The Heart of the Disagreement Among the Judges in the Texas FLDSLitigation?
Douglas Laycock
laycockd at umich.edu
Fri May 30 07:14:54 PDT 2008
Of course. But it is hard to identify any duty to boys under 18 that the parents are violating.
Quoting Paul Finkelman <pfink at albanylaw.edu>:
> 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
>> _______________________________________________
>> To post, send message to Religionlaw at lists.ucla.edu
>> To subscribe, unsubscribe, change options, or get password, see
>> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw[1[1]]
>>
>> Please note that messages sent to this large list cannot be viewed as
>> private. Anyone can subscribe to the list and read messages that are
>> posted; people can read the Web archives; and list members can
>> (rightly or wrongly) forward the messages to others.
>> _______________________________________________
>> To post, send message to Religionlaw at lists.ucla.edu
>> To subscribe, unsubscribe, change options, or get password, see
>> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw[2[2]]
>>
>> Please note that messages sent to this large list cannot be viewed as
>> private. Anyone can subscribe to the list and read messages that are
>> posted; people can read the Web archives; and list members can
>> (rightly or wrongly) forward the messages to others.
>>
>>
>>
>
> 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
>
> Links:
> ------
> [1] http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw[3]
> [2] http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw[4]
>
>
>
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
Links:
------
[1] http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw[1
[2] http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw[2
[3] http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
[4] http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
-------------- next part --------------
An HTML attachment was scrubbed...
URL: http://lists.ucla.edu/pipermail/religionlaw/attachments/20080530/acffbe25/attachment.htm
More information about the Religionlaw
mailing list