While ordering the immediate reunion of the children with their parents, Judge Walther did impose restrictions on the families of the illegally seized children. The AP story:
Walther's order requires the parents to stay in Texas, to attend parenting classes and to allow the children to be examined as part of any abuse investigation.
But it does not put restrictions on the children's fathers, require that the parents renounce polygamy or force them to leave the Yearning For Zion Ranch run by the Fundamentalist Church of Jesus Christ of Latter Day Saints.
Without the exact wording of the Judge's orders in front of me, it is difficult to interpret the three restrictions. As I have stated before, on the face of it, for families who are not charged with crimes, who have not had individual hearings, who have not been allowed to present evidence, and who must be presumed innnocent, all of the restrictions are onerous and wrong. The restrictions basically permit the State of Texas to supervise the lives of these families.
The major change from previous news stories about the case concerns the requirement that the children must be allowed to be examined as part of any abuse investigation. If this journalist's paraphrase of the order is accurate, I believe that it is a less severe restriction than what was apparently in the works, which would have allowed Texas CPS complete freedom to monitor the children's lives.
The AP story's remark, that the order does not require the families to renounce polygamy, seems odd to me. In fact the sect cannot practice legal polygamy, because polygamy is illegal. They can talk about polygamy all they want, they can say they believe in it, they can sing and dance praises to the spiritual blessings of polygamy, but talking is just free speech and, in this case, religious doctrine. No one has been charged with illegal polygamy.
What the sect apparently says is that it practices spiritual polygyny marriage, whatever that might be. For some men and women of the sect to engage in sex with persons other than those to whom they are legally married and to have children outside of those marriages, or to have sex and children when they are not married, is, well, just as American as apple pie.
It's not against the law, as far as I know, for single women to get pregnant and for married women to get pregnant by someone other than their husbands. And if, according to some arcane law, such behavior is illegal in Texas, to enforce it, the state would have to arrest nearly three-quarters of the state's adult black population, nearly half of the state's Hispanic adult population, and nearly one-quarter of the state's adult non-Hispanic white population. In addition, to accept CPS's argument that children living in such circumstances are, by virtue of their status, in the midst of such talk about polygamy, suspect of being abused, to protect the children of such liasons, the State of Texas would have to seize hundreds of thousands of black, Hispanic, and non-Hispanic white children and put them into foster care and state supervision. I haven't seen any headlines that the state is doing that. So it is foolish to consider it as some kindness or concession to the group for the Judge not to require them to renounce polygamy.
Nor are the Judge's restrictions on all the families justified by the possible fact that maybe four or five of the girls under eighteen are pregnant, or were under eighteen when they became pregnant, by adult men. That is a rate of minor illegitimate pregnancy barely above the Texas average. If such logic would be valid, then the state would have to start rounding up all the hapless citizens and their children I enumerated in the previous paragraph.
No, the Judge's restrictions are nothing more than an effort to save face for herself and for CPS, to pretend that some big, bad evil was going on in the sect's village that required the state to act, when no big, bad evil has been proved, or is even close to being proved, and even though the state's action was illegal.
The Texas CPS's lower court-authorized illegal seizure of 468 FLDS children was nothing more than the fascism of the politically correct nanny state in (hysterical) action.
Update. May 3, 2008. I was correct in my surmise that the restrictions placed on the FLDS families were weaker than the restrictions originally proposed by the Judge. Here is more detailed information in a recent report:
"The judge made three concessions to parents from the Fundamentalist Church of Jesus Christ of Latter Day Saints from a sterner version she'd drafted during a tumultuous pretrial conference Friday afternoon.
CPS workers may make unannounced visits to the children's residences only between 8 a.m. and 8 p.m., not at any hour of the day or night.
An in-state travel zone is expanded form 60 miles from the ranch to 100 miles. Parents have to give CPS two days' notice.
A provision was dropped that let CPS order parents to submit to psychological evaluations, though the state may give them to children. Parents must also complete parenting courses."
What's wrong with even these orders was succinctly put this way, in the article:
"Some volunteer lawyers in the case, though, fretted that CPS received from the court order several supervisory powers that it usually doesn't have until it shows a particular family or household is unsafe.
" 'The laundry list that the court put in there is somewhat problematic,' said Kevin Dietz of Texas RioGrande Legal Aid, which represents 38 mothers.
'There hasn't been any evidence introduced as to our individual clients' or their husbands, he said."
(From Robert T. Garrett, The Dallas Morning News, "Sect children released to parents," The Press-Enterprise, Riverside, California, Tuesday, June 3, 2008, A3.)
Much more needs to be said and done about the horrendous injustice done to this community. This legal episode is, I fear, a sign of the way the wind blows. Political correctness is being legislated in such a way that the state--in Texas, in California, in New York, and wherever the Pink Left has influence--obtains greater and greater powers to regulate and supervise peoples lives, to coerce them to live approved lifestyles, and to compel them to think and say only approved thoughts.
The local superior court of Judge Barbara Walther, whose authorization of the illegal seizure of the FLDS children was overturned by the Appelate and Supreme Courts, now tries to impose restrictions on the mothers of the children before their children will be returned to them as ordered by the Texas Supreme Court. (Michelle Roberts, "Deal dashed; sect children stay behind," (AP story) The Press-Enterprise, Riverside California, May 31, 2008, A3. )
The TSC apparently did not prohibit some restrictions, but it is unlikely that the TSC intended to permit restrictions that undid their overturning of Judge Walther's initial findings and rulings. And that is what is happening. The mothers would, apparently, be required to agree not to leave Texas, to take "parenting" classes, and to permit visits by Child Protective Services. These restrictions basically give CPS supervision of the FLDS families, which is what, in effect, they were denied by the TSC.
To sign such agreements could be construed by the CPS as tacit admission of wrong-doing. But notice that the women being required to sign agreements of restrictions, in order to have their children returned, have not received individual hearings, no evidence of individual wrong-doing has been presented, no trials have occurred, and no juries have found against the FLDS mothers or fathers or children.
Since when, under the US Constitution, are citizens, who are presumed innocent before conviction by a jury, required to sign agreements that abrogate their rights as citizens to have and manage their families and raise their children, in order to have their illegally-seized children returned to them by the state?
This is the kind of "justice" one would expect in a politically controlled fascist state, not the United States of America. The families of FLDS are not being religiously persecuted; they are being politically persecuted--by hysterical political correctness--assumed guilty until proved innocent. This farce of "justice" by local hysteria must be stopped.
Eugene Volokh thinks that the major dispute between the majority opinion and the dissenting opinion, in the Texas Supreme Court decision on the FLDS community, concerns definition of "household". The appellate court held, and the majority Supreme Court opinion agreed, that the FLDS community is divided into different functional households. The dissenting opinion agreed, apparently, with the State Child Protective Services Department, that the entire compound constituted a single household. Under Texas state law, DPS is empowered to remove children from a household if a member of the household has abused other children. This law would make the definition of a household crucial to the issue whether the DPS had the authority to remove all the children.
It is worth noting that among sociologists who have studied the underclass, both households and families of the underclass (whether white, black, or Latino) are flexible and continually changing. We are discussing here the reproductive family. Fosterage is a common practice, for instance, in the poor black community. A family (a mother and children, with father of children usually not present) that is in difficult financial straits will foster-out one or more children for periods of different term to friends and neighbors who might not be genetically related, i.e., are fictive kin. (See Carol Stack, All My Kin.) There will also be asset sharing--food and money--, on a loose system of reciprocity; when need arises in some household that has shared food or money, that household will have a call on other households that could help it.
The family as extended network of kin and fictive kin is also typical in some special communities. It is typical of agricultural communities, where youths will move from farm to farm learning the farm trades in an informal apprentice system. Perpetual agricultural labor shortage makes such sharing of, especially, teenage labor important.
Some obviously middle class religious communities, such Orthodox Jews, also share children in something like fostering out, though they are not doing so out of economic need. It is common for boys and girls to live with other Orthodox Jewish families, in the US and/or Israel and/or Europe for varying periods. They learn about their faith, learn social skills, and are often introduced to different economic trades.
In middle class throughout our history until the Depression of the 1930s, live-in household servants, mostly maids, were common. Visit any modest town or city in America, visit the old Victorian houses, and you will find "maid's quarters" built into the dwelling, usually with a small stairway leading from the maid's room to the kitchen. In California, there were Chinese servants, in the South, black servants (and earlier slaves), in the Northeast and Midwest, there were Irish servants. In upper class homes, live-in domestic help persisted through the 1940s. Wealthy families with large houses or estates would employ a family, with the women and girls working inside and the men and boys gardening, chauffeuring, and maintaining carriage roads. The families employing these servants seldom thought of them as members of their households, though technically they fit into our definition. They families prohibited intermarriage with servants, so servants were not intended be become part of the family or to join the kin and fictive kin networks. Sexual relations between families and servants were, nonetheless, frequent, with results that still find a place on the nation's newspapers' front pages.
Among immigrant Latinos, extended kin networks are crucial to the system of chain migration, of getting shelter and work in the US (or other host countries) when lacking English language competency, and of surviving in the underclass with intermittent employment. When many of the immigrants come from rural backgrounds, they will have expectations regarding sexual behavior and marriage different from the American norm. In agricultural societies, it is common for women to have to prove they can have children before they are married, in order to maintain farm ownership lineages. It is common for women to marry young (younger than sixteen years of age), and, given the need to prove child bearing capability, that means pregnancy while young. Courtship will often be rough--we learned from a Mexican friend that in his rural home area of Mexico "abduction" by a man of a young woman is a common strategy in finding a suitable wife. Such practices do not, shall we say, translate well to the social world of the contemporary United States.
Similar observations can be made about "households". Households are usually defined as the group of persons living within one domicile, that is, one shelter, whether free-standing detached dwelling, or apartment, or group home (e.g., labor camps and fire houses when cooking by residents is present on site). Normally, in prosperous post-WW2 America, we have seen a single family (under one roof) as constituting a household; but before 1945, many households included roomers (persons who lived in a household without taking meals with it) and kin. This situation occurred because most towns and cities had housing shortages. Families took in roomers to supplement family income. Families also doubled up under one roof, so that a household might include several families. For the housewife, tending a garden and cooking for roomers (making them into boarders) increased family spending money even more. For single women with children and for widows, running rooming and boarding establishments was often the only way (before state welfare became available in the New Deal) to make a living. Everywhere, the expanded definition and functionality of extended households were reinforced by unrestrained immigration (before the Immigration Quota Act). Roomers/boarders might have been immigrants from a region of a country from which the homeowning family of the dwelling had themselves emigrated years earlier.This was common with Italian immigrants. Such living arrangements of course persist widely today in the Southwest and Southern California today to accommodate Latin American immigrants.
In rural America before 1945, it was usual for farm families to send their children to live with families in towns and villages that had high schools, as secondary schools were uncommon in rural areas. It was common for workmen whose labors took them away from their families, such as truck drivers, to live seasonally with another family near their work. It was common for male agricultural laborers, miners, loggers, forest fire fighters, and cowboys, for instance, to live seasonally in company provided group housing, that is, to constitute a household, even as they had wives and children "back home" who constituted households living in domiciles--even, perhaps, renting out rooms until their husbands returned.
Expanded households also established reciprocity relationships that could be transferred to new geographical locations. As owner-resident households lived on average only seven years in a single dwelling, they would themselves expect to be roomers and/or boarders at least once in their own lives. Knowing people who had lived with you would help in settling into a new city.
In all of these kin networks, fosterage, and reciprocity systems, setting up social relationships and marriage were--and remain--important goals, not simply by-products of the living arrangements. The networks are ways for people to define the groups they want their children to marry into, preserving the network's--community's--goals. Second-cousin marriages are therefore common.
In this perspective, FLDS living arrangements are not unique, but typify an historically well-used social strategy for perpetuating families and keeping households afloat. A family can be both a nuclear family and a node on an extended network. A household can be at once a family's domicile and also a locus for reciprocity relations with roomers and boarders. A household can be extended and spread to several adjacent dwellings. A mother would send her sons or daughters to live in other households for a variety of sensible and legitimate reasons, including the hope of marriage, without such social relationships constituting evil or abusive acts. A father or teenage son, and typically it was men, might live in the household of another family for sensible and legitimate reasons, without such arrangements constituting banishment. Indeed, the effort that families put into creating and maintaining kin networks and extended households to support the nucleated family and nucleated household testify to the strength of family and household so defined.
The high court affirmed a decision by an appellate court last week, saying Child Protective Services failed to show an immediate danger to the more than 400 children swept up from the Yearning For Zion Ranch nearly two months ago.
"On the record before us, removal of the children was not warranted," the justices said in their ruling issued in Austin.
American Thinker has an excellent article detailing how the State of Texas's assault on the FLDS community was motivated by hysteria, and traces the origins of such politicized justice to the McMartin allegations and case of 1983.
The state's seizure of 468 children from the FLDS community was illegal. I told you so. This decision is a victory for due process. The decision is also a victory for the integrity of the American family. Under the rights of association and privacy, people have the right to arrange their familial relations, within broad boundaries, as they desire. Their rights should not be destroyed by illegal use of the state by fascist political correctness.
"The Third Court of Appeals in Austin ruled that the state offered 'legally and factually insufficient' grounds for the 'extreme' measure of removing all children from the ranch, from babies to teenagers.
"The state never provided evidence that the children were in any immediate danger, the only grounds in Texas law for taking children from their parents without court approval, the appeals court said.
"It also failed to show evidence that more than five of the teenage girls were being sexually abused, and never alleged any sexual or physical abuse against the other children, the court said."
Update. May 22, 2008. Eugene Volokh in the Volokh Conspiracy has a detailed analysis of the Appeals Court decision, with copious quotation. Discussion of case law, here. Concerns about future legal action against the FLDS members, here.
Update. May 22, 2008. From the AP article and other news stories, it seems that the ACLU, so eager to jump into cases against religious groups and on behalf of terrorists and the Left, did not try stop the Texas Child Protective Services Department from their illegal action. The hard work was apparently mostly done by Legal Aid, contacted by the mothers.
Update. May 24, 2008. Texas CPS authorities intend to appeal the Appeals Court decision, declaring their mass seizure of FLDS children illegal, to the Texas Supreme Court. This action is expected; the bureaucrats hope to cover their asses. Eventually, however, somebody should lose their job over this monstrous crime.
According to the Houston Chronicle, tomorrow the state will begin presenting individualized FLDS cases to five judges. The FLDS parents will have to prove the children can safely be returned to them. Notice that, in the Texas proceedings, the accused are presumed guilty, even though the state has presented no evidence against them, and have the burden to prove their innocence. This is America?
From Michelle Roberts, this AP story, "Ages of some sect girls in dispute," The Press-Enterprise (Riverside, California, May 17, 2008, A4):
"When Texas child welfare authorities released statistics showing nearly 60 percent of the teen girls taken from a polygamist sect's ranch were pregnant or had children, they seemed to prove what was alleged all along: The sect commonly pushed girls into marriage and sex.
"But in the past week, the state has twice been forced to admit 'girls' who gave birth while in state custody are actually adults. One was 22 and claims she showed state officials a Utah birth certificate shortly after she and more than 400 minors were seized from the west Texas ranch in an April raid.
"The state has in custody two dozen other young mothers and others whose ages are in dispute. If most of them also turn out ot be adults, it would be a severe blow to the state's claim of widespread sexual abuse.
"If it turns out the other 24 disputed minors are adults, the number of actual 14- to 17-year-old girls with children could drop to as low as five or six. That would amount to one-fifth of the girls that age found at the ranch--substantially higher than the average rate of teen pregnancies in Texas but a far cry from 60 percent. ..."
How did Texas State get itself into this reprehensible situation?
First, it acted on a fraudulent phone call from a person who misrepresented herself as belonging to the FLDS and as having been abused. It acted without substantiating that claim. It acted, as far as we know, without an investigation inside the community. It acted on the basis of mass prejudice of people who lived in the surrounding area against a shy and retiring community whose social customs, clothing, and grooming were plain and simple. As a spokesman for the FLDS said, "... with their long braided hair, makeup-free faces and pioneer dresses, the women looked very young."
Finally, the Texas Court, denying the Constitutional rights of the accused persons to individual hearings, removed the teens from the compound and from their families in a mass hearing. There were no individual evidentiary hearings. The individual girls did not get to testify. It is not clear whether each one had an attorney, though I remember reading that hundreds of Texas attorneys volunteered to assist them; but it is clear that the proceedings against them happened so quickly that no attorney could have put together a defense of his or her client in the time allowed. The court applied a vague definition of endangerment to the (alleged) children, whereas, as I understand the matter, constitutional cases clearly specify that the state has the right to remove children from their homes only if their lives are in jeopardy. No alleged child's life was threatened. Only after their removal from the community and their incarceration in the state foster home system, scattered around Texas, did some of the women and families manage to get evidence to agents of the State's Child Protective Services about their ages and conditions, with the results that the AP story reports.
It is not simply that Texas State's action against the FLDS is a miscarriage of justice (also here). It is that the miscarriage was persecution of a minority, defended in a public relations campaign with phony "evidence" that amounted to nothing more than bureaucratized prejudice, of a kind that happened in the worst fascist countries of the twentieth century. Think of all the historical photographs you have seen of Jews uprooted from their communities and shipped around Europe. Let those images sink in for a minute. Now match them against images of the Texas police removing people from this community, of the stunned look of the women and children as they were removed, of the shock apparent in the flat tone on their voices, of their helplessness, of the meagre belongings they could carry with them.
The Texas State Department of Family and Protective Services and the local DA, or whoever authorized the release of information about the processing and testing of the men, women, and children of the FLDS community, are engaged in an extra-legal public relations campaign for one purpose: to justify their wholesale denial of due process and legal rights to the persons they seized. Yes, seized! All the publicity about the number of under-age women who are pregnant, and the "expulsion" of boys, the strange manners and clothes, the women who talk like zombies (maybe they are just frightened and in shock) ... these stories (for instance, see this story; or just google FLDS) are distractions.
The simple fact is that people were seized without evidence of wrong-doing on the basis of fraudulent phone calls. Evidence is being sought after the fact of the seizure of people to justify their arrest and holding. No one--not a single person seized--has had an individual hearing before a judge, as is their right. Children have been sent into the foster-care system without hearings, and so on.
There is discussion among pundits that the issue at stake is religious freedom versus the interest of the state of Texas in protecting children; that's nonsense. There is no religious issue. The issue is constitutional: the state of Texas is denying an entire community of persons their rights as individual citizens.
Where is the ACLU when you need it? Where is concern that the state's publicity campaign is tainting potential juror pools? Or are liberals unwilling to jump in to protect the rights of these persons, because liberals get a special glee in seeing a fundamentalist religious group being tortured. Surely the discomfort felt by the FLDS members enduring this denial of process rises to the definition of torture that has been used by Lefties and Liberals in the past several years. Don't you think the children who are separated from their families are frightened, traumatized?