Defending the Mormon Polygamists

By, Wendy Kaminer

        When federal immigration authorities summarily rounded up immigrant workers in a surprise raid at a New Bedford factory in March 2007, civil liberties and civil rights activists immediately entered the fray, defending the rights of workers and the estimated 210 children affected by the round-up of their parents.  The ACLU, which considers immigrant’s rights a priority, helped orchestrate a swift and strong response to the raid and joined a lawsuit challenging federal abuses of power.  When state authorities in Eldorado, Texas raided a polygamist compound two weeks ago, removing 416 children from their parent’s custody, the ACLU kept quiet, or, at least, it hasn’t spoken up loudly enough to be heard. (Key word searches of the ACLU website turn up no results, and I’ve found no mention even of ACLU commentary on the case in the press.)
        But, from a civil liberties perspective, the New Bedford case was fairly simple: workers who posed no immediate risk to anyone were denied basic due process rights against summary detentions; their children were stranded.  It was a legal and humanitarian fiasco.  The Texas raid was based on concerns about the sexual abuse of children, which justifies immediate action, and it involved no summary, mass detentions –- unless you count the removal of children from their homes a form of detention, which the children well might. 

        The trouble is, evidence of sexual abuse at the compound is circumstantial, and the raid, removal of children, and ongoing legal proceedings against the sect raise serious civil liberties issues.  The raid was reportedly based on a call for help from someone who identified herself as a 16 year old girl, but she has not come forward.  A Texas ranger has submitted an affidavit supporting allegations of abuse, but they have not been tested in court.  A child welfare official has testified that at least 5 underage girls from the ranch are pregnant, or already have children, but as long as the fathers are unknown, no one can be prosecuted for molesting the girls.  And, even proof that some minors on the ranch have been abused is not proof that all minors there are at serious risk of abuse.

        Can an entire community be held responsible for the abuse of minors in its midst?  Morally, perhaps, but not legally.  Can the prevalence of abuse be inferred from a religious commitment to polygamy and tradition of “marrying” young girls to old men? Not legally, however rational the inference seems.  The state can’t remove one child, let alone 400, based on a presumption of abuse; it needs proof.  

        So, federal agents are searching the compound’s temple, an action that Gerry Goldstein, the highly regarded Texas attorney representing the Fundamentalist Church of Jesus Christ of Latter Day Saints, has likened to a search of the Vatican, (a search that, come to think of it, might also uncover evidence of crimes against children.)  Of course, religious belief is no defense to child abuse, and this fundamentalist polygamous sect has no greater right to abuse children than any secular group; but it also has no fewer rights than more respectable, mainstream faiths.

         Should the state forcibly remove children from Christian Science parents who would deny them medical care?  It’s not hard to imagine the uproar that would ensue from police raids on Christian Science homes.  Parents may be prosecuted for denying their children essential medical care for religious reasons, but the state does not take preemptive action against Christian Scientists, based on a presumption that their children are at risk. 

        If Christian Science were a less respectable religion, however, its adherents would likely be treated with less respect by the state.  Consider a 1999 Massachusetts case (which I covered here) involving the forced removal of children from an outré fundamentalist Christian sect that eschewed modern medical care.   While that case, like the case against the polygamist sect in Texas, was provoked by reasonable concern about serious risks to children, it also reflected the unreasonable (and unconstitutional,) diminished legal status of religions on the fringe.  I’m not suggesting that the state should hesitate to act against religious groups that pose serious physical harm to children  -- only that it should act against all religious groups with equal force and respect for equal rights. 

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