Tag: courts

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politics

Popular Misconceptions

In arguing that the appellate court was wrong on the FLDS Sunny Hostin perpetuates some very popular myths that help CPS and many people following the story to assuage their guilt about the hostile actions being heaped upon this fringe community. Here we will debunk some of those myths. Thanks to the format of Ms. Hostin’s commentary it will be easy to take it a point at a time.

Isn’t this a polygamist ranch we are talking about? Under Texas law, it’s illegal to be married to more than one person. Weren’t all of these children living on a ranch purchased in 2003 and built by Warren Jeffs, the self-proclaimed prophet of the group, who was convicted last year in Utah of being an accomplice to rape?

Yes they were.

This is guilt by association using Warren Jeffs as a convenient Straw Man. The argument would be much stronger if Jeffs had stepped foot on the ranch in the past two years.

Weren’t there 20 girls living at the ranch who had become pregnant between the ages of 13 and 17 and “spiritually married” to old men picked for them by Jeffs or his followers?

Yes there were.

Um, no, there weren’t. The original estimate was 26 and was later upwardly revised to 31. Of those 31 fifteen were proven to be over 17 and one was 14 but was not and never had been pregnant. So only 15 might fit the description but of those 15 we have no data on how old any of them were within the 13 – 17 range and it is possible for any 16 or 17 year-old to be legally married and thus legitimately pregnant. No evidence has been put forth to prove that any of those 15 were married against their will or illegally “married”. We may speculate that some or all of them were, but in a court of law speculation carries no weight.

And if you live on this ranch, don’t you believe in polygamy, arranged marriages between young girls and old men, and that Jeffs is a prophet?

I would think so.

And yet we know of families living on the ranch who did not believe in those things. Probability is high for any family believing in those things but CPS made no distinctions and last I checked we don’t discriminate against belief in this country so they need something more solid than that.

And if you are a young girl that lives on this ranch, isn’t it true you will also be “spiritually married” to an old man chosen for you? Yes to that too. And isn’t this dangerous for the children? What do you think?

Dangerous for which children – note that the standard in Texas for removing children from their parents is “immediate danger.” What is the immediate danger to a five year-old?

There are some fundamental problems with the court’s opinion. The court states that because not all FLDS families are polygamous or allow their female children to marry as minors, the entire ranch community does not subscribe to polygamy. Wrong.

So the entire ranch does subscribe to polygamy – just not the entire ranch . . . I must be missing something.

The court even reasoned that under Texas law, “it is not sexual assault to have consensual intercourse with a minor spouse to whom one is legally married” and that Texas law “allows minor to marry — as young as age 16 with parental consent and younger than 16 if pursuant to court order.” Wrong again.

So the argument here is that it is sexual assault to have consensual intercourse with a minor spouse. This implies that Texas condones sexual assault since it explicitly allows minors to get married as stated above.

The polygamists are not “legally married” to anyone since it is illegal to marry more than one person. They are “spiritually married” and abusing young girls. Finally, the court also states there “was no evidence that …. the female children who had not reached puberty, were victims of sexual or other physical abuse or in danger of being victims if sexual or other physical abuse.”

Oh, I get it. The Department should wait until the kids are actually abused before doing anything.

Actually, these older men are legally married to one of their wives – only the other wives may be cause for abuse charges if they are underage. (If they are not underage then this is just a publicly recognized extra-marital affair – have we started prosecuting those in Texas?) Ms. Hostin is ignoring a huge loophole in the opinion of the appelate court – they recognize that girls who have reached puberty may be deemed to be in immediate danger so CPS can act before they are abused. Of the 450 kids taken, half were under 5 – definitely not in immediate danger. Of the remaining 225 the boys under 16 and the girls under 10 are not in immediate danger of abuse.

Whatever number of children that leaves (let’s generously estimate that it was 100), CPS would have a legitimate reason to take into state custody while they investigate and prosecute any abuse. By taking all 450 children CPS overstepped their bounds and that is why the appellate court was right – as the Texas Supreme Court ruled last week.

Categories
politics State

Justice In Texas

The Texas Supreme Court has just shown what justice looks like:

The Texas Supreme Court has ruled that the removal of FLDS children from the YFZ Ranch was unwarranted — and the decision to take them was an abuse of judicial discretion. . . .

In its ruling, the high court said that state law gave the lower court broad authority to protect children “short of separating them from their parents and placing them in foster care,” including removing alleged perpetrators from a child’s home and preventing the removal of a child from the jurisdiction of the investigating agency. (emphasis added)

One of the hard things in opposing the actions of CPS is trying to illuminate the distinction between protecting the children and ignoring the rule of law. Unfortunately it is all to easy for an agency like CPS to abuse the power that is placed in their hands and in many cases where that happens it is also very easy for the courts to side with the professional and well organized government agency while discounting the plea’s of the distraught and disorganized parents. Naturally in a case as large as this the parents were not so disorganized as they often are when it is a single family – or even a single parent – trying to challenge the government agency.

The important thing right now is that the Texas Supreme Court got it right in saying that CPS overstepped their bounds but that they are still allowed to investigate allegations of abuse and take less drastic steps to protect the children.

Categories
National politics State

A Step In The Right Direction

I was disappointed today when I heard news of a hearing in the Texas-FLDS fiasco where a mother was trying to get custody of her nine month old baby. What surprised me was the age of the child since my understanding was that mothers of children under 1 year had been allowed to stay with their children. Thankfully it was only a short time later that I stumbled upon the best news I have yet heard in this case – an appeals court overturned the ruling that put all those children in state custody. The news was:

The Third Court of Appeals in Austin ruled that the grounds for removing the children were ”legally and factually insufficient” under Texas law. . . . The appellate court ruled the chaotic hearing held last month did not demonstrate the children were in any immediate danger, the only measure of taking children from their homes without court proceedings.

This was exciting news for two reasons – first, a bad ruling was overturned; second, this ruling indicates that children are not to be taken from their homes without a court hearing unless they are in immediate danger. That standard of immediate danger is perfectly reasonable and it’s good to see a court recognize that the legal standard was not met in this case of abduction. (Anyone who argues that this was not an abduction had better go look up the word because unlike the CPS argument of immediate danger this case perfectly matches the definition of abduction.)

Categories
National politics State

Back Door Legislation or The Root of Judicial Activism

If there is anyone who still reads this blog they will be well aware that I have been lousy at posting anything in the last month or so. I have been working on various other projects and purposely leaving this site dormant for the present, but I am compelled to post after I heard that the Supreme Judicial Court of Massachusetts is hearing a lawsuit on gay marriage. The court is being used as a vehicle to try to get a 1913 law thrown out which prevents the state from issuing marriage licenses to couples who are not residents of Massachusetts if their marriage would not be recognized in their home states.The argument is that the law is being used to discriminate against gay couples. Unfortunately this is a case of throwing the baby out with the bathwater. If the law is being used to discriminate against gays then it should be applied equitably rather than being repealed. These plaintiffs need to prove that heterosexual couples who would not be allowed to marry a home are being given marriage licenses in Massachusetts.

It is easy to see that the agenda operating behind this is not deterred by state boundaries. This is nothing more than a step to legalize gay marriage throughout the country. If this suit succeeds there will be couples from around the country who come to Massachusetts to marry and then complain in their home states that they are facing discrimination. Nobody can argue that this is not the case because the plaintiffs include eight out of state couples. This will happen despite the fact that there is already a federal law stating that one state is not obligated to recognize marriages performed in another state.

I will attempt to walk a very fine line here. I do not wish this to be viewed as a homophobic posting. Unfortunately I cannot claim to know and love a large number of gay people (that would strengthen my argument) but I would hope that it can be said that I treat all gay people with whom I come in contact with the same respect that any human being deserves. I might add that this is the same respect which I withold from bigots of every type. I abhor bigotry and hope never to be guilty of it. That being said I want to address this suit in the light of judicial activism.

Suits like this are the very thing that give rise for judges to exercise any pre-disposisiton towards judicial activism. If this suit has merit the proper course of action would be to have the law rewritten or applied fairly. The plaintiffs have expressed their intention – which is to have the law annulled. If they fully win their case activist judges on the Supreme Judicial Court of Massachusetts can use it as an excuse to rule that the law be removed rather than corrected and enforced properly.

Anyone who nievely argues that this case stops at Massachusetts must ask themselves what a gay couple gains by going to Massachusetts to get married if they then return to their home state knowing that their marriage will not be recognized. The answer is that they gain nothing except more leverage in their fight to legalize gay marriage in their home states. This is not the correct way to go about changing the law. If you want a legal gay marriage move somewhere that it is already legal. If you want to legalize gay marriage live within the bounds of the law and push for legislation to make gay marriage legal where you live.

We have an estalished process for the passage of laws. If a majority of people believe in something it will become law. We have checks in place to minimize the chance for majorities to trample the rights of minorities, but the judicial system is to interpret law and not write it through opinion. If the 1913 law should be repealed that should happen through a vote of the legislature or a ballot initiative. Even Gov. Schwarzenegger understood that when he vetoed a bill to legalize same-sex marriage because the people of California had already passed a proposition stating that “only marriage between a man and a woman is valid or recognized in California.” The governor argued rightly that “We cannot have a system where the people vote and the Legislature derails that vote.” It can also be said that we cannot have a system where the people vote and judges derail the vote once it has passed by a super-majority.