USCA11 Case: 24-10139 Document: 113-3 Date Filed: 07/06/2026 Page: 1 of 96
FOR PUBLICATION
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.
____________________
Appeal from the United States District Court
for the Middle District of Alabama
D.C. Docket No. 2:21-cv-00797-RAH-JTA
____________________ USCA11 Case: 24-10139 Document: 113-3 Date Filed: 07/06/2026 Page: 2 of 96
2 Opinion of the Court 24-10139
Before WILLIAM PRYOR, Chief Judge, and JORDAN, ROSENBAUM, JILL
PRYOR, NEWSOM, BRANCH, GRANT, LUCK, LAGOA, BRASHER,
ABUDU, KIDD, and WILSON,∗ Circuit Judges.
ROSENBAUM, Circuit Judge, delivered the opinion of the Court in
which JORDAN, JILL PRYOR, GRANT, BRASHER, ABUDU, KIDD, and
WILSON, Circuit Judges, joined.
ROSENBAUM, Circuit Judge, filed a concurring opinion.
WILLIAM PRYOR, Chief Judge, filed a dissenting opinion in which
NEWSOM, BRANCH, and LAGOA, Circuit Judges, joined, and in which
LUCK, Circuit Judge, joined as to Parts I and II.A.
ROSENBAUM, Circuit Judge:
This case is about the fundamental right of parents to live
with their children—a right that the Supreme Court has described
as “perhaps the oldest of the fundamental liberty interests” that the
Fourteenth Amendment secures. Troxel v. Granville, 530 U.S. 57,
65–66 (2000) (plurality opinion). So it doesn’t require us to ponder
fundamental rights generally or define a new right.
The State of Alabama says not all parents enjoy this right. It
argues instead that entire classes of parents have no fundamental
rights at all because they committed state-defined “misconduct”
years before their children were even born. But the Supreme
Court and our history and tradition have spoken unambiguously:
∗ Senior Circuit Judge Wilson elected to participate in this decision. See 28
U.S.C. § 46(c). USCA11 Case: 24-10139 Document: 113-3 Date Filed: 07/06/2026 Page: 3 of 96
24-10139 Opinion of the Court 3
parents—even those who have committed state-defined “miscon-
duct”—enjoy the fundamental right to live with their children.
So Bruce Henry, who was convicted of possessing images of
child pornography and has since served his sentence and had a child
with his wife, has a fundamental right to live with his son. That
does not mean that Alabama can’t regulate or even abrogate that
right. But to do so, Alabama must show that its legislation is nar-
rowly tailored to further its compelling interest in the safety of chil-
dren.
We explain why Supreme Court precedent, our history and
tradition, and the fundamental nature of the right of the parent to
live with their children all require us to conclude that Henry enjoys
a fundamental right to live with his children. Then we remand to
the panel to take further actions consistent with this opinion.
I. BACKGROUND
We summarize the background of this appeal in three parts.
First, we discuss Henry’s background. Second, we explain the as-
pects of the Alabama Sex Offender Registration and Community
Notification Act (“Act”) that govern this appeal and permanently
prevent Henry from living with his son. And third, we review
Henry’s legal efforts in the district court to overcome the Act’s pro-
hibition.
A. Henry’s Background
In 2013, Bruce Henry pled guilty to “knowingly possess[ing]
. . . any book, magazine, periodical, film, videotape, computer disk, USCA11 Case: 24-10139 Document: 113-3 Date Filed: 07/06/2026 Page: 4 of 96
4 Opinion of the Court 24-10139
or any other material that contains an image of child pornogra-
phy.” 18 U.S.C. § 2252A(a)(5)(B). When officers arrested him,
Henry had two videos and 348 photos of prepubescent and adoles-
cent girls, all of which he had downloaded from the internet. Be-
fore his arrest, Henry had no history of sexual offenses.
The district court sentenced Henry to 70 months in 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. He also
maintains a steady job, attends church, and volunteers.
We note two special conditions of Henry’s supervised re-
lease. First, Henry must participate in the United States Probation
Office’s computer restriction-and-monitoring program. That pro-
gram prohibits Henry from possessing or using certain electronic
devices that may communicate with other electronic devices with-
out the Probation Office’s prior approval. And second, Henry may
not have “any unsupervised, one-to-one contact with any children
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 2019, Henry
admitted during a polygraphed interview that he used an Amazon
Firestick to view pornography. A forensic examination revealed no
saved images, but Henry had viewed images with “titles indicating
that they were of young or teenage females.” And Henry admitted USCA11 Case: 24-10139 Document: 113-3 Date Filed: 07/06/2026 Page: 5 of 96
24-10139 Opinion of the Court 5
in a follow-up polygraph test that he actively sought out images of
teen girls and children posed in sexual positions.
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 district court
declined. Instead, the court extended Henry’s term of supervised
release from 60 to 96 months (through March 2026). Since his De-
cember 2019 incident, Henry has not violated his supervised re-
lease.
In August 2021, Henry and his wife had a son. But because
of the Act, Henry cannot live or reside overnight with him (and by
extension, his wife).
B. The Act
Alabama enacted the Alabama Sex Offender Registration
and Community Notification Act in 2011. The Alabama Legisla-
ture identified the Act’s purpose as “not to punish sex offenders but
to protect the public and, most importantly, promote child safety.”
ALA. CODE § 15-20A-2(5).
The Act prohibits any sex offender from, among other
things, “resid[ing] or conduct[ing] an overnight visit with a minor” USCA11 Case: 24-10139 Document: 113-3 Date Filed: 07/06/2026 Page: 6 of 96
6 Opinion of the Court 24-10139
unless the sex offender “is the parent, grandparent, stepparent, sib-
ling, or stepsibling of the minor.” ALA. CODE § 15-20A-11(d).
Those exemptions, though, are substantially less inclusive than
they appear at 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 par-
ent, if “[t]he adult sex offender has been convicted of any sex of-
fense involving a child, regardless of whether the adult sex offender
was related to or shared a residence with the child victim.” 1 Id. §
15-20A-11(d)(4). This subsection applies to Henry because a “sex
offense involving a child” includes “offense[s] involving child por-
nography.” Id. § 15-20A-4(27). And under Alabama law, child por-
nography includes “[a]ny visual depiction of an individual under 18
years of age engaged in any act of sexually explicit conduct, includ-
ing a virtually indistinguishable depiction.” Id. § 13A-12-190(2).
The Act’s definitions of “reside” and “conduct an overnight
visit” prevent Henry from living with his son.
Under Alabama law, a sex offender “reside[s]” at a place if
they are “habitually or systematically present at” it. Id. § 15-20A- USCA11 Case: 24-10139 Document: 113-3 Date Filed: 07/06/2026 Page: 7 of 96
24-10139 Opinion of the Court 7
4(20). Courts determine whether a person meets that threshold, in
turn, “by the totality of the circumstances, including the amount
of time the person spends at the place and the nature of the per-
son’s conduct at the place.” Id. As a baseline, an offender “re-
side[s]” at a place if they “spend[] 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 sum up, Section 15-20A-11(d) prevents Henry from be-
ing 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.
These restrictions are permanent. Alabama law affords no
offramp to Henry or anyone else: the Act contains no mechanism
for offenders to challenge its prohibitions on residing or staying
overnight with their own children. And that restriction persists for
the rest of the offender’s life. So even if the offender lives a law-
abiding life for decades after their conviction and later has a child, USCA11 Case: 24-10139 Document: 113-3 Date Filed: 07/06/2026 Page: 8 of 96
8 Opinion of the Court 24-10139
they cannot live with that minor child. See id. § 15-20A-4(13). Nor
can they seek or obtain relief from the prohibition.
C. Procedural History
After Henry and his wife had their son, Henry sued the Sher-
iff and District Attorney of Tuscaloosa County and the Attorney
General of Alabama. He sought to enjoin enforcement of the Act’s
prohibition against residing with his son. See 42 U.S.C. § 1983.
When Henry and the Defendants moved for summary judgment,
the district court granted Henry’s motion. The court declared the
Act’s prohibition against a parent living with their children facially
unconstitutional and universally enjoined its enforcement.
A panel of this Court affirmed in part, reversed in part, and
vacated and remanded in part. Henry v. Sheriff of Tuscaloosa Cnty.,
135 F.4th 1271, 1329 (11th Cir.), reh’g en banc granted, opinion vacated,
Henry v. Sheriff of Tuscaloosa Cnty., 150 F.4th 1370 (11th Cir. 2025).
It ruled that the prohibition against a parent residing with their
own children, as applied, burdened Henry’s “fundamental right to
live with and raise [his] child.” Id. at 1293. The panel also held that
the prohibition didn’t satisfy strict scrutiny. Id. at 1314. As to the
district court’s determination that the prohibition was facially un-
constitutional and the corresponding universal injunction, the
panel concluded that the district court erred, so the panel vacated
the injunction. Id. at 1325, 1328.
We vacated the panel opinion and ordered rehearing en banc
on the following issue: “Would applying Alabama Code section 15-
20A-11(d) to bar Bruce Henry from residing or conducting USCA11 Case: 24-10139 Document: 113-3 Date Filed: 07/06/2026 Page: 9 of 96
24-10139 Opinion of the Court 9
overnight visits with his minor child violate his right to substantive
due process?”
II. STANDARD OF REVIEW
We review de novo a district court’s grant of summary judg-
ment, construing all evidence in the light most favorable to the
non-moving party. Marbury v. Warden, 936 F.3d 1227, 1232 (11th Cir.
2019). 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.
III. DISCUSSION
We divide our discussion into four parts. First, we review
the framework for evaluating substantive-due-process claims. Sec-
ond, we analyze the precedents establishing that parents—all par-
ents—enjoy a fundamental right to live with their children. Third,
we explain that Supreme Court precedent, history and tradition,
and the nature of fundamental rights all show that Alabama and
the Dissent’s proposed exception to the fundamental right of par-
ents to live with their children—for parents the state deems to have
engaged in “misconduct”—is wrong. And fourth, we recognize
that the fact that all parents have a fundamental right to live with
their children does not resolve this appeal because Alabama has USCA11 Case: 24-10139 Document: 113-3 Date Filed: 07/06/2026 Page: 10 of 96
10 Opinion of the Court 24-10139
articulated a compelling reason for its law: the safety of children.
So we remand this case to the panel to consider the best way to
proceed, given our determination that Henry, like all parents, en-
joys a fundamental right to live with his children.
A. The Substantive-due-process Framework
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). When, as here, a plaintiff
asserts a violation of his substantive-due-process rights caused by
legislation, we generally use a two-step framework to resolve the
claim. That framework employs two tracks. 2
The first step of the framework dictates which track the
analysis takes. That step requires us to determine whether a right
is “fundamental.” 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 lib-
erty nor justice would exist if they were sacrificed.” Id. at 721
(cleaned up). Rights that don’t satisfy this test are non-fundamen-
tal.
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At the second step, we apply the correct level of scrutiny to
the challenged government action. The level of scrutiny depends
on whether we are on the fundamental-rights track or the non-fun-
damental-rights track.
On the fundamental-rights track, we closely scrutinize the
government action. That’s so because the deeply rooted and his-
torically important nature of fundamental rights entitles them to
more protection from the government than non-fundamental
rights. If the right is fundamental, the government action that en-
cumbers 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.” Reno v. Flores, 507 U.S. 292, 302
(1993). 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). Alt-
hough strict scrutiny allows the government to regulate and even
abrogate fundamental rights, it ensures that, when the government
does so, it must act in a way that fundamental rights receive the
respect and protection they are due.
In contrast, on the non-fundamental rights track, we only
lightly review the challenged government action. We presume the
government has acted lawfully, and we reject the plaintiff’s claim
so long as the government action is “rationally related to legitimate
government interests.” Glucksberg, 521 U.S. at 728. This is rational-
basis review. Under it, 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 Commcn’s, Inc., 508 U.S. 307, 313 USCA11 Case: 24-10139 Document: 113-3 Date Filed: 07/06/2026 Page: 12 of 96
12 Opinion of the Court 24-10139
(1993); see Williamson v. Lee Optical of Oklahoma Inc., 348 U.S. 483,
488 (1955).
So to be clear, even if a right is fundamental, that is not the
end of the inquiry. A right’s fundamental status does not mean the
government can’t regulate it. Indeed, the government can and
does constitutionally burden fundamental rights when it invokes a
compelling interest and narrowly tailors its law to further that in-
terest.
B. The Supreme Court has always recognized the fundamental right
of all parents to live with their children.
With this framework in mind, we consider whether the right
Henry invokes is a fundamental one. To do that, we must start
with a “‘careful description’ of the asserted fundamental liberty in-
terest.” Glucksberg, 521 U.S. at 721(quoting Flores,507 U.S. at 302
).
Supreme Court precedent leaves no room for question
about what that “careful description” is in a case like this one. The
right to “establish a home and bring up children,” Meyer v. Nebraska,
262 U.S. 390, 399 (1923), is among the first fundamental rights the
Supreme Court ever acknowledged. Even when the Court ex-
pressly identified the right for the first time, it described the right
as a “privilege[]” [that] has “long [been] recognized at common law
as essential to the orderly pursuit of happiness by free men.” Id.
Indeed, the right is “perhaps the oldest of the fundamental liberty
interests” that the Fourteenth Amendment secures. Troxel v. Gran-
ville, 530 U.S. 57, 65–66 (2000) (plurality opinion); see Obergefell, 576
U.S. at 667–68 (explaining that the rights to marry, establish a USCA11 Case: 24-10139 Document: 113-3 Date Filed: 07/06/2026 Page: 13 of 96
24-10139 Opinion of the Court 13
home, and bring up children make up a “unified whole” that is a
“central part of the liberty protected by the Due Process Clause”
(citation omitted)).
The Supreme Court has repeatedly recognized the constitu-
tional right to establish a home and bring up children, and all the
fundamental rights that right necessarily includes. Cf. Jackman v.
Rosenbaum Co., 260 U.S. 22, 31 (1922) (“If a thing has been practiced
for two hundred years by common consent, it will need a strong
case for the Fourteenth Amendment to affect it.”). And since
Meyer, the Court has continuously reaffirmed, “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). 3 USCA11 Case: 24-10139 Document: 113-3 Date Filed: 07/06/2026 Page: 14 of 96 14 Opinion of the Court 24-10139 Indeed, just this year, the Supreme Court reaffirmed that fundamental right again in Mirabelli v. Bonta,607 U.S. 492
, 497
(2026). In Mirabelli, parents took issue with a California law, which,
in the absence of student consent, did not allow schools to disclose
to parents if their child was gender-transitioning at school. Id. The
Court held that California’s “policies likely violate parents’ rights to
direct the upbringing and education of their children.” Id. (emphasis
added). See also id. at 499 (Barrett, J., concurring) (“[T]he doctrine
of substantive due process has long embraced a parent’s right to
raise her child, which includes the right to participate in significant
decisions about her child’s mental health.”).
Relying on the Meyer line of precedent, and other cases es-
tablishing 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
fundamental right to live with one another. In Moore, the plaintiffs
challenged East Cleveland’s housing ordinance that limited occu-
pancy of a dwelling to members of a single family. Id. at 495–96.
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 interest in the accuracy and injustice of
the decision to terminate his or her parental status is . . . a commanding one”);
Troxel, 530 U.S. at 60–75 (declaring unconstitutional a visitation statute because
the law interfered with parents’ fundamental right “to make decisions con-
cerning the care, custody, and control of their children” and instructed courts
to disregard “the traditional presumption that a fit parent will act in the best
interest of his or her child”). USCA11 Case: 24-10139 Document: 113-3 Date Filed: 07/06/2026 Page: 15 of 96
24-10139 Opinion of the Court 15
The Supreme Court invalidated the ordinance as an unjustified in-
trusion 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. In fact,
the Court recognized, the right of “parents and children” to
“shar[e] a household” lies at the core of the American family. Id. at
504. And 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
710(citing Moore,431 U.S. at 503
), but also on its firmly rooted prec-
edent establishing the rights of parents to raise their children.
Since Moore, the Supreme Court has repeatedly reaffirmed
the right of parents to live with their children. 4 In Roberts v. United
States Jaycees, for instance, the Court did so when it explained why
the Jaycees’ personal-affiliation choices did not share the same type
of constitutional protection as family relationships. 468 U.S. 609,
USCA11 Case: 24-10139 Document: 113-3 Date Filed: 07/06/2026 Page: 16 of 96
16 Opinion of the Court 24-10139
618–20 (1984). As the Court noted, the Bill of Rights affords “cer-
tain kinds of highly personal relationships [(like family relation-
ships)] a substantial measure of sanctuary from unjustified inter-
ference by the State.” Id. at 618. After all, the Court observed,
family involves “deep attachments and commitments to the neces-
sarily few other individuals with whom one shares not only a spe-
cial community of thoughts, experiences, and beliefs but also dis-
tinctively personal aspects of one’s life.” Id. at 620. So, the Court
confirmed, the Constitution secures parents’ rights to “rais[e] and
educat[e]” their children and to “cohabitat[e]” with them. Id. at
619.
The Court has consistently emphasized this point since
Moore. Take Dolan v. City of Tigard, 512 U.S. 374 (1994). There, the
Court described Moore as holding that an ordinance may violate the
Due Process Clause if it “intrude[s] on choices concerning family
living arrangements, an area in which the usual deference to the
legislature was found to be inappropriate.” Id. at 391 n.8. And just
three years ago, the Court in Dobbs v. Jackson Women’s Health Organ-
ization, 597 U.S. 215 (2022), once again confirmed that Moore recog-
nized the “right to reside with relatives”—a right that has not been
“undermine[d] . . . in any way.” Id. at 256-57. USCA11 Case: 24-10139 Document: 113-3 Date Filed: 07/06/2026 Page: 17 of 96
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We too have consistently acknowledged family members’
fundamental right to live together, which includes parents’ right to
live with their children. 5 And so have our sister circuits.6
5 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.”), abrogated 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 arrangements” (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’” (quoting U.S. Jay-
cees, 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 . . . estab-
lish a home and bring up children” (quoting Meyer, 262 U.S. at 399) (emphasis in
original)); cf. Burton v. Tampa Hous. Auth., 271 F.3d 1274, 1285 (11th Cir. 2001)
(rejecting a claim that a zero-tolerance policy for federal housing directly and
substantially interfered with family living arrangements); Konikov v. Orange
County, 410 F.3d 1317, 1326 n.11 (11th Cir. 2005) (acknowledging “the funda-
mental right to freedom of personal 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.”).
6 See, e.g., Halet v. Wend Inv. Co., 672 F.2d 1305, 1311 (9th Cir. 1982) (“A funda-
mental right is even more clearly involved here because the rental policy in-
fringes 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 “cohabitation with
members of one’s extended family”); Doe v. City of Butler, 892 F.2d 315, 321 (3d
Cir. 1989) (“Zoning restrictions cannot be applied to hinder those in a familial
relationship from living together.”); Hameetman v. City of Chicago, 776 F.2d 636, USCA11 Case: 24-10139 Document: 113-3 Date Filed: 07/06/2026 Page: 18 of 96
18 Opinion of the Court 24-10139
In sum, it’s beyond debate that the Supreme Court has rec-
ognized a parent’s right to live with their children as a fundamental
one under this Nation’s history and traditions.
C. The law does not support an exception to the fundamental right of
parents to live with their children for parents the state deems to
have engaged in “misconduct.”
Despite the Supreme Court’s clear and repeated pronounce-
ments that parents enjoy a fundamental right to live with their chil-
dren, Alabama and the Dissent argue that Henry doesn’t. In their
view, a parent who has engaged in “misconduct,” however the state
defines it, forever loses their fundamental right to live with their
current and future children. We respectfully disagree. Precedent,
history and tradition, and the nature of fundamental rights all
show why Alabama and the Dissent are mistaken.
1. No court has held that any class of parents lacks the
fundamental right to live with their children.
Faced with a wall of Supreme Court precedent guarding par-
ents’ fundamental right to live with their children, Alabama and the
Dissent seek to burrow through. It invokes Michael H. v. Gerald D.,
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 neigh-
borhood where her grandchild lived as violative of the “fundamental right to
participate in child-rearing,” including the “right to ‘establish a home and bring
up children’” (quoting Meyer, 262 U.S. at 398)). USCA11 Case: 24-10139 Document: 113-3 Date Filed: 07/06/2026 Page: 19 of 96
24-10139 Opinion of the Court 19
491 U.S. 110(1989), and Lehr v. Robertson,463 U.S. 248
(1983), as well
as Circuit precedent, to argue that only some parents have the fun-
damental right of parents to live with their children. Henry, Ala-
bama and the Dissent say, is not one of those parents who enjoy
fundamental rights.
But Supreme Court precedent is unanimous the other way:
the right the Court has always recognized is the fundamental right
of parents to live with their children. There is no Supreme Court
or Circuit precedent that has framed the right as Alabama and the
Dissent propose: the right of a parent who has engaged in “miscon-
duct” as the state defines the term—or of a parent who has been
convicted of a child-sex offense, as Alabama more specifically sug-
gests—to live with their children.
We start with Michale H., Quilloin, and Lehr. To explain why
these opinions don’t help Alabama and the Dissent, we must con-
sider them alongside another Supreme Court precedent: Stanley v.
Illinois, 405 U.S. 645 (1972).
Stanley, the oldest of the four, lays down the baseline. There,
Joan and Peter Stanley lived together on and off for 18 years and
had three children together. Id. at 646. Upon Joan’s death and with-
out a showing that Peter was an unfit parent, Illinois law made the
children wards of the state because Joan and Peter were unmarried.
Id.Peter challenged the statute.Id.
While resolving Peter’s equal-protection claim, the Court
first considered whether the right Peter asserted—“that of a man
in the children he has sired and raised,” id. at 651—was of a USCA11 Case: 24-10139 Document: 113-3 Date Filed: 07/06/2026 Page: 20 of 96
20 Opinion of the Court 24-10139
fundamental nature, see id. at 651–52. As the Court explained,
“[t]he integrity of the family unit has found protection in the Due
Process Clause of the Fourteenth Amendment.” Id. at 651. Not
only that, the Court continued, but “the law [has not] refused to
recognize those family relationships unlegitimized by a marriage
ceremony.” Id. In sum, the Court concluded, “it [is] clear that, at
the least, [Peter’s] interest in retaining custody of his children is
cognizable and substantial.” Id.
The Court noted Illinois’s law “imposed a statutory pre-
sumption that the best interests of a particular group of children
necessitate[d] some governmental supervision in certain clearly de-
fined situations.” Id. at 653 n.5. As the Court reasoned, “it may be
argued that unmarried fathers are so seldom fit that Illinois need
not undergo the administrative inconvenience of inquiry in any
case, including [Peter’s].” Id. at 656. After all, the Court said,
“[p]rocedure by presumption is always cheaper and easier than in-
dividualized determination.” Id. at 656–57.
But the Court struck down Illinois’s presumption. See id. at
657. The Court explained, “when . . . the procedure forecloses the
determinative issues of competence and care, when it explicitly dis-
dains present realities in deference to past formalities, it needlessly
risks running roughshod over the important interests of both par-
ent and child.” Id. “The State’s interest in caring for [Peter’s] chil-
dren is de minimis if [Peter] is shown to be a fit father,” the Court
continued. Id. at 657–58. And, the Court reasoned, the advantage
of the convenience of a presumption “is insufficient to justify USCA11 Case: 24-10139 Document: 113-3 Date Filed: 07/06/2026 Page: 21 of 96
24-10139 Opinion of the Court 21
refusing a father a hearing when the issue at stake is the dismem-
berment of his family.” Id. at 658. So the Court concluded that “all
Illinois parents are constitutionally entitled to a hearing on their
fitness before their children are removed from their custody.” Id.
(emphasis added).
Like the many precedents we cited earlier, Stanley once again
reaffirms the fundamental nature of the right of a parent—even an
unwed one—to live with their children. And it shows that the right
at stake is that of a father to live with his children, not that of an
unwed father to live with his children. It’s also worth noting that
Stanley disavows the use of irrebuttable presumptions when it
comes to “dismember[ing]” a parent’s family. Id. at 658. Rather,
Stanley emphasizes the importance of considering a parent’s pre-
sent abilities to parent, as opposed to the parent’s past state-defined
“misconduct”—in Stanley, being unwed with children.
We consider Michael H., Quilloin, and Lehr, the three Su-
preme Court precedents that Alabama and the Dissent rely on,
against the Stanley background. Unlike Stanley, these cases involv-
ing the right of a parent to live with their children required the
Court to determine what to do when two putative parents’ rights
to live with their children clashed. Because two putative parents’
rights competed, the Court had to identify an exception to the rule
that parents have a fundamental right to live with their children, to
determine which putative parent’s right won out.
Consider Michael H. There, Michael had an affair with
Carole, his married neighbor. 491 U.S. at 113 (plurality opinion). USCA11 Case: 24-10139 Document: 113-3 Date Filed: 07/06/2026 Page: 22 of 96
22 Opinion of the Court 24-10139
When Victoria was born while that affair went on, her birth certif-
icate listed Gerald, Carole’s husband, as the father. Id. Gerald held
Victoria out as his daughter, though Michael spent time with Vic-
toria. Id. at 113–14 (plurality opinion). But when Victoria was
three years old, Gerald invoked California’s law that presumed that
a child born to a wife who lives with husband and who is not im-
potent or sterile was a “child of the marriage.” Id. at 115 (plurality
opinion). California’s law permitted rebuttal of the presumption,
but only within the first two years of the child’s life. Id. As relevant
here, Michael challenged the California law as a violation of his
substantive-due-process rights as a parent to spend time with his
child. See id. at 116, 118 (plurality opinion).
The plurality opinion noted that it could not consider Mi-
chael’s relationship with Victoria without addressing its effect on
Gerald’s parental rights as they pertained to Victoria. See id. at 127
n.6. (plurality opinion). As Justice Scalia described the Court’s fo-
cus, it was “upon the societal tradition regarding the natural fa-
ther’s rights vis-à-vis a child whose mother is married to another
man.” Id. Justice Scalia continued, “to provide protection to an
adulterous natural father is to deny protection to a marital father,
and vice versa.” Id. at 130 (plurality opinion).
To resolve this conflict between Michael’s and Gerald’s
rights, Justice Scalia looked “to the most specific level at which a
relevant tradition protecting, or denying protection to, the asserted
right can be identified.” Id. at 127 n.6 (plurality opinion). So, Jus-
tice Scalia explained, “[i]f . . . there were no societal tradition, either USCA11 Case: 24-10139 Document: 113-3 Date Filed: 07/06/2026 Page: 23 of 96
24-10139 Opinion of the Court 23
way, regarding the rights of the natural father of a child adulter-
ously conceived, we would have to consult, and (if possible) reason
from, the traditions regarding natural fathers in general.” Id. 7
But a relevant tradition turned out to exist. And when the
plurality opinion considered it, the Court found “not . . . a single
case, old or new,” that “award[ed] substantive parental rights to the
natural father of a child conceived within, and born into, an extant
marital union that wishes to embrace the child.” Id. at 127 (plural-
ity opinion). In other words, in a contest between both putative
fathers’ rights to raise the child, tradition showed that the marital
father’s rights won out over those of the “natural father.”
Quilloin and Lehr reflect the same thing. In Quilloin v. Walcott,
434 U.S. 246 (1978), an unmarried man and woman had a child.
The child lived with his mother. Id. at 247. When the child was
two years old, the mother married a different man. Id. For more
than eight years, the three lived together as a family. Id. At that
point, the husband sought to adopt the child as his own, and the
birth father sought to block the adoption and obtain visitation
rights. Id. When the state court granted the adoption to the hus-
band over the birth father’s objection, the birth father challenged
that decision, as relevant here, as a violation of his substantive-due-
process rights. Id. at 254.
The Court found no violation. See id. at 255. It explained,
“[T]his is not a case in which the unwed father at any time had, or
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24 Opinion of the Court 24-10139
sought, actual or legal custody of his child. Nor is this a case in
which the proposed adoption would place the child with a new set
of parents with whom the child never before lived. Rather, the re-
sult of the adoption in this case is to give full recognition to a family
unit already in existence.” Id. Put simply, the Court found that the
marital father’s right to live with his children triumphed over the
birth father’s under the circumstances.
The same is true of Lehr. As in Quilloin, in Lehr, an unmar-
ried man and woman had a child. Id. at 250. Eight months later,
the woman married a different man. Id. When the child was two
years old, the husband sought and obtained an order to adopt the
child. Id. The birth father challenged the adoption order as invalid
because he didn’t receive notice of the adoption proceeding. Id.
Under the New York laws, to receive notice, he had to register as
the child’s father within two years of the birth (which he didn’t do)
or satisfy one of the other enumerated categories (which he didn’t).
Id. at 250–52.
The Court considered “whether the New York statutes are
unconstitutional because they inadequately protect the natural re-
lationship between parent and child.” Id. at 255 n.10. Once again,
the Court saw a clash between the parental rights of the two puta-
tive fathers. Id. at 256–58. After reviewing the relevant traditions,
the Court discerned that “state laws almost universally express an
appropriate preference for the formal family.” Id. at 257. But be-
cause the New York laws gave the birth father the opportunity to
develop a relationship with the child, the Court found no USCA11 Case: 24-10139 Document: 113-3 Date Filed: 07/06/2026 Page: 25 of 96
24-10139 Opinion of the Court 25
constitutional violation when the husband adopted the child with-
out notice. Rather, once again, the Court considered competing
parental interests in living with one’s children and chose the marital
father’s over the birth father’s.
Here’s the bottom line: when no competing parental right
to reside with one’s child is at stake, Stanley establishes that we de-
fine the asserted right as the parent’s right to reside with their child.
We don’t qualify that right by a father’s “misconduct,” like being
“unwed.” And Michael H., Quilloin, and Lehr teach that only when
two putative fathers’ rights to live with their children clash do we
recognize an exception to the rule that all parents have a fundamen-
tal right to live with their children. But even then, we look to his-
tory and tradition to discern the right at stake.
In Henry’s case, no other putative father has claimed a com-
peting right to live with Henry’s child. Not only that, but Henry is
married, the child he wants to live with was born to that union, and
Henry seeks to live with that family unit. Plus, as we explain in the
next section, see infra at Part III.C.2, we don’t have a societal tradi-
tion of automatically and forever revoking a parent’s fundamental
right to live with their current and future children if the parent has
engaged in “misconduct,” however a state may describe that term.
Because “there [is] no societal tradition, either way, regarding the
rights of the natural father [who has engaged in “misconduct” as
the state defines the term] of a child . . . , we . . . have to consult,
and (if possible) reason from, the traditions regarding natural fa-
thers in general.” See Michael H., 491 U.S. at 127 n.6. Under Stanley, USCA11 Case: 24-10139 Document: 113-3 Date Filed: 07/06/2026 Page: 26 of 96
26 Opinion of the Court 24-10139
Michael H., Quilloin, and Lehr, then, Henry’s asserted right is the
right of a parent to live with his child. And as we’ve noted, there’s
no question that right is a fundamental one.
Alabama and the Dissent’s argument fares no better under
Circuit precedent. They assert that Doe v. Moore, 410 F.3d 1337 (11th
Cir. 2005), supports an exception to the rule that all parents enjoy
the fundamental right to live with their children. Not so.
In describing the Doe plaintiffs’ asserted right, Doe refers to
the fact of the plaintiffs’ convictions there because the plaintiffs
sought to avoid publication of the information the statutes they
challenged required. And it would have been impossible to deter-
mine whether the plaintiffs had a fundamental right not to have the
information published without considering what the information
was—in that case, the plaintiffs’ sex-offense conviction status.
In Doe, a class of individuals who Florida’s sex-offender law
required to register as sex offenders challenged the statutory
scheme. 410 F.3d at 1339. We described the asserted right as “the
right of a person, convicted of ‘sexual offenses,’ to refuse subse-
quent registration of [their] personal information with Florida law
enforcement and prevent publication of this information on Flor-
ida’s Sexual Offender/Predator website.” 8 Id. at 1344. Then we USCA11 Case: 24-10139 Document: 113-3 Date Filed: 07/06/2026 Page: 27 of 96
24-10139 Opinion of the Court 27
noted that the Supreme Court had “refused to extend substantive
due process protection to the publication of official acts like arrest
records.” Id.at 1345 (citing Paul v. Davis,424 U.S. 693, 713
(1976)).
Given that history, we said that “a state’s publication of truthful
information that is already available to the public does not infringe
the fundamental constitutional rights of liberty and property.” Id.
But not all personal information “is already available to the
public.” So contrary to the Dissent’s contention, see Dissent at 14,
including the fact that the personal information the petitioners
sought to shield from publication was their sex-offense-conviction
status was critical to describing the right at stake.
The fundamental right of a parent to live with their child, in
contrast, is very different from a right against publication of infor-
mation relating to a conviction. As we’ve noted, whether a tradi-
tion exists against publication depends on what is being pub-
lished—in Doe, the fact of a conviction. Yet tradition shows that
the Supreme Court has never recognized an exception to the fun-
damental right of a parent to live with their children, because the
parent previously engaged in state-defined “misconduct,” includ-
ing a conviction. So Doe is irrelevant here.
170 F.3d 396 (3d Cir. 1999), for the proposition that “indirect effects of mem-
bers of the public on the offender’s relationship with his family did not rise to
the infringement of a fundamental right by the state”). By contrast, the Ala-
bama Act does directly infringe parents’ fundamental right to live with their
children by removing it automatically and permanently with respect to a par-
ent’s current and future children. USCA11 Case: 24-10139 Document: 113-3 Date Filed: 07/06/2026 Page: 28 of 96
28 Opinion of the Court 24-10139
Alabama and the Dissent also cite Eknes-Tucker v. Governor of
Alabama, 80 F.4th 1205 (11th Cir. 2023). See Dissent at 6–7. But
Eknes-Tucker offers them no more assistance than Doe. In Eknes-
Tucker, we rejected a parental-rights claim because we said that
there was “no binding authority that indicates that the general right
to ‘make decisions concerning the care, custody, and control of
[one’s] children’ includes the right to give one’s children puberty
blockers and cross-sex hormone treatment.” Id. at 1221 (citation
omitted). But here, Supreme Court precedent unambiguously and
repeatedly holds that the general right of a parent concerning the
care and custody includes the specific right to reside with their chil-
dren. So this case presents the opposite of the situation we faced
in Eknes-Tucker. For that reason, Eknes-Tucker is not instructive
here.
Finally, we note that, despite Alabama’s position here, even
Alabama courts have recognized that parents like Henry have the
fundamental right to live with their children. Herring v. State, 100
So. 3d 616 (Ala. Ct. Crim. App. 2011). In Herring, the Alabama
Court of Criminal Appeals considered the Act’s precursor, which
was first enacted in 1975. See id. Herring argued, among other
things, that the precursor violated his substantive-due-process
rights. Id. at 619.
In evaluating Herring’s claim, the Alabama court recognized
that “[a] substantive due process analysis must begin with a careful
description of the asserted right.” Id. at 622 (cleaned up). Then,
relying in part on Stanley, the court characterized Herring’s USCA11 Case: 24-10139 Document: 113-3 Date Filed: 07/06/2026 Page: 29 of 96
24-10139 Opinion of the Court 29
asserted right as the right “[of a parent] to reside with his children.”
Id. at 624. The court did not, as Alabama and the Dissent urge us
to do, create an exception for parents who had engaged in state-
defined “misconduct.” See also id. at 623 (“There is no doubt that
parental rights are fundamental.”).
In short, no precedent endorses Alabama and the Dissent’s
argument that only some parents have the fundamental right to live
with their children.
2. Our history and tradition do not support an exception
to the rule that all parents enjoy the fundamental
right to live with their children.
But that’s not all. In this part, first, we show how even the
history and tradition Alabama and the Dissent rely on prove the
opposite of their point. That is, our history and tradition reflect
that all parents enjoy a fundamental right to live with their chil-
dren, not that parents who have engaged in “misconduct” as the
state defines it don’t. 9 And second, we explain the errors in Ala-
bama’s argument that depriving a person who has engaged in state-
defined “misconduct” (including a sex offense against a child) of
the fundamental status of their right to live with their children is
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30 Opinion of the Court 24-10139
permissible because the common law and early American law
could punish such offenses with death.
a. The common law and nineteenth-century American case
law do not support a “misconduct” exception to a parent’s
fundamental rights.
Review of the common law and nineteenth-century Ameri-
can case law reveals an essential rule: the right of a parent to live
with their children is a fundamental one. And courts declined to
allow a parent to live with their child only if, after individualized
consideration of the facts of the specific case, it appeared likely
from the totality of the circumstances that harm to the child would
follow from the parent’s custody at that time. That is, even if a
parent had previously engaged in state-defined “misconduct,” that
did not automatically disqualify a parent from having custody of
their children. Rather, the court considered the parent’s character
and abilities at the time they sought custody.
Our history and tradition establish that common-law courts
recognized the right of the parent to live with their child, not the
right of a parent who hadn’t engaged in state-defined “misconduct”
to live with their child. Otherwise, courts would have automati-
cally and forever removed a parent’s custody rights if a parent had
engaged in “misconduct.” But courts didn’t define the fundamen-
tal parental right to live with one’s children by a parent’s past. Ra-
ther, courts evaluated what the welfare of the child required by
looking to a parent’s present parenting abilities. USCA11 Case: 24-10139 Document: 113-3 Date Filed: 07/06/2026 Page: 31 of 96
24-10139 Opinion of the Court 31
The panel opinion here reviews the common-law and nine-
teenth-century American history in some depth. See Henry, 135
F.4th at 1315–19. So we focus here on only the sources that Ala-
bama and the Dissent cite. After all, they too show the rule that
courts removed children from their parents only after individual-
ized consideration of the particular facts led them to conclude that
the children would likely face harm if not removed from the par-
ents at that time.
Indeed, the historical record shows the opposite of what Al-
abama and the Dissent claim. The cases are unanimous. They
show a history and tradition of treating parents’ rights of custody
and cohabitation with their children as fundamental. And that’s
true even for parents who engaged in “misconduct,” like past sex
offenses. In every example that Alabama and the Dissent invoke,
the state burdened parental rights with only a careful individual-
ized totality-of-the-circumstances determination that reflected the
parent’s abilities at the time of the inquiry, not based on past “mis-
conduct.” 10
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32 Opinion of the Court 24-10139
To show how Alabama and the Dissent flip the record up-
side-down, we describe several of the cases they rely on.
To start, they invoke nineteenth-century treatises. For in-
stance, Alabama quotes James Schouler’s A Treatise on the Law of the
Domestic Relations for the proposition that parents have the “para-
mount” right of custody in their children, but this right “could ‘be
forfeited by his misconduct.’” (Quoting JAMES SCHOULER, A
TREATISE ON THE LAW OF THE DOMESTIC RELATIONS *338–39 (Bos.,
Little, Brown & Co. 2d ed. 1874)); see also Dissent at 16.
On the same page as the quotation Alabama and the Dissent
rely on, though, Schouler also says that “the circumstances will be
fully considered by the court, and decision rendered on general
principles of justice.” SCHOULER, supra p. 339. As Schouler ex-
plains, “[t]he cardinal principle relative to such matters is to regard
the benefit of this infant; to make the welfare of the children
WL 1751710, *10 (June 18, 2026) (“Even when a law regulates arms-bearing
for a permissible reason, we have said, it may not be compatible with the Sec-
ond Amendment if it does so to an extent beyond what was done at the found-
ing. . . . The historical laws the government identifies usually provided some
form of process before an individual lost any of his liberties, even temporarily.
. . . None of that holds true for § 922(g)(3).” (cleaned up)). That tradition
continues even today. Indeed, as far as we can tell, no state other than Ala-
bama (in its Act) blanketly and forever abrogates the right of parents to live
with their current and future children if they engage in state-defined “miscon-
duct.” Cf. Dobbs v. Jackson Women’s Health Org., 597 U.S. 215, 228 (2022) (citing
as evidence of the lack of a fundamental right to an abortion the fact that 30 of
50 states at the time the Court issued Roe v. Wade, 410 U.S. 113 (1973), out-
lawed abortion entirely). USCA11 Case: 24-10139 Document: 113-3 Date Filed: 07/06/2026 Page: 33 of 96
24-10139 Opinion of the Court 33
paramount to the claims of either parent.” Id. Schouler reflects
that courts conducted individualized totality-of-the-circumstances
inquiries to determine what, in a particular case, the children’s wel-
fare required at that time.
The cases these treatises rely on, as well as those Alabama
and the Dissent point to, bear that out. Take Mercein v. People ex rel.
Barry, 25 Wend. 64, 73 (N.Y. Ct. for the Correction of Errors 1840).
Alabama cites Mercein for the proposition that there is a “tradition
that parental rights ‘may be forfeited by misconduct.’” And Mercein
does in fact say that “[t]he right of the father may be forfeited by
misconduct, or lost by misfortune.” Id. But Mercein uses the word
“may” deliberately. The opinion would take on a different meaning
if the court had instead used “must.” Mercein doesn’t support the
notion that parents who engaged in “misconduct” were conclu-
sively and forever divested of their custodial rights.
Mercein was a divorce custody case. See id. The wife alleged
that the husband had engaged in “grossly immoral acts,” so she
should receive custody of the children. Id. at 75. But the court
found the evidence lacking and awarded the husband custody.11 Id.
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34 Opinion of the Court 24-10139
Even so, the court explained, “Had [the wife] been able to charge
her husband with some of those grossly immoral acts which au-
thorize a divorce, either absolute or limited, it would not necessarily
follow that she was entitled to the custody of the child.” Id. (em-
phasis added). Rather, the court continued, despite his conduct,
“still it may be quite clear that the welfare of the children, which is
the controlling consideration, will be best promoted by commit-
ting them to the custody of the father.” Id.
Mercein shows that (1) the only role “misconduct” played in
the inquiry concerned how the parent’s “misconduct”—whatever
it may have been—affected “the welfare of the children, which
[was] the controlling consideration,” at the time of the inquiry, id.
at 75, and (2) the court conducted an individualized inquiry consid-
ering all the circumstances to determine whether a parent’s “mis-
conduct” warranted a determination that the parent may not have
custody of his children, see generally id. But the fact that a parent
had engaged in what the law considered to be “misconduct” did
not conclusively deprive the parent of their child. So Alabama’s
argument that people subject to its Act have been convicted after a
trial provides no answer to the fact that even a conviction did not
conclusively and forever mean a parent would not be permitted to
live with their child.
Alabama and the Dissent rely on People ex rel. Ordronaux v.
Chegaray, 18 Wend. 637 (N.Y. Sup. Ct. 1836), for the same
those ideas and treatment. To be clear, we now understand them to be wrong
and unconstitutional. USCA11 Case: 24-10139 Document: 113-3 Date Filed: 07/06/2026 Page: 35 of 96
24-10139 Opinion of the Court 35
proposition as Mercein: each court mentioned that a father’s right
to the custody of their children “may be forfeited by misconduct.”
(emphasis added). But as we’ve noted, the word “may” is discre-
tionary. Indeed, Ex Parte Boaz, which the Dissent invokes, see Dis-
sent at 16–17, included the same statement and then further ex-
plained that the court “exercises a discretion, for ‘the benefit and
welfare of the infants.’” 31 Ala. 425, 427 (Ala. 1858) (emphasis
added). In other words, courts made individualized totality-of-the-
circumstances discretionary rulings; they didn’t automatically and
forever forfeit a parent’s right to live with their children simply be-
cause that parent had previously engaged in “misconduct.”
Lovell v. House of the Good Shepard, 37 P. 660 (Wash. 1894),
which Alabama and the Dissent cite, see Dissent at 17, supports the
same principle. There, a widowed mother left her daughter with
an orphanage. Id. at 660. Soon after, the mother demanded the
child’s return, but the orphanage refused. Id. at 660–61. So the
mother sought the return of the child through a writ of habeas
corpus. Id. at 660.
In awarding the mother custody, the court said, “Even im-
morality of the mother is not always a sufficient reason for depriv-
ing her of the custody of the child.” Id. at 661 (emphasis added).
After all, the court continued, “even though it may appear that
three years ago the mother was not a competent person to main-
tain control of this child, the difficulties then alleged to exist have
now passed away. Hence the necessity of separating the mother
and child has ceased to exist.” Id.
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36 Opinion of the Court 24-10139
As with Mercein, Boaz, and Ordronaux, Lovell shows that
courts did not blanketly and forever remove children from parents
for “misconduct.” Rather, they conducted individualized totality-
of-the-circumstances inquiries to determine how the parents would
affect the welfare of the child at that time. And when circum-
stances changed, courts considered anew a parent’s claim to the
custody of their child.
State ex rel. Herrick v. Richardson, 40 N.H. 272, 273 (N.H. Sup.
Ct. 1860), which Alabama and the Dissent rely on, see Dissent at 16–
17, is more of the same. There, the court characterized “the ques-
tion” before it as “whether the father, under the circumstances of this
case, is entitled to the custody of his child, and if so, whether under
this process that custody can be awarded to him” (emphasis added).
As the court explained, it was “required to determine whether, in
the exercise of sound discretion, the custody of the child ought, or
ought not to be awarded to the father.” Id. at 274 (emphasis added).
Then, Alabama and the Dissent rely on Cocke v. Hannum, 39
Miss. 423, 441 (1860), for the notion that disqualifying “miscon-
duct” included “vulgarity and obscenity.” See Dissent at 17. And
so it did—but only if the court determined, based on the totality of
the circumstances, that custody with the parent at that time would
likely harm the child. Cocke provides an example.
There, the court reviewed a lower court’s decision to give
custody of a couple’s daughters to the father over the mother.
Cocke, 39 Miss. at 436. Both parents had engaged in “misconduct.” USCA11 Case: 24-10139 Document: 113-3 Date Filed: 07/06/2026 Page: 37 of 96
24-10139 Opinion of the Court 37
See id. at 440–41. On appeal, the court determined that the mother
should have custody. See id. at 442.
In reaching its conclusion, the court considered the totality
of the circumstances. In the end, it explained, “[W]hatever objec-
tions may once have existed to the fitness of the mother by reason
of the charges against her chastity and amiability[,] . . . the testi-
mony is very clear that . . no ground for objection now exists
against her.” Id.
Put simply, the court operated on the principle that people
can be rehabilitated. A parent’s past problematic behavior did not
conclusively and forever disqualify her from living with her child.
Rather, the court looked at the totality of the circumstances before
it at the time of inquiry.
So Alabama and the Dissent invoke Chapsky v. Wood, 26 Kan.
650, 653 (1881). Dissent at 17. They rely on that case for the prop-
osition that the Supreme Court of Kansas reported it could find
“no case . . . in which the courts have given [custody] to the father
who was a drunkard and a man of gross immoralities.’” 12 But
there’s nothing remarkable about that. After all, when a father was
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38 Opinion of the Court 24-10139
both “a drunkard and a man of gross immoralities” at the time of
the court’s individualized inquiry into custody, every court consider-
ing the totality of the circumstances would have to conclude that
“such custody [would not have] promote[d] the welfare and inter-
est of such child.” Id. at 653.
Yet even a father who at some point was a “drunkard” and a
“man of gross immoralities” may not forever be one. So as cases
Alabama and the Dissent cite show, see supra, courts conducted in-
dividualized totality-of-the-circumstances inquiries into whether a
parent’s custody of a child would likely be harmful to the child at
the time of the inquiry. Put another way, under the common law,
even if a parent committed “misconduct,” that did not mean that
they conclusively and forever lost their fundamental right to live
with their current and future children. See Lovell, 37 P. 660; Cocke,
39 Miss. 423.
Dumain v. Gwynne, 92 Mass. (10 Allen) 270 (1865)—another
nineteenth-century case Alabama and the Dissent cite, Dissent at
17—also reflects this principle.
In Dumain, a husband was found guilty of burglary and sen-
tenced to prison for three years. 10 Allen at 272–73. While the
husband was in prison, the wife found herself unable to care
properly for their children, so she took them to an adoption-place-
ment home. Id. at 273. There, the wife signed a contract agreeing
that she would not seek to obtain the children from the adoptive
parents. Id. at 273–74. When the husband was released from
prison, he returned to live with his wife. Id. at 274. He then USCA11 Case: 24-10139 Document: 113-3 Date Filed: 07/06/2026 Page: 39 of 96
24-10139 Opinion of the Court 39
“industriously pursued his trade as a blacksmith” and “his character
and conduct [were] good.” Id. So the couple sought to obtain their
children back from the adoptive placement. Id.
The court saw the case as a clash of the rights of the birth
parents and the adoptive parents. See id. at 274–75. In resolving
that conflict, the court explained, “Without holding that the rights of
either parent in respect to the children are absolutely lost, we must nev-
ertheless hold that they are subject to the rights of the other party
to the contract . . . .” Id. (emphasis added). So Dumain is like Mi-
chael H., Quilloin, and Lehr. In all four cases, the courts had to de-
cide between clashing rights of putative parents.
True, the Dumain court did say that the husband’s burglary
conviction had forfeited his right to the custody of his children
while he was in prison. See id. at 272–73. But that simply observed a
reality of the situation. Of course, the husband could not continue
to live with his children while he was in prison. Yet as the quotation
above shows, the court left the door open for a father who had been
convicted and served his time to obtain custody, post-release, in the
absence of the adoptive agreement. See id. at 274. In other words,
even imprisonment after a criminal conviction did not conclusively
and forever disqualify a father from living with his children. Ra-
ther, courts considered the particular facts at the time of the in-
quiry.
The other treatises Alabama and the Dissent refer to rely
solely on cases that show the same thing. For instance, Alabama
cites Joseph Story for the proposition that “wrongdoing can USCA11 Case: 24-10139 Document: 113-3 Date Filed: 07/06/2026 Page: 40 of 96
40 Opinion of the Court 24-10139
‘remov[e]’ th[e] [‘natural] presumption’” “that a parent will take
care of his child” “‘and deprive [the parent] of custody’” (citing 2
JOSEPH STORY, COMMENTARIES ON EQUITY JURISPRUDENCE AS
ADMINISTERED IN ENGLAND AND AMERICA § 1341, at 562 (Bos., Isaac
F. Redfield ed., Little, Brown & Co. 8th ed. 1861)). And the Dissent
invokes Story for the proposition that “the Court of Chancery ‘in-
terfere[d], and deprive[d] [a father] of the custody of his children,’
whenever he exhibited ‘constant habits of drunkenness and blas-
phemy or low and gross debauchery.’” Dissent at 15–16 (citing
STORY, supra, § 1341, at 562).
But for these propositions, Story relies solely on five cases—
none of which show that courts automatically and forever removed
a parent’s right to live with their children because the parent had
engaged in “misconduct.” Rather, they provide examples reflecting
that courts consistently conducted individualized totality-of-the-
circumstances inquiries to determine whether the children’s wel-
fare required removal at that time.
Story cites Anonymous, 61 Eng. Rep. 260 (1851); Shelley v.
Westbrooke, Jac. 266; Wellesley v. Wellesley, 2 Bligh N. S. 124; In re Bes-
ant, 11 Ch. D. 508; and Smart v. Smart, [1892] A. C. 425. STORY,
supra, at 564 n.(q). But they’re no different from the other cases.
We begin with Anonymous. There, a clergyman husband left
his wife and children. 61 Eng. Rep. at 262. He was later charged
with what was then considered the “unnatural and capital crime” USCA11 Case: 24-10139 Document: 113-3 Date Filed: 07/06/2026 Page: 41 of 96
24-10139 Opinion of the Court 41
of engaging in sexual relations with another man.13 See id. at 263.
Five years after he was acquitted on that charge, the father sought
custody of his children. Id. at 261. The court reviewed in depth
the affidavits of the parents, as well as those of several witnesses
who, among other things, gave specific examples of how the chil-
dren would be expelled from their schools and shunned by every-
one they knew if the husband regained custody. See id. at 261–65.
In determining how to resolve the case, the court focused
not on the father’s conduct but entirely on the welfare of the chil-
dren. As the court explained, it would not give custody to the fa-
ther “if the father has so conducted himself that it will not be for
the benefit of the infants that they should be delivered to him—or
if their being with him will affect their happiness—or if they can-
not associate with him without moral contamination—or if, be-
cause they associate with him, other persons will shun their soci-
ety.” Id. at 266. Finding the last circumstance to be the case, the
court concluded that “[i]t is impossible . . . here not to see that con-
tact of these children with their father implies utter exclusion of
them from everyone else.” Id. at 269 (emphasis added). So the
court denied the father’s petition.
Like every other nineteenth-century case Alabama and the
Dissent raise, Anonymous shows that courts denied a parent custody
of their children only after an individualized inquiry into the
USCA11 Case: 24-10139 Document: 113-3 Date Filed: 07/06/2026 Page: 42 of 96
42 Opinion of the Court 24-10139
totality of the circumstances led the court to believe that the chil-
dren’s welfare required it.
In Shelley, the court considered a petition to return children
to their father after their mother died. Jac. at 266. As the court
found, the father had “deserted his wife, and had since unlawfully
cohabited with another woman” and that “the father avowed him-
self an atheist, and that since his marriage he had written and pub-
lished a work, in which he blasphemously derided the truth of the
Christian revelation, and denied the existence of a God as creator
of the universe . . . .” Id.
After considering everything, the court said it viewed the fa-
ther’s conduct as “highly immoral,” and it found “nothing in evi-
dence before [the court] sufficient to authori[z]e [it] in thinking that
this gentleman has changed . . . .” Id. at 267. Because the court
thought the father’s conduct “injuriously affect[ed]” his children’s
interests, the court denied custody. See id. But in reaching that de-
termination, the court noted its ruling was not automatic. The
court explained, “[T]his case differs . . . from any case in which such
principles having been called into activity, nevertheless, in the prob-
able range and extent of their operation, did not put to hazard the
happiness and welfare of [the children].” Id. So Shelley once again
reflects that past “misconduct” did not necessarily mean a parent
lacked a fundamental right to live with their child. Rather, it meant
only that the court could consider that past “misconduct” among
the totality of the circumstances in determining whether a USCA11 Case: 24-10139 Document: 113-3 Date Filed: 07/06/2026 Page: 43 of 96
24-10139 Opinion of the Court 43
compelling reason to remove the children existed—that their wel-
fare required it.
Rinse and repeat for Wellesley, Besant, and Smart. The court
in each case conducted an individualized hearing, considering the
totality of the circumstances at the time and what the children’s
welfare required. Each case shows, contrary to Alabama and the
Dissent’s argument, that past “misconduct” did not automatically
and forever deprive a parent of the right to live with their children.
Rather, past “misconduct,” like all other relevant facts, was simply
one circumstance courts considered in determining whether a
child’s welfare required the court to remove a child a from a par-
ent’s custody.
Alabama and the Dissent also rely on the Tiffany treatise for
the proposition that a parent lost their fundamental right to live
with their children if they engaged in misconduct such as “being ‘a
drunkard, or a criminal, or cruel, or shiftless, or otherwise unfit.”
(Quoting WALTER C. TIFFANY, HANDBOOK ON THE LAW OF PERSONS
AND DOMESTIC RELATIONS 346–47 (Roger W. Cooley ed., 3d ed.
1921) (footnotes omitted)). But the cases Tiffany cites for that
proposition don’t help Alabama and the Dissent any more than the
other cases they invoke.
The Tiffany cases include Marshall v. Reams, 14 So. 95 (Fla.
1893); Chapsky, 26 Kan. 630; In re Brown,117 Ill. App. 332
(1904);
Plahn v. Dribred, 83 S.W. 867 (Tex. Ct. Civ. App. 1904); Cowls v.
Cowls, 44 Am Dec. 708 (Ill. 1846) (“[T]he case serves to show that
no certain rule can be laid down for the government of the court USCA11 Case: 24-10139 Document: 113-3 Date Filed: 07/06/2026 Page: 44 of 96
44 Opinion of the Court 24-10139
in all cases, except that the best interests of the child must be con-
sulted.”). We’ve already discussed Chapsky. See supra at 37–38.
And by this point, we’ve reviewed so many other nineteenth-cen-
tury cases that all show the same individualized totality-of-the-cir-
cumstances inquiries that we don’t see the value of adding sum-
maries of these other cited cases as well. None of them breaks the
mold.
These individualized totality-of-the-circumstances inquiries
defy Alabama and the Dissent’s argument that a person’s “miscon-
duct” automatically and forever denied the right of a parent to live
with their children. Rather, courts evaluated the particular facts at
the time of the inquiry. So the common law and nineteenth-cen-
tury case law show that courts understood the fundamental right
of parents to live with their children to apply to all parents, not just
those who hadn’t engaged in state-defined “misconduct.”
b. That the common law and early American law pun-
ished sex offenses with harsher penalties than extin-
guishing the offender’s right to live with their children
is irrelevant to the fundamental nature of the right of
a person who was convicted of such a crime to live with
their children.
Next, Alabama and the Dissent argue that the common law
and early American law punished certain crimes with death, so an-
ything less can’t possibly violate the fundamental rights of a person
convicted of a such an offense. See Dissent at 18–20. Again, Ala-
bama and the Dissent are mistaken. USCA11 Case: 24-10139 Document: 113-3 Date Filed: 07/06/2026 Page: 45 of 96
24-10139 Opinion of the Court 45
“Stripping convicted felons of their First Amendment rights
is also less severe a consequence than death, but no one could seri-
ously contend that such a statute would be consistent with the First
Amendment.” United States v. Dubois, 139 F.4th 887, 898 (11th Cir.
2025) (W. Pryor, C.J., concurring) (citation omitted). That’s why
we must approach past, severe punishments with a “‘measured un-
derstanding of the limits of these historical analogues’”—to
“avoid[] ‘read[ing] a principle at such a high level of generality that
it waters down the right.’” Id.(quoting United States v. Rahimi,602 U.S. 680, 740
(2024) (Barrett, J., concurring)).
So we read the reach of civil-death statutes against other
forms of permissible regulations with respect to the specific right
at issue. See id. at 898–99 (W. Pryor, C.J., concurring) (explaining
we must consider the traditions together); cf. Nat’l Rifle Ass’n v.
Bondi, 133 F.4th 1108, 1133 (11th Cir. 2025) (en banc) (Rosenbaum,
J., concurring) (explaining we may consider together different reg-
ulatory traditions to determine whether a legislature’s new re-
sponse to a new problem may pass constitutional muster). In Du-
bois, a Second Amendment case, Chief Judge Pryor found civil-
death penalties informative because, in other contexts, there was,
at the time of the Founding, (a) “a well-recognized (if limited) leg-
islative power to strip specified categories of persons of their right
to bear arms” and (b) “no historical requirement for an individual-
ized determination of dangerousness as to each person in a class of
prohibited persons.” 139 F.4th at 898 (W. Pryor, C.J., concurring)
(cleaned up). USCA11 Case: 24-10139 Document: 113-3 Date Filed: 07/06/2026 Page: 46 of 96
46 Opinion of the Court 24-10139
But those factors are absent here. To be sure, the legislature
played a role in regulating parental rights. States throughout the
Antebellum period established reformatories for children who
were in the custody of an “unfit parent,” like those who committed
crimes. See Henry, 135 F.4th at 1319.
But as we’ve explained ad nauseam, these laws did not “strip
specified categories of persons of their right” to the physical cus-
tody of their children. Dubois, 139 F.4th at 898 (W. Pryor, C.J., con-
curring) (citation omitted). They were never “intended to foreclose
the right of a parent, when competent, to resume the custody and
care of his child.” Milwaukee Indus. Sch. v. Milwaukee Cnty. Sup’rs,
40 Wis. 328, 339 (1876).
Nor did they remove children from parents without “an in-
dividualized determination.” Dubois, 139 F.4th at 898 (W. Pryor,
C.J., concurring) (citation omitted). Instead, “the rights of the par-
ent” were “protected on habeas corpus by th[e] court[s]” and by
the “right to show that the cause stated for the commitment does
not now exist; that he is competent and fit to have the care of his
child; and that the welfare of the child will permit of her removal
from her present custody.” Farnham v. Pierce, 141 Mass. 203, 205
(1886). Even felons had the right to judicial review and to show their
continued custody of their child would be in their child’s best in-
terests. See Dumain, 92 Mass. at 272–76.
If the parents could “convince[]” the court that they would
“treat[] the[] children with kindness,” the court would award them USCA11 Case: 24-10139 Document: 113-3 Date Filed: 07/06/2026 Page: 47 of 96
24-10139 Opinion of the Court 47
custody. Striplin v. Ware, 36 Ala. 87, 91(1860); see Jensen v. Jensen,170 N.W. 735, 736
(Wis. 1919) (declining to rescind custody from a
mother “in the face of proof showing that the child is being well
taken care”). So the fact that a parent’s crimes could be punished
by death in the early years of our country does not bear on whether
parents enjoy a fundamental right to live with their children. Cf.
Kanter v. Barr, 919 F.3d 437, 462 (7th Cir. 2019) (Barrett, J., concur-
ring) (“The obvious point that the dead enjoy no rights does not
tell us what the founding-era generation would have understood
about the rights of felons who lived, discharged their sentences,
and returned to society.”), abrogated on other grounds by New York
State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022).
3. The fundamental nature of the right of parents to live
with their children requires rejection of an exception
for those who have engaged in state-defined “miscon-
duct.”
If we created the exception that Alabama and the Dissent
urge, virtually every parental-rights case would fail at the funda-
mental-rights stage. Targeted groups of parents—with or without
criminal convictions—would not be able to assert any parental
rights. Subject only to limited rational-basis review, states could
force those groups of parents to send their children to state-selected
schools, contra Pierce, 268 U.S. at 534–35, or to permit visitation by
state-selected officials, contra Troxel, 530 U.S. at 67–75, or to submit
their children to state-selected medical care, contra Parham, 442 U.S. USCA11 Case: 24-10139 Document: 113-3 Date Filed: 07/06/2026 Page: 48 of 96
48 Opinion of the Court 24-10139
at 603. But the Supreme Court has never accepted such an ap-
proach. And neither do we.
This scenario could arise because of how Alabama and the
Dissent justify their proposed exception for parents who have en-
gaged in state-defined “misconduct.” To define “gross miscon-
duct,” Alabama and the Dissent look to nineteenth-century mate-
rials that summarize reasons why courts removed custody from
parents, after individualized totality-of-the-circumstances inquiries.
These reasons include, among others, “personal ill usage to the
child,” failure to “educate the child,” “delinquen[cy],” “injustice,”
“endanger[ing] the [child’s] bodily or moral welfare,” “low and
gross debauchery,” other “considerations affecting the welfare of
the children,” being “a drunkard, a criminal, or cruel, or shiftless,
or otherwise unfit,” engaging in “vulgarity and obscenity,” moral
“contamination,” bad “temper,” and lack of fatherly “affection.”
By Alabama and the Dissent’s reasoning, if a state deter-
mines a person has engaged in “misconduct”—whatever the state’s
definition of that term—that person no longer enjoys a fundamen-
tal right to live with their children. In other words, under this rea-
soning, a parent’s fundamental right to live with their children is
only as secure as a state’s decision to refrain from determining that
a parent’s characteristics or conduct doesn’t amount to “miscon-
duct” and then extinguishing the right of every parent it deems to
have engaged in that “misconduct.” Alabama and the Dissent tell
us to just trust the democratic process to protect parental rights.
See Dissent at 21–22. USCA11 Case: 24-10139 Document: 113-3 Date Filed: 07/06/2026 Page: 49 of 96
24-10139 Opinion of the Court 49
That means the fundamental nature of a parent’s right to
live with their children depends on what the legislature determines
falls into one of the categories of “misconduct” above. In other
words, it can be legislated away. But if that’s so, the parent’s right
to live with their children is not “fundamental” in any real sense at
all. The whole point of rights that are “fundamental” is that the
legislature can’t burden them unless it has a compelling reason to
do so and it narrowly tailors its legislation to further that reason.
Yet Alabama and the Dissent’s analysis would take the rea-
son for burdening a fundamental right and mistake it for a reason
why the right isn’t fundamental in the first place. As a result, the
right would be “fundamental” only as long as the state’s legislation
decides it is. That would describe out of existence the fundamental
nature of the longstanding fundamental right of a parent to live
with their child. So a state could target groups of parents by defin-
ing them as having committed “misconduct,” and they would have
no recourse. Indeed, the Dissent doesn’t deny that its analysis of
Henry’s claim would allow for such a result.
The Supreme Court and our history and tradition don’t tol-
erate this type of exception. So we reject it.
D. We remand this case to the panel to consider the best way to pro-
ceed, given our determination that Henry, like all parents, enjoys
a fundamental right to live with his children.
Our determination that Henry enjoys a fundamental right
to live with his children puts us on the strict-scrutiny track of sub-
stantive-due-process analysis. But that doesn’t necessarily mean USCA11 Case: 24-10139 Document: 113-3 Date Filed: 07/06/2026 Page: 50 of 96
50 Opinion of the Court 24-10139
that Alabama’s Act violates Henry’s fundamental right. After all,
Alabama has articulated a compelling reason for its law: the safety
of children. And laws that vindicate this interest can be constitu-
tional if they are narrowly tailored to further it.
So we remand this case to the panel for further proceedings
consistent with this opinion.
IV. CONCLUSION
The Supreme Court has always defined the fundamental
right of the parent to live with their children at that level of gener-
ality. Our history and tradition have always done the same thing.
Today, we continue to protect the fundamental right of all parents
to live with their children by recognizing that Henry enjoys that
same right.
We remand to the panel for further proceedings consistent
with this opinion.
AFFIRMED IN PART; REMANDED TO THE PANEL IN
PART. USCA11 Case: 24-10139 Document: 113-3 Date Filed: 07/06/2026 Page: 51 of 96
24-10139 ROSENBAUM, J., Concurring 1
ROSENBAUM, Circuit Judge, concurring:
The Court’s opinion explains that Supreme Court prece-
dent, centuries of our history and tradition, and the nature of fun-
damental rights require the conclusion that all parents enjoy the
fundamental right to live with their children. As the Court’s opin-
ion shows, none of these sources support the Dissent’s contention
that a parent’s state-defined “misconduct” “status,” Dissent at 1, 6,
12, 15–17, 20–21, somehow creates an exception to the universality
of all parents’ fundamental right to live with their children. The
Dissent reaches the contrary conclusion because it devises and then
employs arbitrary rules for defining the asserted right. I write sep-
arately to explain why the precedent on which the Dissent relies to
manufacture its proposed rules for describing the asserted right
does not support the Dissent’s proposed rules or proposed asserted
right.
I begin by explaining how we determine the description of
the asserted right. Then I show why the Dissent’s proposed rules
for identifying the asserted right lack a basis in precedent.
I. We determine the description of the asserted right by
examining our Nation’s history, legal traditions, and
practices.
We begin the inquiry into whether a right is fundamental
with a “‘careful description’ of the asserted fundamental liberty in-
terest.” Washington v. Glucksberg, 521 U.S. 702, 721 (1997) (quoting
Reno v. Flores, 507 U.S. 292, 302 (1993)). But we don’t determine
the description of the asserted right in a vacuum. Rather, “[w]e USCA11 Case: 24-10139 Document: 113-3 Date Filed: 07/06/2026 Page: 52 of 96
2 ROSENBAUM, J., Concurring 24-10139
begin, as we do in all due process cases, by examining our Nation’s
history, legal traditions, and practices.” Id. at 710.
The history and tradition of some fundamental rights show
we’ve tended to recognize the right at a higher level of generality.
Take the right to marry. In Obergefell v. Hodges, 576 U.S. 644 (2015),
for instance, same-sex couples challenged state laws that denied
them the right to marry. After the Court reviewed our Nation’s
history and traditions concerning that right, the Court described
the asserted right as “the fundamental right to marry,” not the
“right of two individuals of the same sex to marry each other.” See
id. at 670. The Court used the higher level of generality to describe
the right in Loving v. Virginia, 388 U.S. 1, 12 (1967), as well. There,
the Court identified the asserted right as that of “the freedom to
marry,” not as those of a white man to marry a Black woman or of
a Black woman to marry a white man. See id.
Or consider a right closer to the one at issue here—parents’
fundamental right “with respect to ‘the upbringing and education
of children.” Mirabelli v. Bonta, 607 U.S. 492, 497 (2026). In Mira-
belli, parents took issue with a California law, which, in the absence
of student consent, did not allow schools to disclose to parents if
their child was gender-transitioning at school. Id. But the Court
did not narrowly describe the asserted right as the right of the par-
ents to know whether their children are gender-transitioning at
school. Rather, just a few weeks ago, the Court described the as-
serted right broadly. It held that California’s “policies likely violate
parents’ rights to direct the upbringing and education of their children.” USCA11 Case: 24-10139 Document: 113-3 Date Filed: 07/06/2026 Page: 53 of 96
24-10139 ROSENBAUM, J., Concurring 3
Id.(emphasis added). See alsoid. at 499
(Barrett, J., concurring)
(“[T]he doctrine of substantive due process has long embraced a
parent’s right to raise her child, which includes the right to partici-
pate in significant decisions about her child’s mental health.”).1
In contrast, our history and tradition have more narrowly
described some other rights. The right to die offers a good exam-
ple. In Glucksberg, 521 U.S. at 722, the plaintiff claimed she sought
that right. But the Supreme Court noted that she based that as-
serted right, in part, on Cruzan v. Director, Missouri Department of
Health, 497 U.S. 261 (1990). In Cruzan, the Court “assumed that the
Constitution granted competent persons a ‘constitutionally pro-
tected right to refuse lifesaving hydration and nutrition.’” Glucks-
berg, 521 U.S. at 723(quoting Cruzan,497 U.S. at 279
). And the
Court made that assumption in Cruzan, in turn, based on “the long
legal tradition protecting the decision to refuse unwanted medical
treatment.” Id. at 725.
But that tradition differed materially from our Nation’s his-
tory and tradition about what the Glucksberg plaintiff sought: the
right to commit suicide and to do so with another’s assistance. See
id. at 728. In contrast to our Nation’s history and tradition on the
right to refuse lifesaving treatment, the Court explained, our coun-
try’s history reflects “the rejection of nearly all efforts to permit [as-
sisted suicide].” Id. Because the plaintiff’s claimed right and the
right she in fact sought had two different histories and traditions,
1 Only Chief Justice Rehnquist joined this aspect of Justice Scalia’s opinion. USCA11 Case: 24-10139 Document: 113-3 Date Filed: 07/06/2026 Page: 54 of 96
4 ROSENBAUM, J., Concurring 24-10139
the Court described the asserted right narrowly and consistently
with the history and tradition of the right the plaintiff actually
sought.
As each right has its own unique history and tradition appli-
cable specifically to it, descriptions the Court has employed in cases
involving other, unrelated rights are not helpful in crafting the care-
ful description of the right at issue in any given case. I explain that
problem later in more detail. See Part II. But for now, the point is
that, to craft a careful description of the asserted right at issue here,
we must consider “our Nation’s history, legal traditions, and prac-
tices,” id., as they concern “the sanctity of the family” that the Con-
stitution protects, Michael H. v. Gerald D., 491 U.S. 110, 123–24
(1989).
And here, as the Court’s opinion shows, “our Nation’s [rel-
evant] history, legal traditions, and practices” reflect that Henry’s
asserted right is the fundamental right of parents to live with their
children.
II. The Dissent wrongly describes the asserted right by
disregarding history and tradition in favor of arbitrary
rules it has devised.
The Dissent incorrectly identifies the asserted right. It does
so because, in crafting the description, the Dissent does not focus
on the history and tradition of the parent’s right to live with their
children. Rather, the Dissent picks and chooses cases involving
other rights that are not relevant here. And from those select cases,
the Dissent purports to develop generally applicable rules for USCA11 Case: 24-10139 Document: 113-3 Date Filed: 07/06/2026 Page: 55 of 96
24-10139 ROSENBAUM, J., Concurring 5
describing the asserted right in every case. As a result, the Dissent
improperly imports Alabama’s interest in burdening parents’ right
to live with their children into the description of the right.
That’s not what the Supreme Court has told us to do. Even
assuming we apply Justice Scalia’s Michael H. plurality approach,2
that approach directs us to look “to the most specific level at which
a relevant tradition protecting, or denying protection to, the asserted
right can be identified.” Michael H., 491 U.S. at 127 n.6 (plurality
opinion) (emphasis added). And if there’s “no societal tradition” at
a more specific level, we “consult, and (if possible) reason from, the
traditions regarding [the more] general right.” Id.
For good reason. As I’ve explained, every fundamental right
has its own history and tradition that determines its breadth. So
looking to cases involving other rights is not instructive. Indeed,
trying to discern generally applicable rules about how narrowly to
describe a right from cases involving different rights is like trying
to determine the rules for scoring in wrestling by looking at how
points are scored in football, hockey, and basketball. Each sport
has a different history and tradition, so each sport has different
rules. And knowing that a touchdown is worth six points (without
the extra point), a hockey goal is worth a single point, and a slam-
dunk basket is worth two points, doesn’t help us to figure out that
a wrestling takedown is worth three points.
2 See supra at note 1. USCA11 Case: 24-10139 Document: 113-3 Date Filed: 07/06/2026 Page: 56 of 96
6 ROSENBAUM, J., Concurring 24-10139
Compounding its error, in consulting cases involving other
rights to come up with its rules for describing the right, the Dissent
doesn’t even purport to account for the histories and traditions of
the full universe of fundamental rights. Rather, it selectively con-
sults some rights—the ones where the Court has more narrowly
described the asserted right—and ignores others—the ones where
the Court has more generally described the asserted right (like the
right to marry).
The Dissent’s approach to describing the asserted right cre-
ates random rules in a vacuum, divorced from the history and tra-
dition that are supposed to “rein in the subjective elements that are
necessarily present in due-process judicial review,” Glucksberg, 521
U.S. at 722.
For instance, the Dissent asserts that “both the Supreme
Court and we have described the right ‘in reference to the scope of
the . . . statute’ being challenged.” Dissent at 4 (quoting Williams
v. Att’y Gen. of Ala., 378 F.3d 1232, 1241 (11th Cir. 2004)). But Wil-
liams addressed the constitutionality of an Alabama statute that
prohibited the sale of “sex toys.” 378 F.3d at 1233. And the Wil-
liams plaintiff claimed fundamental rights to “privacy” and “per-
sonal autonomy.” Id. at 1235. As the court explained, “In the ab-
stract, . . . there is no fundamental right to either.” Id. So it made
sense there to “describe the right ‘in reference to the scope of the .
. . statute’ being challenged.” 3
3 The Dissent also relies on Glucksberg, Reno v. Flores, and Department of State v.
Muñoz to support its point. I’ve already explained why Glucksberg doesn’t USCA11 Case: 24-10139 Document: 113-3 Date Filed: 07/06/2026 Page: 57 of 96
24-10139 ROSENBAUM, J., Concurring 7
Of course, that’s not the case with a parent’s fundamental
right to live with their children. As the Court’s opinion shows, our
history and tradition have consistently recognized the parent’s fun-
damental right to live with their children to apply to all parents—
even those with what the Dissent calls a “status.” So as Justice
Scalia explained in Michael H., because “there [is] no societal tradi-
tion, either way, regarding the rights of the natural father [who has
bolster the Dissent’s description of the right here. See supra at 3–4. Flores and
Muñoz don’t help the Dissent, either.
In Flores, a class of juvenile noncitizens who weren’t accompanied by adults
were arrested and held in immigration custody pending their deportation
hearings. 507 U.S. at 294. They claimed as their right “freedom from physical
restraint.” Id. at 300. But the Court effectively determined that no such his-
tory and tradition existed and were applicable to the plaintiffs because (a) they
were not in “shackles, chains, or barred cells,” and (b) “juveniles, unlike adults,
are always in some form of custody.” Id. at 302. In other words, unlike with
the fundamental right of a parent—with or without a “status”—to live with
their child, a narrower historical and traditional right applied to juveniles.
As for Muñoz, there, a woman claimed the right to live with her noncitizen
spouse in the United States and invoked “the fundamental right of marriage.”
Muñoz, 602 U.S. at 910. The Court defined the asserted right more narrowly,
to refer to the husband as a noncitizen because the government had a “funda-
mental sovereign attribute” that allowed it to admit and exclude foreign na-
tionals, “largely immune from judicial control.” Id. at 907. So Muñoz sought
“something distinct” and “more than marriage.” Id. at 910. That is, the Court
described the husband as a noncitizen in the description of the asserted right
because that fact implicated a history and tradition other than the fundamental
right of marriage. Put differently, Muñoz is similar to Michael H., Quilloin, and
Lehr, where two “rights” clashed, so we had to consult the relevant histories
and traditions to determine which “right” takes precedence. But as I’ve ex-
plained, that’s not the case here. USCA11 Case: 24-10139 Document: 113-3 Date Filed: 07/06/2026 Page: 58 of 96
8 ROSENBAUM, J., Concurring 24-10139
a “status,”] of a child . . . , we . . . have to consult, and (if possible)
reason from, the traditions regarding natural fathers in general.”
491 U.S. at 127 n.6.
For its next rule, the Dissent says “[w]e have also consist-
ently reviewed challenges to sex-offender laws by referring to the
terms of those statutes.” Dissent at 5. In support, the Dissent relies
on two Eleventh Circuit cases: Doe v. Moore, 410 F.3d 1337 (11th
Cir. 2005), and United States v. Ambert, 561 F.3d 1202 (11th Cir.
2009). But as the Court’s opinion explains, see Maj. Op. at 26–27,
Doe referred to the terms of the statute because the plaintiffs sought
to avoid publication of the information the statute required.
Similarly, Ambert involved the federal version of the Florida
law at issue in Doe. See Ambert, 561 F.3d 1202 (11th Cir. 2009). As
a result, we found Doe’s analysis “equally applicable” in Ambert. Id.
at 1209.
As the Court’s opinion explains, history and tradition made
it clear that the plaintiffs’ right or lack thereof to prohibit publica-
tion in both Doe and Ambert depended on the specific personal in-
formation that the state sought to publish. For that reason, our
descriptions of the asserted right in Doe and Ambert had to mention
the information the statutes published. But tradition shows that
whether a parent has the “status” of having engaged in state-de-
fined “misconduct” has never conclusively and forever determined
the right of a parent to live with their child. So it makes no sense
to incorporate the terms of the Act into the careful description of
the right. USCA11 Case: 24-10139 Document: 113-3 Date Filed: 07/06/2026 Page: 59 of 96
24-10139 ROSENBAUM, J., Concurring 9
The Dissent next relies on Jones v. Helms, 452 U.S. 412 (1981),
to support its rule that a careful description of the right must men-
tion “criminal status.” See Dissent at 11. But Jones again involved
a different right—the right to travel—from the one at stake here.
There, Georgia law made it a misdemeanor for a parent to “will-
fully and voluntarily abandon[] his or her dependent child.” 452
U.S. at 413. A parent who committed that offense and then left the
state was guilty of a felony. Id. The Court explained that the right
to travel has never been “an unlimited one.” Id. at 419 n.15. Ra-
ther, traditionally, the government has imposed absolute limits on
that right for “fugitive[s] from justice” and those who might “en-
danger others by carrying contagion about.” Id. For that reason,
the fact that a person invoking their right to travel is a “fugitive
from justice” was relevant to determining the fundamental nature
of the right at stake.
Again, though, that’s not the case with the fundamental
right of the parent to live with their child. To be sure, courts could
and did consider a parent’s misconduct in determining whether to
strip the parent of their custody rights. But that was not the begin-
ning and end of the inquiry. Rather, courts looked to the totality
of the circumstances at the time the parent sought to obtain or re-
tain custody, considering the parent’s reformation and what the
child’s welfare required.
The Dissent also asserts that Michael H., Quilloin, and Lehr
support consideration of the parent’s state-defined “misconduct” in USCA11 Case: 24-10139 Document: 113-3 Date Filed: 07/06/2026 Page: 60 of 96
10 ROSENBAUM, J., Concurring 24-10139
the careful description of the right. See Dissent at 9–11. The
Court’s opinion explains why that is wrong. See Maj. Op. at 19–25.
Finally, the Dissent points to Eknes-Tucker v. Governor of Ala-
bama, 80 F.4th 1205 (11th Cir. 2023), to support its contention that
the careful description of the right must “refer[] to the challenged
state law[].” Dissent at 6. There, a group of plaintiff parents chal-
lenged an Alabama law prohibiting the use of puberty blockers and
hormones for minors, and we described the right involved as the
“[parental] right to treat one’s children with transitioning medica-
tions subject to medically accepted standards.” Id. at 1224.
The Court’s opinion already explains why Eknes-Tucker is
not helpful here. See Maj. Op. at 28. Plus, Mirabelli teaches that our
description of the right in Eknes-Tucker was likely wrong. After all,
in Mirabelli, the Court did not narrowly describe the asserted right
as the right of the parents to know whether their children are gen-
der-transitioning at school. Rather, the Court held that California’s
“policies likely violate parents’ rights to direct the upbringing and edu-
cation of their children.” Id. (emphasis added). So the description of
the right in Eknes-Tucker should have been characterized as the pa-
rental right to direct the upbringing of their children, or the most
detailed description that may have worked would have been the
parental right to treat one’s children subject to medically accepted
standards.
But even assuming that our description of the right in Eknes-
Tucker was not wrong, it doesn’t tell us anything about the tradi-
tion and history of the parent’s right to live with their children, USCA11 Case: 24-10139 Document: 113-3 Date Filed: 07/06/2026 Page: 61 of 96
24-10139 ROSENBAUM, J., Concurring 11
which the Court’s opinion today reviews at length. So consulting
Eknes-Tucker to figure out how to craft the careful description of
the right at issue here is like thinking knowing how to ride a bicycle
means knowing how to fly a plane. They are different from each
other.
In sum, the Dissent’s effort to glean rules for crafting the de-
scription of the asserted right, from cherry-picked cases, disregards
the one thing the Supreme Court has told us to consult in deter-
mining the careful description: the tradition and history of the as-
serted right. Perhaps that’s why the Supreme Court has never di-
rected us to use the “rules” the Dissent comes up with. USCA11 Case: 24-10139 Document: 113-3 Date Filed: 07/06/2026 Page: 62 of 96
24-10139 WILLIAM PRYOR, C.J., Dissenting 1
WILLIAM PRYOR, Chief Judge, joined by NEWSOM, BRANCH, and
LAGOA, Circuit Judges, and by LUCK, Circuit Judge, as to Parts I
and II.A., dissenting:
All agree that parents generally enjoy a fundamental right to
“make decisions concerning the care, custody, and control of their
children.” Troxel v. Granville, 530 U.S. 57, 66 (2000) (plurality opin-
ion). But this appeal presents a different question: whether the Due
Process Clause grants child-sex convicts, not parents generally, a
fundamental right to reside with their children. Of course not.
The Supreme Court requires that we review any substan-
tive-due-process challenge to a state law by first “careful[ly] de-
scri[bing]” the asserted right tailored to what the law forbids. See
Reno v. Flores, 507 U.S. 292, 302 (1993). So, in his challenge to a law
that governs only child-sex convicts, ALA. CODE § 15-20A-11(d)(4),
Bruce Henry cannot invoke a general parental right: he instead as-
serts the right of a child-sex convict to reside with his minor child.
The majority insists that a parent’s criminal status cannot be
part of the careful description of his right. Yet the Supreme Court
regularly considers a parent’s status before deciding what protection
his right enjoys. See, e.g., Quilloin v. Walcott, 434 U.S. 246, 255 (1978)
(“unwed father” lacking custody). And both the Court and we de-
scribe a challenger’s right with reference to his criminal status. See,
e.g., Jones v. Helms, 452 U.S. 412, 420(1981); Doe v. Moore,410 F.3d 1337, 1341
, 1343–44 (11th Cir. 2005). Because a child-sex convict
lacks a fundamental right to reside with his minor child, and the USCA11 Case: 24-10139 Document: 113-3 Date Filed: 07/06/2026 Page: 63 of 96
2 WILLIAM PRYOR, C.J., Dissenting 24-10139
majority declines to hold that Alabama’s law satisfies strict scru-
tiny, I respectfully dissent.
I. BACKGROUND
Bruce Henry is an admitted “porn addict” who has “mastur-
bate[d] while looking at child pornography.” Henry amassed a
porn collection including 348 photos and two videos of prepubes-
cent children and adolescents, particularly girls between the ages
of six and ten. The videos depicted a prepubescent girl performing
oral sex on an adult male and a dog.
Henry’s long entanglement with the federal criminal justice
system began in 2011 when officials discovered Henry’s stash. He
later pleaded guilty in federal court to possession of child pornog-
raphy. See 18 U.S.C. § 2252A(a)(5)(B). After five years in prison,
Henry accessed more pornography in violation of the terms of his
supervised release. He viewed pornographic images with titles like
“Sexy Young Teens I want to Fuck,” “Amateur Teen [Cross-
Dresser] Gives a Self Facial,” “Younger Fetish Ladies,” “Chubby
Teen [Cross-Dresser] Cum,” “My favorite . . . teen,” “Nerdy Teen
Fucks His Sissy [Cross-Dresser],” and “Schoolgirls.” Henry admit-
ted to his probation officer having searched for the titles and other
“images of children posed in sexual positions and images of teen
girls.”
After his conviction, Henry is subject to the Alabama Sex
Offender Registration and Community Notification Act. The Ala-
bama Legislature enacted that law “not to punish sex offenders but
to protect the public and, most importantly, promote child safety.” USCA11 Case: 24-10139 Document: 113-3 Date Filed: 07/06/2026 Page: 64 of 96
24-10139 WILLIAM PRYOR, C.J., Dissenting 3
ALA. CODE § 15-20A-2(5). The Act bars “adult sex offender[s],” like
Henry, from “resid[ing] or conduct[ing] an overnight visit with a
minor.” Id. § 15-20A-11(d).
The general bar against residence or overnight visits with a
minor does not apply to sex offenders who reside with their minor
children, grandchildren, stepchildren, siblings, or stepsiblings. Id.
But the Act saves five categories of sex offenders from that excep-
tion. One is for any offender “convicted of any sex offense involv-
ing a child,” id. § 15-20A-11(d)(4), which includes “any sex offense
in which the victim was a child or any offense involving child por-
nography,” id. § 15-20A-4(27). This child-porn exception bars
Henry from residing with his prepubescent son.
II. DISCUSSION
The majority commits two errors. It first misunderstands
Henry’s asserted right, and it then shirks its judicial duty to decide
whether the Alabama child-porn exception is constitutional.
A. Henry’s Substantive-Due-Process Challenge Fails.
Henry’s suit does not implicate a general parental right, but
instead the right of child-sex convicts to reside with their children.
That right is not fundamental. And the Alabama child-porn excep-
tion has a rational basis.
1. Henry Asserts the Right of a Child-Sex Convict to Reside with
His Minor Child.
The Due Process Clause of the Fourteenth Amendment pro-
tects “a select list of fundamental rights that are not mentioned USCA11 Case: 24-10139 Document: 113-3 Date Filed: 07/06/2026 Page: 65 of 96
4 WILLIAM PRYOR, C.J., Dissenting 24-10139
anywhere in the Constitution.” Dobbs v. Jackson Women’s Health
Org., 142 S. Ct. 2228, 2246 (2022). One is the fundamental right of
parents “to establish a home and bring up children.” See Meyer v.
Nebraska, 262 U.S. 390, 399 (1923). But that is not the end of the
story.
Because the doctrine of substantive due process creates a
“‘treacherous field,’” id. at 2247 (quoting Moore v. City of E. Cleve-
land, 431 U.S. 494, 502 (1977) (plurality opinion)), the Supreme
Court has instructed us to “exercise the utmost care whenever . . .
asked to break new ground,” Washington v. Glucksberg, 521 U.S. 702,
720 (1997) (citation modified). See also Eknes-Tucker v. Gov. of Ala.,
114 F.4th 1241, 1245 (11th Cir. 2024) (Pryor, C.J., respecting the de-
nial of rehearing en banc) (explaining “the Supreme Court has
sought to discipline [the] application” of substantive due process
lest “judges . . . usurp authority” that the Constitution entrusts to
democracy (citation modified)). To evaluate whether Henry enjoys
a fundamental right, we “must begin with a careful description” of
the right Henry asserts. Flores, 507 U.S. at 302. We do so to avoid
placing “outside the arena of public debate and legislative action”
matters generally reserved to the people. Glucksberg, 521 U.S. at
720.
“[T]he scope of the asserted right—and thus the parameters
of the inquiry—must be dictated ‘by the precise facts’ of the imme-
diate case.” Williams v. Att’y Gen. of Ala., 378 F.3d 1232, 1240 (11th
Cir. 2004) (quoting Brockett v. Spokane Arcades, Inc., 472 U.S. 491,
501 (1985)). In case after case, both the Supreme Court and we have USCA11 Case: 24-10139 Document: 113-3 Date Filed: 07/06/2026 Page: 66 of 96
24-10139 WILLIAM PRYOR, C.J., Dissenting 5
described the right “in reference to the scope of the . . . statute”
being challenged. Id. at 1241; see also K.C. v. Individual Members of
Med. Licensing Bd. of Ind., 121 F.4th 604, 623–25 (7th Cir. 2024) (“The
Supreme Court has always defined the right at issue narrowly,
hewing as closely as possible to the statute.”). For example, in
Washington v. Glucksberg, the Supreme Court refused to describe
the asserted right as “a liberty interest in determining the time and
manner of one’s death” or “a right to die.” 521 U.S. at 722, 724 (ci-
tation modified). It instead referred to the challenged statute—a
prohibition of assisted suicide—and recast the asserted right as “a
right to commit suicide with another’s assistance.” Id. at 724. In
Flores, the Court likewise rejected as overbroad an alien juvenile’s
asserted right “to freedom from physical restraint.” 507 U.S. at 294,
302 (citation modified). It restated the “right at issue” as “the al-
leged right of a child who has no available parent, close relative, or
legal guardian, and for whom the government is responsible, to be
placed in the custody of a willing-and-able private custodian rather
than of a government-operated or government-selected child-care
institution.” Id. And, in Department of State v. Muñoz, a challenge to
a law that barred an alien spouse from entering the United States,
the Court carefully described the right as “the right to reside with
[a] noncitizen spouse in the United States,” not as the “fundamental
right of marriage” invoked by the citizen spouse. 144 S. Ct. 1812,
1819, 1822 (2024) (emphasis omitted) (citation modified).
We have also consistently reviewed challenges to sex-of-
fender laws by referring to the terms of those statutes. For exam-
ple, in Doe v. Moore, sex offenders argued that the Florida Sex USCA11 Case: 24-10139 Document: 113-3 Date Filed: 07/06/2026 Page: 67 of 96
6 WILLIAM PRYOR, C.J., Dissenting 24-10139
Offender Act violated their “rights to family association, to be free
of threats to their persons and . . . families, to be free of interference
with their religious practices, [and] to find and/or keep any hous-
ing [and] . . . employment” by requiring them to publicly register
as sex offenders and submit blood and tissue samples for Florida
law enforcement to keep on file. 410 F.3d at 1340–41, 1343 (citation
modified). But we “use[d] the Sex Offender Act itself to define the
scope of the claimed fundamental right.” Id. at 1344. We employed
“a more careful description of the asserted right”: “the right of a
person, convicted of ‘sexual offenses,’ to refuse subsequent registra-
tion of his or her personal information with Florida law enforce-
ment and prevent publication of this information.” Id. at 1343–44
(emphasis added). Because the Act governed only sex offenders, we
described the right with reference to the status of the person assert-
ing it.
We took the same approach in United States v. Ambert, 561
F.3d 1202 (11th Cir. 2009). There, a sex offender alleged that the
federal registration law violated his substantive-due-process right
by “caus[ing] his name to be placed on a sex offender registry with-
out first providing him with a hearing to assess the risk of recidi-
vism and current dangerousness.” Id. at 1208. But we described his
asserted right as that “of a sexual offender to refuse to register and to
prevent publication.” Id. at 1209 (emphasis added).
And even in decisions involving parental rights generally,
we have tailored the asserted rights to the challenged statute. For
example, in Eknes-Tucker v. Governor of Alabama, we ruled that USCA11 Case: 24-10139 Document: 113-3 Date Filed: 07/06/2026 Page: 68 of 96
24-10139 WILLIAM PRYOR, C.J., Dissenting 7
several parents’ challenge to an Alabama law prohibiting the use of
puberty blockers and cross-sex hormones for minors involved only
the “[parental] right to treat one’s children with transitioning med-
ications subject to medically accepted standards.” See 80 F.4th at
1210, 1224 (citation modified). We rejected the parents’ framing as
a law burdening the “fundamental right to make decisions concern-
ing the care, custody, and control of one’s children.” Id. at 1221 (ci-
tation modified). We refused to describe the right at that “high
level of generality,” even if “some of [the Supreme Court’s] cases
recognize[d]” a “fundamental right” for parents and even “appl[ied]
the fundamental parental right in the context of medical decision-
making.” Id. at 1224. Those decisions, we explained, never “estab-
lish[ed] that parents have a derivative fundamental right to obtain a
particular medical treatment for their children.” Id. (emphasis
added).
Henry’s asserted right, properly framed, is the right of a
child-sex convict to live with his minor child. That framing de-
scribes Henry’s right “in reference to the scope of the [state] stat-
ute” being challenged, Williams, 378 F.3d at 1241, because the Ala-
bama child-porn exception prohibits only child-sex convicts, like
Henry, from living with their minor children. And it is consistent
with Doe’s and Ambert’s “careful description” of the asserted right
as that of a person “convicted of sexual offenses” to engage in par-
ticular conduct. Doe, 410 F.3d at 1343–44 (citation modified).
The precedents Henry and the majority invoke do not es-
tablish that he enjoys a fundamental right. Those decisions USCA11 Case: 24-10139 Document: 113-3 Date Filed: 07/06/2026 Page: 69 of 96
8 WILLIAM PRYOR, C.J., Dissenting 24-10139
addressed the enforcement of generally applicable laws that bur-
dened parents as parents. See Meyer, 262 U.S. at 397, 403 (holding
unconstitutional Nebraska statute mandating that “[n]o person, in-
dividually or as a teacher, shall . . . teach any subject to any person
in any language other than the English language”); Pierce v. Soc’y of
Sisters, 268 U.S. 510, 530, 534–35 (1925) (holding unconstitutional
an Oregon law “requir[ing] every parent . . . of a child between
eight and sixteen years to send him to a public school” (citation
modified)); Moore, 431 U.S. at 495–96, 505–06 (holding unconstitu-
tional zoning ordinance that limited occupancy of residences to
members of a single family); Troxel, 530 U.S. at 60, 75 (holding un-
constitutional Washington statute that permitted “any person to
petition a superior court for visitation rights at any time” (citation
modified)); Mirabelli v. Bonta, 146 S. Ct. 797, 800, 803 (2026) (hold-
ing likely unconstitutional California policies “prevent[ing] schools
from telling [parents] about their children’s efforts to engage in
gender transitioning . . . unless the children consent”). By contrast,
Alabama’s child-porn exception regulates only parents with child-
sex convictions. To carefully describe Henry’s right, we must ac-
count for the law’s limited scope.
The majority never contests that when carefully describing
an asserted right, the challenged statute’s prohibition is relevant,
but it pretends that only half of the prohibition matters. It acknowl-
edges that the child-porn exception burdens only Henry’s right “to
live with [his] child[],” see Majority Op. at 18, yet refuses to consider
that only his criminal status triggers that prohibition. In its view, “all
parents enjoy the fundamental right to live with their children.” Id.
USCA11 Case: 24-10139 Document: 113-3 Date Filed: 07/06/2026 Page: 70 of 96
24-10139 WILLIAM PRYOR, C.J., Dissenting 9
at 29. See ALA. CODE § 15-20A-11(d)(4) (prohibiting those “con-
victed of any sex offense involving a child” from “resid[ing] or con-
duct[ing] an overnight visit with a minor”). But the majority’s in-
sistence that parental status is irrelevant runs headlong into a wall
of precedent. The Supreme Court has reviewed challenges to laws
burdening parental and other fundamental rights by carefully de-
scribing the challenger’s right based on his status, including crimi-
nal status.
In Michael H. v. Gerald D., the Court considered a challenge
to a California statute that presumed that a child born to a married
woman living with her husband is the child of the marriage. 491
U.S. 110, 113 (1989) (plurality opinion). The natural father “con-
tend[ed] as a matter of substantive due process that, because he
ha[d] established a parental relationship with [the child], protection
of [the mother’s] marital union [was] an insufficient state interest
to support termination of that relationship.” Id. at 121. But the Su-
preme Court disagreed. Its plurality opinion explained that “[w]hat
[the natural father] must establish . . . is not that our society has
traditionally allowed a natural father in his circumstances to estab-
lish paternity, but that it has traditionally accorded such a father pa-
rental rights, or at least has not traditionally denied them.” Id. at
126 (emphasis added). With “nothing in the older sources, nor in
the older cases, addressing specifically the power of the natural fa-
ther to assert parental rights over a child born into a woman’s ex-
isting marriage with another man,” the plurality concluded that no
fundamental right was at stake. Id. at 125, 127. Justice Brennan
urged a broader inquiry into “whether parenthood is an interest USCA11 Case: 24-10139 Document: 113-3 Date Filed: 07/06/2026 Page: 71 of 96
10 WILLIAM PRYOR, C.J., Dissenting 24-10139
that historically has received our attention and protection.” Id. at
139 (Brennan, J., dissenting). But the plurality adopted a careful de-
scription tied to the father’s particular status as a father not married
to the mother. Id. at 127 (plurality opinion).
And in two decisions upholding state laws about stepparent
adoption, the Supreme Court considered whether those laws ade-
quately protected the asserted rights of natural fathers who were
unwed and uninvolved, not parents generally. In Quilloin v. Wal-
cott, the Supreme Court acknowledged that “the custody, care and
nurture of the child reside first in the parents.” 434 U.S. at 255 (ci-
tation modified). But it carefully defined the asserted right as that
of an “unwed father” who did not “ha[ve], or s[eek], actual or legal
custody of his child.” Id. The Court rejected the biological father’s
assertion that “he was entitled to recognition and preservation of
his parental rights absent a showing of his ‘unfitness’” and upheld
the Georgia statute. Id. at 253–55. Similarly, in Lehr v. Robertson, the
Court defined a challenger’s asserted right to “form . . . a relation-
ship” with his child as that of a natural father who had no “signifi-
cant custodial, personal, or financial relationship with [the child],
. . . until after [the child] was two years old.” 463 U.S. 248, 262–63
(1983). It acknowledged that “an unwed father [who] demonstrates
a full commitment to the responsibilities of parenthood . . . ac-
quires substantial protection under the Due Process Clause.” Id. at
261. But it held that “the mere existence of a biological link does
not merit equivalent constitutional protection.” Id. Finding the re-
lationship between the uninvolved father and his child distinct
from those cases where the biological father had a “developed” USCA11 Case: 24-10139 Document: 113-3 Date Filed: 07/06/2026 Page: 72 of 96
24-10139 WILLIAM PRYOR, C.J., Dissenting 11
relationship with the child, the Court held that the uninvolved fa-
ther had no constitutional right to notice of his child’s adoption. Id.
at 250, 261–62, 265.
The Supreme Court described an otherwise fundamental
right with reference to the criminal status of a challenger in Jones v.
Helms, when it reversed a decision of our predecessor circuit. 452
U.S. at 415–17. There, a Georgia father challenged a state law that
enhanced penalties for willful abandonment of a dependent when
the parent left the jurisdiction after abandoning his child. Id. at 413.
The father argued that the law burdened the “right of a United
States citizen to travel from one State to another,” which the Su-
preme Court had previously described as “fundamental.” Id. at
417–18; see also Mem’l Hosp. v. Maricopa County, 415 U.S. 250, 254
(1974) (“The right of interstate travel has repeatedly been recog-
nized as a basic constitutional freedom.”). But the Court more care-
fully described the issue as whether “a person who has committed
an offense punishable by imprisonment has an unqualified federal
right to leave the jurisdiction prior to arrest or conviction.” Helms,
452 U.S. at 420. The father’s “criminal conduct . . . necessarily qual-
ified his [otherwise fundamental] right thereafter freely to travel
interstate,” so the Court rejected his reliance on precedents about
citizens “whose right to travel had not been qualified in any way.”
Id.at 420–21 (first citing Crandall v. Nevada,73 U.S. (6 Wall.) 35
(1868); and then citing Edwards v. California, 314 U.S. 160 (1941)).
Stanley v. Illinois, 405 U.S. 645 (1972), does not compel us to
hold Henry has a fundamental right. See Majority Op. at 19–21. In USCA11 Case: 24-10139 Document: 113-3 Date Filed: 07/06/2026 Page: 73 of 96
12 WILLIAM PRYOR, C.J., Dissenting 24-10139
Stanley, the Supreme Court held that Illinois violated the right to
due process by removing from custody, without a hearing, the chil-
dren of an unmarried father, who had raised them during his 18-
year relationship with their deceased mother, based solely on the
fact that the parents were never married. 405 U.S. at 646, 658. Illi-
nois imposed a presumption of unfitness for unwed fathers without
affording them an individual judicial determination. Id. at 650–51
(first citing Cafeteria & Rest. Workers Union v. McElroy, 367 U.S. 886
(1961); and then citing Goldberg v. Kelly, 397 U.S. 254 (1970)). Cru-
cially, “nothing in th[e] record indicate[d] that Stanley [was] or
ha[d] been a neglectful father who ha[d] not cared for his children.”
Id. at 655. Illinois offered no proof that he had engaged in any form
of misconduct. Contra Majority Op. at 21 (suggesting that Illinois
deemed “being unwed with children” as “misconduct”). Here, in
contrast, a federal court convicted Henry of sexual misconduct
against children. If, like the father in Stanley, Henry contended only
that Alabama owes him a hearing before curtailing his right to re-
side with his child following his child-sex conviction, then his as-
serted right would not sound in substantive due process at all. Cf.
Muñoz, 144 S. Ct. at 1822 (explaining that a “substantive due pro-
cess right that gets only procedural due process protection” would
“be in a category of one” and “neither fish nor fowl”).
Henry argues Lehr and Michael H. are inapplicable because
they answer only “who is a parent” instead of defining a parent’s
rights. But neither decision purports to answer that question. In-
stead, they assumed the challenger’s natural “fatherhood” and, in
Michael H., even “an established parental relationship,” and then USCA11 Case: 24-10139 Document: 113-3 Date Filed: 07/06/2026 Page: 74 of 96
24-10139 WILLIAM PRYOR, C.J., Dissenting 13
asked which rights traditionally would flow from the sort of pater-
nal relationship the challenger had with his children. 491 U.S. at
123–24 (explaining that “our traditions have protected the marital
family”). The lesson of Lehr and Michael H. is that not all fathers
have the same parental rights. Those precedents require us to ask
whether “such a father” as Henry, convicted of a child-sex offense,
has a fundamental right to live with his child. See id. at 126.
Henry contends that his status as a married father also dis-
tinguishes his asserted right from those described in Lehr and Mi-
chael H. But that the laws in Lehr and Michael H. disadvantaged the
challengers for different reasons than the child-porn exception bur-
dens Henry does not alter the fact that the Court “analyze[d] the
particular facts of th[e] case to determine whether [the father] ha[d]
a constitutionally protected liberty interest.” Lehr, 463 U.S. at 270
(White, J., dissenting). What matters is “the relationship between
persons in the situation of [the father] and [his child]” and the tra-
ditional legal protections for “such a father.” Michael H., 491 U.S. at
124, 126.
The majority posits that Michael H., Quilloin, and Lehr are
“exception[s] to the rule that all parents have a fundamental right
to live with their children” because the Supreme Court was forced
“to determine which putative parent’s right won out.” See Majority
Op. at 21, 24–25. Yet none purports to be an “exception” to a rule.
In Michael H., the Court made the father’s relation to another fam-
ily part of the careful description of his substantive-due-process
right. See 491 U.S. at 127 (“What counts is whether the States in fact USCA11 Case: 24-10139 Document: 113-3 Date Filed: 07/06/2026 Page: 75 of 96
14 WILLIAM PRYOR, C.J., Dissenting 24-10139
award substantive parental rights to the natural father of a child
conceived within, and born into, an extant marital union that
wishes to embrace the child.”) And nothing in Quilloin or Lehr sug-
gests that the Court would have resolved the issue any differently
if it did not involve contested rights. Indeed, if the father in Quilloin
had “at any time had . . . or sought” custody, 434 U.S. at 255, or if
the father in Lehr “grasp[ed] th[e] opportunity” to “develop a rela-
tionship with his offspring,” 463 U.S. at 262, they would have en-
joyed the general right of parents.
Finally, the majority takes issue with my reliance on Doe on
the ground that Doe “had to mention the information the statute
published” because “[w]hether a tradition exists against publication
depends on what is being published.” Majority Op. at 26–27 (em-
phasis added). But it would have been “[]possible” to define the
challenger’s interest without reference to his sex-offender status.
Contra id. at 26. We could have held that the asserted interest was
the “right to refuse registration of personal information with Flor-
ida law enforcement and prevent publication of this information
on Florida’s Sexual Offender/Predator website.” Indeed, our defi-
nition of the challenger’s right distinguished between the personal
information Florida law required to be published, on one hand, and
the sex offender’s status, on the other. See Doe, 410 F.3d at 1344.
We made this distinction because the challenged Florida law re-
quired officials to publish more than the fact of the sex offender’s
status: it also required publication of the offender’s photograph and
other “identifying information.” Id. at 1341. We included the fact
the challenger was “convicted of ‘sexual offenses’” because the USCA11 Case: 24-10139 Document: 113-3 Date Filed: 07/06/2026 Page: 76 of 96
24-10139 WILLIAM PRYOR, C.J., Dissenting 15
Florida Act applied only to those “convicted of ‘sexual offenses.’”
Id. at 1344. Similarly, the challenged law in this case applies only to
those “convicted of any sex offense involving a child,” ALA. CODE
§ 15-20A-11(d)(4), so Henry’s right should be circumscribed by his
conviction.
2. Child-Sex Convicts Do Not Enjoy a Fundamental Right to Re-
side with Their Minor Children.
Having carefully described Henry’s right as that of a child-
sex convict to reside with his minor child, we must determine
whether he has “show[n] that the asserted right is ‘deeply rooted in
this Nation’s history and tradition.’” Muñoz, 144 S. Ct. at 1818
(quoting Glucksberg, 521 U.S. at 720–21). Henry “cannot make that
showing.” Id. Indeed, he does not even attempt to do so—for good
reason.
The historical record makes clear that parents who commit-
ted child-sex offenses traditionally had no fundamental right to re-
side with their children. Indeed, the common law provided that a
parent’s gross misconduct could extinguish custodial rights—not
only the right to reside. Joseph Story reported that the Court of
Chancery “interfere[d], and deprive[d] [a father] of the custody of
his children,” whenever he exhibited “constant habits of drunken-
ness and blasphemy or low and gross debauchery.” 2 JOSEPH STORY,
COMMENTARIES ON EQUITY JURISPRUDENCE AS ADMINISTERED IN
ENGLAND AND AMERICA § 1341, at 562 (Bos., Isaac F. Redfield ed.,
Little, Brown & Co. 8th ed. 1861). As one English decision re-
ported, the chancery court would refuse to give custody to a father USCA11 Case: 24-10139 Document: 113-3 Date Filed: 07/06/2026 Page: 77 of 96
16 WILLIAM PRYOR, C.J., Dissenting 24-10139
if his custody threatened to “affect [his children’s] happiness,” cause
“moral contamination,” or lead “others [to] shun their society.”
Anonymous, 61 Eng. Rep. 260, 261 (1851). And if a father were
“guilty of the perpetration of an unnatural crime,” courts consid-
ered it their “duty . . . to remove [the children]” and refuse “to per-
mit any sort of intercourse with his children even after he has es-
caped conviction.” Id.
That rule pervaded American law. As one treatise put it,
“[t]he father has, in America, the paramount right of custody . . .
[b]ut this paramount right may be forfeited by his misconduct.”
JAMES SCHOULER, A TREATISE ON THE LAW OF THE DOMESTIC
RELATIONS *338–39 (Bos., Little, Brown & Co. 2d ed. 1874). For ex-
ample, the colonial law of Massachusetts provided for the place-
ment of children whose families were “negligent of their duty”
with special “masters for year[]s (boy[]s till they [be]come . . .
twenty one, [and] girls eighteen years of age comple[te]) which will
more strictly look unto, [and] force them to submit unto govern-
ment.” THE COLONIAL LAW OF MASSACHUSETTS 136 (Bos., William
H. Whitmore ed., Rockwell & Churchill 1889) (1660 with Supple-
ments to 1672). Because the “power of the father” was “a trust,
confided to him by the law, upon th[is] presumption,” it could be
“displaced . . . and . . . conferred upon another” with evidence of
“grossly immoral conduct.” State ex rel. Herrick v. Richardson, 40
N.H. 272, 273–75 (1860). “[L]ike other rights,” a father’s “right to
the custody of his infant children” could “be forfeited by miscon-
duct.” People ex rel. Ordronaux v. Chegaray, 18 Wend. 637, 643 (N.Y.
Sup. Ct. 1836); accord Ex parte Boaz, 31 Ala. 425, 427 (1858) (“[A USCA11 Case: 24-10139 Document: 113-3 Date Filed: 07/06/2026 Page: 78 of 96
24-10139 WILLIAM PRYOR, C.J., Dissenting 17
father’s] right to [his children’s] custody may be forfeited by mis-
conduct, or lost by misfortune.”). A father found “unfit for the
trust, by reason of grossly immoral conduct, harsh usage of his
child, or other cause” had no right to custody. Herrick, 40 N.H. at
274–75. And disqualifying misconduct included “gross profligacy or
immoral conduct,” or “the grossest vulgarity and obscenity.” Cocke
v. Hannum, 39 Miss. 423, 441 (1860) (citation modified). The Su-
preme Court of Kansas reported it could find “no case . . . in which
the courts have given [custody] to the father who was a drunkard
and a man of gross immoralities.” Chapsky v. Wood, 26 Kan. 650,
653 (1881).
During the Reconstruction era and afterward, state laws also
provided that various kinds of misconduct extinguished the paren-
tal right to custody. For example, if “a father . . . [was] a drunkard,
or a criminal, or cruel, or shiftless, or otherwise unfit,” then “the
interests of the child . . . outweigh[ed] his parental right of cus-
tody.” WALTER C. TIFFANY, HANDBOOK ON THE LAW OF PERSONS
AND DOMESTIC RELATIONS 346–47 (Roger W. Cooley ed., 3d ed.
1921) (footnotes omitted). To “be deprived of the comfort or cus-
tody of a child,” the parent’s conduct had to be “sufficiently extrav-
agant and singular and wrong to meet the condemnation of all de-
cent and law-abiding people, without regard to religious belief or
social standing.” Lovell v. House of the Good Shepherd, 37 P. 660, 661
(Wash. 1894); see also Dumain v. Gwynne, 92 Mass. (10 Allen) 270,
272–73 (1865) (“[The father] committed the crime of burglary, for
which offence he was sentenced to the state prison for the term of USCA11 Case: 24-10139 Document: 113-3 Date Filed: 07/06/2026 Page: 79 of 96
18 WILLIAM PRYOR, C.J., Dissenting 24-10139
three years. His right to the custody of his children was then for-
feited . . . .”).
The common law and early American law punished sex of-
fenses against children with penalties far harsher than extinguish-
ing the offender’s right to reside with his children. See United States
v. Dubois, 139 F.4th 887, 897 (11th Cir. 2025) (Pryor, C.J., concur-
ring) (explaining that a “long tradition” of severe punishment for
certain conduct “inform[s] the constitutionality” of punishing that
conduct through other penalties with historical pedigree). Black-
stone explained that “the abominable wickedness of carnally know-
ing and abusing any . . . child under the age of ten years” was a fel-
ony “severely and impartially . . . punished with death.” 4 WILLIAM
BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND *212, *215
(London, John Taylor Coleridge ed., A. Strahan 16th ed. 1825). The
law recognized rape was a “most detestable crime,” 1 MATTHEW
HALE, THE HISTORY OF THE PLEAS OF THE CROWN 635 (London, E.
& R. Nutt & R. Gosling 1736), and “every person convicted of the
crime of rape . . . suffer[ed] death as a felon,” Commonwealth v.
Burke, 105 Mass. 376, 378 (1870) (citation modified).
At the Founding, death was “the standard penalty” for child-
sex offenses. Bucklew v. Precythe, 139 S. Ct. 1112, 1122 (2019) (cita-
tion modified). For example, Massachusetts required that “any
man” convicted of having “carnal copulation with any woman
child under ten years old . . . be put to death.” Burke, 105 Mass. at
380 (citation modified). By 1680, New Hampshire provided that
“any man” who “ravish[es] a Maid or woman . . . that is . . . under USCA11 Case: 24-10139 Document: 113-3 Date Filed: 07/06/2026 Page: 80 of 96
24-10139 WILLIAM PRYOR, C.J., Dissenting 19
Ten years of age . . . shal[l] be punished with death; or some other
gr[i]evous punishment.” 1 LAWS OF NEW HAMPSHIRE 9, 15 (Albert
Stillman Batchellor ed. 1904). Other states uniformly punished rape
with death, and the common law treated sexual abuse of a girl un-
der the age of ten as categorically nonconsensual. 4 BLACKSTONE,
supra, at *212; see, e.g., ACTS AND LAWS OF THE STATE OF
CONNECTICUT, IN AMERICA 197 (New-London, Timothy Green
1784) (“[I]f any Man shall forceably, and without Consent ravish
any Maid or Woman, by committing carnal Copulation with her
against her Consent, he shall be put to Death.”); LAWS OF THE
STATE OF NEW YORK 664–65 (N.Y.C., Samuel & John Loudon 1788)
(“[E]very person . . . convicted or attainted of any manner of . . .
rape . . . shall suffer death for the same, and shall be hanged by the
neck until he, she or they shall be dead.”).
During Reconstruction and afterward, many states executed
child-sex convicts or sentenced them to life imprisonment. Ala-
bama, for example, provided that “[a]ny person” convicted of
“ha[ving] carnal knowledge of” or “abus[ing]” “any female under
the age of ten years . . . must,” “at the discretion of the jury,” be
sentenced to “death,” “imprisonment in the penitentiary for life,”
or “hard labor for the county for life.” THE PENAL CODE OF
ALABAMA 45 (Montgomery, Geo. W. Stone & J. W. Shepherd eds.,
Reid & Screws 1866); see also Bonner v. State, 65 Miss. 293, 294 (1887)
(“Every person who shall be convicted of rape, . . . by carnally and
unlawfully knowing a female child under the age of ten years, . . .
shall suffer death; unless the jury shall fix the penalty at imprison-
ment for life.” (citation modified)); H.R. REP. NO. 54-108, at 2 USCA11 Case: 24-10139 Document: 113-3 Date Filed: 07/06/2026 Page: 81 of 96
20 WILLIAM PRYOR, C.J., Dissenting 24-10139
(1896) (report of Judiciary Committee on bill to update federal
criminal penalties) (“While the crime[] of . . . rape [is] . . . punisha-
ble with death, provision is made that life imprisonment may be
substituted for the penalty of death, in trials in the civil courts,
whenever the jury shall qualify their verdict by adding thereto
‘without capital punishment.’”).
Henry insists that “gross misconduct” was not “historically
an on/off switch for parental rights” but instead one factor in a to-
tality of circumstances bearing on whether a parent could “dis-
charge properly his duty towards his child.” The majority agrees
that courts did not “automatically” extinguish custody in the light
of a parent’s criminal conduct. See Majority Op. at 30. But that rea-
soning fails to establish that Henry’s right as a child-sex convict to
reside with his minor child is “deeply rooted in [our] history and
tradition.” Muñoz, 144 S. Ct. at 1818 (citation modified). The litany
of sources cited by the majority that contemplate criminals losing
all custodial rights makes clear that there was no such tradition. See
Majority Op. at 30–43. At best, those sources establish that offend-
ers had a slim chance of convincing the state court to uphold their
custody rights. Contra Rosenbaum Concurring Op. at 5–7 (suggest-
ing that there is “no societal tradition” burdening the right of sex
offenders to live with their children (citation modified)).
Moreover, the history cited by Henry and the majority es-
tablishes that states often terminated custodial rights for “gross mis-
conduct.” Section 15-20A-11(d)(4), in contrast, does not extinguish
Henry’s custodial rights or any other traditional right of a parent, USCA11 Case: 24-10139 Document: 113-3 Date Filed: 07/06/2026 Page: 82 of 96
24-10139 WILLIAM PRYOR, C.J., Dissenting 21
save the right to reside with his minor child. Henry may still make
all “decisions concerning the care, custody, and control” of his son,
Troxel, 530 U.S. at 66, including for example “direct[ing] [his] up-
bringing and education” by “choos[ing] schools,” Pierce, 268 U.S. at
532, 534–35, raising him in a religious tradition, Wisconsin v. Yoder,
406 U.S. 205, 214 (1972), and deciding with whom his son may
spend time, Troxel, 530 U.S. at 67. Under Alabama law, Henry re-
tains all “rights and responsibilities for major decisions concerning
the child, including, but not limited to, the education of the child,
health care, and religious training.” ALA. CODE § 30-3-151(2).
Unlike an enforcement action of the child-porn exception,
traditional custody hearings involved the question whether the
parent had committed gross misconduct in the first instance. See,
e.g., Majority Op. at 33–34 (explaining how in one case, a court
“found the evidence of [the husband’s ‘grossly immoral acts’] lack-
ing and awarded the husband custody”); Chegaray, 18 Wend. at 644
(concluding that, after “examin[ing] the evidence which has been
adduced,” the “father is a man of good character”); Herrick, 40 N.H.
at 276 (explaining that “there is no evidence of the unfitness of the
father . . . but the evidence shows . . . the father . . . to be highly
respectable”). The Alabama child-porn exception, in contrast, ap-
plies only after a felony conviction obtained through a judicial pro-
cess with proof beyond a reasonable doubt, and even then, it bur-
dens only one of several parental rights. Henry’s misconduct has
already been established through a judicial process. USCA11 Case: 24-10139 Document: 113-3 Date Filed: 07/06/2026 Page: 83 of 96
22 WILLIAM PRYOR, C.J., Dissenting 24-10139
Under the majority’s logic, the Fourteenth Amendment cur-
tails the discretion of legislatures to regulate parental rights of sex
offenders though it preserves wide discretion for judges. Indeed,
the majority rejects leaving the regulation of child-sex offenders’
right to reside with children up to “the democratic process.” See
Majority Op. 48. But the Supreme Court has cautioned that federal
courts should not “usurp authority that the Constitution entrusts
to the people’s elected representatives,” Dobbs, 142 S. Ct. at 2247,
“lest the liberty protected by the Due Process Clause be subtly
transformed into the policy preferences of” the federal judiciary,
Glucksberg, 521 U.S. at 720. Legislatures enjoy the constitutional au-
thority to make classifications that pertain both to criminal behav-
ior and parental rights.
The Amendment does not foreclose a legislative classifica-
tion in favor of a kitchen-sink judicial inquiry. Cf. Mayor of Phila. v.
Educ. Equal. League, 415 U.S. 605, 615 n.13 (1974) (“The Constitu-
tion does not impose on the States any particular plan for the dis-
tribution of governmental powers.”). As explained earlier, if Henry
asks only for a judicial hearing to establish his parental fitness, then
his claim sounds in procedural, not substantive, due process. Yet a
substantive-due-process claim that requires only procedural pro-
tection would be “in a category of one.” Muñoz, 144 S. Ct. at 1822.
And a tradition of regularly terminating all parental rights of sex
offenders after a hearing hardly serves as evidence that those rights
are fundamental. Contra Majority Op. at 32–33 n.10; cf. Kerry v. Din,
576 U.S. 86, 99 (2015) (plurality opinion) (disclaiming the existence USCA11 Case: 24-10139 Document: 113-3 Date Filed: 07/06/2026 Page: 84 of 96
24-10139 WILLIAM PRYOR, C.J., Dissenting 23
of “not-so-fundamental rights, which can be taken away so long as
procedural due process is observed”).
Keep in mind that the Act also prohibits a parent convicted
of a sexual offense against his own child from residing with any of
his minor children. See ALA. CODE § 15-20A-11(d)(2). Under the ma-
jority’s reasoning, a father who raped his minor child will enjoy the
fundamental right to reside with that child and other minor chil-
dren absent an individual judicial determination of dangerousness.
After all, the majority maintains that “[a] parent’s past problematic
behavior [cannot] conclusively and forever disqualify h[im] from
living with h[is] child.” Majority Op. at 37.
3. The Child-Porn Exception Has a Rational Basis.
Because Henry has no fundamental right, we must uphold
the child-porn exception if it is “rationally related to [a] legitimate
government interest[].” Glucksberg, 521 U.S. at 728. That test is not
a high bar. See, e.g., Eknes-Tucker, 80 F.4th at 1225. And the Alabama
child-porn exception easily satisfies it.
The Alabama Legislature enacted the Act to “protect[] vul-
nerable populations, particularly children,” from sexual abuse, and
to “promote child safety.” ALA. CODE § 15-20A-2(5). States “have a
compelling interest in ‘safeguarding the physical and psychological
well-being of . . . minor[s].’” Eknes-Tucker, 80 F.4th at 1225 (quoting
Otto v. City of Boca Raton, 981 F.3d 854, 868 (11th Cir. 2020)). And
Alabama could rationally conclude that limiting a child’s exposure
to adults convicted of possessing child pornography will protect the
safety of children. USCA11 Case: 24-10139 Document: 113-3 Date Filed: 07/06/2026 Page: 85 of 96
24 WILLIAM PRYOR, C.J., Dissenting 24-10139
B. The Child-Porn Exception Satisfies Strict Scrutiny.
The majority remands to the panel to decide whether the
child-porn exception satisfies scrutiny. See Majority Op. at 49–50.
Why? The panel already ruled that the exception “flunk[ed]” strict
scrutiny. See Henry v. Sheriff of Tuscaloosa Cnty., 135 F.4th 1271, 1306
(11th Cir. 2025). Indeed, the panel did not think it was a close ques-
tion. See id. at 1308 (opining that the child-porn exception “sweeps
with too broad a brush”); id. (suggesting the child-porn exception
addresses a problem that has no “more than a coin flip” chance to
occur); id. at 1309 (opining that the child-porn exception “allow[s]
those who are in fact a danger to minors . . . unsupervised access to
their next potential victims”). The majority returns the issue with
neither guidance nor suggestion that the panel consider anything
differently. And the panel will likely reinstate its earlier analysis—
lock, stock, and barrel.
Presumably, some in the majority would prefer not to join
an opinion holding that a residence restriction for child-sex convicts
violates the Constitution. Yet the parties have briefed whether the
child-porn exception satisfies even strict scrutiny. So we should de-
cide whether it is constitutional. Cf. Cohens v. Virginia, 19 U.S. (6
Wheat.) 264, 404 (1821) (Marshall, C.J.) (“Questions may occur
which we would gladly avoid, but we cannot avoid them.”).
The child-porn exception satisfies strict scrutiny. Enforce-
ment against federal convicts of child-pornography possession is
“narrowly tailored [to] . . . further compelling government USCA11 Case: 24-10139 Document: 113-3 Date Filed: 07/06/2026 Page: 86 of 96
24-10139 WILLIAM PRYOR, C.J., Dissenting 25
interests.” Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227
(1995). The district court was wrong to hold otherwise.
It is “beyond the need for elaboration” that the purpose of
section 15-20A-11(d), “promot[ing] child safety,” ALA. CODE § 15-
20A-2(5), is a compelling government interest. See New York v. Fer-
ber, 458 U.S. 747, 756–57 (1982) (explaining that the “safeguarding
[of] the physical and psychological well-being of a minor” is a com-
pelling interest (citation modified)); see also Majority Op. at 50
(holding that the “Alabama [officials] ha[ve] articulated a compel-
ling reason for [the] law: the safety of children”). That interest in-
cludes “[t]he prevention of sexual exploitation and abuse of chil-
dren,” Ferber, 458 U.S. at 757, because the “sexual abuse of a child
is a most serious crime and an act repugnant to the moral instincts
of a decent people,” Ashcroft v. Free Speech Coal., 535 U.S. 234, 244
(2002); accord United States v. Irey, 612 F.3d 1160, 1207 (11th Cir.
2010) (en banc) (“[S]exual abuse is grossly intrusive in the lives of
children and is harmful to their normal psychological, emotional
and sexual development in ways which no just or humane society
can tolerate.” (citation modified)).
Child pornography is a form of sex abuse that “magnifie[s]
and perpetuate[s]” the “harm to the child victims.” Irey, 612 F.3d at
1208; United States v. Williams,553 U.S. 285, 307
(2008) (“Child por-
nography harms and debases the most defenseless of our citi-
zens.”). After all, the “production of child pornography is exacer-
bated by the circulation of a permanent record of the child’s partic-
ipation.” United States v. Touset, 890 F.3d 1227, 1236 (11th Cir. 2018) USCA11 Case: 24-10139 Document: 113-3 Date Filed: 07/06/2026 Page: 87 of 96
26 WILLIAM PRYOR, C.J., Dissenting 24-10139
(citation modified); Ferber, 458 U.S. at 759 (“The distribution of
photographs and films depicting sexual activity by juveniles is in-
trinsically related to the sexual abuse of children . . . .”). It begets
more sexual abuse because “[i]t may incite or encourage others to
sexually abuse children,” Irey, 612 F.3d at 1208, and may be used by
sex offenders “to convince children to participate in their abuse,”
Touset, 890 F.3d at 1236. Of course, “shielding children from sexual
content” is a compelling government interest. Free Speech Coal., Inc.
v. Paxton, 145 S. Ct. 2291, 2317 (2025). So, even more compelling is
a state’s interest in protecting children from exposure to child por-
nography.
“The way [the child-porn exception] advances those inter-
ests is intuitive.” Williams-Yulee v. Fla. Bar, 575 U.S. 433, 437, 444–
45 (2015) (holding that prohibition on state judges personally solic-
iting campaign funds satisfied strict scrutiny). Sex offenders, a “se-
rious threat in this Nation,” are especially threatening to children
because “the victims of sexual assault are most often juveniles.”
McKune v. Lile, 536 U.S. 24, 32 (2002) (plurality opinion). The Su-
preme Court has acknowledged that “when convicted sex offend-
ers reenter society, they are much more likely than any other type
of offender to be rearrested for a new rape or sexual assault.” Id. at
33. Sex offenses against children committed in a home by family
members or acquaintances pose a significant risk. See OFF. OF JUV.
JUST. & DELINQ. PREVENTION, Child Victims of Sexual Assault by Re-
lationship and Offender Age (2022), https://perma.cc/QEC7-UXNZ
(more than 60 percent of sexual assaults against juveniles are com-
mitted by adult family members and adult acquaintances); OFF. OF USCA11 Case: 24-10139 Document: 113-3 Date Filed: 07/06/2026 Page: 88 of 96
24-10139 WILLIAM PRYOR, C.J., Dissenting 27
JUV. JUST. & DELINQ. PREVENTION, CHILD PORNOGRAPHY:
PATTERNS FROM NIBRS 5–6 & tbl. 2 (2004),
https://perma.cc/4KJ4-FR7G (noting 83 percent of child pornog-
raphy victims are abused in a residence and 89 percent are abused
by family members or acquaintances); Janis Wolak et al., Arrests for
Child Pornography Production: Data at Two Time Points From a Na-
tional Sample of U.S. Law Enforcement Agencies, 16 CHILD
MALTREATMENT 184, 190 (2011) (estimating based on law enforce-
ment surveys that 71 percent of child pornography production ar-
rests in 2006 were executed against victims’ family members or
face-to-face acquaintances). And “it is legitimate and entirely rea-
sonable for States to try to stop abuse from occurring before it hap-
pens.” Packingham v. North Carolina, 582 U.S. 98, 113 (2017) (Alito,
J., concurring in the judgment).
The child-porn exception regulates only offenders with a
proven sexual interest in children. It limits the time a child-sex of-
fender can spend with a child. And it redirects the offender’s visits
with a child to public places where the threat of sexual abuse di-
minishes. The bar on overnight visits also reflects no more than a
“reasonabl[e] determin[ation]” that a child-sex offender is more
likely to commit an offense when others in the home are asleep and
not in a position to stop him. Cf. Williams-Yulee, 575 U.S. at 453.
Two aspects of the child-porn exception establish that it is
narrowly tailored to serve its end. First, section 15-20A-11(d)(4)
limits a provision that otherwise allows even most sex offenders to
reside with their minor children. The exception applies only to USCA11 Case: 24-10139 Document: 113-3 Date Filed: 07/06/2026 Page: 89 of 96
28 WILLIAM PRYOR, C.J., Dissenting 24-10139
those convicted of sex offenses against children. Second, the excep-
tion does not burden other parental rights. It diminishes the risk to
child safety that a child-sex offender’s private and extended physical
presence presents. It limits only when and where a child-sex of-
fender may spend time with his child. Henry otherwise retains all
“rights and responsibilities for major decisions concerning the
child, including, but not limited to, the education of the child,
health care, and religious training.” ALA. CODE § 30-3-151(2).
Contrary to Henry’s framing, the child-porn exception seeks
to prevent more than “contact offenses.” It also advances the state’s
compelling interest in curbing the production, distribution, and
possession of child pornography and the myriad uses of it that may
harm a child. Henry’s expert admits there remain “noncontact of-
fenses” against children, such as “voyeurism” and “exhibitionism.”
Often, district courts subject offenders convicted of possessing
child pornography to terms of supervised release that bar or limit
their access to the internet. In Henry’s case, for example, he could
not access any internet source without the consent of his probation
officer. But without internet pornography access, a child-sex of-
fender may resort to the most vulnerable person near him to satisfy
his sexual interest—the child in his own home.
As applied to federal offenders like Henry, the child-porn ex-
ception advances the state’s compelling interest in every case be-
cause, as the state officials argue, “no one can predict precisely who
will re-offend,” and, as even Henry’s expert agrees, “we will not
know with certainty who will reoffend.” The risk each child-porn USCA11 Case: 24-10139 Document: 113-3 Date Filed: 07/06/2026 Page: 90 of 96
24-10139 WILLIAM PRYOR, C.J., Dissenting 29
offender poses does not entirely “lend itself to proof by documen-
tary record.” Williams-Yulee, 575 U.S. at 447. No one can measure
with precision the rate child-porn offenders commit or have com-
mitted sexual crimes. As the United States Sentencing Commission
explains, “sexual offenses against children . . . often go unreported
or undetected.” U.S. SENT’G COMM’N, FEDERAL SENTENCING OF
CHILD PORNOGRAPHY: NON-PRODUCTION OFFENSES 63 (2021),
https://perma.cc/9SM5-JY8U (citing Ryan C. W. Hall & Richard
C. W. Hall, A Profile of Pedophilia: Definition, Characteristics of Offend-
ers, Recidivism, Treatment Outcomes, and Forensic Issues, 82 MAYO
CLINIC PROC. 457, 460–61 (2007) (explaining that an “estimated 1 in
20 cases of child sexual abuse is reported or identified” and that “an
arrest was made in only 29% of reported juvenile sexual assaults”));
see also U.S. SENT’G COMM’N, FEDERAL CHILD PORNOGRAPHY
OFFENSES 204 (2012), https://perma.cc/PYU5-57MB (“[T]he actual
historical prevalence rate of [criminal sexually dangerous behavior]
among child pornography offenders is higher than the known
rate.”).
Even the known rates of sexual deviance by possessors of
child pornography are significant. Of federal offenders, 43.9 per-
cent have engaged in “criminal sexually dangerous behavior,” in-
cluding contact and non-contact sex offenses and other child por-
nography offenses, either before or concurrently with their federal
child pornography offense. U.S. SENT’G COMM’N, FEDERAL
SENTENCING OF CHILD PORNOGRAPHY, supra, at 40–41. Nearly 30
percent of non-production offenders committed a contact sex of-
fense with a minor, although only 11 percent were convicted for it. USCA11 Case: 24-10139 Document: 113-3 Date Filed: 07/06/2026 Page: 91 of 96
30 WILLIAM PRYOR, C.J., Dissenting 24-10139
Id. at 42. The Commission estimates that 94.7 percent of pre-con-
viction instances of illegal sexual behavior “involved victims who
were minors,” and the “most common type . . . was sexual moles-
tation of a female prepubescent minor who knew the perpetrator
. . . [such as] a family member or family friend.” U.S. SENT’G
COMM’N, FEDERAL CHILD PORNOGRAPHY OFFENSES, supra, at 204.
Of non-production federal offenders, 27.6 percent were ar-
rested—i.e., caught—or had their supervised release revoked within
three years of being released from prison. U.S. SENT’G COMM’N,
FEDERAL SENTENCING OF CHILD PORNOGRAPHY, supra, at 63, 65. Of
those, 4.3 percent of offenders were either arrested for a contact or
non-contact sex offense, and 16.4 percent committed an admin-
istration of justice offense—including violating supervised release
terms such as using pornographic materials, like Henry. Id. at 65.
Alabama has “reasonably determined” that every child pornogra-
phy possession convict is “inherently” a risk to the children closest
to him. Williams-Yulee, 575 U.S. at 453. The risk may vary across
circumstances, but Alabama’s interest in preventing new sex
crimes by convicted child-sex offenders remains in each case. The
Constitution does not require proof that a child-sex offender is
more likely than not to commit a new offense before limiting his
right to reside with his minor child.
The child-porn exception is not, as Henry argues, “vastly
overinclusive” as applied to those convicted under federal law for
possessing child pornography. Henry gives as an example of its
“startling overbreadth” a hypothetical college freshman convicted USCA11 Case: 24-10139 Document: 113-3 Date Filed: 07/06/2026 Page: 92 of 96
24-10139 WILLIAM PRYOR, C.J., Dissenting 31
for downloading pornographic photographs of his 16-year-old girl-
friend. But the Alabama law, by its terms, is not tied to hypotheti-
cals more suited to a law-school classroom; it is instead tailored to
those convicted in a courtroom of a child-porn offense. In 2019,
99.4 percent of non-production child pornography offenders con-
victed in federal court possessed images or videos of prepubescent
victims. U.S. SENT’G COMM’N, FEDERAL SENTENCING OF CHILD
PORNOGRAPHY, supra, at 4. If the Commission had compiled the
statistic in 2013, Henry would have been in that category. And 84
percent of the offenders received a sentencing enhancement for
having images depicting abuse of an infant or toddler or depicting
sadistic or masochistic conduct. Id. Henry was in that camp too.
Far from burdening teenage sexters, the child-porn exception over-
whelmingly affects only those who have possessed pornographic
images of preteens and younger children—often of the most repug-
nant sort. Even if the remaining 0.6 percent were all teenage-sexter-
turned-saints, it would establish only that the exception is not “per-
fectly tailored,” which strict scrutiny does not require. Burson v.
Freeman, 504 U.S. 191, 209 (1992) (plurality opinion); see also Wil-
liams-Yulee, 575 U.S. at 454.
Nor is the child-porn exception unconstitutionally underin-
clusive. According to Henry, the exception is fatally flawed because
it allows child pornography possessors “unsupervised daytime visits
with their children, subject only to the limit that those visits cannot
last more than four hours on three consecutive days or ten aggre-
gate days in one month.” But the text of the exception does nothing
to “reveal that [it] does not actually advance a compelling interest.” USCA11 Case: 24-10139 Document: 113-3 Date Filed: 07/06/2026 Page: 93 of 96
32 WILLIAM PRYOR, C.J., Dissenting 24-10139
Williams-Yulee, 575 U.S. at 449. Alabama was not required to “ad-
dress all aspects of a problem in one fell swoop.” Id.
The child-porn exception stands as one line of defense in a
comprehensive regime against child-sex crimes, see, e.g., ALA. CODE
§§ 13A-6-61(a)(3), (b), 13A-6-63(a)(3), (b) (making “sexual inter-
course” and “sodomy” with another person “less than 12 years old”
class A felonies); id. §§ 13A-6-62, 13A-6-64 (making “sexual inter-
course” and “sodomy” with another person “12 years or older, but
less than 16 years old” class B felonies); id. § 13A-6-65.1(a)(3), (b)
(making “[p]enetrat[ion] [of] the vagina, anus, or mouth of a person
who is less than 12 years old, with an inanimate object” a class A
felony); id. § 13A-6-69.1 (making “sexual contact” with a “child less
than 12 years old” a class B felony); id. § 13A-6-67(a)(2), (b)–(c)
(making “subject[ion] [of] another person to sexual contact who is
less than 16 years old, but more than 12 years old” a class A misde-
meanor or a class C felony when committed by one “at least 15
years older than the victim”); id. § 13A-6-69 (making the “en-
tice[ment]” of “any child under 16 years of age” to any place “for
the purpose of proposing to such child” any sexual act a class C
felony); id. § 13A-6-70(c) (explaining that a “person is deemed inca-
pable of consent” to sexual contact when “[l]ess than 16 years old”).
Moreover, in Alabama, the most serious sex offenses trigger per-
manent termination of parental rights. When “a parent has been
convicted of rape” or “sodomy” “in the first degree” “or incest,”
the law requires “the juvenile court [to] make a finding that the
parent is unable to properly care for a child” and “terminate the
parental rights of the parent.” Id. § 12-15-319(b). Even offenders USCA11 Case: 24-10139 Document: 113-3 Date Filed: 07/06/2026 Page: 94 of 96
24-10139 WILLIAM PRYOR, C.J., Dissenting 33
who do not trigger mandatory termination provisions may still suf-
fer termination of their parental rights, as the state court must con-
sider “[c]onviction of and imprisonment for a felony” when evalu-
ating parental fitness. Id. § 12-15-319(a)(4).
By “limit[ing] contact to daytime visitation that can be con-
trolled by the other parent,” as the state officials explain, the child-
porn exception reflects a careful balancing of child-sex offenders’
rights against the threat that they pose. The exception is not under-
inclusive simply because it “conceivably could have” terminated all
one-on-one contact between child-sex offenders and their children.
Cf. Williams-Yulee, 575 U.S. at 449.
Henry also contends that there is an “obvious” less restric-
tive means of serving Alabama’s compelling interest: “a system of
individualized review . . . used by every other state in the country
for sex offenders.” But I fail to understand how those systems are
less restrictive. Those regimes allow the termination of all parental
rights with fewer procedural protections and less proof of similar
or even less culpable conduct. See, e.g., MISS. CODE ANN. §§ 93-15-
105, 93-15-121(g) (explaining that a chancery court may “termi-
nat[e] . . . parental rights” if “by clear and convincing evidence” it
finds that the “parent has committed . . . a series of physically, men-
tally, or emotionally abusive incidents . . . against [any] child”); In
re D.F., 777 N.E.2d 930, 933, 940 (Ill. 2002) (for parental rights to be
terminable, the state need only show “by clear and convincing ev-
idence” that a parent is “unfit” pursuant to “any one” of several
factors including “[h]abitual drunkenness” and “[o]pen and USCA11 Case: 24-10139 Document: 113-3 Date Filed: 07/06/2026 Page: 95 of 96
34 WILLIAM PRYOR, C.J., Dissenting 24-10139
notorious adultery or fornication,” 750 ILL. COMP. STAT.
50/1(D)(j)–(k), at a “fitness hearing”); State ex rel. T.M.P., 126 So. 3d
741, 756 (La. Ct. App. 2013) (for parental rights to be terminable,
the state “need only establish one statutory ground,” including sex-
ual abuse of any child and “gross[] negligen[ce]” toward any child,
LA. CHILD. CODE ANN. art. 1015(3), “by clear and convincing evi-
dence” at a trial court fact finding); In re A.B., 815 N.W.2d 764, 769,
774 (Iowa 2012) (explaining that the state need only “establish[] a
ground for termination,” including “severe substance [ab]use,”
IOWA CODE § 232.116(1)(l)(2), by “clear and convincing evidence”
at a juvenile court hearing). Indeed, in Alabama, a juvenile court
may render a panoply of parental rights terminable upon “clear and
convincing evidence” that the “parents . . . are unable . . . to dis-
charge their responsibilities to and for the child.” ALA. CODE §§ 12-
15-311, 12-15-319(a).
By contrast, Henry was entitled to a jury trial about whether
he was guilty of possessing child pornography beyond a reasonable
doubt, see Erlinger v. United States, 144 S. Ct. 1840, 1855 (2024), with
the assistance of constitutionally effective counsel, see Johnson v.
Zerbst, 304 U.S. 458, 462–63 (1938), and the opportunity to confront
and cross-examine all witnesses against him, see Crawford v. Wash-
ington, 541 U.S. 36, 42 (2004), before his residency right was limited.
The Constitution does not oblige Alabama to use its comprehen-
sive regime for terminating parental rights as an alternative to its
modest statutory prohibition on Henry residing with his minor
child after a federal court convicted him of a child-porn offense. USCA11 Case: 24-10139 Document: 113-3 Date Filed: 07/06/2026 Page: 96 of 96
24-10139 WILLIAM PRYOR, C.J., Dissenting 35
Because I would vacate the injunction entered by the district
court and instruct it to enter judgment in favor of the state officials,
I respectfully dissent. Footnotes
1
None of the Act’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).2
When a plaintiff contends that executive action violates his substantive-due-
process rights, the question is whether the challenged conduct “shocks the
conscience.” County of Sacramento v. Lewis, 523 U.S. 833, 846–48 (1998).
3
See, e.g., Pierce v. Soc’y of the Sisters of the Holy Names of Jesus & Mary,268 U.S. 510
(1925) (holding Oregon’s statute requiring parents to send their children
to public school “unreasonably interfere[d] with the liberty of parents and
guardians to direct the upbringing and education of children under their con-
trol”); Prince v. Massachusetts, 321 U.S. 158 (1944) (upholding a child-labor law
against a challenge that it violated parents’ rights to raise their children); Stan-
ley v. Illinois, 405 U.S. 645, 646–59 (1972) (holding unconstitutional a law that
designated children of unwed parents as wards of the state upon a mother’s
death because fathers have protected “interest[s] in retaining 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 be-
cause it interfered with “the traditional interest of parents with respect to the
religious upbringing of their children”); Parham v. J. R., 442 U.S. 584, 602 (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”); Santosky v. Kramer, 455 U.S. 745, 753 (1982) (requiring the
state to prove by clear and convincing evidence that parental rights should be4
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). In cases where it rejected the
challenges, a statutory classification did not “‘directly and substantially’ inter-
fere with family living arrangements.” Lyng v. Castillo, 477 U.S. 635, 638 (1986)
(quoting Zablocki v. Redhail, 434 U.S. 374, 386–87 & n.12); Lyng v. Int’l Union,
United Auto., Aerospace & Agr. Implement Workers, 485 U.S. 360, 365 (1988);
Bowen, 483 U.S. at 601–02.7
Only Chief Justice Rehnquist joined this aspect of Justice Scalia’s opinion.
8
The Doe plaintiffs also claimed that the Florida statute imposed on their right
to direct the education and upbringing of their children. See Doe, 410 F.3d at
1343. They were concerned that, by publishing the fact of their convictions,
Florida made it difficult for them to live in certain neighborhoods. See id. But
the fundamental right of parents to live with their children does not protect
against that type of indirect effect. See id.at 1344–45 (citing Paul P. v. Verniero,
9
As we have explained, precedent firmly establishes Henry’s fundamental
right to reside with his child; Henry doesn’t ask us to “break new ground in
this field.” See Glucksberg, 521 U.S. at 720 (citation omitted). That’s enough to
conclude that the Act is subject to strict scrutiny. We conduct the history-and-
tradition analysis here only to show that Alabama’s arguments are misguided.10
The Dissent incorrectly suggests that our recognition that, historically,
courts have removed custody from parents only after a totality-of-the-circum-
stances inquiry into what the child’s welfare demanded at that time means that
we’ve turned this into a procedural-due-process matter. See Dissent at 22. Not
so. The Dissent misses the point. As we’ve explained, that courts did not
automatically find a parent ineligible for the custody of their children based on
the simple fact of conviction, but rather consistently conducted totality-of-the-
circumstances inquiries into what the child’s welfare demanded at that time
shows that courts treated the right of parents to live with their children as
fundamental. Cf. United States v. Hemani, 608 U.S. ___, ___ S. Ct. ___, 2026
11
The common law indulged an unfortunate presumption that, “in these un-
happy controversies between husband and wife, the former, if he chooses to
assert his right, has the better title to the custody of their minor children.”
Mercein, 25 Wend. at 72. But in conducting a substantive-due-process analysis,
we must take the relevant historical tradition as we find it, warts and all. So
readers should not take the ubiquitousness of the unequal treatment that runs
through these types of cases as some type of endorsement or legitimization of12
The quoted statement in Chapsky, by the way, is dicta. That case did not
involve a father alleged to be either a “drunkard” or a “man of gross immoral-
ities.” See Chapsky, 26 Kan. at 656. As a result, we can’t point to facts in the
case to shed light on these terms. But the context of the remark shows the
court intended to offer an extreme example. So it’s clear that, by “drunkard”
and “man of gross immoralities,” the court meant individuals who unambig-
uously qualify as both.13
Same-sex sexual relations were a capital crime (punishable by death) in Eng-
land until 1861. See supra at note 11.