The Heart of the Disagreement Among the Judges intheTexasFLDSLitigation?
hamilton02 at aol.com
hamilton02 at aol.com
Fri May 30 15:16:27 PDT 2008
The CPS had many more facts than recognized by the appellate courts, facts that were in all of their briefing. There is no question the judges trivialized some of the facts to reach their preferred conclusion.
The important point though is that the tx sup ct was explicit that the investigation was not being closed and that the dist ct has significant latitude to structure the return so 4 to protect the children to the extent possible given the holding.
Marci
Sent from my Verizon Wireless BlackBerry
-----Original Message-----
From: "Volokh, Eugene" <VOLOKH at law.ucla.edu>
Date: Fri, 30 May 2008 10:56:16
To:"Law & Religion issues for Law Academics" <religionlaw at lists.ucla.edu>
Subject: RE: The Heart of the Disagreement Among the Judges in
theTexasFLDSLitigation?
It may well be that various members of FLDS are guilty of all sorts of crime, abuse, and neglect. But the Texas appellate courts had to decide based on the factual record that was before them. While it's possible that the 12 appellate judges judges who have considered the case may have deliberately failed to discuss some of the facts, I don't know of any reason to think so. I take it, then, that the Department of Family Protective Services didn't have sufficient evidence to bring to court on this score.
Eugene
> -----Original Message-----
> From: religionlaw-bounces at lists.ucla.edu
> [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of
> hamilton02 at aol.com
> Sent: Friday, May 30, 2008 10:38 AM
> To: Law & Religion issues for Law Academics; Paul Finkelman
> Subject: Re: The Heart of the Disagreement Among the Judges
> in theTexasFLDSLitigation?
>
> We don't have all the facts yet but boys have been subject to
> sex abuse within this group as well and child labor laws are
> routinely not to mention failure to educate to a reasonable
> standard.
> Some are alleging that there are missing boys as well, which
> is criminal neglect, which is a common practice for the group.
>
> Marci
> Sent from my Verizon Wireless BlackBerry
>
> -----Original Message-----
> From: Douglas Laycock <laycockd at umich.edu>
>
> Date: Fri, 30 May 2008 10:14:54
> To:Paul Finkelman <pfink at albanylaw.edu>
> Cc:religionlaw at lists.ucla.edu
> Subject: Re: The Heart of the Disagreement Among the Judges
> in the Texas
> FLDSLitigation?
>
>
> 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
> >>_______________________________________________
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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
> >
> > Links:
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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_______________________________________________
> To post, send message to Religionlaw at lists.ucla.edu
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