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Texas showdown: Balancing child welfare, religious freedom

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Charles C. Haynes
April 26, 2008

Texas officials are trying hard to keep the focus on child abuse—and away from religion—in the custody battle involving 437 children seized from a polygamist religious sect this month.


If only it were so simple.


Like it or not, this conflict is about far more than the issue of older men having sex with under-age girls in violation of Texas law. It’s also about religion—specifically the religious culture of the Fundamentalist Church of Jesus Christ of Latter-day Saints (FLDS).


Defenders of the church argue that the raid was an overreaction to one telephone call (that might have been a hoax) and was motivated by long-standing animus toward the FLDS community. The state counters that dramatic measures are justified when evidence points to children trapped in a religious culture that promotes child abuse.


The only way to sort out the truth, and determine the fate of the children, will be to put the FLDS way of life on trial.


Polygamists get little public sympathy—despite the positive spin on HBO’s “Big Love.” But polygamy and under-age marriage are only part of a larger public concern about the psychological and physical harm children might suffer from being raised in what appears to be an insular, authoritarian environment.


Ordinarily, I bristle when someone labels a religious group a “cult”—a term that, in popular parlance, is often used to describe “a religion I don’t like.” Adherents of faiths considered mainstream today—Catholics and Mormons, among others—were derided as “cult members” in the 19th century.


FLDS, however, has all of the marks of a more academic definition of cult: isolated from the world, secretive and beholden to a charismatic leader who exercises absolute power and authority.


Under the First Amendment, of course, cults, sects, and a wide range of religious movements, new and old, are protected in the practice of their faith, no matter how unpopular or isolated from society. Although the U.S. Supreme Court has upheld some limits on religious practice (starting with polygamy in 1878), such cases are rare.


But religious freedom ends when child abuse begins. Adults, for example, might have a right to refuse life-saving health care, including blood transfusions, for themselves—but not for their children.


Defining “abuse,” however, is itself subject to abuse, sometimes creating a slippery legal slope that gives people license to persecute unpopular religious groups.


In the early 1800s, the presence of children in Shaker communities led some states to pass laws restricting the rights of Shaker parents, including giving the state power to “rescue children” by awarding custody to the parent who was not a Believer.


More recently, in the 1960s, law enforcement sometimes looked the other way when “de-programmers” snatched young people from new religious movements at the instigation of fearful parents.


Today, Texas officials are employing a sweeping definition of “child abuse” by removing 437 children from their FLDS families. Now the state must justify its actions by arguing that all of the children were harmed or potentially harmed by life in the church culture. As Tom Vick of the Texas Bar Association (who is rounding up lawyers for the children) puts it: “If it’s a dangerous situation for one child, it’s a dangerous situation for all.”


This is a high bar, far more difficult than a limited investigation into specific allegations of under-age marriage. A victory for the state could mean that none of the children can be safely returned to the church. That could well spell the end of the FLDS community, at least above ground.


That’s why Texas should proceed with caution from here on. The outcome of this case could create new grounds for intervention when the government decides an unpopular religious group is inherently detrimental to child welfare.


Temporarily removing the children might have been justified in this case—that’s what the courts will need to determine. But the ultimate decision about the children’s fate should be based on whether there is clear evidence of systematic sexual abuse rather than on general condemnation of the beliefs of FLDS followers or prejudice against their way of life.


Barring such abuse, these children belong with their parents. Being raised in an unconventional religious system might appall or offend outsiders, but it is not by definition abusive. As much as Texas officials might not want to deal with it, this case is not only about child welfare—it’s also about religious freedom.


Charles C. Haynes is senior scholar at the First Amendment Center, 555 Pennsylvania Ave., N.W., Washington, D.C. 20001. Web: firstamendmentcenter.org. E-mail: chaynes@freedomforum.org.

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