I’m curious to hear your reaction to the Texas Supreme Court’s decision to return the children seized by the Texas Department of Family Protective Services (DFPS) from the FLDS’ Yearning for Zion Ranch. I’ve read the court’s decision and a few news reports. Admittedly, my reading has not gone much beyond this surface level. So if you have insight that I lack, have at it…
Notwithstanding my serious misgivings about the sect and the lives children are apparently forced to lead there (expressed in this thread), I think the court’s approach strikes an appropriate balance between keeping kids with their families by applying the statutory standard to which state agencies must adhere when dealing with cases like this.
Essentially, the statute requires that, in the absence of time to secure a court order, an authorized DFPS agent may only taken a child from her home if the agent has personal knowledge of abuse of the child such that it would lead a reasonable person to conclude that abuse is occurring and corroborated witness reports of the abuse (absent here). See Tex. Fam. Code § 262.104(a).
Perhaps foreshadowing future fights over these children, the court concludes by stating that the although state’s lawsuits “involve important, fundamental issues concerning parental rights and the State’s interest in protecting children, it is premature for us to address those issues.” Naturally, these are the issues that we really care about. Without reading the state’s briefs, I assume these issues include or touch on forced marriage, religious liberty, and the definition of polygamy.
With that cursory glance, I open up to your comments.
I was actually quite happy to read of the successive victories for the FLDS families. The state seizure of all those children and the subsequent bumbling of the entire affair soured me more and more each day to the government actors in this particular saga.
One thing of interest, I think, is that I see many parallels to the Iraq war in this situation. There has been indication that the Texas authorities have been wanting to raid that FLDS compound for a long time but had just been waiting for an excuse. The hotline call from a supposed 16-year-old group member who had been raped and was pregnant was the “WMD” they needed to pull the trigger. When they finally got in, guess what? No pregnant 16-year-old. In fact, no hard evidence of abuse at all.
Nevertheless, they still forcibly separated children from their parents, forced brand new mothers to surrender their newborn children moments after delivery, and sent the boys off to reform schools to be “reeducated.” It’s hard to imagine a more obvious example of religious intolerance and oppression than that.
Personally, I’d like to see the FLDS folks bring some § 1983 claims. That would be interesting.
I may be way off base here, and i havent really followed this whole ordeal closely so correct me if im worng, but didnt they find a whole bunch of underage pregnant girls and a bunch of 18 year olds with 5 kids and such? Thats per se evidence of criminal behavior….kinda similar to the 4000 UN mandates that Iraq had ignored and violated in the years leading up to our invasion…
and as for the 1983 suits, theres no way the officers arent protected by qualified immunity
Mojo:
I think that’s part of the problem. They didn’t find a bunch of teenagers pregnant. As to whether they found a bunch with 5-year-old kids, I don’t know. I agree that it would be per se evidence of criminal behavior if they had.
If I’m not mistaken (having not taken Con Law yet), § 1983 was written to protect the individual against any undertaken to deprive an individual of his or her rights. However, you’re likely right that the DFPS would have some sort of immunity for carrying out its ministerial(??) duties as directed by the state statute. I guess the issue would be whether they unreasonably exceeded that authority.
This is not a case of religious intolerance. Since Reynolds v. United States, the law of the land has been that religious duty is a not a defense to criminal prosecution. The cops didn’t raid the place because they were trying to stomp on a particular liturgical interpretation. They got an anonymous tip that a minor was being sexually abused.
I’m not sure what, exactly, the standard is. But I would make the case for an infringement on free exercise if the state acted differently i this case because of their religion. The Texas Supreme Court’s opinion was pretty clear that an uncorroborated anonymous tip isn’t sufficient; they needed more. The question is whether the state agency acts similarly with other anonymous tips or if they acted like this because of this particular religion. If they applied a different standard to these families because of their religion, there could very well be a claim against the agency (notwithstanding whatever immunity they might have).
At least for 1983 actions, qualified immunity is basically good faith immunity, so it all probably boils down to that same issue (if they are treating a particular religion differently, i would assume that would amount to bad faith)…
good luck proving that though
“good luck proving that though”
Indeed.
I’ve been following the whole FLDS situation via the cable news stations.
I think the Texas authorities were wrong to seize all of the children in the compound. While I may disagree with the culture of the ranch, I think it’s quite illegal to seize children with no proof of abuse.
Take a decrepit inner-city apartment building as an example: just because a kid calls and says, “Hey my mother is a crackhead and I’m being abused” doesn’t mean you can seize every child in the complex.
Are there other cases of this going on? Probably. But there’s no proof beyond a suspicion.
There have been several interesting complications in the FLDS case. There have been allegations of welfare fraud. I saw an estimate that 60% of the ranch is on social security.
There are also a few cases of under aged FLDS girls giving birth while in custody.
And the pictures. We’ve all seen those right? The pictures of sect leader Warren Jeffs and his 12 year old bride lip locking…
http://www.thesmokinggun.com/archive/years/2008/0527081flds1.html
This is their 1 year wedding anniversary. She’s 12. Yeah.
The state has one more interesting problem: the children are raised communally and the women refuse to take DNA tests. They can’t legally return the children to their mothers because they don’t really know who the biological mothers are.
I wonder how that’s going to be dealt with.
In response to the assertion that this was not religious intolerance, I beg to differ. The entire affair has been pervaded by the underlying assumption that there is something wrong with the FLDS worldview. For example, why send all the boys off to schools for “troubled youths” unless you think they are troubled? Unless I missed the news reports, the FLDS boys don’t drink, smoke, or gamble. They don’t engage in serial vandalism or other such petty crimes. So what’s wrong with them? They have funny beliefs.
And why would the court order the parent to take parenting classes unless you think their parenting is deficient? And why is it deficient? Because they teach funny beliefs.
Part of the order that returns the children to their parents is requiring the parents to be subjected to worldview programming that is contrary to their beliefs. That’s why they’ve withdrawn from society in the first place.
So yes, this is religious intolerance. The reason very few people are talking about it is that the majority of us are intolerant of that religion.
“The entire affair has been pervaded by the underlying assumption that there is something wrong with the FLDS worldview”
Yes. I do not support a worldview that promotes for statutory rape. This is one step removed from Mexico banning the Catholic Church in the 1920’s.
And that is precisely my point. You have a moral conviction for which there is no objective standard, and you (or “they,” or whoever) want to impose this moral conviction upon others who do not share it. That’s called religious intolerance.
Besides, it’s not statutory rape if they’re married.
The objective standard - at least for the legal issue - is Texas law. And I think it actually raises an interesting point that we haven’t covered.
Texas law states that a person under 17 cannot legally consent to have sex - regardless of beliefs and regardless of the age of her partner. It’s statutory rape. I don’t know for sure, but I imagine the law doesn’t look kindly on organizations that encourage sexual activity of teenagers or condition a teen’s membership in the community or, perhaps, eternal destiny on his or her sexual acts, particularly if it’s sex by girls under 16 with men over 18 or 21. And I assume that the State would send any parent to parenting classes who was found to be offering her daughter up to older men (again I’m assuming that’s what the state found here).
In my opinion, the more compelling case for intolerance might be the selective enforcement of this statute. Teenagers have sex all the time but you don’t see a widespread effort to bring statutory rape charges (except in cases where the partner is above 18). So, if the charge is statutory rape, the question is why Texas has singled out the FLDS for enforcement? To me, the dispositive issue is how organized the activity appears to be.
As far as marriage goes, the only way a girl in TX under 16 can consent to be married is by court order. I’ve yet to see said court order. Is there one? Again the issue is the age of consent. If we’re arguing a 1983 claim, don’t we need to look at whether there is a disparate impact on the FLDS’ ability to practice their faith. The same goes for a polygamy statute.
In both cases though, it requires the court to question the legislative determination of what’s in the best interest of children and families - i.e. that generally it’s in the child’s and society’s best interest for 15-year-olds to avoid sex and that society functions best with marriages that are one man and one woman (leaving gay marriage out of it for now since this is TX law). So long as the law is enforced fairly, I don’t see a problem with it. Naturally, the fairness question would be central to a 1983 case. Though, if the law is the problem we should be arguing for a change in the law, not that we’re looking at a civil rights violation.
besides, its not statutory rape if they are married? Statutory rape laws are a product of moral and religious intolerance? Is this guy serious?
Mojo,
It’s NOT statutory rape if they’re married. Look it up. Tex. Penal Code Ann. § 21.11(a).
Yes, statutory rape laws are a form of moral and religious intolerance. Why is it “wrong” for a 19-year old to have sex with a 16-year-old? Why is it “wrong” for a 40-year-old to have sex with a 15-year old? On what basis can these things be called “wrong”? Simply because the government doesn’t like it? If that’s a good enough reason, why all the backlash against states that prohibit gay marriage? Shouldn’t “the state doesn’t like homos” therefore be a good enough reason?
Or is it something else? Is there an objective standard of morality, to which the State is also subject, proscribing such behavior? What is it and how do you know?
Or is it just your personal opinion? Maybe the personal opinion of a majority of society? Is the fact that something makes most people squinch up their noses in disgust sufficient justification for forcible State intervention?
It comes down to this: If the State enforces moral legislation in such a way that it infringes on other people’s earnestly held moral beliefs, how is that not moral (if not religious) intolerance? If it isn’t, then what about the case of Texas enforcing the anti-sodomy laws? How are those situations objectively distinguishable?
If someone under 17 is married, you’re right it’s not statutory rape. However, there is a consent requirement for minors to marry and I’ve yet to see any proof of consent. Absent this consent, sex with a minor is statutory rape, even if they were “married” by a minister. You’ve pointed out the key issue, I think: whether the law is valid.
All laws reflect moral choices - what ought and ought to be done, by whom and to whom. Each law is the result of a process that weighs objective and subjective arguments that permits enactment of laws the effect of which must fall within certain boundaries. If the government is not permitted to make moral choices (that often result intolerance), then any law enacted by government is, on its face, invalid. Is this what you’re arguing? Personally, I think that position is indefensible.
I can’t speak for the motives of the individual legislators who enacted the Texas statutory rape law. But I don’t think it, or state’s statutory rape law, grows out of one specific set of moral values. I think they grow out of (a) religious and health concerns about teenage sexual activity, (b) health and social concerns regarding the exploitation of young boys and girls by adults, and (c) educational concerns regarding the impact of teenage sex on education (i.e. that a pregnant girl is less likely to go to school). These can each be motivated by any number of moral standards that may or may not be objectively knowable.
I should add that I don’t believe whatever law comes out of a legislature is right or legitimate simply because it’s the result of weighing various factors and enacting laws within certain boundaries.
Based on my own, religious and ideological beliefs, I believe laws should only cautiously and gradually delegate more power to government, that laws should favor the poor and defenseless, that they should punish wrongdoing and promote good deeds, and when there’s a doubt the law should favor individual freedom and autonomy.
I also believe that where my beliefs about the social order or justice are religiously motivated (as many are), I must favor legislative inaction unless I can form a compelling, rational, and secular case for them, seeking, to the extent possible, to find common ground with those who don’t believe as I do.
No, statutory rape laws aren’t based on religious intolerance or morality, but rather health and safety reasons. States have the right to enact law to protect its citizens, which has nothing to do with religion. Most states have statutory rape laws in order to protect citizens under a certain age who the state has concluded are subject to certain inherent dangers by participaint in sex that they are do not have the maturity to handle.
Its no different than states requiring its citizens to be 21 to drink or prohibiting its citizens from killing one another. Under your rationale, all of these laws would somehow be based on some sort of moral or religious grounds, which is just simply not the case.
States’ protecting its citizens is completely separate from morality and religion. Now you may not agree with the State and feel that it is overstepping its bounds, but that does not change the State’s rationale for passing the law.
Casebook,
You make some interesting points that could serve as a good segue to a discussion of the foundations of law. Since this is your site, I’ll let you make the call whether you want to conduct that in this thread. By way of a teaser, I’ll simply ask on what basis anyone’s beliefs ought to be imposed by force?
Mojo,
You may be misunderstanding me. It’s not a matter of whether laws are based on moral/religious grounds. Of course they are. All of them. It is merely a matter of what moral code or religious system informs the government. Make no mistake, the state is highly religious. The problem is that is is schizophrenically so.
For example, take the phrase “civil rights.” What are civil rights and where do they come from? Or to borrow your examples, underage sex and drinking, and murder. Are you willing to say these things are “wrong,” or can you only say that they are socially undesirable? “Wrong” is an inherently moral/religious value statement so you can’t say that. And if something is merely socially undesirable, so what? How do you escape the inevitable nihilism? I’ve had this discussion with others, and the point of ultimate retreat always seems to be “otherwise we’d have total anarchy.” True. But why is that bad? I’m not saying it’s good, I just want you to identify for the court your presuppositions.
Thanks Christopher. I agree. In fact, I’ve started on a post regarding foundations of the law in part based on this thread and in part based on this column from the Wall Street Journal in which Barack Obama is quoted as saying: “To say that men and women should not inject their ‘personal morality’ into public policy debates is a practical absurdity. Our law is by definition a codification of morality, much of it grounded in the Judeo-Christian tradition.”
Exactly. Christians are told all the time that they shouldn’t impose their beliefs on other people. But that imperative is itself the imposition of one’s beliefs on another. The question isn’t whether the government imposes beliefs on others, it’s what beliefs it imposes and why it believes it has a right to impose those beliefs and not others.