Monday, May 12, 2008

FLDS, Teen Pregnancy and Due Process

I must be missing the whole FLDS story. If I understand correctly, the state of Texas has taken nearly 500 children away from their families. The main concern underlying all of this is that young girls, as young as 13, are being "spiritually married" to older men and they're getting pregnant. There may be other kinds of alleged abuse, but the teens getting pregnant appears to be the big one.

So why are they taking infants away from their mothers? I'm reading stories about women with six kids having to deal with their children being spread all over a rather large state.

Under substantive due process, a state infringing fundamental rights must be advancing a compelling state interest in a narrowly tailored manner. To put that in a potentially relevant way, you can't use a shotgun approach - you have to use a sniper rifle.

Taking away infants from their mothers has little to do with preventing teen pregnancy. Taking away girls from the ages of 10-14 would have made more sense - it would have looked more like the narrow tailoring required by the Constitution.

There's a bunch of questions in all this:

Is our society any good at preventing teen pregnancy in the first place? Who are we "normal people" to tell these people about sexuality and teenagers? How old was Cher when she ran off with Sonny Bono (and he later became a congressman).

I do recognize that part of this is a valid concern about these girls being forcibly raped. But let's not forget that this happens in supposedly normal communities too. Are these girls going to be safer in a regular high school?

How about procedural due process? Was there some imminent danger that required removal of all these kids with no advance hearings? Procedural due process is supposed to involve notice and an opportunity to be heard, and this is generally before the state infringes our rights.

There's the religious freedom issue. What if the state decided to cart off all the Jewish kids because Jewish families give wine to 13-year-old boys at their Bar Mitzvahs? I suggest that states not try this one, because we have better access to lawyers than our FLDS friends.

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