The Heart of the Disagreement Among the Judges in the Texas FLDS Litigation?

[Volokh, Eugene]

	I thought I'd pass along some ideas I blogged about today's
Texas Supreme Court opinions about the FLDS raid (and that I also sent
to CONLAWPROF).  Here's my thinking:

	The 3-Justice concurrence and dissent agrees with the majority
and the court of appeals that the removal of the boys and the
prepubescent girls was unjustified, but reasons otherwise as to the
pubescent girls.  In particular, it points to five girls ranging in age
from 13 to 16 who had children, were pregnant, or had been pregnant
(seemingly the same ones noted by the lower court opinion).  It then
goes on to reason that "[e]vidence presented thus indicated a pattern or
practice of sexual abuse of pubescent girls, and the condoning of such
sexual abuse, on the Ranch -- evidence sufficient to satisfy a 'person
of ordinary prudence and caution that other such girls were at risk of
sexual abuse as well.'"

	Here is what strikes me as the heart of the disagreement:  The
dissenters stress (see note 2) that "In determining whether there is a
'continuing danger to the health or safety' of a child, the Family Code
explicitly permits a court to consider 'whether the household to which
the child would be returned includes a person who ... has sexually
abused another child.'"  The court of appeals, which the majority seems
to agree with, says to the contrary (note 10) that:  "The notion that
the entire ranch community constitutes a 'household' as contemplated by
section 262.201 and justifies removing all children from the ranch
community if there even is one incident of suspected child sexual abuse
is contrary to the evidence.  The Department's witnesses acknowledged
that the ranch community was divided into separate family groups and
separate households.  While there was evidence that the living
arrangements on the ranch are more communal than most typical
neighborhoods, the evidence was not legally or factually sufficient to
support a theory that the entire ranch community was a 'household' under
section 262.201."

	And this is important because the factual evidence of underage
sex on which the dissenters relied didn't seem to be focused on the
particular pubescent girls at issue in this case, or specific threats
those girls faced.  After all, pubescent girls get pregnant in all sorts
of communities; the five pregnancies on which the dissenters relied -- I
realize there may be other pregnancies out there, but these are the ones
the Justices cited -- aren't even so unusual for a group of 250 or more
girls (I believe that's the rough number seized at the FLDS ranch):  The
pregnancy rate for 14-year-olds and younger this decade seems to be a
little under 1%, and for 15-to-17-year-olds seems to be a little over
4%, though I take it that for 15- and 16-year-olds the fraction would be
less than the aggregate for 15-, 16-, and 17-year-olds.  Texas reports a
roughly 4% pregnancy rate for 16-year-olds, a roughly 2% rate for
15-year-olds, and a roughly 0.1% rate for 13-year-olds (no numbers are
given for 14-year-olds). The rate of teenage sex is obviously even
higher.

	A particular girl's mere presence in a community that tolerates
this sort of behavior, it seems to me, can't be enough as a legal matter
for a finding that the girl is in enough danger to be seized.  If the
government swept through many a neighborhood in the country, it would
probably find lots of underage girls who are pregnant, many through
illegal sex -- yet I take it that this wouldn't justify even a temporary
removal of one girl from her parents because of the pregnancy of other
girls in neighboring houses.  And I take it there would be no
justification for such temporary removal even if it was clear that most
people in the neighborhood had nothing against early marriages (for
instance, because they were emigres from a region, such as East Asia or
Latin America, where the age of consent for sex and for marriage was
low), even if people knew each other's families and socialized often
with them, and even if many community members were refusing to cooperate
with authorities.  "[A] pattern or practice of sexual abuse of pubescent
girls, and the condoning of such sexual abuse, [in such a neighborhood]"
wouldn't dispense with the need of showing some individualized evidence
that each particular girl who was to be seized was subject to a high
risk of danger, beyond just the fact that she lived in a neighborhood
were those things happened and were condoned.

	So this is why it seems to me that the heart of the partial
dissenters' argument must be that "the Ranch" is different from a normal
neighborhood, presumably because it counts as a single "household"
(something the dissenters don't expressly say, but that they seem to
point to by reference to behavior "on the Ranch" coupled with the
mention of the "household" principle in note 2).  And the majority's
disagreement, I expect, probably stems partly from the majority's
accepting the court of appeals' contrary view.

	And this tees up the constitutional question, though the Texas
appellate opinions do not deal with it:  To what extent is it
constitutionally permissible for children to be removed without
particularized evidence of risk to the children, beyond the evidence of
the community's views and the practices of other people in the
community?  Is the household/outside-household line constitutionally
significant, so that all children can be removed from a household if
adults in the household allow one child to engage in an illegal sexual
relationship, but not if adults in other households of friends and
family members allow the same?  Or are there no constitutional
constraints here, and all this is properly left to state law (which does
seem to draw a household distinction, a distinction that the court of
appeals seemed to rely on)?

	Eugene