The State, Parental Rights, and the FLDS in Texas
Cases like these do pose difficulties because they raise an interesting conflict of legitimate rights. Children surely have a right not to be physically or sexually abused and in the non-anarchist world, it's legitimate as part of the state's job of protecting rights to respond to genuine cases of such abuse (noting that what constitutes physical abuse isn't always crystal clear). But parents have rights as well, both at the state level and in terms of the federal constitution. And those rights include the right to make decisions about how to raise and educate their children. We might not like what parents teach their kids, but unless there's evidence of actual abuse, parental beliefs alone are not sufficient grounds to deny them their rights. Yes, this group's practices might threaten the rights of some of their girls, but the state's action definitively denies the parental rights of the adults and libertarians, it seems to me, must account for both sets of rights, even as we might recognize there are trade-offs and imperfections all around.
The Texas SC made this clear in their decision, arguing that if the child protective authorities wanted to remove children they would have to do it on a case-by-case basis, demonstrating that abuse was happening or some sort of immediate possibility. The circumstances did not justify a wholesale "class action" removal of several hundred kids. In the case of the boys and the pre-pubescent girls, the court was unanimous. Three dissenters argued that there were grounds to remove the pubescent girls based on past patterns of behavior, even though the other six argued there was not enough evidence to do so. I think this is the right decision on both counts. I'd like to offer a couple of reasons why, in particular in response to the view that the group's practices create an environment in which the girls are being abused and the boys are being raised to be abusers.
First, the state has to show that actual laws were broken. The age of sexual consent in Texas is 17 and the minimum age for marriage (with parental consent) is 16, raised from 14 a few years ago (see David Friedman's excellent blog post on this topic). Any 16 year-old girls who are married and pregnant with their parents' permission have broken no laws of the state of Texas, nor have any girls who were married at 14 or 15 a few years earlier, and neither have their parents. So if the justification for removing the children is that girls are being coerced into sex/marriage with older men, the state will have to demonstrate one of two things: 1) that the girls in question are not yet 16 (or were not 14 a few years ago) or 2) that they or their parents did not consent to the marriage. Only girls who fall into either of those categories are victims of sexual abuse in the context of early marriage. To the extent the law is being followed, the early marriage practices are not fundamentally different from those of immigrant communities, as Eugene Volokh notes. He also points out that the sexual consent laws are broken in communities across the US all the time, and might well be a socially prevalent practice in those communities. Does that justify removing any or all young women from such communities? Here too, Eugene points out, the state must find individualized cases to work from.
The point here is that critics of the TX SC decision who argue that FLDS is somehow creating a toxic institutional environment for the girls are going to have to show how their practices actually violate Texas law. If parents are forcing children to break the law, or doing it themselves with the kids, then that seems grounds for state action. If not, then what the complaint really amounts to is not liking the Texas consent and marriage laws and, by implication, believing that your dislike of a community's marital norms is grounds to take the children away. I'm not sure that's a good place to go, as I argue later. Of course the SC's job is to make sure the other branches of government are not wrongly punishing people who are abiding by the law, whatever the law might be.
If one wants to go after the parents for being polygamists, then find the relevant laws and prosecute them. Before you take their kids away, you better clearly show that the children are in danger by staying with their parents and that they would be better off in foster or institutional care or with other relatives. This is an exercise in comparative institutional analysis and we cannot fall for a family policy version of the Nirvana Fallacy. Just because one set of institutions is imperfect, doesn't ipso facto mean the statist alternative is better. Parental lawbreaking is not sufficient cause to remove the kids. (Plus, as David Friedman also argues, it's quite possible to engage in polygamy of a strong sort without technically violating the law.)
Second, some have argued that the boys are victims too, being raised to become rapists/abusers of young girls. Clearly this can't be true of all of the boys, given that this is a community in which one male has multiple wives. If we assume a 50/50 split in births, there must be some significant number of men who are denied sexual/marital access to the women (as each woman has only one husband, but each man has multiple wives). The problem of "what to do with the other men" is one that plagues polygynist societies. Assuming actual abuse is taking place, rather than just marriages right at the minimum age, it's not being done by every male, thus the argument for taking away all of the boys seems highly problematic. For all the concern about the individual rights and autonomy of the young girls, don't the young men deserve the same respect and thus not be hauled away from their parents having themselves committed no crime nor been the victim of abuse?
But beyond these considerations, I think there's a more compelling reason why the Court has done the right thing here and why especially folks on the left who are making the argument that it's putting the girls in danger and poisoning the boys should think carefully about this case. In the end, the argument by the Texas CPS amounted to a claim that this group's beliefs and practices as a whole were such that they raised the threat of abuse to these kids as a whole. That is the justification for taking them all, rather than identifying specific victims. The reason why such an argument is so dangerous is that it is the very same argument that has been used to take kids away from gay and lesbian couples as well as other religious groups with non-standard belief systems, such as Wiccans or other neo-Pagans. The long-standing argument was that their "lifestyles" in and of themselves posed a threat to their children because the parents' supposed practices or beliefs amounted to abuse. Of course cooler heads have largely, though not totally, prevailed and have been able to demonstrate that the worst fears of the child-savers were based on stereotypes and misinformation.
This is precisely why in such cases, the burden of proof should lie squarely on the state to demonstrate what the parents have done that is abusive and to identify the specific children who have been abused. To expect parents to demonstrate that they are not abusers, and that's been the case for gays and lesbians as well as minority religious groups, violates our notions of innocent until proven guilty and demands that they prove a negative. The parent-child bond is simply too important to the well-being of children, not to mention the constitutional protection of parental rights, not to hold the state to an extremely high standard when it intervenes in families.
It may well be the case that there is abuse going on in the FLDS. If so, the state needs to clearly demonstrate that laws are being broken and who the precise victims are. At that point, it can decide whether to remove the specific children or remove the specific adults or some other solution. Short of that, do we really want to give the state the power to take kids away based on the parents' general beliefs and practices after having come so far in not doing this in so many other situations where we used to? However much we might dislike the specific practices of the FLDS and however much some on the left might think giving the state that power in this case would so some good for the possibly victimized girls, we know all too well that such a precedent and giving the state such power will hardly mean that it will be used only when "we" think it should. To the contrary, it is most likely to be used against groups the left is much more sympathetic to and whose practices and beliefs are seen as "out of the mainstream" and potentially threatening.
The problem with giving states the power to do what you think is right is that they won't always agree with you.
Finally, we live in an imperfect world. We cannot eliminate all mistreatment of children without doing grave damage to the individual rights of parents. We know that children do better when raised by their parents as opposed to foster care or institutions. We also know that states face knowledge and incentive problems whenever they intervene in voluntary social orders. Thus, the burden of proof on the state is and should be high, even if that means parents sometimes get away with things they shouldn't. It's the price we pay for the freedom to form families and raise our children as we see fit. The alternative, which more or less would make parents adjuncts of the state, is much, much worse.
UPDATE: To provide some evidence for my point about the comparative analysis, check out this post by Tim Lynch at Cato's blog where he details the awful treatment of the children and their mothers by CPS (some of whom were allowed to stay with their kids if they complied with CPS rules and commands) as reported by social workers who were invited to observe by CPS itself. If you're going to take kids away, you better be damn sure where you're taking them is no worse.