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.
Would-be "husband" never went to Texas since 1977
Text of Texas Court of Appeals Decision, 5/22/2008
National Polygamy Rights Movement always opposed underage marriage & FLDS
[Reviewed for publication - Pro-Polygamy.com Review Board.]