The 11th Circuit Court of Appeals ruled on Monday that a Tuscaloosa County man convicted of child porn has a “fundamental right” to live with his son.
The lawsuit was brought by Bruce Henry against Tuscaloosa County and the State of Alabama due to the Alabama Sex Offender Registration and Community Notification Act preventing Henry from living with his son.
U.S. Circuit Judge Robin Rosenbaum said in her opinion released on Monday that “no precedent endorses Alabama and the Dissent’s argument that only some parents have the fundamental right to live with their children.”
“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. 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: parents—even those who have committed state-defined “misconduct”—enjoy the fundamental right to live with their children,” Rosenbaum said. “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 narrowly tailored to further its compelling interest in the safety of children. 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.”
She continued, “Our determination that Henry enjoys a fundamental right to live with his children puts us on the strict-scrutiny track of substantive-due-process analysis. But that doesn’t necessarily mean 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 constitutional if they are narrowly tailored to further it. So we remand this case to the panel for further proceedings consistent with this opinion.”
“The Supreme Court has always defined the fundamental right of the parent to live with their children at that level of generality. 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,” Rosenbaum added.
U.S. Chief Judge William Pryor wrote in his dissent that Henry’s right as a child-sex convict to reside with his children wasn’t fundamental and that Henry was given ample due process before being convicted.
“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. 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 exception has a rational basis,” Pryor said. “The Constitution does not oblige Alabama to use its comprehensive 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. 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.”
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