Texas Court Made Brave Ruling on FLDS Kids

The Third Court of Appeals in Austin, Texas ruled courageously when it held that the state had no right to seize more than 440 children from their homes and place them in foster care.

While it seems that what was going on at the Yearning For Zion Ranch in Eldorado, Texas, was potentially harmful to children, that is not the legal standard for actually seizing children. Under Texas law, the harm has to be imminent. Without proving immediate harm, the seizure of virtually all the children is merely a condemnation of this religious sect for their beliefs, however different or unconventional they might be. The court wrote, "The existence of the FLDS [Fundamentalist Church of Jesus Christ of Latter Day Saints] belief system as described by the department's witnesses, by itself, does not put children of FLDS parents in physical danger."

It doesn't matter if either you or I would choose to live the FLDS way, or if we approve of it, like it, or understand it. Religious beliefs cannot be the basis for governmental child snatching. Rather, that is a prescription for religious persecution.

That said, child abuse, in the name of religion, is equally repugnant, offensive, and illegal.

But in this case, when abuse was suspected, instead of treating the community as one household, the state needed to evaluate each child's situation individually to determine whether there was a basis for believing that a child or children were in imminent danger of abuse or harm. I believe that was hard to do in this case, but that doesn't make group seizure right.

The state has appealed the Appellate Court's ruling to the Texas Supreme Court, and rightly so. They acted, in their view, appropriately, and the only way they could have. Thus it will be instructive for all to learn what Texas says is the proper approach based on the Texas Supreme Court's ruling. It will be fascinating to see whether the court affirms or reverses the Appellate Court's decision. The Supreme Court could hold that when abuse is suspected, the state has to act, and act they did, and that the Appellate Court interpreted the law too narrowly. I don't think so.

I was troubled by the group seizure, the group hearings, and the possibility this sect was being treated unfairly. But I am equally troubled by the thought of underage children being married against their will, or young girls being bedded by much older men.

Who gets to decide?

This case puts the question squarely before the public: What is right, what is wrong, and who gets to decide for children?

There indeed may be abuse occurring at the ranch, but there has to be a factual basis for such an assertion, provable in court, rather than a mere supposition, hunch or belief.

I think the state was right to act, even though I think they got it wrong, rather than to do nothing. Sometimes it is better to do something and be wrong. I believe the state's motive was pure - they were trying to protect children, not punish a religious sect for their beliefs. And I commend the state for pursuing their appeal to get a clear ruling on what to do when abuse is suspected, particularly if it is suspected en masse, throughout a religious community.

But I commend the Appellate Court for applying the law to the facts, and forcing the state to its burden of proof.

While we are all concerned for the welfare of children, we must also be concerned that we are governed by laws that are fair and properly exercised by those in power.

© 2008 MSNBC Interactive
Reproduced with permission of MSNBC, from Texas Court Made Brave Ruling on FLDS Kids by Susan Filan, May 23, 2008; permission conveyed through Copyright Clearance Center, Inc.

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