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Texas Court: Polygamy does NOT put Children in Danger

Date: May 23, 2008
Word Count: 1500 words
Cross-Reference: FLDS, Mormon sect, polygamy rights movement


Normal, non-Mormon, consenting-adult polygamists around the country - who utterly oppose underage marriage and have little sympathy for the rogue Mormon-based FLDS sect's beliefs in such relationships - are otherwise very relieved by the Texas Court Decision of May 22, 2008.

Normal   consenting-adult   polygamists   who   oppose   underage   marriage   have   always   said   that   their   children   are   not   in   any   danger.     A   Texas   Court   Decision   on   May   22,   2008,   helps   confirm   that   fact. 
 
On   April   3,   2008,   the   Texas   Department   of   Family   and   Protective   Services   used   law   enforcement   to   raid   the   isolated   Mormon-based   FLDS   sect   in   Eldorado,   Texas.     The   raid   was   premised   upon   an   anonymous   "caller"   who   said   she   was   a   16   year   old   girl,   pregnant,   having   been   forced   to   marry   her   50   year   old   husband   who   beat   her.     Over   the   following   days,   over   450   children   were   removed   and   separated   from   their   families. 
 
On   April   17-18,   2008,   the   District   Court   heard   evidence   from   the   Department   to   ensure   that   removing   the   children   was   justified.     The   court   kept   the   children   separated   from   their   families. 
 
The   anonymous   "16   year   old   caller"   was   never   found.     The   man   alleged   to   be   the   "caller's"   husband   had   been   on   probation   in   Arizona   -   and   he   had   not   been   to   Texas   in   decades.     A   "hoax   caller"   with   similar   modus   operandi   was   arrested   in   Utah,   and   is   suspected   of   being   the   same   "caller"   who   made   the   call   that   "justified"   the   Texas   raid.     The   original   warrant   that   authorized   the   raid   was   subsequently   dropped. 
 
Thirty-eight   specific   mothers   from   the   FLDS   quickly   appealed   the   district   court's   April   18   decision   to   not   return   their   children.     While   this   number   did   not   include   all   of   the   mothers   affected   by   the   raid,   these   particular   38   mothers   did   file   immediate   appeal   to   the   Texas   Court   of   Appeals,   Third   District,   at   Austin. 
 
On   May   22,   2008,   the   third   district   Texas   Court   or   Appeals   handed   down   its   decision   after   analyzing   the   evidence   that   had   been   provided   at   the   original   hearing.     It   ruled   in   favor   of   demanding   the   return   of   the   children   to   the   38   mothers.     The   Department   was   given   14   days   to   appeal   or   to   return   the   children. 
 
In   its   May   22   decision,   the   Court   noted   that   twenty   female   individuals   from   the   ranch   were   alleged   to   have   become   pregnant   between   the   ages   of   13   and   17.     Fifteen   of   them   are   currently   adults,   including   one   who   is   a   22   year-old   adult   who   allegedly   became   pregnant   at   13.     Of   the   five   others   who   are   still   minors,   four   are   17   and   one   is   16   years   old,   with   all   five   minors   alleged   to   have   become   pregnant   at   age   15   or   16. 
 
No   evidence   was   provided   to   determine   the   marital   status   of   the   remaining   five   minors.     In   Footnote   7   of   the   ruling,   the   Court   wrote,   "Under   Texas   law,   it   is   not   sexual   assault   to   have   consensual   sexual   intercourse   with   a   minor   spouse   to   whom   one   is   legally   married.     Tex.   Penal   Code   Ann.   Section   22.011(a),   (c)(1),   (2)   (West   Supp.   2007).     Texas   law   allows   minors   to   marry   --   as   young   as   age   16   with   parental   consent   and   younger   than   sixteen   if   pursuant   to   a   court   order.     Tex.   Fam.   Code   Ann.   Section   2.101   (West   2006),   Sections   2.102-.103   (West   Supp.   2007).     A   person   may   not   be   legally   married   to   more   than   one   person.     Tex.   Penal   Code   Ann.   Section   25.01   (West   Supp.   2007)." 
 
The   Court   also   noted   that   the   Department's   own   witnesses   had   acknowledged   that   the   FLDS   community   was   divided   into   "separate   family   groups"   and   "separate   households."     Thereby,   the   Court   determined   that   such   evidence   disproved   the   asserted   theory   that   the   entire   community   was   a   single   "household"   which   the   Department   used   as   the   justification   for   removing   all   children   in   one   broad   sweep.     Accordingly,   each   family   (with   the   mothers   referred   to   as   "Relators"   in   the   Court   decision   text)   had   the   right   to   be   dealt   with   on   an   individual   basis. 
 
Using   italics   to   emphasize   the   word,   "physical,"   the   Court   said   that,   when   removing   children   from   a   family,   Texas   Law   -   specifically,   Section   262.201(b)   -   required   that   "the   danger   must   be   to   the   physical   health   or   safety   of   the   child.     The   Department   did   not   present   any   evidence   of   danger   to   the   physical   heath   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   the   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.     The   existence   of   the   FLDS   belief   system   as   described   by   the   Department's   witnesses,   by   itself,   does   not   put   children   of   FLDS   parents   in   danger.     It   is   the   imposition   of   certain   alleged   tenets   of   that   belief   system   on   specific   individuals   that   may   put   them   in   physical   danger.     The   Department   failed   to   offer   any   evidence   that   any   of   the   pubescent   female   children   of   the   Relators   were   in   such   physical   danger.     The   record   is   silent   as   to   whether   the   Relators   or   anyone   in   their   households   are   likely   to   subject   their   pubescent   female   children   to   underage   marriage   or   sex.     The   record   is   also   silent   as   to   how   many   of   Relators'   children   are   pubescent   females   and   whether   there   is   any   risk   to   them   other   than   that   they   live   in   a   community   where   there   is   a   'pervasive   belief   system'   that   condones   marriage   and   child-rearing   as   soon   as   females   reach   puberty." 
 
Consequently,   the   Court   concluded   that   the   Department   had   not   provided   sufficient   evidence   at   the   original   April   17-18,   2008   district   court   hearing   to   justify   taking   the   specific   children   of   the   38   mothers   in   this   case.     Not   only   that,   the   Court   then   went   on   to   also   say   that   the   district   court   itself   had   actually   "abused   its   discretion   in   failing   to   return   the   Relators'   children   to   the   Relators." 
 
Beyond   specifically   benefiting   the   38   FLDS   mothers   themselves   and   their   children,   this   decision   has   profound   implications   for   even   non-Mormon   consenting-adult   polygamists   around   the   country.      
 
The   raid   of   the   FLDS   sect   greatly   troubled   pro-polygamists   around   the   country,   but   not   out   of   any   sympathy   for   the   FLDS   themselves.     After   all,   the   FLDS   has   been   proven   to   have   some   relationships   involved   in   underage   marriages.     The   FLDS'   criminal   leader,   Warren   Jeffs,   is   currently   in   jail   for   arranging   the   forced   underage   marriage   of   a   14   year   old   girl   to   her   cousin.     And   the   media   has   hysterically   reported   on   the   FLDS'   reported   underage   marriages   with   the   utterly   libelous   implication   that   "all   polygamy   always   equal   child   abuse."    
 
Indeed,   very   few   media   ever   reported   the   well-documented   news   that   the   national   polygamy   rights   movement   for   consenting   adults   has   always   disavowed   the   FLDS,   Warren   Jeffs,   and   underage   marriage.     Because   of   that   missing   fact   from   many   media   reports,   public     pro-polygamy   advocacy   was   forced   to   remain   relatively   "quiet"   about   expressing   great   alarm   about   the   heavy-handed   tactics   of   the   government   raid   itself.     Otherwise,   any   public   statement   that   too   emphatically   sounded   like   it   opposed   the   raid   could   be   wholly   expected   to   be   exploited   by   the   manufactured-news   media   against   normal   consenting   polygamists   as   if   being   "pro-FLDS."     And   the   hysterical   media   would   then   use   it   to   falsely   imply   that   pro-polygamists   were   somehow   "supportive   of   child   abuse   and   underage   marriage"   too   -   which   is   utterly   false. 
 
So,   normal,   non-Mormon,   consenting-adult   pro-polygamists   were   forced   to   let   others   in   the   public   marketplace   publicly   speak   about   the   obvious   tyranny   of   the   government   broadly   taking   all   those   children   without   constitutional   authority.     Many   home-schooling   advocates,   for   example,   rightly   saw   the   grave   threat   that   the   raid   posed   even   to   non-polygamists. 
 
By   letting   others   express   that   outrage   instead,   public   pro-polygamy   advocacy   was   able   to   stay   directly   focused   on   specifically   refuting   and   disproving   the   manufactured-news   media's   implication   that   polygamy   supposedly   means   child   abuse.     Otherwise,   every   Child   Protective   Services   worker   across   America   would   have   started   thinking   it   could   be   "necessary"   for   government   to   start   kidnapping   the   children   of   all   polygamists   everywhere   -   even   the   children   of   normal,   non-Mormon,   everyday   consenting-adult   polygamists. 
 
But   now   the   Texas   Court   of   Appeals   has   officially   agreed.     Removing   individual   children   in   the   raid   was   unjust   and   unjustified. 
 
Specifically,   the   Court   said   that   just   because   the   FLDS   sect's   community   had   a   "'pervasive   system   of   belief'   that   condones   polygamous   marriage   and   underage   females   having   children,"   that   does   not   mean   that   such   beliefs   place   the   individual   children   of   specific   individual   families   in   danger.     The   Court   explained   that   it   is   only   when   such   a   belief   is   imposed   in   application   on   any   specific   individual   that   it   then   constitutes   the   definition   of   putting   them   in   danger.      
 
Consenting-adult   polygamists   everywhere   are   relieved,   but   -   again   -   it   is   not   out   of   sympathy   for   the   FLDS.     Rather,   the   Court   determined   that   it   was   it   unjust   for   government   to   broadly   kidnap   children   from   the   FLDS   even   though   the   community   believed   in   underage   marriage.     For   normal   pro-polygamists,   it   means   that   it   would   be   even   that   much   more   unjust   for   government   to   kidnap   the   children   of   any   normal   consenting-adult   polygamists   around   the   country   who   do   not   believe   in   underage   marriage   at   all. 
 
It   is   true   that   the   Court's   decision   does   not   put   normal   consenting-adult   polygamists   out   of   full   legal   peril   yet.     But   with   this   type   of   court   decision,   at   least   the   government   can   not   use   polygamy   as   its   sole   basis   to   justify   kidnapping   the   children. 
 
It   also   confirms   what   the   national   polygamy   rights   movement   has   always   said:   the   children   of   normal   consenting-adult   polygamists   are   not   in   danger   at   all. 
 
For   that,   normal   consenting-adult   pro-polygamists   rejoice   indeed. 


###


Bibliographic URLs:

The raid 
http://video.ap.org/v/Legacy.aspx?partner=en-ap&g=7964f407-6183-40a8-bafa-5984ed85d59f&t=s60&p=enapus_enapus&&f=1119853 
 
 
The hoax 
http://deseretnews.com/article/1,5143,695273270,00.html 
 
 
Would-be "husband" never went to Texas since 1977 
http://www.sltrib.com/news/ci_8941294?source=rss 
http://www.freerepublic.com/focus/news/2002411/posts?page=296 
 
 
Warrant dropped 
http://www.scrippsnews.com/node/32625 
http://www.localnews8.com/Global/story.asp?S=8265037&nav=menu554_2 
http://www.kauz.com/news/local/18544649.html 
 
 
Text of Texas Court of Appeals Decision, 5/22/2008 
http://extras.mnginteractive.com/live/media/site297/2008/0522/20080522_114730_Mandamus%20Decision.pdf 
 
 
National Polygamy Rights Movement always opposed underage marriage & FLDS 
http://www.prweb.com/releases/2008/4/prweb874544.htm 
http://www.pro-polygamy.com/articles.php?news=0058 
http://www.pro-polygamy.com/articles.php?news=0059 
 
 
Pro-Polygamy Advocacy 
http://www.nationalpolygamyadvocate.com 
 



 
[Reviewed for publication - Pro-Polygamy.com Review Board.]



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