Big Win in the 11th Circuit! En Banc Decision in Henry Came Out Today.

Here it is… Hot off the press. The 11th Circuit Court of Appeal’s En Banc (complete panel of the Court) opinion in the long-awaited Henry Case and from FAC’s perspective, the decision in Henry v. Sheriff of Tuscaloosa County is a significant constitutional victory for parent registrants – even though it is not yet the final word. In short, the Court did not strike down Alabama’s law, but it fundamentally changed the legal framework for evaluating laws that automatically separate registrants from their own children.

Here’s the background for those who don’t follow our site: Bruce Henry was convicted in federal court of possessing child pornography in 2013. After serving his prison sentence and completing treatment, he married and later had a son. Alabama law permanently prohibited him from living with his own child simply because his conviction qualified as a “sex offense involving a child.” There was no hearing, no individualized risk assessment, and no mechanism for relief.

Henry challenged the law, arguing that it violated his fundamental right as a parent. The Trial Court agreed, the original 3-Justice panel of the 11th Circuit agreed. But then, without any apparent request, the entire panel of the 11th Circuit decided to rehear the case of it’s own volition, which raised a lot of anxiety among all registrant parents in the 11th Circuit (which includes Florida). If the court said it’s ok for Alabama to create a law that says a registrant can’t live with their own children, certainly Florida (and possibly Georgia) would follow suit.

The case was heard and it took a while for the 90+ page opinion to come out, but at the end of the day, all that matters is that the Eleventh Circuit, sitting en banc, agreed with one critical point: Parents on the registry do not lose their constitutional status as parents simply because they have a qualifying conviction.

The court repeatedly emphasized that the right of parents to live with their children is one of the oldest and most fundamental liberty interests protected by the Constitution. The court rejected Alabama’s argument that people convicted of certain sex offenses simply do not possess the fundamental right to live with their children. Instead, the court held that all parents possess this constitutional right. Registrants are not excluded from that protection simply because of their conviction.

If the government wants to interfere with that right, it must satisfy strict scrutiny, the highest level of constitutional review. That is a monumental shift. Previously, Alabama argued that registrants never possessed the right in the first place. The Eleventh Circuit rejected that premise outright.

Another important outcome is that the opinion repeatedly criticizes Alabama’s use of an “irrebuttable presumption”. Essentially an irrebuttable presumption assumes a fact is always true and does not allow the affected person any opportunity to prove otherwise. In simple terms, the government has already made up its mind, and no amount of evidence can change the outcome. “All persons required to register can’t…” “Every person on the registry is prohibited from …” without any exception, petition process, appeal, etc. (See where this is going – and where it can potentially help in other cases?).

The court explained that American history has never supported automatically stripping parents of custody or cohabitation rights based solely on past misconduct. Historically, courts made individualized determinations focused on the child’s present welfare—not permanent categorical bans. That reasoning could become extremely important in future registry litigation.

For FAC members (and all registrants in the 11th Circuit) who have children, this decision is extremely encouraging. It establishes several principles that future courts will have difficulty ignoring. First, being on a registry does not eliminate constitutional rights. Second, the government cannot simply label someone a sex offender and by virtue of that label declare they have no protected liberty interests. And third, Courts must treat parental rights of registrants with the same constitutional seriousness afforded to every other parent (in other words, “registered sex offenders” can’t be treated as a separate class of persons).

All that said, the court did not invalidate Alabama’s statute. Instead, it sent the case back so the lower court can determine whether Alabama’s law can actually survive strict scrutiny (a much harder test). The court acknowledged that protecting children is unquestionably a compelling government interest, but explained that the Constitution requires more than a blanket lifetime prohibition — it requires determining whether the law is narrowly tailored to achieve that goal.

From FAC’s perspective, this is an important constitutional milestone. For decades, legislatures have often enacted registry laws based on categorical assumptions — that everyone on the registry presents the same level of risk and should therefore be subject to the same restrictions. The Eleventh Circuit just rejected that approach in the context of one fundamental right. We now have a case to cite when it comes to other fundamental rights.

The opinion can be read here: Bruce Henry En Banc Opinion