I, like Robert Ambrogi at Legal Blog Watch, have been amazed to see such silence in the legal blogging community after the Texas raid on the polygamist sect in Eldorado, in which hundreds of children were taken away from their parents, in what has been appropriately called the biggest custody case in Texas, if not national, history. Despite claims that this is simply a case of the government's stepping in to protect children from abuse, this case strikes me to be just as much An Unusual Prosecution of a Way of Life, to use the precise words of the headline from the Washington Post article of a few days ago.
There are many obvious problems, constitutional and otherwise, with the Texas government's abrupt dismantling of hundreds of families, but I have seen precious little protest in the legal blogosphere, or elsewhere even. In fact, I've only found the posts of David Bernstein and Eugene Volokh at The Volokh Conspiracy to be seriously critical of this troubling state action, even though they seem, to me at least, just to be stating the obvious.
And so basically, like Katie Granju, in Knoxville, Tennessee, I wonder Where is the ACLU? Although the Texas ACLU initially expressed some concerns, we have lately heard nothing further from them, and, to my knowledge, nary a peep from the national headquarters of the ACLU. Perhaps this silence is somewhat understandable, as we may certainly find the idea of state intervention justifiable in order to protect children from abusive cultures.
But we should not be so quick to judge and condemn, and jump to conclusions about issues of freedom and abuse, at the expense of the Constitution, as the very good posts from the Texas blog Grits for Breakfast have indicated. Interestingly, as Ambrogi pointed out in his Legal Blog Watch post, there is more of substance to be found from this Texas journalist at Grits for Breakfast, and from the Salt Lake City reporter at The Polygamy Files than from either the major media sources or the legal blogosphere.
Well, it certainly doesn't take a lawyer to figure out that there are problems with the law having been interpreted and applied in such a way as to permit the round up of a whole group of individuals, based on the fraudulent word of one alleged informant, followed by the forced separation of a multitude of children from their parents, without a showing of any particularized threats of harm to those individual children. As a result, hundreds of small children will most surely be harmed in a very real way (and indeed that is already happening right now!) on account of the abrupt separation, at the hands of the state, of these children from their parents. Until recently, the judge even had ordered the separation of babies from mothers who were nursing them.
The state says: "Gee, we got a report of abuse, and it looks like the whole sect has children who may have been, or may be, subject to abuse by their parents, i.e. the girls as teenagers might be brainwashed or forced into sexual relations and marriage with older men." But is it really that simple, though? Are all of these children truly at risk? Will all of them be involuntarily forced into unions with older men? Are all of them in immediate risk of abuse? Can the government legitimately step in? So far the evidence provided by the state, for such a broad, sweeping action, has been pretty lame.
There appear to have been Fourth Amendment problems, and there probably will be Fifth Amendment problems as well, depending on how this sweeping DNA testing order is used. There was likely no probable cause for the warrant to issue, and both the arrest and resulting detentions were and are seriously constitutionally suspect. Of course, if individual crimes were committed, then individuals should be apprehended and charged. If children were abused, and crimes committed, the parents or others responsible should be charged. But how can the state round up a whole religious community, take all the children from their parents, take every one's DNA, and then try to make their case or cases after the fact?
I guess what I am trying to say is: What the hell?!
The "answer" to that question is just as lame as one might expect in response to such a question that is hardly ever asked: Oh, well. What's done is done. Now, we will just have to try to make everything right, now that we've broken up these families in order to protect them. Just trust our government to make the right choices in placing these traumatized children with appropriate foster parents, while we try to figure out what to do next.
This Texas case reminds me of our federal government's move in claiming there were weapons of mass destruction in Iraq, followed by its invasion and occupation of that country, against the will of the UN Security Council, after which it was then revealed that the justification for the invasion had been flawed and dishonest, but our government then shrugged its shoulders and claimed that "we can't get out now - we have to finish the job."
The federal government used fear to promote its aims, and the Texas state officials have done the same. In both cases the public was swept up in fear - in the first place, by fear of "terrorism" and in the second, by fear of "abuse." But in both cases, it seems these fears were and are overblown, and that such fears have been accompanied by, and intimately related to, quite a huge dose of government ignorance and incompetence. And it is quite certain that these fears projected upon the public - of "terrorism" and "abuse" - are also very tightly bound up in a distasteful, prejudicial fear of The Other.
All of this further reminds me of that famous line of the American officer who was quoted as saying, of the town of Ben Tre, Vietnam, that "it became necessary to destroy the town to save it." But did we need to destroy Iraq in order to save it? And must we now destroy the families in this polygamist sect in order to save them? Call me crazy, but I think the answer to both questions is no. I think we have already been tragically trigger-happy and foolish in both cases.
Now, don't get me wrong. I'm no fan of polygamy, or of the pressuring of 16-year-old teenage girls into marriage with older men; heck, I'm no fan of organized religion of any kind. What I have heard about this, and other, cults is none too attractive to me. Nor was I a fan of Saddam Hussein.
But I'm no more a fan of ignorant, incompetent government action that violates individual rights to life or liberty and that leads to certain harm, in the name of protection against uncertain harm.
For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.