that fifty per-

cent—and up to eighty-five percent—of child-pornography offend-

ers have previously committed a contact offense against a child

(meaning an offense involving the sexual molestation of a child).

And third, Alabama argues that, for those who have committed a

contact offense and have recidivated, about a quarter did so even

after ten years of living free in their community. So the risk an

offender poses, the State posits, does not decrease over time.

Henry disputes the relevance and the accuracy of some of

these figures. He counters that Alabama fails to differentiate be-

tween child-pornography offenders who have committed a contact

offense in the past and those who have not. And Henry’s expert

proffered that less than two percent of—that is, fewer than one in

fifty—offenders who have only viewed or possessed child pornog-

raphy, like Henry, commit a future contact offense.

Henry also contests the extrapolations the State makes from

its estimates of unreported recidivism. Alabama’s unreported-

crime-multiplier, Henry’s expert claims, relies on unreported

crimes committed by those who have not yet been caught, not re-

cidivism rates of those who have been convicted of an offense, like

Henry; estimates of unreported crime do not make estimates of

unreported recidivism. Henry’s expert also argues that the risk of

sexual recidivism halves every five years an individual is living in

the community as a law-abiding citizen. And after around ten to

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64 Opinion of the Court 24-10139

fifteen years, Henry adds, most individuals who have committed a

sex offense are no more likely to commit a new sex offense than are

individuals with a non-sexual criminal history. Though, for low-

risk sex offenders, Henry’s expert points out that it may take only

five years to pose a risk that is statistically indistinguishable from

other non-sexual offenders.

Of course, we do not wade into these factual disputes at the

summary-judgment stage; we must draw all reasonable inferences

in favor of the non-movant (here, Alabama). Marbury, 936 F.3d at

1232. But even under the summary-judgment standard, Alabama

has not carried its burden. That is so for two reasons.

First, none of the figures Alabama proffers show that

Henry’s qualifying conviction necessarily makes him and others

like him, without more, a danger to their children. The law doesn’t

distinguish between offenders like Henry, who haven’t committed

a previous contact offense and appear statistically unlikely to com-

mit one in the future, and offenders who have committed a previ-

ous contact offense and who may be more likely to commit another

in the future. In other words, Alabama defends Section 15-20A-

11(d)(4) by relying on material distinctions the law itself does not

make and which do not even apply to offenders in Henry’s shoes.

That is a concession of overinclusiveness.

To be sure, the premise of Alabama’s position is that many

sexual offenses go unreported, so broad legislative categories are

necessary to prevent likely contact offenders from recidivating with

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24-10139 Opinion of the Court 65

their own child. But as applied to Section 15-20A-11(d)(4), that

logic just uses a child-pornography conviction as a proxy for offend-

ers who have previously committed a contact offense, even when

they haven’t. Then Section 15-20A-11(d)(4) uses the first proxy as a

second proxy for the dispositive conclusion that the regulated of-

fender poses a threat to their own child. See Stanley, 405 U.S. at 657

(holding, in parental-rights cases, “the determinative issues” are

“competency and care”). But this logic—twice removed from

Henry’s non-contact situation—falls apart as soon as we look at the

record: noticeably absent from it is direct evidence that child-por-

nography-only offenders like Henry pose a danger to their chil-

dren. In this respect, Section 15-20A-11(d)(4) sweeps with too

broad a brush.

Second, even if we disregard that error, the overinclusive-

ness problems persist. The most relevant statistic the State prof-

fered was its first: that 9.2% to 46% of child-pornography offenders

will commit another sex offense.

That figure raises several concerns. For starters, it includes

a substantial range because it depends on estimates of the amount

of unreported recidivism. That range of uncertainty—a span of

about 37 percentage points—is so large that it makes the estimate

of recidivism meaningless.

Plus, even crediting the highest recidivism rate in that range,

as we must in this posture, still at least half the parents the law pre-

vents from residing with their children will not pose a danger to

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66 Opinion of the Court 24-10139

them. Indeed, our sister circuits have determined that a conviction

for viewing child-pornography images, without more, does not es-

tablish that an offender is a danger to their own child. See, e.g., Da-

vis, 452 F.3d at 995 (finding “plain error” where a district court

barred a child-pornography offender from having unsupervised

contact with his own daughter where there was “no evidence that

he has abused a child”); Bear, 769 F.3d at 1229 (vacating conditions

limiting Bear’s ability to reside with his children because, despite

his prior sex offenses, the record did not show “a danger to his own

three children”); Del Valle-Cruz, 785 F.3d at 64 (same); Worley, 685

F.3d at 408–09 (same). Of course, any new contact offense is a trag-

edy. But so is depriving a child of a caring, competent, loving par-

ent who presents no danger to the child. And although narrow tai-

loring does not require “perfect tailoring,” Williams-Yulee, 575 U.S.

at 454, it demands more than a coin flip.

Other courts have held as much, declaring unconstitutional

statutes that terminate parental rights based solely on the fact of a

conviction, for the reason that they ignored individualized evidence

relevant to a parent’s fitness. See In re Amanda D., 811 N.E.2d 1237,

1242 (Ill. App. 2004) (“We conclude that a conviction of aggravated

battery to a child is not an adequate proxy for unfitness” because it

“fails to take into account several things relevant to the ultimate

fitness determination.”), aff’d sub nom. In re D.W., 827 N.E.2d 466

(Ill. 2005).

In short, the State cannot justify abridging fundamental

rights by advancing its compelling state interests in “some” cases.

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See Stanley, 405 U.S. at 654 (“But all unmarried fathers are not in

this category; some are wholly suited to have custody of their chil-

dren.”); Ent. Merchs. Ass’n, 564 U.S. at 804 (“[S]ome of the legisla-

tion’s effect may indeed be in support of what some parents of the

restricted children actually want . . . . [But] [t]his is not the narrow

tailoring to ‘assisting parents’ that restriction of First Amendment

rights requires.”). And that’s especially so when, as we discuss later,

Alabama has other tools at its disposal to ensure the safety of its

children. Section 15-20A-11(d)(4) is fatally overinclusive.

Underinclusiveness. At the same time, Section 15-20A-

11(d)(4) is puzzlingly underinclusive. The statute does not prohibit

a covered offender from unsupervised visitation with “his or her

child at the residence of the criminal sex offender where the child

does not also reside.” S.A.N. v. S.E.N., 995 So. 2d 175, 178 (Ala. Civ.

App. 2008). In other words, it “allows every qualifying adult sex

offender daily unsupervised access to minors for four hours at a

time in any one place on two consecutive days and nine aggregate

days per month, as long as such access occurs between the hours

of 6:00 a.m. and 10:30 p.m.” Henry v. Abernathy, 711 F. Supp. 3d

1300, 1305 (M.D. Ala. 2024).

So while Alabama burdens many who may in fact be fit to

love and care for their children, at the same time, it may allow those

who are in fact a danger to minors to enjoy unsupervised access to

their next potential victims. That is not the sort of narrow tailoring

strict scrutiny looks favorably upon.

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68 Opinion of the Court 24-10139

To be clear, we don’t doubt that Section 15-20A-11(d)(4) re-

flects Alabama’s genuine efforts to secure the safety and wellbeing

of its children. We believe the State is sincere in exercising its parens

patriae authority to the benefit of its citizenry. The legislature

could have afforded even dangerous offenders the visitation rights

we’ve just discussed to allow their children the benefit of a relation-

ship with their parent, subject to a judicial determination that vis-

itation is not in the child’s best interest. See S.A.N., 995 So. 2d at

178–79. But under strict scrutiny, where we must consider a law’s

effectiveness in light of less restrictive alternatives, a “law cannot

be regarded as protecting an interest of the highest order, and thus

as justifying a restriction on [fundamental rights], when it leaves

appreciable damage to that supposedly vital interest unprohibited.”

Reed, 576 U.S. at 172 (internal quotation marks omitted) (quoting

Republican Party of Minn., 536 U.S. at 780).

Less Restrictive Alternatives. Besides Section 15-20A-

11(d)(4)’s over- and underinclusiveness, Alabama could employ less

restrictive alternatives to accomplish its goals. Henry focuses pri-

marily on the alternative that Alabama could provide the oppor-

tunity for judicial review and individualized relief. 10

10 Besides this alternative, Henry suggests several other ways Alabama could

more narrowly tailor its statute: by including fewer qualifying offenses, by

time-limiting its law, by providing criteria for reinstatement into the home

(such as completion of a treatment program), or by allowing residence under

certain conditions (such as the presence of a separate, qualified caregiver or

ongoing supervision by the Alabama Department of Human Resources). We

don’t further address these proposed alternatives because we agree with

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24-10139 Opinion of the Court 69

Currently, Alabama’s statutory scheme prevents covered of-

fenders from living with their children “regardless of the opinion

of experts, lay persons, and the trial court that the registered sex

offender does not pose a threat to the child.” K.E.W. v. T.W.E., 990

So. 2d 375, 381 (Ala. Civ. App. 2007). So if Henry filed suit to prove

his fitness as a parent, ASCORNA would foreclose the claim and

forbid the judge from considering any evidence on the matter. But

Henry has developed evidence that a person’s likelihood of recidi-

vism declines substantially when we account for certain factors and

that an individualized review can offer the most accurate assess-

ment of the danger a particular person may pose to their child.

Plus, generally, “parents are constitutionally entitled to a hearing

on their fitness before their children are removed from their cus-

tody.” Stanley, 405 U.S. at 658; cf. Doe v. Kearney, 329 F.3d 1286, 1295

(11th Cir. 2003) (“[A] state may not remove a child from parental

custody without judicial authorization unless there is probable

cause to believe the child is threatened with imminent harm.”). So

Henry has proffered a plausible less restrictive alternative. See

ACLU, 521 U.S. at 874.

Henry that his primary proposed alternative is a plausible one. We also don’t

assess the constitutionality of a more narrowly tailored scheme that adopts

Henry’s additional suggestions, even if it does not provide the opportunity for

individualized review. We don’t resolve such a hypothetical, in part, because

this case does not require us to decide whether individualized review is a via-

ble less restrictive alternative as compared to any other, more narrowly tailored

scheme Alabama could enact.

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70 Opinion of the Court 24-10139

Alabama disputes the viability of individualized hearings.11

It contends that no expert tool can establish with a reasonable

11 Alabama also briefly expresses in its reply brief some doubt that we may

properly consider Henry’s primary alternative, calling it “a sort of substantive-

due-process right to more process.” We don’t find that suggestion persuasive

for two reasons. First, Defendants raise it for the first time in their reply

brief—and even then, make only a passing reference to it. But we don’t con-

sider issues raised for the first time in a reply brief or matters mentioned only

in passing. See Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 681 (11th Cir.

2014). Second, and in any case, Henry’s claim is not one of procedural due

process. Henry does not make the usual procedural-due-process points. He

does not contest the “constitutional adequacy of [state] procedures,” Mathews

v. Eldridge, 424 U.S. 319, 335 (1976), like when a person challenges the accept-

ability of post-deprivation hearings, id. at 349; the applicable standard of proof,

Santosky, 455 U.S. at 769–70; or the lack of appointed counsel, Lassiter, 452 U.S.

at 31–32. Instead, Henry’s claim sounds in substantive due process. He raises

the opportunity for individualized relief only to show that that there is not an

“adequa[te] . . . ‘fit’ between the classification and the policy that the classifi-

cation serves”—the fit is inadequate, Henry claims, because there is more tai-

lored way to advance the State’s policy. Michael H., 491 U.S. at 121; see Flores,

507 U.S. at 308 (confirming the plaintiffs merely “recast[ed]” a “‘substantive

due process’ argument” in “‘procedural due process’ terms” by claiming indi-

vidualized proceedings “would better serve” the plaintiffs’ interests). That the

less restrictive alternative is more procedure is immaterial. The Court has

recognized that certain procedural rules may satisfy substantive due process

by furthering a compelling state interest. See, e.g., Cruzan ex rel. Cruzan v. Dir.,

Mo. Dep’t of Health, 497 U.S. 261, 280–85 (1990) (concluding Missouri could

require clear-and-convincing evidence of a patient’s intent before discontinu-

ing nutrition and hydration because such a requirement permissibly furthers

the state’s interest in safeguarding the patient’s wishes and preserving life);

United States v. Salerno, 481 U.S. 739, 750–51 (1987) (holding the Bail Reform

Act’s restriction of physical liberty was justified by the “careful delineation of

the circumstances” in and the procedures by which one could be detained be-

fore trial, furthering the government’s interest in abating “an identified and

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24-10139 Opinion of the Court 71

degree of scientific accuracy whether an offender poses a risk to

their child. And Alabama argues that individualized determina-

tions could never advance its compelling interest as effectively as its

current statutory scheme because some future offenders may slip

through the cracks of any individualized process. But Alabama has

failed to introduce evidence that satisfies its burden of proving that

the mere availability of individualized relief will make its statutory

scheme less effective. See Playboy Ent. Grp., 529 U.S. at 823; Grady,

18 F.4th at 1286. That’s so for three reasons.

First, Alabama too narrowly defines the end to which it

must narrowly tailor its law. Alabama must advance “the physical

and psychological well-being” of all its children. Otto, 981 F.3d at

868 (citation omitted). As we’ve explained, “the State registers no

gain towards its declared goals when it separates children from the

custody of fit parents.” Stanley, 405 U.S. at 652. So if Henry, or any

other parent, “is a fit” one, then Alabama “spites its own articulated

goals when it needlessly separates him from his family.” Id. at 652–

53.

articulable threat to an individual or the community”). At bottom, claims that

a statute is unconstitutional as applied to a plaintiff—because the plaintiff “is

not likely to be currently dangerous”—“‘must ultimately be analyzed’ in terms

of substantive, not procedural, due process,” at least if, as is the case here, dan-

gerousness is not already “relevant under the statutory scheme.” Connecticut

Dep’t of Pub. Safety v. Doe, 538 U.S. 1, 7–8 (2003) (quoting Michael H., 491 U.S.

at 121).

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72 Opinion of the Court 24-10139

In turn, the most effective means of pursuing Alabama’s

stated goal is the one that maximizes the number of children who

can remain with fit parents while minimizing the number of chil-

dren who may be placed with unfit ones. On this rubric, permitting

some form of individualized relief comports more effectively with

advancing the State’s interests than does a categorical rule. See id.

at 655 (“Given the opportunity to make his case, Stanley may have

been seen to be deserving of custody of his offspring. Had this

been so, the State’s statutory policy would have been furthered by

leaving custody in him.”).

Second, Alabama fails to show how the opportunity for in-

dividualized adjudications will make its statutory scheme less effec-

tive, given the law’s underinclusiveness that we’ve already pointed

out. As we’ve noted, Section 15-20A-11(d)(4) permits even the

worst covered offenders periods of unsupervised access to their

children. We’ve taken those visitation rights as an attempt to bal-

ance the competing interests at stake in this difficult area of family

law. But even when we view Section 15-20A-11(d)(4) in this light,

Alabama has not adduced evidence showing that employing a

scheme that permits some individualized determinations that a

parent is fit to reside with their child would undermine its interests.

For starters, Alabama has not offered evidence on how likely

its trial courts are to err in making individualized determinations.

Nor has it shown that the number of future offenders who may slip

through the cracks of an alternative scheme with individualized re-

lief would be far greater (or even any greater) than the number of

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24-10139 Opinion of the Court 73

those who escape ASCORNA’s current reach. And that seems es-

pecially unlikely if the alternative scheme eliminates ASCORNA’s

current underinclusivity and is narrowly tailored to cover those

who either decline their opportunity for individualized relief, see

Lehr, 463 U.S. at 264–65, or, after petitioning for relief, are adjudi-

cated to be dangerous, see Stanley, 405 U.S. at 654–55.

After all, to police the statute’s current underinclusiveness,

the “legislature obviously relie[s] heavily on the understanding that

trial courts” will “restrict the visitation rights of a parent who poses

a danger of sexually abusing a child.” S.A.N., 995 So. 2d at 179. So

the State can’t reasonably contend that individualized adjudications

are so often wrong that they seriously threaten ASORCNA’s effec-

tiveness; it already relies on them. Without more evidence, we

can’t conclude that a genuine dispute of material fact exists on

whether Henry’s proffered alternatives are less effective.

Third, and relatedly, to the best of our knowledge, every

other state in the country gives offenders the chance to prove that

they do not pose a danger to their child or that it is in the child’s

best interest to live with them. Indeed, in the district-court pro-

ceedings, both the parties and the district court were “unaware of

any statute enacted by another state substantially similar to § 15-

20A-11(d)(4).” Henry, 711 F. Supp. 3d at 1305.

That fact is important to our analysis of less restrictive alter-

natives. If Section 15-20A-11(d)(4) is an outlier, we can more easily

conclude that Henry successfully proffered a viable less restrictive

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74 Opinion of the Court 24-10139

alternative. See Ullman, 367 U.S. at 554 (Harlan, J., dissenting)

(“[C]onclusive, in my view, is the utter novelty of this enactment.”);

cf. Packingham v. North Carolina, 582 U.S. 98, 108 (2017) (“It is instruc-

tive that no case or holding of this Court has approved of a statute

as broad in its reach.”). The Supreme Court has confirmed that

other states’ practices may show that a given measure has “already

proven effective” in advancing the State’s interests. TikTok, 145 S.

Ct. at 71; see McCullen v. Coakley, 573 U.S. 464, 490–494 (2014) (con-

cluding a state law burdened more speech than necessary where it

had not considered less restrictive measures successfully adopted

by other jurisdictions).

And on appeal, Alabama points to no other state that has

used a law like ASCORNA. In fact, each comparison law that Ala-

bama points to includes the very opportunity for individualized re-

lief that the State denies its citizens.

We start with the examples Alabama cites in reply: Arizona,

Minnesota, and Wisconsin.

In Arizona, “proof of conviction” of a crime that “supports

a rational inference of unfitness” will “create[] a rebuttable pre-

sumption that the father is unfit to parent children.” Matter of Pima

Cnty., Juv. Action Nos. S-826 & J-59015, 643 P.2d 736, 738 (Ariz. Ct.

App. 1982). But importantly—and unlike with Section 15-20A-

11(d)(4)—“the parent may rebut the assessment of unfitness based

on a past act by showing actual fitness at the time of the hearing.”

Matter of Juv. No. J-2255, 613 P.2d 304, 307 (Ariz. Ct. App. 1980).

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24-10139 Opinion of the Court 75

So too for Minnesota. There, a previous conviction for a sex

offense satisfies a statutory basis for terminating a person’s parental

rights. See Matter of Welfare of Child of S.B.G., 981 N.W.2d 224, 226

(Minn. Ct. App. 2022), aff’d, 991 N.W.2d 874 (Minn. 2023). But

again—and unlike in Alabama—a court “may not order the termi-

nation of parental rights without determining that the termination

is in the child’s best interests.” Id. at 232; see Matter of Welfare of

Child of M. Z., 2019 WL 2167826, at *4 (Minn. Ct. App. May 20,

2019) (“A juvenile court may terminate the parental rights of a par-

ent when at least one statutory ground for termination is sup-

ported by clear and convincing evidence and termination is in the

child’s best interests.”).

The same goes for Wisconsin. Although convictions of sex-

ual offenses may satisfy statutory grounds for parental-rights ter-

mination, see WISC. STAT. § 48.415(5), (9m)(a)-(am), “the court need

not terminate the parent’s rights” if the evidence does not warrant

such an order, In re Jayton S., 629 N.W.2d 768, 776 (Wisc. 2001); see

also In re M.D., 2019 WI App 21, ¶¶ 3–9, 36–39 (reversing an order

terminating the parental rights of an individual convicted of pos-

sessing child pornography because the trial court did not conduct

a hearing to determine the child’s best interests).

So Alabama’s own examples show that states account for a

parent’s prior conviction, either by making it a statutory basis for

termination or by using it as a basis for a presumption of unfitness.

But in either case, parents have the chance to show that they are fit

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76 Opinion of the Court 24-10139

in fact or that their continuing custody would be in their child’s best

interest.

And that’s not just the case in Arizona, Minnesota, and Wis-

consin. As far as we can tell, it’s also the case in every other state

that Alabama claims to allow the termination of parental rights

based on a conviction. See, e.g., MISS. CODE § 93-15-121(h)(i) (prior

conviction “may be grounds for termination of the parent’s paren-

tal rights if reunification between the parent and child is not desir-

able toward obtaining a satisfactory permanency outcome”); In re

D.F., 777 N.E.2d 930, 940 (Ill. 2002) (“If the court makes such a find-

ing [of unfitness], it will then consider whether it is in the best in-

terests of the child that parental rights be terminated.”); In re A.K.,

924 N.E.2d 212, 224 (Ind. Ct. App. 2010) (“In determining what is

in the best interests of the child, the trial court is required to look

at the totality of the evidence.”); In re T.M.P., 126 So. 3d 741, 756

(La. App. 4 Cir. 2013) (“Although the State need only establish one

statutory ground, the trial court must also find that termination is

in the child’s best interests.”); In re P.L.O., 131 S.W.3d 782, 788 (Mo.

2004) (“[T]he trial court must find by clear, cogent, and convincing

evidence that one or more grounds for termination exists,” and

“the trial court must find that termination is in the best interests of

the children.”); In re A.B., 815 N.W.2d 764, 776 (Iowa 2012) (“Even

after we have determined that statutory grounds for termination

exist, we must still determine whether termination is in the chil-

dren’s best interests.”); In re Child. of Christopher S., 203 A.3d 808,

811 (Me. 2019) (“Once a court determines that a parent is unfit, it

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24-10139 Opinion of the Court 77

must determine whether termination of the parental rights is in

the child’s best interest.”); In re Christopher T., 101 A.D.2d 997, 997

(N.Y. App. Div. 1984) (“[T]ermination of parental rights is not war-

ranted, and certainly not mandated, if such is not in the child’s best

interests, even though the statutory requirements for termination

have been established.”), aff’d sub nom. In re Joyce T., 478 N.E.2d 1306

(N.Y. 1985); In re Adoption of L.D.S., 155 P.3d 1, 8 (Ok. 2006), as sup-

plemented on reh’g (Mar. 6, 2007) (“Parents must be provided the op-

portunity to fully and finally litigate . . . before . . . the child is per-

manently removed from the family.”); White v. Moody, 171 S.W.3d

187, 193 (Tenn. Ct. App. 2004) (“[A] finding of unfitness does not

necessarily require that the parent’s rights be terminated. Not all

parental misconduct is irredeemable.” (internal citation omitted)).

Not only that, but the very cases Alabama cites undermine

the proposition that a mere fact of conviction conclusively resolves

whether the state may separate a parent from their child. Instead,

those cases considered the totality of the circumstances and indi-

vidual findings of the danger, if any, that a parent posed to their

children. See, e.g., Trawick v. Trawick, 173 So. 2d 341, 343 (La. Ct.

App. 1965) (explaining the “conviction of certain felonies presuma-

bly do indicate moral unfitness of a parent to look after and direct

the welfare and future of a small child, but . . . it is more important

for us to determine if the act . . . will be of such a handicap as to so

seriously jeopardize the future of the child as to warrant the court

in separating it from her mother”); Commonwealth v. Lapointe, 759

N.E.2d 294, 299–300 (Mass. 2001) (concluding a probation

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78 Opinion of the Court 24-10139

condition that prevented a sex offender from living with his child

did not violate the offender’s constitutional rights because “the

judge has retained jurisdiction to revisit all the conditi

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