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Future Legal Action Against the Texas Polygamists?

I should stress that many of the Texas FLDS members may still be in huge legal trouble, despite the conclusion that the raid was illegal (and likely unconstitutional) as to many of the children.

1. Rape / Statutory Rape Prosecutions: Most obviously, if indeed some girls (1) were physically forced into marriage or sex, or (2) had sex before age 17 with someone to whom they weren't legally married (whether there was no marriage ceremony or there was such a ceremony but it wasn't properly registered with the state for various reasons, such as the fact that it was an unlawful polygamous marriage), the people who had sex with them would be guilty of rape or statutory rape.

2. Prosecutions for Aiding and Abetting Rape / Statutory Rape: Criminal liability could also extend to those who sufficiently aided in the conduct, even if the aid consisted solely of encouraging the behavior (by which I mean encouraging the specific marriage, and not just teaching in the abstract that early marriage was good). This could include the girls' parents, religious leaders, or even friends and relatives who actively encouraged the conduct. The boundary between being a mere nonobjecting bystander (not criminal) and an active participant (criminal) is unfortunately sometimes quite vague. I suspect that celebrating the wedding with the couple or giving a wedding present wouldn't qualify as aiding and abetting, but even that's not completely obvious (see the English case Wilcox v. Jeffery, which some criminal law scholars see as being relevant to American law).

3. Bigamy (and Aiding and Abetting Bigamy): I suspect that the Texas bigamy statute -- which applies when a person "(A) purports to marry or does marry a person other than his spouse ... under circumstances that would, but for the actor's prior marriage, constitute a marriage; or (B) lives with a person other than his spouse in this state under the appearance of being married" -- wouldn't be interpreted as covering ceremonies that the parties understand not to be legal marriages. Clause A wouldn't apply, I think, if no marriage license were applied for, since without such a license the circumstances wouldn't constitute a legal marriage (Texas common-law marriage rules don't apply when one party is already married). Clause B is harder to figure out, but my guess is that this requires representation to others that one is legally married.

The Utah Supreme Court recently interpreted Utah bigamy law more broadly, to cover second marriages even when they aren't claimed to be legally valid marriages; but Utah law said simply that, "A person is guilty of bigamy when, knowing he has a husband or wife or knowing the other person has a husband or wife, the person purports to marry another person or cohabits with another person," without the "under circumstances" language.

4. Regular Proceedings to Remove Children from Parental Custody: Naturally, if there is sufficient evidence of some past abuse of children, of imminent future abuse, or of parents' idly standing by when the children were abused by others, those children could be removed from parental custody, even in the absence of a criminal prosecution of the parents. It's just that this would have to be done through the normal procedures, at which specific evidence of abuse or likely future abuse of those children would have to be shown.

Bruce Hayden (mail) (www):
Hey, maybe this is the time to expand on the CA SSM decision and find a fundamental right to bigamy.
5.22.2008 8:02pm
Duncan Frissell (mail):
I don't understand how these prosecutions are possible in the absence of testimony by one of the two parties to the sex act. Doesn't the state have to prove that sex occurred within the jurisdiction? A baby may be proof of sex but isn't proof of the location of the sex. Since most of the sex would be legal in some jurisdictions or could have occurred outside the jurisdiction of the Texas Courts, I don't know how they can proceed without testimony from one of the parties.

Now obviously they can try to compel testimony from wives not legally married to their husbands but those wives may refuse.

What happens if the lawyers tell their clients to shut up and the lawyers just argue that no unlawful sex was proven?

My favorite verbal argument in these cases would be that since the Supremes have decided that anal intercourse (substitute the slang term BF) was protected by the United Staes Constitution (when drafted), it takes a lot of balls for the state of Texas to claim that polygamous marriages by 14-year-olds that were perfectly legal in the Bible and were recently legal in jurisdictions containing more than half the world's population (China, India, the Middle East, and Africa (Barak Hussain Obama, Sr.)) are a crime.

How dare they accuse Barak Hussain Obama Jr.'s mother and father of a felony.

That's why no one would hire me as defense counsel.
5.22.2008 9:33pm
Oren:
Duncan, I don't think any jury in the world is going to buy the argument that the rapes did not occur in TX. The prosecution can prove that the victim was a resident of the YFZ ranch at the time of the crime and that residents of the ranch spent all of their time there. If neither of the two parties takes the stand to rebut that, I think it's a fairly solid demonstration of jurisdiction.

Of course, if the prosecution has any doubts they can compel the victims to testify (and throw 'em in jail until them do) -- at that point they must either perjure themselves (very unchristian) or admit the truth.

Also, the SCOTUS found that the homosexual sodomy was protected by the 14A which, as you may remember, was not part of the Constitution when drafted.

Finally, the bible in many cases holds up rape as acceptable conduct -- I doubt that even the most ardently religious folks would argue that makes rape OK.
5.22.2008 10:32pm
BruceM (mail) (www):
Since when is it a crime for religious people to have sex with children in the name and furtherance of their religion?
5.22.2008 11:13pm
Mark Butler (mail):
Finally, the bible in many cases holds up rape as acceptable conduct -- I doubt that even the most ardently religious folks would argue that makes rape OK.


Really? Where?
5.22.2008 11:14pm
BruceM (mail) (www):
Also, in Texas, jurisdiction does not have to be proven beyond a reasonable doubt.
5.22.2008 11:14pm
RAH (mail):
The problem with further prosecutions is that they need a victim to testify. If CPS did not get a victim to testify in the last 6 weeks that they held these women and girls, I suspect they would have presented that testimony in the appeal case. Therefore they do not have a victim to testify.
CPS has spoiled the environment. If any girl was tempted to turn states witness, the very act of taking her children would have shown her the unwisdom of that act.
The CPS brutal tactics turned all these children and women against them. CPS continually lied to these women. Any girl would not believe that CPS would help rather than punish them.

I expect as soon as these children are released the parents will take their children and flee the state so the state can not get a second chance to kidnap their children.

I am not a FLDS or really any type of religous person, but If I were in their place, I would leave as fast as I could.
If a girl wants to leave with her child it would be better to flee to Utah and talk to the authorities there. She will have a better chance of keeping her child
5.22.2008 11:36pm
Waldensian (mail):


Finally, the bible in many cases holds up rape as acceptable conduct -- I doubt that even the most ardently religious folks would argue that makes rape OK.

Mark Butler: Really? Where?

Well, it appears to have been acceptable to offer up one's own virgin daughters for raping, to protect angels from sodomy. Check out Genesis 19:8.

Proving once again that the Bible is totally inappropriate for children.
5.22.2008 11:41pm
kbp (mail):
Out of order, from a non-attorney that can read!
3. Bigamy
Easy to prove the marriages after the first are Bigamy the way the code is written. I have to wonder if they can prove the first to make all that followed bigamy. Aslo, is the law legal the way it was passed? Behind closed dorrs?

1. Rape
The problem here, if the question of jurisdiction fails, is for the FLDS members. Informal Marriage requires one to be 18 YO. I only know of a case or two that apply here with monogamous "spiritual marriages", one is uncertain because of the 3 year age difference rule. In the plural marriages, it gets tougher.

2. Aiding
The "Warren" charge! A stretch.

4. Removal of Children
Any sexual criminals should be removed from households to maintain family. They learned today their "beliefs" method won't fly too well.

The possible cases here has poison trees every where, so we can't be certain what will happen to the fruits.
5.23.2008 1:25am
subpatre (mail):
Eugene - is the state presses bigamy charges against FLDS members for 'spiritual marriages', doesn't this raise an equal protection problem? What of all Methodists, Baptists and Episcopals who are seperated from a spouse, are not (yet) divorced and "lives with a person other than his spouse in this state under the appearance of being married".

Not a huge percentage (5 percent?) but a colossal number of Texans are in violation. IMO Hildebrand and the legislature overreached with the statute.
5.23.2008 2:50am
subpatre (mail):
Oren writes I don't think any jury in the world is going to buy the argument that the rapes did not occur in TX.
What rapes? Hasn't this —the absence of any criminal conduct— been the lynchpin of the CPS case that it needs no probable cause?

For someone who wrote: Quit pretending that this is primarily a criminal investigation . . . that's a lot of allegation of crimes being thrown around.

In case you'd forgetten —it seems to be used as a talking point for some here— rape is a felony. Even if 'merely' statutory, it is criminal.

With ten thousands members on this continent —despite allegations of sex crimes, despite 'lost boyz', despite 'forced marriages', despite abuse allegations, despite every claim thrown at these folks— there's only a dozen former members in the last 30 years who criticize FLDS or its leaders. One dissident every two or three years.

If one tiny fraction of Oren's claims were true, there'd be hundreds or even thousands suing the bejebers out of the trust. There's a $100+ million incentive to sue; even Texas is eying the trust to 'pay for its actions'.

FLDS distasteful? Sure, but every indication shows they've been law abiding. This in spite of new Texas laws passed deliberately (and openly, making a federal case straightforward) to target their religious practices.
5.23.2008 3:26am
Seven Machos (mail):
Where in Genesis 19 or anywhere in the Bible does it suggest that rape is "acceptable conduct"?
5.23.2008 3:46am
Seven Machos (mail):
I add: What? Because something happens in the Bible, it's acceptable conduct? Even a moron wouldn't argue that.

What happened to Lot? You proably have no idea because, let's be honest, you've never really read the story. So I'll tell you. He ended up in a vast desert wasteland with his daughters. Then they raped him.

But I guess that's acceptable conduct, too. Right? I mean, it happened in the Bible.
5.23.2008 4:11am
Brett Bellmore:

The possible cases here has poison trees every where, so we can't be certain what will happen to the fruits.


Didn't the Supreme court conveniently kill that doctrine off in a drug case a few weeks ago?
5.23.2008 6:28am
Sk (mail):
Hey, maybe this is the time to expand on the CA SSM decision and find a fundamental right to bigamy.


Don't be silly. Constitutional reinterpretations aren't performed for icky people that legal elites don't like. Bigamists are icky. Homosexuals are not. Haven't you read the constitution?
5.23.2008 8:01am
Extraneus (mail):
Considering the ruling of the appellate court, can anyone comment on the justification for continuing to analyze the DNA samples? I understand that the "imminent danger" threshold for confiscation of the children (and adults!) hadn't been reached to the satisfaction of the court, and also that the court didn't agree that all of the sample-givers could be considered to have resided in a single household, so it seems like a stretch to maintain that it was still ok for the gov't to come in and take a town-wide blood test in order to investigate who's related to whom. Just wondering if anyone knowledgeable here could comment on this seemingly heavy-handed intrusion into these folks' privacy, and whether the appellate court decision bears at all on the DNA samples.
5.23.2008 8:48am
Legal Eagle-ite:

Don't be silly. Constitutional reinterpretations aren't performed for icky people that legal elites don't like. Bigamists are icky. Homosexuals are not. Haven't you read the constitution?


You must not have HBO. We like Big Love.

The real problem is that the bigamists chose Texas, rather than a tolerant place, to live.
5.23.2008 9:48am
Sk (mail):
"You must not have HBO. We like Big Love.

The real problem is that the bigamists chose Texas, rather than a tolerant place, to live."

I don't watch Big Love. But a guess: polygamists in Big Love are cool, cynical, modern folk who happen to live commune-like (yeah, they may be 'Mormon', but their Mormon, if a Hollywood dude pretended to be Mormon). Am I right?

If so, perhaps we need to refine our argument: legal elites find religious believing bigamists icky. Legal elites don't find cool, cynical bigamists, with tv-quality looks, or homosexuals, icky. Thus the disconnect. Why doesn't the California Supreme Court find a right to bigamy, but restrict it to cool attractive people?
5.23.2008 10:10am
Tony Tutins (mail):
I see a lot of problems with trying to prove non-consensual sex rape (women's fear of societal repercussions against them/their children, Stockholm syndrome, ouster from their society into a world where they're not equipped to function without some sort of rehab and training).

But below-age-of-consent -- statutory -- rape can be proved with a set of birthdates -- the women's and their children's -- with DNA tests if necessary to tie mother and child. Take the child's birthdate, backdate nine months, and check her age (not counting preemies). But the problem is that different ages of consent applied over the past five years: There was one in their home state, one in Texas when they arrived, and one enacted in Texas in response to their arrival. Thus the fathers of kids born when their mothers were, say, 14, would be free, while others who fathered a child with a 16 year old girl would go to jail.

Further, is there a statute of limitations to statutory rape? What if the woman is of age now yet continues to willingly have sexual relations with her violator -- would that excuse the statutory rape?
5.23.2008 11:47am
FWB (mail):
Will the state follow the equal protection clause and take the children away from all the underage girls in the entire state who got pregnant and had children? I believe the number in TX is somewhere appraching 25%. Will the state go after every male who was overage when he impregnated an underage girls?

Lets see we don't like how this group exercises their right of religious obeance so to hell with it all, let's get'em. Whether one likes it or not, it's not your business. Maybe EVERYONE should be investigated for all past activites. Did any poster ever have sex with an underage girl?
5.23.2008 11:58am
Loren (mail):
Does the State of Texas pursue every pregnant minor within the state to support statutory rape investigations? Do they remove said child from the mother's custody and take DNA to prosecute the statutory rapists in every case within the state?

Seems like a tough state to be a 17 year old male with a 17 year old girlfriend.
5.23.2008 12:00pm
Loren (mail):
FWB-synchronicity!
5.23.2008 12:01pm
Jeff R.:
Tony: You still need probable cause to get those DNA samples, don't you? And anything that's come of DNA tests done in the aftermath of the now-illegal raid is going to be subject to suppression, I'd think.
5.23.2008 12:02pm
Another Texas Lawyer (mail):

Will the state follow the equal protection clause and take the children away from all the underage girls in the entire state who got pregnant and had children? I believe the number in TX is somewhere appraching 25%.


That is the problem. They grabbed enough people to make statistical comparisons between the YFZR FLDS and the normal Texan valid.

The result is that they'v established that less underage kids have sex, fewer have babies (and even fewer have abortions) than kids in the normal population in Texas. The number of overage "baby daddies" is less as well.

So, other than criteria that justify seizing every Muslim child in the state, arresting all the Hasidic parents, prosecuting all the arranged Hindu marriages and closing down every City, they are kind of left with a persecution of an insular religious minority that counts as United Nations genocide.

A real problem, all in all.
5.23.2008 12:25pm
Matthew X. Economou (mail) (www):

The Utah Supreme Court recently interpreted Utah bigamy law more broadly, to cover second marriages even when they aren't claimed to be legally valid marriages; but Utah law said simply that, "A person is guilty of bigamy when, knowing he has a husband or wife or knowing the other person has a husband or wife, the person purports to marry another person or cohabits with another person," without the "under circumstances" language.


Wouldn't the parties involved be able to claim First Amendment protection (right to assemble)? I don't understand how cohabitation can be unlawful in this regard, unless that word is used in some other way by the Utah statue. (Is this what the other posters mean by "equal protection problem"?) I suppose one could still be prosecuted for fraud if they were to claim spousal rights/benefits in lieu of a legal marriage (whether under civil or common law).
5.23.2008 12:41pm
ReaderY:
Child Protective Service's basic theory seems to have been founded on a premise that the entire ranch was a single household. Only such a theory could every adult be regarded as part of the household of every child so that a single act by adult on any child would mean every other child was exposed to an adult in the same household. Moreover, only under such a theory could the adult's activities be regarded as some sort of functional equivalent of incest (endangerment by a parent equivalent).

Absent the single household theory, is anyone in any danger at all? It seems hard to understand how, given the fact that it is normal in the majority of the world and was perfectly legal until only a few years ago, underage sex represents an imminent physical danger to teenagers. It may not be a good thing to do, it can get them pregnant with all the difficulties involved, it can impede their ability to develop their education and social bonds society considers normal, etc. But physical danger? How exactly does it impose any physical danger at all?

Sex by a parent or parent substitute with a child can perhaps be presumed inherently violative and dangerous, and under CPS's single household theory this was precisely what was going on. But exactly can dating a person older than oneself who is not a member of ones household be considered inherently an act of violence or involving physical danger?

I personally have no problem with social paternalism and society is of course entitled to be more paternalistic with children than adults. Keeping teenagers away from sex with older people is a perfectly reasonable goal of a paternalistic society. There are many dangers, pregnancy, manipulation, and more. But physical harm? Imminent danger? Sexually intercourse simply is not physically harmful. I don't see how it can be claimed that it is.
5.23.2008 2:20pm
Bruce Hayden (mail) (www):
In the first comment above, I suggested that the recent SSM ruling in CA may affect bigamy laws. At the time it was flippant, but as I thought about it over time, the more I became convinced that this may just happen.

After all, if a state cannot come into the bedroom to determine what type of sex you are having, or whether you are having it with a person of the opposite sex, etc., then why should it be able to tell consenting adults (typically of the opposite sex, but now maybe of the same sex) that they cannot have sex together because one of them is married? Polygamy just makes this more debatable and interesting - apparently in Utah bigamy does not apply if a spiritual marriage is involved.

So, my prediction is that the next laws to fall are not going to be the laws against polygamy, but against bigamy.
5.23.2008 2:34pm
Oren:
What if the woman is of age now yet continues to willingly have sexual relations with her violator -- would that excuse the statutory rape?
No. Full stop.
5.23.2008 4:09pm
Oren:
then why should it be able to tell consenting adults (typically of the opposite sex, but now maybe of the same sex) that they cannot have sex together because one of them is married?
They can't. Laws against adultery haven't been enforced for decades. You can be married and sleep around all you want (Vitter, Spitzer, Dann, Clinton, Craig, Haggard).
5.23.2008 4:16pm
Oren:
Hell, in Haggard's case he was married and slept with a gay man! That's fornication, sodomy and adultery all in one! Morally detestable, yes. Illegal, no.
5.23.2008 4:17pm
ReaderY:
Laws against adultery are still regularly enforce in some states. See e.g.

Misenheimer v. Burris (N.C. App. 2007), http://www.aoc.state.nc.us/www/public/coa/opinions /2007/040445-2.htm (On remand after N.C. Supreme Court reversed dismissal of case)

McCutchen v. McCutchen (N.C. App. 2006)
http://www.aoc.state.nc.us/www/public/sc/opinions /2006/308-05-1.htm

Fox v. Gibson (N.C. App. 2006)
http://www.aoc.state.nc.us/www/public/coa/opinions /2006/050826-1.htm

But see Stann v. Levine (N.C. App. 2006)
http://www.aoc.state.nc.us/www/public/coa/opinions /2006/051269-1.htm (dismissal for failure to print appelate brief in a conforming manner)

Brown v. Ellis (N.C. App. 2007) (dismissal for want of jurisdiction)
http://www.aoc.state.nc.us/www/public/coa/opinions /2007/060710-1.htm
http://www.aoc.state.nc.us/www/public/coa/opinions /2006/051269-1.htm

One gets the impression some judges on the Court of Appeals really don't like these cases and don't like the fact that the state Supreme Court keeps reversing them whenever they try to narrow the scope.
5.23.2008 6:22pm
Oren:
ReaderY, none of those link work for me. Thanks for the cite though, I was truly unaware that any State was really spending its resources punishing philandering spouses.

Then again, people that cheat on their spouses are pretty low.
5.23.2008 7:41pm
Oren:
ReaderY, Misenheimer and McCutchens are civil suits for alienation of affection! What are you trying to pull here?
5.23.2008 11:30pm
David Friedman (mail) (www):
On the DNA issue, two questions:

1. If the original search was legal but the seizure of the children was not, can the CPS legitimately claim that taking the DNA samples was simply part of the legal search, even if they should have left the children with their parents while taking them?

2. Suppose it is found that the original search was illegal, that the warrant was obtained by perjury? Suppose, for example, that the authorities had evidence that the phone call from "Sarah" was a hoax and did not include that in their testimony, or knew that their confidential informant had never been in the ranch and implied the contrary.

Does that mean they have to destroy all DNA evidence?

Presumably, if they actually charge someone with statutory rape, they can then collect new DNA evidence as part of that proceeding--but they can't figure out in advance whom to charge by analyzing DNA samples from 400+people.
5.24.2008 2:20pm
ReaderY:
Oren, they're suits that include "criminal conversation", a euphemism for adultery, which is a civil tort with automatic punitive damages(North Carolina law regards "criminal conversation" as an inherently malicious act with punitive damages for malice). Some of the damages in these cases have been in the hundreds of thousands of dollars and a few cases in recent years involved awards in the millions.

You may have been looking solely for criminal prosecutions, but you didn't say so. It does seem to me that these cases do indeed represent counterexamples to the statement you did make, which was


Laws against adultery haven't been enforced for decades. You can be married and sleep around all you want


Although civil rather than criminal, these cases represent examples of recent enforcement of laws that impose legal consequences on being married and sleeping around, and which are intended to make people think twice before doing so.
5.24.2008 11:20pm
Bill Dyer (mail) (www):
Prof. V: Your category No. 4 above is correct, but woefully inadequate in its description of the potential grounds for removal. The State need not necessarily prove rape, nor any other form of physical abuse. Instead, as I've written on my own blog:

What the Department had to show at this particular stage of proceedings was governed, as the court of appeals' opinion correctly noted, by Texas Family Code section 262.201. The key is proof of an imminent "danger to the physical health or safety of the child" that can't be abated by lesser means. At least with respect to any of the children of the set of parents who filed the mandamus petition, the Department wasn't able to present any direct evidence of such imminent physical danger. (Whether there was enough evidence presented with respect to some other particular children, the court of appeals' opinion doesn't answer, because that question wasn't properly before it.)

The ultimate decision, however, will be made based on chapter 161 of the Texas Family Code, which governs termination of the parent-child relationship. Texas Family Code section 161.001 doesn't necessarily require a threat to the "physical" health or safety, but rather, expressly authorizes the trial court to consider — among a vastly broader list of other criteria than were relevant to the adversary hearing on temporary custody — the "emotional well-being" of the child.

These broader criteria are what could justify, for example, the Department seeking relief on behalf of even male children who are not at direct risk of being forced into underage marriage or sex: Being raised in a system in which they're being programmed to eventually become a sexual predator themselves could well be a sufficient ground to permanently sever their parents' legal control over, and possession rights to, them.

This broader standard may permit the Department to paint with a broader brush in the final termination proceedings on the merits, regardless of who has had temporary custody of the children in the interim since the original raid. And that's where the Department's proof of the "pervasive belief system" that was insufficient to show a risk of imminent physical harm may nevertheless be extremely relevant and, perhaps, sufficient. The Department will undoubtedly need to show that the system isn't just pervasive, but genuinely coercive as well. And even after it proves up the "system," the Department is clearly still going to have to adequately link, by specific facts based on first-hand personal knowledge, each family and child to that "pervasive belief system" and its coercive elements.
5.25.2008 4:03pm
ReaderY:
Waldensian,

Your view that the Bible approves of Lot's conduct is merely your personal opinion. In general, a statement that an event occurred does not necessarily imply approval. One could just as easiliy argue that the U.S. Supreme Court approves of rape, or for that matter murder. After all, the Justices write statements mentioning both rather frequently.
5.25.2008 5:56pm
ReaderY:
A statute which permits a judge to take children away from parents because he thinks the parent's religious beliefs are emotionally doesn't seem consistent with the First Amendment.

How exactly is underage sex more emotionally harmful to a child than teaching the child German? The State of Nebraska could have made a good argument that teaching German right after World War I was emotionally harmful to the children. It was the language of the enemy; being seen involved in it could mark children as unpatriotic and of suspicious loyalty. It prevent them from fitting in with mainstream society. One could make an excellent argument that prohibiting it was necessary for the children's emotional well-being.

We as a society don't work that way. It's one thing to (say) put children in cages and throw feces at them -- acts which don't cause physical pain but is clearly psychologically damaging. But if we extend the concept of "emotional damage" to teaching children ideas that the State doesn't approve of and which government officials feel uncomfortable about, we've overruled Meyer v. Nebraska and we as well admit it.

In a divorce, somebody has to get custody -- one could flip a coin -- and in such cases perhaps the judge's sense of mores is as good a basis as in any other. But to take children away from their parents and put them in foster homes in order to keep them from ideas one doesn't like is not consistent with an enduring first Amendment. If parents are not permitted to pass on unpopular ideas to their children, any benefit of the First amendment is only temporary.

It doesn't seem to me that this stuff harms children any differently from the way people said homosexuality harmed children when people said homosexuality harmed children, and only a few years ago there were whole societies in the U.S. that believed it rather fervently.

If one takes this this idea seriously, Texas would be entitled to take away the children of parents of hispanic heritage who hold a coming-of-age party for their 15-year-old -- the traditional age of marriagibility for a young woman in that culture, where suitable a young man was expected to be somewhat older.

Could Jewish parents have their children taken away for holding a bat mitzvah? After all, the age the event marks is nothing more nor less than the traditional age of marriagiability for a daughter. If Jewish parents who explained the historical religious significance of the age to their daughter, would be the state be justified in raiding their home and taking their children away?

What's the difference between FLDS and Judaism here? Most tradional cultures have a coming-of-age at an age much less than 18. American society has the right to change the age to one more convenient to our type of society, but can anyone really take seriously the idea that most religions and cultures throughout history were actually emotionally abusing children because they picked an age, for their reasons, that was different from the age we picked for hours?

Better, much better, to call a spade a spade, say that what we have here is morals legislation and be honest about having it. Better, far better, to simply admit that human societies throughout history have had a need to have limits on sexual behavior, that this need is deeply emotionally felt, and that its expression through law is the business of legislatures and not courts, than this subterfuge of pretending that people are physically and emotionally harmed by behavior which plenty of other societies do just fine, and which simply offends ones emotions and ones morals.

In my view, all the reasons given for underage sex laws (at least after an age when the behavior is common in humans whether or not approved of) would work just as well for sex-outside-of-marriage laws generally. One can argue people are more prepared to have children in both cases; the emotions involved require more maturity to handle corresponds the emotions involved require a more stable relationship, etc. These are all good reasons to have such laws, and one could argue that in the context of our society the issues involving teens are intensified while the issues involving adult singles are attenuated. Maybe so. But it seems to me that underage sex laws simply involve more and stronger versions of the same arguments that were argued for fornication laws.

To argue that laws prohibiting sex between two unmarried 18 year olds (or 16 year olds) are so totally irrational that the constitution requires striking them down, while laws prohibiting marriage between an eighteen and a seventeen year old are so obviously necessary and right that parents who don't condemn it strongly enough should have their children taken away, seems to me to be totally unsupportable.

If "rational basis" simply means "what we judges feel strongly about", better for judges to admit this.
5.25.2008 6:46pm