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Texas Polygamy and Child Welfare- Guggenheim

Texas Polygamy and Child Welfare- Guggenheim

Ratings: (0)|Views: 86 |Likes:
Published by woodstockwoody
Discusses the legal issues surround the removal of children from a fundamentalist mormon group in Texas. For example, according to the author, "child welfare interventions will become too much about the (mis)behavior of parents, with a particular emphasis on conduct that is criminal or “immoral,” and too little about what should always remain the
central inquiry: whether children are in danger.
Discusses the legal issues surround the removal of children from a fundamentalist mormon group in Texas. For example, according to the author, "child welfare interventions will become too much about the (mis)behavior of parents, with a particular emphasis on conduct that is criminal or “immoral,” and too little about what should always remain the
central inquiry: whether children are in danger.

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Categories:Types, Business/Law
Published by: woodstockwoody on Dec 08, 2010
Copyright:Attribution Non-commercial

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01/25/2014

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(4)
 
G
UGGENHEIM
9/29/2009
 
8:55
 
PM
759
 ARTICLE
TEXAS POLYGAMY AND CHILD WELFARE
 Martin Guggenheim
 
T
 ABLE OF
C
ONTENTS
 I.
I
NTRODUCTION
.................................................................... 760
II.
T
HE
R
 APIDLY 
C
HANGING
C
ONSTITUTIONAL
 L
 ANDSCAPE IN
F
ORMING
I
NTIMATE
R
ELATIONS
.................. 763
III.
S
 AME
-S
EX 
M
 ARRIAGE AND
P
OLYGAMY 
................................ 764
IV.
 A 
DULTERY 
........................................................................... 771
 V.
P
OLYGAMY AND THE
P
ROSECUTION OF
R
ODNEY 
H
OLM
....... 776
 VI.
T
HE
U
SE OF THE
S
TATE
S
I
NTEREST IN
C
HILDREN TO
J
USTIFY 
E
FFORTS TO
R
ESTRICT
F
 AMILY 
F
ORMATION
......... 782
 VII.
 
T
HE
S
TATE
S
I
NTERESTS IN
F
ORBIDDING
P
OLYGAMY 
........... 787
 A.
The Protection of Women
.............................................. 788
 B.
The Protection of Children
............................................ 791
 VIII.
 
T
HE
T
WO
M
 ASSIVE
R
 AIDS ON
P
OLYGAMOUS
C
OMMUNITIES IN
 A 
MERICAN
H
ISTORY 
................................ 794
 A.
The Short Creek Raid in 1953
...................................... 794
 
Fiorella LaGuardia Professor of Clinical Law, New York University School of Law. I am grateful for financial support from the Filomen D’Agostino and Max E.Greenberg Research Fund at New York University School of Law. I want to think BrianGran, Jessie Hill, Mary Romero, Laura Rosenbury, and Helena Silverstein, who gave me very helpful comments when I shared an early draft at a working conference organized bythe Center for Social Justice at Case Western Reserve University School of Law. I alsowish to thank Faith Bekermus, New York University Class of 2009 for excellent researchassistance in the preparation of this Article.
 
(4)
 
G
UGGENHEIM
9/29/2009
 
8:55
 
PM
760
 HOUSTON LAW REVIEW 
[46:3
 B.
The San Angelo Raid in 2008
....................................... 800
IX.
T
HEORIES OF
C
HILD
P
ROTECTION
 I
NTERVENTIONS IN
P
OLYGAMOUS
F
 AMILIES
....................... 801
 A.
 Derivative Neglect
......................................................... 804
 B.
Communal Immorality
................................................. 811
C
ODA 
:

T
HE
P
ROBLEM OF
C
ONTINUING TO
“M
 ARRY 
 
M
INORS
...... 814
 
I. I
NTRODUCTION
 The history of polygamy in the United States has been toldmany times.
1
Polygamy was a central feature of life for membersof the Mormon Church in the nineteenth century.
2
Thewidespread practice through several western territories created amajor political problem as the country expanded. The federalgovernment’s power proved considerably greater than that of therelatively small group of religious adherents, and Congressinsisted that no territory would be added as a state unless thepractice of polygamy was made illegal.
3
 Though the territories’ leaders agreed to these conditions inorder to gain the advantages of statehood, practitioners of polygamy continued to believe they had the right to form familiesaccording to the dictates of their religion. The major test on theban against polygamy came in 1878 in
 Reynolds v. United
1.
See, e.g.
, Jaime M. Gher,
 Polygamy and Same-Sex Marriage—Allies or Adversaries Within the Same-Sex Marriage Movement
, 14 W
M
.
 
&
 
M
 ARY 
J.
 
W
OMEN
&
 
L.559, 573–77 (2008) (reviewing the historical regulation of polygamy in modern America);Orma Linford,
The Mormons and the Law: The Polygamy Cases
(pt. 1), 9 U
TAH
L.
 
R
EV 
.308, 308–09 (1964) (cataloging the origins of the practice of polygamy in the MormonChurch); Shayna M. Sigman,
 Everything Lawyers Know About Polygamy is Wrong
, 16C
ORNELL
J.L.
 
&
 
P
UB
.
 
P
OL
 Y 
101, 110–15 (2006) (examining the role of polygamy in the riseof the Mormon Church).2.
See
David L. Chambers,
 Polygamy and Same-Sex Marriage
, 26 H
OFSTRA 
L.
 
R
EV 
.53, 62 (1997) (noting that the Mormon Church encouraged marital plurality during thenineteenth century).3. Specifically, Congress required antipolygamy provisions within Arizona, NewMexico, Oklahoma, and Utah’s constitutions as a condition of statehood, and Idahoadopted a similar constitutional prohibition on its own accord. I
DAHO
C
ONST
. art I, § 4(providing that freedom of religion could not be a defense to the crime of polygamy); Act of June 20, 1910, ch. 310, 36 Stat. 557, 558, 569 (requiring Arizona and New Mexico toforbid polygamy); Act of June 16, 1906, ch. 3335, 34 Stat. 267, 269 (requiring the same of Oklahoma); Act of July 16, 1894, ch. 138, 28 Stat. 107, 108 (requiring the same of Utah); Act of July 3, 1890, ch. 656, 26 Stat. 215, 215 (approving Idaho’s Constitution, whichforbade polygamy);
see also
Romer v. Evans, 517 U.S. 620, 648–49 (1996) (Scalia, J.,dissenting) (“The United States Congress, by the way,
required
the inclusion of theseantipolygamy provisions in the Constitutions of Arizona, New Mexico, Oklahoma, andUtah, as a condition of their admission to statehood.”).
 
(4)
 
G
UGGENHEIM
9/29/2009
 
8:55
 
PM
2009]
TEXAS POLYGAMY AND CHILD WELFARE
761
 States
.
4
In that case, the Supreme Court upheld the prohibition of polygamy against a constitutional challenge based on freedom of religion. In doing so, the Court famously remarked that certainpractices are simply out of bounds in the kind of “civilized”society that the United States intended to form and maintain.
5
 
 Reynolds
held that, because of the family’s role in inculcating  values, the form of marriage is a basic state question. Concluding that plural marriages tend to lead to patriarchal politicalprinciples and eventually despotism, the Court comfortablyupheld the prohibition against polygamy.
6
 Soon after, the Mormon Church made peace with itself andthe country by officially denouncing polygamy.
7
But manyfamilies within the church continued the practice, eventuallygoing underground by removing themselves from communitiesthat did not tolerate the practice of polygamy. Ever since, a smallbut significant number of fundamentalist adherents to Mormonideology have continued the practice of men taking multiplewives and living together in communities largely closed off fromthe rest of society. In 1991, they formally established theFundamentalist Church of Jesus Christ of Latter Day Saints(FLDS).
8
 FLDS members today tend to live in communities in whichmost members practice polygamy themselves and all memberstolerate its practice even if they do not themselves participate init. They live in isolated communities in Utah, Arizona, andTexas. Though their existence has long been known to localofficials, their way of life has only rarely been interfered with.
9
 Two very well-known attempts to eradicate these communitieshave been undertaken. The first was in Arizona in 1953.
10
Police
4. Reynolds v. United States, 98 U.S. 145 (1878).5.
Id.
at 165–66. The Court observed that “[p]olygamy has always been odiousamong the northern and western nations of Europe, and, until the establishment of theMormon Church, was almost exclusively a feature of the life of Asiatic and of Africanpeople.”
 Id.
at 164.6.
Id.
at 166–67.7.
 See
R. Michael Otto,
“Wait ‘Til Your Mothers Get Home”: Assessing the Rights of  Polygamists as Custodial and Adoptive Parents
, 1991 U
TAH
L.
 
R
EV 
. 881, 895 (1991)(explaining that the Mormon Church adopted a “Manifesto” advising Mormons to refrainfrom polygamy in October 1890).8. D. Michael Quinn,
 Plural Marriage and Mormon Fundamentalism
,
in
F
UNDAMENTALISMS AND
S
OCIETY 
252, 254 (Martin E. Marty & R. Scott Appleby eds.,1993).9.
See
 Alyssa Rower,
The Legality of Polygamy: Using the Due Process Clause of the Fourteenth Amendment
, 38 F
 AM
.
 
L.Q.
 
711, 719–20 (2004) (citing almost fifty years of relative freedom from state interference after the Short Creek raid).10.
See
Otto,
supra
note 7, at 897–902 (detailing the events of the raid on ShortCreek in which 200 to 350 FLDS members were arrested, separating parents from

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