The Texas state appeals court decision that state officials wrongfully took 460 children from their parents at the FLDS ranch to place them in foster care can be summed up in a couple of words: a belief system alone does not justify state action.
Most news stories I surveyed this morning captured this essential part of the decision. Here is a clip of the excellent news coverage from The Dallas Morning News:
The mere existence of a belief system that may condone polygamy and “spiritual marriages” involving underage girls is not by itself enough evidence to justify the removal of some 460 children from the sect’s ranch, said a three-judge panel of the Austin-based 3rd Court of Appeals.
In their unanimous opinion, Republican judges Kenneth Law, Robert Pemberton and Alan Waldrop said Child Protective Services had to show every individual child was at imminent risk of physical harm and simply had to be swept into foster care. CPS instead offered only sketchy evidence to a trial court last month — and none about whether it explored less intrusive ways of protecting kids, the judges said.
To put things in legal perspective, this is just a Texas appeals court, not the state’s Supreme Court, let alone the U.S. Surpeme Court. Also interesting is the DMN’s effort to note that the panel’s judges are all Republican. Is religious freedom and the safety of children now a partisan issue in Texas?
It is interesting to see how the media’s coverage of this case has shifted and has become very sympathic to the families plight.
Time magazine even found the decision “surprising.” They shoudn’t have. The state’s case started leaking at a very early stage in the process.
Not surprisingly, The Salt Lake Tribune appropriately picked up on the spiritual element of the story and some of the emotions expressed by the parents involved in the case:
She and Amanda Chisholm, also with the firm, were on their way to the ranch to meet with several women when she received word of the decision.
“I just pulled over on the road to Eldorado and started crying,” Balovich said.
As Balovich spoke to reporters in San Angelo, FLDS women stood behind her beaming. Some were teary-eyed. “I was very, very, very thrilled and excited,” said Martha Emack, 23, one of the mothers listed in the appeal. …
The FLDS parents who came to the court hearings kept their composure throughout the proceedings. Prayers and faith kept them going, some said.
“We are a peaceful people,” Emack said.
There will hopefully be more time for journalists in the future to write more about the spiritual aspect of this story. As hinted in the Time article, the FLDS group doesn’t seem to be interested in drifting back into the quiet shadows of American society.
One gets the sense that the citizens of Texas will hear from the group again, soon:
The FLDS is not sitting quietly either. This week, FLDS leaders requested some 500 to 600 voter registration cards for residents at the ranch, a clear indication that their fight will spill over into the political arena. Those votes could well affect the political equilibrium of the sparsely populated county. It is a move that long-time residents have feared the FLDS newcomers might resort to.
Meanwhile, state officials have testified that the cost of the raid and subsequent investigations as well as foster care may be at least $20 million. Coincidentally, that is the assessed value of the YFZ Ranch.
CNN’s David Mattingly had a very compelling story that broadcasted last night on Anderson Cooper’s show about how the state was taking members of the FLDS sect despite the fact they had documentary evidence that they were 18 years old or older. If you saw the broadcast, it was hard not to be drawn in emotionally to the story and to have deep sympathies for the FLDS families stripped of their children.
Television news benefits from the ability to use powerful imagery that evokes strong emotions. Depending on which way the camera is pointed, a person or group may be portrayed as the villian or the victim.
FLDS is now generally seen by the media, rightly or wrongly, as the victim in this case. As of Thursday’s appellate court decision, the group is seeing its case legally justified by the state’s court system.
But the media shift towards sympathetic coverage for the families didn’t happen overnight. One cannot help but wonder if the switch is partly due to the fact that the state targeted a belief system.
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Comments (21) |
May 23, 2008, at 11:03 am
While I await the stories about activist judges paving the way for polygamous marriages in Texas, I think Daniel is right about the shift in how the media was portraying this story. It helped, of course, that the church took on a major PR offensive putting the mothers—but never the husbands of five wives—front and center with the press. They clearly humanized this story.
I also think it demonstrates that—despite all the talk about liberal bias—the press appropriately plays a proper role in being skeptical of government action. The press can be a proper check on government—whether it is Texas CPS or the White House approved torture—and should be way of being coopted by well-equipped government media machines.
May 23, 2008, at 11:15 am
The key here is that the state has never attacked or prosecuted the group for polygamous marriages. It was all along about child abuse.
I think the nexis of freedom of religion and freedom of the press hit the media’s nerve in this case. See Jefferson’s 1st Inaugural Address:
A lot of “essential principles” of this country’s government are wrapped up in this FLDS story and the media is starting to see that.
Of course Jefferson also said this:
May 23, 2008, at 11:34 am
Funny, I don’t recall the Texas Supreme Court taking the lead of the California clowns …
So, are we now supposed to accept polygamy and same-sex pseudo-marriage, even without legal standing?
May 23, 2008, at 11:58 am
The courts are both Republican appointee dominated so I guess we know who appoints clowns these days.
This is an interesting case because, as noted, it involves those who test the boundaries of what constitutes marriage. And beyond that, what are the rights of parents. Thinking back to the start of this story, I don’t remember anyone commenting at the time about the idiocy of ripping a young child away from the parents based on what might happen a decade later. No one was saying that there was an immediate danger to 3-6 year olds based on the group’s belief in plural marriage. But, as in this case, too often the “reporting” is just a recitation of facts and claims rather than an in-depth look at the issues. I guess we need to rely on blogs and PBS to do in depth analysis of such stories.
May 23, 2008, at 12:07 pm
Michael and Daniel, I agree with you that the press can do a good job of being skeptical of government action. But it almost seems like the FLDS ranch belief system is getting off a little easy here. Sure I agree that parents should be allowed to raise their kids however they want, so long as it’s not child abuse. Does this mean the government shouldn’t take actions against cults? Not that I’m calling the FLDS a cult.
P.S. As a first time visitor, kudos on the site design. Very nice!
May 23, 2008, at 12:19 pm
Isn’t the modern state completely and totally powerless to do anything legally about polygamy unless child abuse (i.e., sex with minors in these cases) or perhaps tax fraud (I’ve never heard that any of these groups ever try to pull this) is involved? We’ve “decided” that anything that “consenting adults” want to do sexually is permissible, right? Actually “we” haven’t—people on all sides of the political spectra are creeped out by these sorts of groups (although the religious aspect is a bigger deal for many than the sexual part I think—I don’t believe that the left would want to raid a swinger’s club based on anonymous tips, but they’d fall all over themselves to shut down one of these groups), so both media and public reaction was to support the state’s move, since these “weirdos” MUST have been up to such awful things, right? (note: I do think they should be prosecuted for plural marriage even if only adults are involved. The state does have a right to regulate morality.) And now it looks like the state went way too far, and that’s yet another thing that people hate regardless of political persuasion.
May 23, 2008, at 12:33 pm
Ted Goas: Does this mean the government shouldn’t take actions against cults?
But what actions and for what reasons? Those are essential questions. It’s not a generic Yes/No question.
May 23, 2008, at 1:13 pm
I find this shift in media portrayal particularly interesting in the light of just having read Under the Banner of Heaven by Jon Krakauer — he talks about a similar shift in media portrayal coming out of a government crackdown on polygamy targeted toward FLDS groups in the 50s, I think it was. At the beginning the newspapers were highly critical of the practices of the FLDS, but as there was more portrayal of mothers and children, basically, the tone became much more sympathetic and more critical of the government’s tactics (admittedly harsh).
Maybe I’m now overly influenced by Krakauer’s portrayal of the FLDS groups, but it’s frustrating because there is undoubtedly abuse, in the form of statutory rape, going on in the FLDS (again, my info is from Krakauer, so take it for what it is), not to mention the basic illegality of polygamy. But it may be that in this case Texas overstepped it’s bounds and the media is right to call them out on it. It’s a tough line to walk between the problematic prosecution going on in this case on the one side, and on the other the overwhelming evidence of criminal activity on the part of the FLDS as a whole.
May 23, 2008, at 1:20 pm
I haven’t been following this story too closely, but a lot of the articles I’ve seen are mainly focused on the mothers and children. Legally what’s going on concerning the issues that Jim Hart asked about - polygamy and statutory rape. I don’t know much about law, is there any possibility of RICO coming into play?
May 23, 2008, at 1:37 pm
One other point of clarification: State judges in Texas are elected rather than appointed. So the DMN stating that the Austin-based appeals court has three Republican judges is interesting because Austin is the epicenter of Democratic Party strength.
May 23, 2008, at 1:47 pm
Brian wrote:
Jim Hart wrote:
Both of these premises are in doubt since the US Supreme Court case that struck down anti-sodomy laws. The right of the state to regulate private behavior simply because a majority finds it immoral is severely in question. Likewise if self-described polygamists don’t claim to be legally married but simply act as though they were, the state’s right to intervene is similarly in question.
The Texas authorities were smart to assert criminal behavior against minors in the raid on YFZ, and the appeals court was correct to reverse them upon finding that they hadn’t made that case.
And the press did its minimal job in keeping the criminal assertions in the front of the news, even if it did drink enough prosecutorial Kool-Aid to keep using the word “compound.”
May 23, 2008, at 1:51 pm
Dave: I can’t begin to comprehend how you took a parenthetical comment out of the middle of my post and then radically missed the entire point of the post as a whole. Reread my first sentence: “Isn’t the modern state completely and totally powerless to do anything legally about polygamy unless child abuse (i.e., sex with minors in these cases) or perhaps tax fraud (I’ve never heard that any of these groups ever try to pull this) is involved?”
May 23, 2008, at 2:35 pm
Brian, I agree with you that polygamy is an essentially un-prosecutable offense.
Even in the Tom Green trial in Utah (another polygamist alleged to be abusing young girls), the Utah Attorney General nailed him for welfare fraud and tax-evasion, not polygamy or bigamy. Sort of Al Capone style I guess.
I would argue that because polygamy is essentially unenforceable, it’s only a matter of time before it becomes legalized. Especially with more and more people watching shows like “Big Love” and starting to ask - “what’s so wrong with that, really?” Not every, or even most polygamists in America live on “compounds” and wear “prairie dresses.”
Jim Hart, I’m glad you maintain a healthy wariness about Krakauer’s book. As long as you take it for what it it - a popularized account of a complex subject - you’ll probably do fine. But I can’t help but think there are better books out there for reading about the history of the FLDS and other polygamous offshoots of the no longer polygamous LDS Church.
Unfortunately, I’m drawing a blank. Maybe some other commenters can help there.
May 23, 2008, at 3:44 pm
Brian asks:
Because I don’t think that parenthetical comment is valid. I agree with your premise about the new powerlessness of the state in this area, though I’m not sure how strong the creep-out factor is on the left.
Rathje writes:
Someone needs to write a legal research article parallel to Maggie Gallagher’s “Banned in Boston” to lay out the legal snarls that would be added to the system if polyamory ever became legal. Eg, two men and a woman; one of the men wants a divorce. Who gets his kids? Or: two women and a man; one of the women, the mother of their only kid, wants a divorce. Is the couple responsible for child support, or just the man? If the remaining two split, what are their continuing child support obligations?
Don’t take this as opposition to legal polyamory. Just saying, if we go into this we should go eyes wide open and not stub our toes or bang our heads on predictable obstacles.
May 23, 2008, at 3:52 pm
Maybe we could write the law to say that people in plural marriages would just not be allowed to divorce in the first place to avoid all those fun little problems…
May 23, 2008, at 7:12 pm
A lot of commenters are seeing this as a legal vindication of polygamy. It isn’t.
Unless you think that (1) the legal penaltyfor polygamy should be that your kids are taken away, which is really extreme, and (2) that the court should impose this legal penalty even if the legislature hasn’t, which is judicial activism and judicial tyranny.
A far better approach would be to start by cutting off welfare-type benefits to polygamous households.
May 23, 2008, at 7:16 pm
But on the whole, I think that Texas has gone a long way towards legitimizing polygamy here, by being so oppressive and high-handed. It would have been much better to do the hard work of building tax and welfare fraud and statutory-rape cases and then when they press these charges against individuals also press the polygamy charges against them too.
May 23, 2008, at 9:44 pm
I think the only way you could go after someone criminally for polygamy is if they tried to marry a second person while they were already legally married. That’s probably against the law and if they tried to charge them for that they could probably get away with it but I doubt it’d be anything other than a fine. Kind of like a traffic ticket.
What would make things difficult is charging them with the crime of living in a polygamous relationship or encouraging their children to live in polygamous relationship. I doubt you could criminalize that because that’d be the state imputing the majority’s values onto an individual and Lawrence v. Texas pretty much said you couldn’t do that under the 14th Amendment’s Due Process Clause.
So parents for religious reasons could probably not be prosecuted for teaching and encouraging their daughters to believe that marrying an older man who is already married is a spiritually good thing to do as long as they stayed within the bounds statutory rape laws.
Here’s where this FLDS group might have crossed legal lines since there were women under the legal age pregnant. The problem would be that the state would have to prove beyond a reasonable doubt that the parents encouraged the minors to be in an illegal relationship with an adult male. That’s some sort of aiding and abetting charge but could be difficult to prove, especially if the minors didn’t corporate with the state.
May 24, 2008, at 4:08 am
How are you going to nail them for welfare fraud? State of Texas officials have said in legal hearings that they do not receive any, and in fact are one of the largest taxpayers in the county. On the other hand, the First Baptist Church of Eldorado pays no taxes. Who is really committing the “welfare fraud?”
May 25, 2008, at 8:01 am
A far better approach would be to start by cutting off welfare-type benefits to polygamous households.
Cutting off benefits for multiple partners in general? Or only if they all call themselves “married”?
Your new policy might have a, ah, wider-reaching effect than you think …
May 25, 2008, at 8:28 pm
Yeah the Supreme Court said you can’t do that under the Equal Protection Clause. It was a Congressional act that basically said hippies can’t get welfare. It applied to anyone who lived with someone they weren’t related to. A girl living with her grandmother sued and the Supreme Court struck it down on rational basis. Agriculture v. Moreno.