On the awful day that they separated the mothers and children the level of cruelty and lack of respect for human rights was overwhelming.
After the Texas Supreme Court ruled against the Texas Department of Family and Protective Services, Governor Perry’s defense was very similar to the defense he made of his decision about the HPV virus.
I am substantially less interested in these fine legal lines that we’re discussing than I am about these children’s welfare, that’s where my focus is.
Governor Perry appeared to be stating that he doesn’t mind if the government exceeds the limits that the law places upon the government, provided that the government has good intentions (even if those good intentions have disastrous results).
Voters with families will have cause to ponder whether they want a chief executive who favors intrusive solutions that seem to show more interest in oppressing an unpopular minority than in safeguarding the well-being of their children or safeguarding constitutional guarantees.
With the four leading candidates in this year’s presidential contest having been an African-American, a female, a Mormon, and a 72 year-old, the diversity envelope was certainly stretched this year. A USA Today/Gallup poll reported last year on the willingness of present-day Americans to select a non-traditional candidate for the presidency compared to responses to a similar survey 40 years ago. The results indicated that the percentage willing to vote for a black or a woman had increased signficantly in the last 40 years, moving from 53% to 94% for a black candidate and moving from 57% to 88% for a female candidate. Given that an African-American candidate and a female candidate were the top Democratic contenders this year, it would seem that we’ve come a long way.
The poll also delved into questions relevant to the Republican ticket, asking voters about their willingness to support a Mormon or a 72 year-old for president. The survey results indicated that the Republican front-runners also faced significant demographic obstacles, with only 72% of the respondents indicating willingness to vote for a Mormon and 57% indicating willingness to vote for a 72 year-old. Gallup reported that the sentiment about electing a Mormon was “essentially unchanged” in 40 years, which seems to indicate that maybe we haven’t come such a long way after all. Add to that the way the topics of race and sex played out during the primary campaigns and it would appear that even the poll numbers from the Democratic primary mask some uncomfortable realities.
Let’s look at some presidential trivia for starters. How many Americans know the middle name of any of the four front-runners, other than Senator Obama? (The other middle names are Diane, Sidney, and Mitt). How many Americans can name the former pastor of more than one of these presidential contenders? Or how many Americans can name any biographical facts about any candidate’s great-grandfather other than Mitt Romney?
Or, if you want even more ridiculous trivia that hopefully fewer Americans can actually answer, what brand of men’s underwear did one journalist claim had been spotted in Mitt Romney’s master bathroom? And, if that seems a bit too ridiculous to believe, a Washington Post staff writer treated us to a discussion of Senator Clinton’s cleavage, and an MSNBC anchor speculated that McCain would be comfortable switching from a discussion of the economy to a discussion about “buying more Depends.”
While we’re on the topic of age, how many Americans can correctly answer the question “Who was the oldest major-party presidential candidate?” If you go to WikiAnswers, you might think it was McCain, though it was actually Ronald Reagan. Or, how many Americans could name the last election in which the president who was elected died before reaching his 80s? (That would be 40 years ago, when LBJ was elected: Nixon, Ford, Carter, Reagan and G.H.W Bush all lived long enough to reach 80, though in fairness, the jury is still out on whether Bill Clinton and George W. will live into their 80s).
Of course, we have debates to help keep candidates focused on substantive issues, right? The only problem is that our debates are a bit different from the old-fashioned variety. One hundred fifty years ago we had politicians such as Lincoln and Douglas who, in their famous Senatorial debates, gave lengthy speeches on the pressing topics of the day – including slavery and its relationship to both the Constitution and the Declaration of Independence, states’ rights, the Dred Scott decision, and racial equality. Lincoln collected these debates into a book of more than 250 pages which was published in advance of the presidential election of 1860. Today, by contrast, we allow for sound-bite answers in response to questions chosen by moderators or audience members. Questions this year have included ones such as the question posed to the Republican candidates regarding whether they believe every word of the Bible, even though one would think it might be more appropriate to ask a presidential candidate whether they believe every word of the Constitution or, even more simply, whether they would defend all the rights guaranteed in the Constitution. I think Clinton had it right when she proposed switching from moderated debates to a format more reminiscent of the Lincoln-Douglas debates. We can only hope that McCain and Obama adopt that idea during the general election.
Little know ye who’s coming if John Quincy not be comin’ … fears are comin’, tears are comin’, plague and pestilence are comin’, hatin’s comin’, Satan’s comin’ if John Quincy not be coming.
So, how far have we come? If the Voting for Satan website is used as a yardstick, it seems we haven’t entirely outgrown the type of political venom in the John Quincy Adams campaign. Admittedly, that website was not an officially endorsed website. However, through the miracle of modern technology, that website probably had more hits than the John Quincy song had listeners. But perhaps there has been some progress after all: our modern electronic media do allow far more people to be reached by debates and written content. Now, if we can only figure out how to spend more time on the Constitution, civil rights, and the economy than we spend on briefs, Depends, and cleavage.
Here are some additional links for the Virtual Petition I assembled in a previous post. None of the below was actually written as a petition (except for the petition of writ of habeus corpus), but all of the below authors expressed significant concerns about the manner in which the FLDS case was handled by Texas, even though some of the below also express distinct reservations about the FLDS.
Please let me know if you have found editorials from other states, to help round out this collection from across the country.
1. Texas Supreme Court Majority Opinion (required reading)
2. Petition for writ of habeus corpus (required reading)
3. Arizona – East Valley Tribune (Phoenix) – This editorial – coming from an editorial board that initially supported the raid – concludes that the raid “appears to have turned into an assault on religious beliefs unpopular with mainstream society.”
4. California – Los Angeles Times – Though not very sympathetic to the FLDS, this editorial still raises concerns about painting all FLDS with the same brush.
5. Colorado – The Gazette (Colorado Springs) – This editorial draws the unsettling conclusion that, in the child protective services universe, parents are guilty until proven innocent.
6. Delaware – The News Journal (Wilmington) – And this editorial concludes that “good intentions aren’t enough.”
7. Florida – St. Petersburg Times – This editorial opines that “a more measured response would have allowed the state to protect the girls who are in danger” and complains about the cruelty of removing all the children from their families.
8. Georgia – Augusta Times – Proclaiming that “This is still America. And the government’s power to … remove children from their homes must necessarily be strictly contained,” this editorial proceeds to a cleverly-stated conclusion.
9. Maine – Kennebec Journal – This editorial argues that “We live in a country of laws. And no matter how distasteful … the practices alleged to take place at the polygamist sect’s ranch in Texas may be, the law protects even the most despicable among us.”
10. New York – The Jewish Daily Forward – This editorial addresses the concern that the religion was being punished, stating, “In America, we punish conduct, not belief systems.”
11. Oregon – Statesman Journal (Mid-Willamette Valley) – This editorial asks, “What protections do we have when the state can enter our homes en masse and break up our families based upon false allegations of abuse by an imposter?”
12. Texas – Times Record News (Wichita Falls) – This editorial concludes that “much heartache and expense could have been avoided” if the state had exercised more caution from the start.
13. Utah – The Salt Lake Tribune – Another editorial with a great punchline at the end.
14. Washington – The Columbian (Vancouver) – An editorial with a harsh condemnation of the FLDS but which still weighs in on the side of investigating before intervening.
15. Washington, D.C. – Washington Post – In spite of significant concerns about the FLDS, this editorial concludes that officials initially overreacted.
It seems that you don’t have to be a fan of the FLDS to conclude that the FLDS were not treated lawfully.
45. In what has to be one of the most notable quotes of the Eldorado fiasco, the Schleicher County Sheriff said, “This is the United States…. We’re not going to violate their civil rights until we get an outcry.”
Here’s a little more context for the quote, as reported by the Tucson Citizen:
I have no regrets because we never received any outcry, a complaint. There was no evidence of illegal activity nor an offense in plain view. You can always suspect something, but until you get something that puts you on that property, there’s not a whole lot you can do…. But there again, this is the United States. We are going to respect them. We’re not going to violate their civil rights until we get an outcry.
If he had said, “We’re not going to move against the FLDS until we have evidence” or “We’re not going to ask for a search warrant until we have a credible complaint,” I would have been right with him. Or even if he had said, “You cannot go in and bust in someone’s house if there’s not probable cause to do so,” as the Texas attorney general said, I can still see the imprint of the constitution in such a statement. But, if you take the Sheriff’s quote literally, he’s essentially saying that after there’s an outcry or a complaint, it’s OK to violate civil rights. I can only hope that comment didn’t come out the way he intended.
The sheriff’s statement, even in the form it came out, is not as scary as some of the comments about his statement. I have found multiple posts on the internet by people complaining that the sheriff felt constrained to wait for an outcry. These sentiments remind me of Lincoln’s great speech at the Young Men’s Lyceum in which he addressed the subject of “the perpetuation of our political institutions”.
When men take it in their heads today to hang gamblers or burn murderers, they should recollect that in the confusion usually attending such transactions they will be as likely to hang or burn someone who is neither a gambler nor a murderer as one who is, and that, acting upon the example they set, the mob of tomorrow may, and probably will, hang or burn some of them by the very same mistake. And not only so; the innocent, those who have ever set their faces against violations of law in every shape, alike with the guilty fall victims to the ravages of mob law; and thus it goes up, step by step, till all the walls erected for the defense of the persons and property of individuals are trodden down and disregarded.
But all this, even, is not the full extent of the evil. By such examples, by instances of the perpetrators of such acts going unpunished, the lawless in spirit are encouraged to become lawless in practice; and having been used to no restraint but dread of punishment, they thus become absolutely unrestrained. Having ever regarded government as their deadliest bane, they make a jubilee of the suspension of its operations, and pray for nothing so much as its total annihilation.
While, on the other hand, good men, men who love tranquility, who desire to abide by the laws and enjoy their benefits, who would gladly spill their blood in the defense of their country, seeing their property destroyed, their families insulted, and their lives endangered, their persons injured, and seeing nothing in prospect that forebodes a change for the better, become tired of and disgusted with a government that offers them no protection, and are not much averse to a change in which they imagine they have nothing to lose. Thus, then, by the operation of this mobocratic spirit which all must admit is now abroad in the land, the strongest bulwark of any government, and particularly of those constituted like ours, may effectually be broken down and destroyed-I mean the attachment of the people….
I know the American people are much attached to their government; I know they would suffer much for its sake; I know they would endure evils long and patiently before they would ever think of exchanging it for another-yet, notwithstanding all this, if the laws be continually despised and disregarded, if their rights to be secure in their persons and property are held by no better tenure than the caprice of a mob, the alienation of their affections from the government is the natural consequence; and to that, sooner or later, it must come.
Yes, those who don’t want the government to wait for an outcry are justified in expecting that the FLDS honor the laws, but we must also insist that the government honor its own laws. Otherwise, if it becomes popular for the government to move against unpopular groups without being restrained by law or constitution, we will be reduced to government-sponsored mobocracy, which – as Lincoln reminded us – in only a step away from anarchy.
44. The State of Texas just can’t make up its mind whether teenage sexual activity is right or wrong.
The Texas Supreme Court minority opinion cited a psychologist’s testimony indicating that:
The pregnancy of the underage children on the Ranch was the result of sexual abuse because children of the age of fourteen, fifteen, or sixteen are not sufficiently emotionally mature to enter a healthy consensual sexual relationship or a “marriage.”
I happen to agree that 14, 15, and 16 year-old children should not be engaging in sexual relationships, but it appears that a double-standard is being applied: the government classifies such activity as sexual abuse if it happens within the FLDS community, while the government feels the need to subsidize the activity if it happens in the mainstream community. According to statistics provided by the Texas Department of Health:
211,596 [Texas] teenagers aged 13-17 were in need of publicly supported contraceptive services” in 2001. [emphasis added]
By the state’s own logic – as cited in the Supreme Court’s minority opinion – that amounts to state-sponsored sexual abuse.
The Texas government could have found me supporting its actions relative to the FLDS, if the state had collected evidence legally and proceeded against specific individuals based on specific evidence. However, given the manner in which the State of Texas has proceeded and the credibility of the evidence the state has produced against the FLDS, I find myself more shocked by the State of Texas than by the FLDS.
After reaching a high of CPS claiming there were 31 underage FLDS mothers, the state now claims that there are five underage mothers. According to a Salt Lake Tribune article, these underage mothers consist of the following:
3 girls who were 16 years old last year when they gave birth
1 girl who was 17 years old when she gave birth
1 pregnant girl who will be 17 years old in August
The link to state statistics that I provided above indicates there were “19,754 births to teens 17 and under in Texas in 2001.” It looks like the state of Texas would have made wiser use of its money by not allocating the millions of dollars it spent illegally taking all of the FLDS children into custody but instead trying to address the larger issue of reducing teen pregancy and teen sexual activity in the state as a whole. In a previous post, I cited an early estimate of $7.5 million for the state’s expenses for the FLDS raid. The Fort Worth Star-Telegram recently reviewed over 400 pages of state records and concluded that the tab has already hit 14 million dollars and that invoices for many other expenses remain to be submitted. Based on the above figures, the State of Texas has already accumulated expenses at a rate of $2.8 million for every alleged underage FLDS mother. If the state were to spend at the same rate for every underage mother in the state, the total tab would be $55.3 billion. Given that $82.5 billion of funds were projected to be available for all state expenses in the 2008-2009 year, that rate of spending would be unsustainable. Hence, by the manner in which Texas has chosen to spend its money, it has significantly limited the impact of its efforts in combating teenage pregnancy.
Not only does the state’s handling of the FLDS case pose significant constitutional problems, the state also seems to be operating on a basis of impaired common sense.
4. The government actions appear to violate the fourth amendment requirement that search warrants be based “upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
5. A CPS spokesman said it doesn’t matter if the calls that provided the excuse for the raid were genuine.
6. The government actions appear to turn the fifth amendment guarantee that citizens shall not be “deprived of life, liberty, or property without due process of law” into an empty promise.
7. We can only hope that the government actions against the FLDS violate the fourteenth amendment guarantee of “equal protection.”
8. Apparently, one of the key reasons for taking all the FLDS children into custody was that the FLDS encourage early sex. Even if that is true, it is at least somewhat hypocritical to pretend that the same does not happen in the mainstream culture.
9. The government actions ignore the benefit of historic precedent.
10. The Texas approach to civil liberties demonstrates that colonial Rhode Island benefited from a more enlightened approach to civil liberties 350 years ago than Texas does today.
11. With the FLDS children having been in state custody for over one month, state officials still have not enabled a comprehensive program of parental visits.
12. The fact that several state laws were created specifically to place the FLDS religion in the crosshairs of Texas family law appears to fit with the other indicators that point toward a religious motivation for the government actions.
13. There was a deplorable lack of due diligence taken by government officials before initiating the raid.
14. Weighing allegations of sexual abuse by the FLDS community against known problems with the Texas foster care system, it is not clear that removing all the children from their homes and placing them in state protective custody was the lowest risk option for these children.
15. Outside of the other traumas the FLDS children will face in foster care, a large number of the FLDS children are statistically likely to be placed on psychotropic drugs while in foster care.
16. Court testimony indicating that Child Protective Services relied on information from a former FLDS member and from a psychiatrist familiar with the Branch Davidians appears to indicate that CPS knew the conclusions they wanted to reach before moving against the FLDS community.
17. Mental health professionals who helped at the shelters in San Angelo where the FLDS children were initially detained have complained about the way the FLDS were treated.
18. At least twenty-six of the “children” CPS took into custody are actually adults.
19. The Bishop’s List, a set of church records that was used in the initial court hearings, has now been released, and it is most shocking for its lack of corroboration of government claims.
20. In the continuation of what appears to be a government trend to air unsubstantiated allegations, DFPS reported as a “cause for concern” that at least 41 of the children had at some point suffered from broken bones.
21. The children seem to be suffering significant health issues since entering state care. As of 28 April, nine of the children had been hospitalized.
22. Comments made by a CPS spokeswoman the day after the FLDS children aged five and over were separated from their mothers grossly oversimplifies the grieving and recovery process in the wake of the children being separated from their parents.
23. CPS appears to be having a hard time keeping track of all the children. An 11 year-old boy and a 16 month-old boy were reported missing as of 27 April, but “child welfare workers in Texas say they’re not worried.”
26. The Texas Court of Appeals, Third District, found that evidence to support the CPS claim that the FLDS community constituted a single household “was not legally or factually sufficient.”
27. After announcing publicly that Dale Barlow was wanted for the rape and physical assault of “Sarah,” Texas officials later dropped charges against him, without even having the decency to state why the charges had been dropped.
28. Although the district judge who presided over the initial custody hearing permitted nursing mothers tostay with children who are twelve months old or younger, she did not grant that same privilege to mothers nursing infants older than twelve months.
29. The first search warrant against the FLDS and its associated affidavit appear to be constitutionally weak.
30. The fact that Texas officials performed interviews while executing the initial search warrant that had no relationship whatsoever to the initial search warrant leads to significant questions about the manner in which that warrant was executed.
31. A CPS supervisor’s testimony about her experience while interviewing girls in the FLDS community on 3 April demonstrates an irony too strong to not find disappointing.
36. Even though the appeals court explicitly rejected the CPS interpretation that the YFZ Ranch constitutes a single household, Judge Walther persisted in treating the FLDS in a manner that remained, essentially, a one-household approach.
41. Texas officials allegedly knew, before entering the YFZ Ranch, that the only person who was suspected of causing harm to one of the FLDS children was not present at the ranch, leaving the officials with no valid constitutional reason to enter the ranch.
7. We can only hope that the government actions against the FLDS violate the fourteenth amendment guarantee of “equal protection.” I believe the only way the State of Texas can dodge the charge that the fourteenth amendment has been violated is to start treating all its citizens the same way as the FLDS have been treated … a rather unsettling prospect, indeed.
8. Apparently, one of the key reasons for taking all the FLDS children into custody was that the FLDS encourage early sex. Even if that is true, it is at least somewhat hypocritical to pretend that the same does not happen in the mainstream culture. If the state of Texas starts treating other citizens with the same standard used in dealing with the FLDS (see previous item above), shall we next expect that if the police receive an allegation that a child in a particular neighborhood watched a movie glamorizing teen sex, that the state of Texas will take all the children in the neighborhood into protective custody so that they can identify the right child and find a few bonus suspects in the process? Again, this case would rest on a constitutionally more secure foundation if it was based on evidence of specific crimes committed by specific individuals.
9. The government actions ignore the benefit of historic precedent. In 1953, an FLDS community in Short Creek, Arizona was raided by the Arizona government because of allegations of underage sex, and 263 children were taken into custody. That government move has been judged by history to have caused more harm than good, and the governor of Arizona suffered the consequence of supporting that move. He credited the raid with having ended his career as governor.
Didn’t we learn from McCarthyism that we must still honor civil liberties even in the case of groups we fear or distrust, because of the extreme hazard of harming innocent individuals?
Didn’t we learn from the Salem Witchcraft trials that a hysteria may seem innocuous to respectable society because it initially targets people on the margins of society, but eventually it can expand to include respected men (like Captain John Alden – son of Mayflower passengers John Alden and Priscilla Mullins – who was accused of witchcraft) and respected women (like Mary Spencer Phips – wife of the governor of Massachusetts – who was also suspected of witchcraft).
10. The Texas approach to civil liberties demonstrates that colonial Rhode Island benefited from a more enlightened approach to civil liberties 350 years ago than Texas does today. In the 1650s, the United Colonies asked Rhode Island to banish members of the Society of Friends (Quakers) from within its boundaries. The response – signed by the President of Rhode Island, Benedict Arnold (not to be confused with his descendant of Revolutionary War fame), and by the Assistants of the Rhode Island government – stated that Rhode Island had no law to punish people for religious beliefs. The response went on to state that the Quakers would be less likely to prosper if “opposed by arguments” rather than being persecuted by the government. The Rhode Island officials further stated that – though they shared the concerns of the United Colonies that the Quaker “doctrines tend to [the] very absolute cutting down and overturning relations and civil government among men” – they believed that allowing the Quakers to be entertained in Rhode Island was less dangerous than the policy adopted within the United Colonies to exile them. With the perspective of history, it seems evident that the Quakers never overturned relations and civil government, and that the principled stand of Rhode Island was better than the proposed alternative.
One could only wish for such wisdom among Texas officials today. Persecution creates martyrs, martyrs build group cohesion, and persecution can also lead to social isolation. The State of Texas is only furthering the process of creating martyrs, building group cohesion, and reinforcing social isolation.