Thursday, May 22, 2008

Texas court nixes mass roundup of kids

Icky beliefs are no grounds for staging pogroms.

Or, if you want more detail, the fact that a church's doctrine might, at some point in the future, lead lead some members to break the law and other members to act as willing victims is not, in and of itself, enough reason to kidnap hundreds of kids who are being raised in that church. Even if there is reason to believe that a few minors in a religious community have been abused, there is no justification for treating children in other families that just happen to be members of the same community as potential victims.

That, in a nutshell, is the decision of the Third Court of Appeals of Texas, based in Austin.
The Department 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. Nor did the Department offer any evidence that any of Relators' pubescent female children were in physical danger other than that those children live at the ranch among a group of people who have a "pervasive system of belief" that condones polygamous marriage and underage females having children. (9) 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. ...

The Department also failed to establish that the need for protection of the Relators' children was urgent and required immediate removal of the children. As previously noted, none of the identified minors who are or have been pregnant are children of Relators. There is no evidence that any of the five pregnant minors live in the same household as the Relators' children. (10) There is no evidence that Relators have allowed or are going to allow any of their minor female children to be subjected to any sexual or physical abuse. ...

[T]he district court abused its discretion in failing to return the Relators' children (13) to the Relators. The Relators' Petition for Writ of Mandamus is conditionally granted. The district court is directed to vacate its temporary orders granting sole managing conservatorship of the children of the Relators to the Department. The writ will issue only if the district court fails to comply with this opinion.

Note that the court didn't say that nothing inappropriate has occurred in the FLDS settlement at the Yearnings for Zion ranch. What it's saying is that religious doctrines that condone illegal activity aren't grounds for brute state intervention; there must be evidence of specific violations. Those violations must then be dealt with on an individual basis, not as an excuse for moving against everybody who espouses the church's belief system.

That seems like a remarkably wise decision, rooted as it is in the centuries-old American legal tradition. The children may still be taken from their parents, but only after something that bears a closer resemblance to due process.

The Houston Chronicle reports that Texas’ Child Protective Services hasn't yet decided whether to abide by the ruling and release the children, or to appeal. I'm betting on an appeal, if only as a matter of pride.

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