Bruce Henry v. Sheriff of Tuscaloosa County, Alabama

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- 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). 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. 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). USCA11 Case: 24-10139 Document: 113-3 Date Filed: 07/06/2026 Page: 11 of 96 24-10139 Opinion of the Court 11 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 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 be 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, 4 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. 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 24-10139 Opinion of the Court 17 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