Huge Win: Eleventh Circuit Rejects Alabama’s Lifetime Family Separation Rule
On September 29, 2026, the Eleventh Circuit issued its decision in Henry v. Sheriff of Tuscaloosa County, a case challenging an Alabama law that permanently prohibited people convicted of sex offenses involving children from living with their own minor children.
Bruce Henry was convicted of possessing child pornography, served his sentence, completed sex-offender treatment and counseling, maintained employment, attended church, volunteered, and later had a son with his wife. But Alabama law did not care about any of that. Because of the offense of conviction, Henry could not live with his own child — and the law provided no mechanism for him to ever demonstrate that he was fit to do so.
The Eleventh Circuit had already determined, sitting en banc, that Henry retained a fundamental right to live with his child despite his conviction. That meant Alabama’s law had to survive the most demanding form of constitutional review: strict scrutiny. The en banc Court remanded the case to determine whether the Act is narrowly tailored and survives strict scrutiny. Yesterday the 11th Circuit Justices Rosenbaum, Abudu, and Wilson unanimously agreed that it didn’t.
The court acknowledged that protecting children is unquestionably a compelling governmental interest. But having a compelling interest isn’t a constitutional magic word. The government still has to demonstrate that the restriction is narrowly tailored to accomplish that interest.
The court found Alabama’s categorical prohibition overinclusive because the conviction itself did not establish that Henry. The court specifically rejected the use of one category as a proxy for another: a qualifying conviction was being used as a proxy for dangerousness, without individualized consideration of whether the person actually presented a danger to the child.
The court also emphasized something that should sound familiar to anyone who has watched registry laws accumulate restrictions over the years: a statute cannot simply ignore present realities in favor of a person’s past classification. The court explained that Alabama’s scheme “explicitly disdains present realities in deference to past formalities” when it refuses to consider whether an individual parent is actually fit.
This was an as-applied ruling. The Eleventh Circuit did not declare the entire Alabama statute unconstitutional for everyone. But that limitation should not obscure what the decision actually says. A conviction does not automatically answer the question of present dangerousness. A registry classification does not automatically answer the question of parental fitness. And a government cannot necessarily impose a lifetime prohibition on a fundamental right simply because drawing individualized distinctions is more difficult.
For FAC, that distinction matters. Much of the modern registry system operates through categorical rules: one conviction, one classification, one lifetime consequence. Henry is a reminder that when those categorical rules collide with fundamental constitutional rights, the government may have to do more than point to the conviction and say, essentially, “that’s the category you’re in.” Sometimes the Constitution requires the government to look at the person standing in front of it.
READ THE DECISION HERE: Bruce-henry-vs-tuscaloosa-county
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Going by this logic: “a qualifying conviction was being used as a proxy for dangerousness, without individualized consideration of whether the person actually presented a danger to the child”, then parks, schools, and just about everything else we’re barred from going to is unconstutional.
Unfortunately, that logic is faulty. The key issue in this case was that the right being denied (a parent’s right to live with and rear his own child) is fundamental. The law treats fundamental rights differently from non-fundamental rights. In order for the government to abridge or intrude on a fundamental right, the applicable law or governmental action must survive strict scrutiny. However, for non-fundamental rights, the bar is much lower. Such laws need only pass the rational basis test (the law must be “rationally related to a legitimate government interest”).
Individuals do not have a fundamental right to go to a park or a school they don’t attend. Fundamental rights are those rights specifically enumerated in the Constitution (such as the right to freedom of speech or to peaceably assemble) or deeply rooted in our nation’s history and traditions (such as the right to travel).
It’s not shocking that this case is designated “as applied” to only one individual. I have wrangled with the 11th Circuit many times on direct appeal and in collateral attacks for post-conviction relief. They all too often refuse to even address a constitutional question even though that is their very job. Ask SCOTUS for review? You have better luck winning the Powerball. I’m glad this worked out for Mr Henry. But the 11th Circuit should be ashamed for not striking the law down as completely unconstitutional as applied to everyone.
The crazy thing is this has to be challenged in court. What happened to common sense nowadays?