Appeals court rules Texas had no right to seize sect children

From the Houston Chronicle:

In the decision, the 3rd Court ruled that CPS failed to provide any evidence that the children were in imminent danger. It said state acted hastily in removing them from their families.

The agency had argued that the children on the ranch were either abused or at risk of abuse. The Texas Family Code allows a judge to consider whether the "household" to which a child would be returned includes a person who has sexually abused another child. Child welfare officials alleged that the polygamist sect's practice of marrying underage girls to older men places all its children at risk of sexual abuse.

"The existence of the FLDS belief system as described by the Department’s witnesses, by itself, does not put children of FLDS parents in physical danger," said the unanimous ruling by the three-judge panel of the 3rd Court. "Removing children from their homes on an emergency basis before fully litigating the issue of whether the parents should continue to have custody of the children is an extreme measure.

"The danger must be to the physical health or safety to the child," the appeals court wrote. "The Department (CPS) did not present any evidence of danger to the physical health or safety of any male children or any female children who had not reached puberty."

The court wrote, "Even if one views the FLDS belief system as creating a danger of sexual abuse by grooming boys to be perpetrators of sexual abuse and raising girls to be victims of sexual abuse as the Department contends, there is no evidence that this danger is ‘immediate’ or ‘urgent’ ... with respect to every child in the community."

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I've kept quiet about this sordid tale of church versus state for weeks now because I'm genuinely torn about what position I should take. The whole thing is really confusing from an ethical standpoint. That is, I have no love at all for Mormons in general, and this lovelessness extends to the fundamentalist multi-wife variety of America's homegrown weird religion. So it's really easy to side with the state--yeah, get those Mormon weirdos! I mean, they're hyper-patriarchal. They brainwash their children, which they must because no mainstream American would ever accept their insular and misogynistic ways. And, you know, they marry off young teen girls to men in their fifties; there's no other way to see such as practice as anything less than sex trafficking.

On the other hand, there are quite a few mainstream Christian denominations that are nearly as hardcore. Aren't the charismatic Pentecostals weird, too? They ban males and females from swimming together, and the women don't cut their hair. They speak in "tongues." They brainwash their children, too. Some of their sects handle poisonous snakes. And don't the Christian Scientists press the envelope as well? They force their children to forgo medical care, believing that only God's will can affect health. Sometimes this means allowing a child with kidney failure or cancer to die. And didn't the Southern Baptists recently rhetorically reaffirm their commitment to "wives submit(ting) unto their husbands"? I can tell you for a fact that the Baptists use cult-like brainwashing tactics on their children, too, because I was subjected to them when I was a kid. For that matter, famed atheist evangelist Richard Dawkins asserts that all religions brainwash their children.

One man's mondo-bizzaro weird is another man's spiritual comfort.

And when you get right down to it, by historical standards, marrying off teen girls to older men isn't so strange. Indeed, it's always been so in the West until fairly recently. I'm not saying it's acceptable, mind you, just that it's not the same as pedophilia.

The bottom line for me is that if we're going to be true to the first amendment's religious freedoms, we must always proceed very carefully when balancing the needs of the state against such fundamental rights. That's why I've been asking myself since this whole story broke, "does the state really have a case here?" When it turned out that the child abuse tip originated from somebody who has nothing to do with the FLDS group in Texas, and that it was in all likelihood a lie, I found myself feeling some real sympathy for these Mormon weirdos.

This appeals decision indicates, to me, that Texas probably moved way too quickly, and way too extremely. I mean, there may very well be some child abuse cases here, but in their zeal to save "the children! the children!", I think it's pretty clear that the state trampled all over not only first amendment rights, but also due process rights.

You just can't do that. Otherwise the Constitution means nothing.

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