The Heart of the Disagreement Among the Judges in the Texas FLDSLitigation?

Fri May 30 03:52:19 PDT 2008

On the issue of Young boys -- the parents don't have an obligation after age 18, but do before. 

Paul Finkelman
President William McKinley Distinguished Professor of Law
     and Public Policy
Albany Law School
80 New Scotland Avenue
Albany, New York   12208-3494

518-445-3386 
pfink at albanylaw.edu
>>> Douglas Laycock <laycockd at umich.edu> 05/29/08 10:09 PM >>>

There is probably very little disagreement that the state can protect under age girls from statutory rape, and that neither parental rights nor religious liberty right would preclude that.  There is disagreement about the imminence of that danger and whether removing the girls was the only way to protect them. 

What is striking is that twelve conservative Texas Republican judges -- 3 on the court of appeals and 9 on the Supreme Court -- are unanimous that the state made no showing of imminent danger with respect to the younger children or with respect to the adolesceent boys.  I haven't seen the Findlaw column, but at least on this list, Marci does not seem to be defending their removal either.   

The press is reporting that half the children removed were under five.  The Supreme Court opinion says that of the 126 children represented in the mandamus, 117 were under age 13, 2 were adolescent boys, and the age and sex of the remaining nine was not in the record.  None of the children directly at issue were known to be adolescent girls. 

The skew to younger ages also shrinks Eugene's denominator for calculating pregnancy rates.  There is probably some abuse here, but we don't know how much, and the state's blunderbuss approach is not going to help us find out.   

There is also an eventual danger to the boys -- they may be kicked out of the community and abandoned in late adolescence or earlly adulthood, to preserve a sex ratio that will support polygamy.  The state hasn't argued that, so far as I know, maybe because parents have no legal obligation to support their adult children. 

The state's ultimate legal theory seems to be that they can take all the children because the religious teachings about sex and marriage are dangerous to children.  No imminence requirement, no conduct requirement, no need to use less restrictive means than removal.  The children are being "groomed" by being taught a bad religion.  The validity of that theory is the central religious liberty issue in the case.  But it has been unnecessary to reach any constitutional issues, because  that theory also clearly fails to satisfy the Texas statute on child removal, which explicitly requires imminence and less restrictive means, and may be construed to implicitly require conduct. 

Meanwhile, we have hundreds of children traumatized by removal, millions of dollars wasted in a chronically underfunded agency, and very little progress toward identifying those children in actual danger and finding a way to protect them. 

Quoting hamilton02 at aol.com:

> Eugene's analysis, though, leaves out the fact of adult men 
> impregnating the girls at the FLDS compound in Texas.   Evidence of 
> the father in a nuclear family having sex w his daughters would be 
> plenty to take the girl away.  Evidence of a high number of men 
> having sex w underage girls in a closed tightly knit community is not 
> as benign as Eugene's acct of typical teen pregnancy would suggest 
> would suggest.
> Also by focusing on only 5 girls, the amt of actual abuse is 
> significantly understated.  As I point out in my findlaw.com column 
> today, the appellate decsn was offensive in its trivialization of 
> statutory rape of 15 girls because now they are over the cutoff age 
> now.  Statutory rape is stat rape even when the girl ages.
> The most troubling aspect of both appellate decsns (and perhaps the 
> briefing by the state) in my view is the complete disregard of the 
> polygamy laws and esp as they apply to underage girls.  It is a first 
> degree felony to bring an underage wife into a polygamous marriage. 
> The state law is clear and the judicial failure to take it into 
> account is a usurpation of legislative power.
>
> Marci
>
> Marci Hamilton
> Visiting Professor of Public Affairs
> Princeton University
> Sent from my Verizon Wireless BlackBerry
>
> -----Original Message-----
> From: "Volokh, Eugene" <VOLOKH at law.ucla.edu>
>
> Date: Thu, 29 May 2008 16:22:10
> To:"Law & Religion issues for Law Academics" <religionlaw at lists.ucla.edu>
> Subject: The Heart of the Disagreement Among the Judges in the Texas FLDS
>         Litigation?
>
>
>     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
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Douglas Laycock
Yale Kamisar Collegiate Professor of Law
University of Michigan Law School
625 S. State St.
Ann Arbor, MI  48109-1215
  734-647-9713

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