“Soft despotism is a term coined by Alexis de Tocqueville describing the state into which a country overrun by "a network of small complicated rules" might degrade. Soft despotism is different from despotism (also called 'hard despotism') in the sense that it is not obvious to the people."

Thursday, May 22, 2008

Texas Wrong in Taking Children From Parents

Court: Texas had no right to take polygamists' children

SAN ANGELO, Texas (CNN) -- The state of Texas should not have removed the more than 460 children it took from a polygamist sect's ranch because it didn't prove they were in "imminent enough" danger, an appeals court ruled Thursday.

In its ruling, the Texas 3rd District Court of Appeals decided in favor of 38 women who had appealed the removals, as well as a decision last month by a district judge that the children will remain in state custody.

"The existence of the FLDS belief system as described by the department's witnesses, by itself, does not put children of FLDS parents in physical danger," the three-judge panel said.

An attorney representing the mothers said the trial court that originally backed the state's seizure of the children has 10 days to vacate its decision. If it doesn't, the appeals court will act, said Julie Balovich of the Texas RioGrande Legal Aid.

"It is a great day for families in the state of Texas," she said.

The state's Department of Family and Protective Services "did not present any evidence of danger to the physical health or safety of any male children or any female children who had not reached puberty," the judges ruled. Watch how the ruling favors FLDS »

According to the ruling, the mothers said the state should have proved that the children's health or safety was in danger; that there was "an urgent need for protection" that required immediately separating the children from their parents; and that the state made "reasonable efforts" to avoid removing the children.

Because no such proof was presented, the mothers argued, the District Court -- which backed the department's seizure of the children -- "was required to return the children to their parents and abused its discretion by failing to do so."

The ruling does not order the children returned to Yearning for Zion ranch in Eldorado, Texas, but directs the lower court to vacate its orders granting custody of the women's children to CPS.

"The legislature has required that there be evidence to support a finding that there is a danger to the physical health or safety of the children in question and that the need for protection is urgent and warrants immediate removal," the ruling said.

It concluded, "Evidence that children raised in this particular environment may some day have their physical health and safety threatened is not evidence that the danger is imminent enough to warrant invoking the extreme measure of immediate removal prior to full litigation of the issue."

The children were removed last month from the Yearning for Zion ranch, which is owned by the Fundamentalist Church of Jesus Christ of Latter-day Saints, a Mormon offshoot that practices polygamy.

"The way that the courts have ignored the legal rights of these mothers is ridiculous," Balovich said before a news conference. "It was about time a court stood up and said that what has been happening to these families is wrong."

Later, flanked by some of the FLDS mothers represented in the case, Balovich explained that authorities considered YFZ ranch one household, an assertion with which the appeals court did not agree.

"This was the right decision," Balovich said, adding that she and her clients were "ecstatic about this news."

Although the ruling applies only to the 38 mothers and their children, "we believe the reasoning in the court of appeals decision would apply to all children," Balovich said.

The authenticity of the initial abuse reports that focused authorities' attention on the ranch is in question, the court noted in its ruling. Police have alleged that a family shelter crisis line received multiple calls on March 29 and 30 from a caller claiming to be Sarah Jessop Barlow, age 16.

The girl reported that she had an 8-month-old baby and was pregnant again, and that she was married to Dale Barlow, who abused her physically and sexually.

At least one of the telephones used by "Sarah Barlow" to make the calls has been traced back to a Colorado woman. Police have named Rozita Swinton a person of interest in connection with the reports of abuse at the ranch, but she has not been charged, although she faces charges of providing a false report to authorities in a Colorado case.

Court hearings in the FLDS case resumed Monday, with hearings in several courtrooms to accommodate lawyers for the children. The hearings were held so the parties could review "family service plans" dictating the parameters under which FLDS children can regain custody of their children.

FLDS members have denied any physical or sexual abuse takes place, and maintain they are being persecuted for their religious beliefs.

The sect's leader, Warren Jeffs, is in a Utah prison after a conviction on charges of being an accomplice to rape in connection with a marriage he performed in 2001. Jeffs also faces trial in Arizona on eight charges including sexual conduct with a minor, incest and conspiracy.


  1. Reminds me of a story I heard on the radio recently where a University Professor took his kid to a Detroit Tigers game. He went to the concession stand and ordered a beer. He asked his kid if he wanted a lemonade to which he replied, of course, yes, so he bought him one - listed on the Board as Mikes Hard Lemonade. Near the end of the game a security guard saw the kid drinking from the lemonade bottle summoned them both and then the cops. The kid was removed from his dad's custody because his dad gave him alcohol. The dad had to move out of their home until over a week later when a court finally ruled that he could have contact with his kid again.

  2. Court's most likely right. For the pre-puberty kids. On the other hand, the article makes this interesting mis-statement--

    The hearings were held so the parties could review "family service plans" dictating the parameters under which FLDS children can regain custody of their children.

    KIds having kids.

    If they are knocking the kids up right after puberty, there's a lot of truth hidden in that statement.

    They ought to be going after the older males, as they probably are. Genetic tests ought to be able to unscramble who impregnated whom when and at what age etc. Rape, incest, abuse charges following.

    But the California Supreme Court might well say, all normal, just following the constitutional right to "form a family."

  3. Some of the polygamists groups or males in Utah were found to be abusing the well fare system by pumping out all these kids with multiple 'wives', the taxpayers footing the bills.

  4. Cherry Juice Gout Treatment The reason behind the miracle of cherry juice and gout.

  5. I wasn't kidding about my magic cherry juice potion, was I?

  6. You sure weren't, and I do thank you. Beats the price of going to the doctor for that indomethicin!

  7. here's a link to that story I mentioned

  8. Well, doug goes on and on about the illegals, claiming more "victories" that merely maintain the status que.
    Which is a defeat, each and every day.

    As to the employer sanctions option facade, doug.
    They pass the law, then do not fund enforcement. There are no investigations or prosecutions in the budget. When Sheriff Joe arranged for some active enforcement, his budget was cut, 5%.

    No victory, there.

  9. Who cut Sheriff Joe's budget? Was he getting money from the Feds?

  10. Everything ends up in the courts.--

    Florida Dems Sue DNC

    Just days before the DNC rules committee meets to take up the issue of what to do about seating the Florida and Michigan delegations, Democrats in Florida have filed suit against the DNC for allegedly violating the Voting Rights Act:

    Florida's history of discrimination against African Americans should force the Democratic National Party to count all of the state's delegates at its national convention, a lawsuit filed Thursday claims.
    The suit, filed by Senate Democratic Leader Steve Geller and other prominent Democrats in Fort Lauderdale, claims the federal Voting Rights Act, the Civil Rights-era law that requires the U.S. Justice Department to approve any significant voting change in Florida to make sure it doesn't disenfranchise black voters, prohibits the national party from stripping the state of its convention delegates.

    ''If you're going to change the method of the selection of delegates that requires [Justice Department] preclearance,'' Geller said.

    Geller is an uncommitted superdelegate. The other plaintiffs in the lawsuit include a Barack Obama delegate and a Hillary Clinton delegate.

  11. English woman comes to the rescue of chimp 'abducted' from the jungle, asks European court to declare him a 'person', appoint her as guardian. And it looks like the court is taking the case. Here

    In California, if he's a person he could form a family.

  12. "The innovation that is going on is going on in my back yard," he said "It will go on forever, as long as we continue to accept smart people."

    McCain -- who has not talked about immigration as frequently since securing the GOP nomination, in part because audience members are not raising the issue as often as they did during town hall meetings during the GOP primaries -- also took personal responsibility for Congress's failure to enact immigration reform last year.

    "The failure of the federal government -- and it was my failure, too -- has had a lot of consequences associated with it," he said today.

    Immigration Reform

  13. Sheriff Joe was getting a substantial portion of his budget from the State.
    We have about 50,000 outstanding felony warrants, that the State pays the local jurisdictions to serve.
    Seems the Governor decided Sheriff Joe's portion of that pool could be better spent in a new task force, created just for the purpose of spending Joe's previous allocation.

  14. That makes an odd sort of non-sense/sense, Rat, and to be expected:(

  15. Under a proposal being worked on by Arpaio's administrators and county budget officials, the Sheriff's Office would take a 5 percent reduction from its requested budget, or about $4 million to its general fund.

    The office is one of the county's largest, and the reductions are part of a larger effort to trim spending in the face of revenue shortfalls, caused by a slowing economy.

    The sheriff's general fund primarily pays for law-enforcement patrol. Arpaio has spent about $35,000 of the money since January to saturate some Valley neighborhoods with deputies to identify and question people suspected to be undocumented immigrants.

    Another $1.6 million in state funding helped pay for those patrols, and many of the sheriff's immigration-related operations, including drophouse investigations and enforcement of the state's human-smuggling law.

    Earlier this week, Gov. Janet Napolitano signed an executive order that immediately redirected that money to a program to pursue nearly 60,000 open felony warrants to capture some of the state's most-wanted fugitives, including human smugglers and others in the country illegally.

  16. Arpaio said he would continue making illegal immigration a top priority, and that the cuts would not affect public safety.

    The sheriff said he will increase volunteer posse numbers and reduce services offered to other agencies to make room in his tight budget to continue the operations.

    Earlier this week, Arpaio's office was cut off from state funds to help pay for some of those illegal immigration operations, but Arpaio vowed Thursday to continue the sweeps, despite the proposed reduction in county money.

    "If I don't get it back, we're still going to do what we're doing," Arpaio said. "I've got news for them: I'm going to double the arrests. They can put that in their pipe and smoke it."

  17. If you’re wondering what kind of cloth Bonner County sheriff candidate Rocky Jordan is cut from, look no further than Maricopa County Sheriff Joe Arpaio.

    Jordan is an unabashed supporter of the Arizona sheriff, who earned the reputation of “America’s Toughest Sheriff” for providing spartan jail conditions, incorporating the color pink into inmate wardrobes and aggressively combating crime.

    Jordan, a sheriff’s deputy, is competing with Sandpoint Police Officer Daryl Wheeler, former Deputy Geoff Rusho, former Sheriff Chip Roos and incumbent Sheriff Elaine Savage for the Republican nomination for sheriff in the May 27 primary election.

    Sheriff's Seat

  18. "If I don't get it back, we're still going to do what we're doing," Arpaio said. "I've got news for them: I'm going to double the arrests. They can put that in their pipe and smoke it."

    Sounds like Joe is not a man to be denied.

  19. Sen. Hillary Clinton presents the image of a seasoned, ever-disciplined politician whose experience as first lady and a New York senator makes her ready to be commander-in-chief. But a series of misstatements — exaggerations, half-truths and lies — made by Clinton over the last 15 years have at times undermined her image and called her credibility into question:

    1. Travelgate, June 23, 2000

    Non-truth: In a sworn deposition to the General Accounting Office, Clinton was asked if she had any involvement in the decision to fire the staffers: “No, I did not,” she replied. She said she did not know the “origin of the decision” to fire the staffers, “had no role in the decision to terminate the employees” and “did not direct that any action be taken by anyone” regarding the matter.

    Truth: The Office of Independent Counsel investigating it and other matters found “overwhelming evidence that she in fact did have a role in the decision to fire the employees” and that her testimony was “factually false.”

    Hillary Clinton

  20. Sam quoted: The Office of Independent Counsel investigating it and other matters found “overwhelming evidence that she in fact did have a role in the decision to fire the employees” and that her testimony was “factually false.”

    It was about this time that she began to speak of taking sniper fire from the Vast Right Wing Conspiracy.

  21. Perhaps the knottiest question in the end will be this: If the vice presidency is not in Clinton's future, what role will she be permitted to play at the convention? She has earned by effort alone a chance to speak there.

    Several party officials believe she is likely to insist that her name be placed in nomination on the first ballot, opening up all the divisions once again. Whether and how Clinton and Obama can work their way through the terms of surrender will tell voters a lot about both of them.

    And it could help determine whether a Democrat is elected in November.

    What does Hillary Want?

  22. McCain appeared upbeat throughout the rally, at one point calling upon bikers from the group Rolling Thunder to rev their engines.

    "Thanks guys," he said once the roar died down, and turned toward the audience. "Is that great or what?"

    The senator also played down the weekend retreat he is hosting for a group of prominent Republicans, including some of the men mentioned as possible vice presidential picks, such as Govs. Charlie Crist (Fla.) and Bobby Jindal (La.), and former Massachusetts governor Mitt Romney.

    McCain Rally

  23. Here's a good article about the post's topic. T., you are wrong. You really can't say I can't marry my sister, or at least my first cousin, due to defect arguments.

    Looks like we're heading for anything goes.

    Here's another, Rick Santorum's current take--

    The Elephant in the Room: A wake-up call on gay marriage after '03 alarm went unheeded

    By Rick Santorum

    Bigot! Hate-monger! Homophobe!
    Those were just a few of the terms hurled my way in 2003 when I said that the Supreme Court's Texas sodomy decision opened the door to the redefinition of marriage.

    When I wasn't ducking the epithets, I was being laughed at, mocked, and given the crazy-uncle-at-the-holidays treatment by the media. Or I was being told I should resign from my leadership post by some Senate colleagues.

    Five years later, do I regret sounding the alarm about marriage? No.

    I'm just saddened that time has proved right those of us who worried about the future of marriage as the union of husband and wife, deeply rooted not only in our traditions, our faiths, but in the facts of human nature: as Pope Benedict said, "The cradle of life and love," connecting mothers and fathers to their children.

    (Cue epithets: Bigot! Hate-monger! Homophobe!)

    The latest distressing news came last week in California. The state Supreme Court there ruled, 4-3, that same-sex couples can marry.

    In doing so, four judges rejected a statute that passed in a referendum with 61 percent of the vote that defined marriage as a union of one man and one woman.

    It's merely the latest in a string of court decisions that have overturned the overwhelming will of the people.

    OK, if you're not inclined to hurl epithets, you might ask: Don't we have more to worry about than some court redefining marriage? After all, gas prices are soaring, health-care costs are rising, and our nation is at war. Why should we care what a few activist judges in California say?

    Let's put aside the tired argument that the people should have a say in the laws of their government. That is so 18th-century white-male drivel. Thank goodness we have unaccountable judicial elites to make decisions for us bigots.

    Look at Norway. It began allowing same-sex marriage in the 1990s. In just the last decade, its heterosexual-marriage rates have nose-dived and its out-of-wedlock birthrate skyrocketed to 80 percent for firstborn children. Too bad for those kids who probably won't have a dad around, but we can't let the welfare of children stand in the way of social affirmation, can we?

    But what about love? That's the question a student asked this winter when I spoke at Georgetown University.

    Is anyone saying same-sex couples can't love each other? I love my children. I love my friends, my brother. Heck, I even love my mother-in-law. Should we call these relationships marriage, too? Marriage is and always has been more than the acknowledgment of the love between two people.

    What about the constitutional right to equal protection under the law? Marriage is not an inalienable right; it is a privilege, a license granted by government conferring certain governmental benefits.

    There is a constitutional right that is under threat: the free exercise of religion.

    Let me go out on another limb here and make another crazy prediction. Within 10 years, clergy will be sued or indicted for preaching on certain Bible passages dealing with homosexuality and churches, and church-related organizations will lose government contracts and even their tax-exempt status.

    The California judges also ruled, for the first time in American legal history, that sexual orientation is just like race.

    The California court just declared that those of us who see marriage as the union of husband and wife are the legal equivalent of racists. And openly racist groups and individuals can be denied government benefits because of their views, including professional licenses (attorney, physicians, psychiatrists, marriage counselors), accredited schools, and tax-exempt status for charities.

    In Massachusetts, the first same-sex-marriage state, Catholic Charities, one of the state's largest adoption agencies, was forced out of business because it refused to arrange adoptions for same-sex couples. In New Jersey, a Methodist group lost part of its state real estate tax exemption because it refused to permit civil-union ceremonies on church-owned property.

    Fortunately California voters will have a chance to overturn this radical decision by voting for a state marriage amendment in November. Shouldn't voters in Pennsylvania have the same right?

    According to a recent Precision Marketing survey, two-thirds of Pennsylvanians support a constitutional marriage amendment, and three-fifths say they would be more likely to reelect their legislator if he or she voted for the marriage amendment.

    California has just given Pennsylvania legislators a wake-up call. If legislators say they are for marriage and don't vote to protect it, they will contribute to the end of marriage, a decline of the family, more children being raised without dads, and a deep erosion of our freedom of religion. Hey, at least they won't be called bigots.


  24. Bobal: Here's a good article about the post's topic. T., you are wrong. You really can't say I can't marry my sister, or at least my first cousin, due to defect arguments.

    I don't have a problem with any of that stuff, other than there's a good reason for a taboo against brother-sister incest because of the high rate of birth defects.

    The Catholic Church has a problem with first cousins getting hitched, but Katchoo wrote a piece on this:

    ...Rachel and Leah were not only Jacob's wives, they shared grandparents with him, making them first cousins. This wasn't a problem, because Jacob's mother and father shared a grandparent and great-grandparent, making them first cousins once removed. God doesn't have a problem with cousins getting hitched. In fact, later in scripture he commanded Zelophehad's five daughters to marry their cousins so their inheritance would remain in the family. It is precisely to prevent the accumilation of wealth in families (and thus threaten the temporal power of the Papacy) that Pope Gregory I made cousin-marriage forbidden for all Catholics. Nearly half of American states also forbid the practice. US prohibitions against cousin marriages predate modern genetics. The USA is the only western country with cousin marriage restrictions. About 20% of all couples worldwide are first cousins. About 80% of all marriages historically have been between first cousins. So no big whoop...

  25. This fellow is starting to worry.

    Gay Marriage by Judicial Decree
    California Chief Justice Ronald George’s majority opinion exuded impatience bordering on contempt for the government by the people that is the foundation of our democratic system.
    by Stuart Taylor Jr.

    Sat. May 24, 2008

    I wholeheartedly support gay marriage. And I am happy for the many gays who rejoiced at the California Supreme Court's 4-3 decision on May 15 ordering the state to stop calling committed gay couples "domestic partners" and start calling them "married."

    So why do I see the decision as an unfortunate exercise in judicial imperialism? Let me count the ways. Then I'll touch on how it could be a harbinger of the constitutional innovating that we might see if the next president engineers a strong liberal majority--a likelier prospect than a strong conservative majority--on the U.S. Supreme Court.

    First, the California court's 121-page opinion was dishonest. This was most evident in its ritual denial of the fact that it was usurping legislative power: "Our task ... is not to decide whether we believe, as a matter of policy, that the officially recognized relationship of a same-sex couple should be designated a marriage rather than a domestic partnership ... but instead only to determine whether the difference in the official names of the relationships violates the California Constitution [emphasis in original]."

    This was a deeply disingenuous dodge, if not a bald-faced lie, to conceal from gullible voters the fact that the decision was a raw exercise in judicial policy-making with no connection to the words or intent of the state constitution. It is inconceivable that anyone but a supporter of gay marriage "as a matter of policy" could have found in vague constitutional phrases such as "equal protection" a right to judicial invalidation of the marriage laws of every state and nation in the history of civilization.

    To be sure, this was not exactly a bolt from the blue. The steady accretion of both state and federal judicial power since the 1950s has left a malleable mass of hundreds of precedents straying ever-further from the original understanding of the constitutions and laws they purport to be "interpreting." This made it easy for the California court to take the leap--as the Massachusetts Supreme Judicial Court had done in 2004--to overriding the state's voters on gay marriage in the guise of enforcing "the ultimate expression of the people's will."

    But President Franklin Roosevelt's indictment of the conservative U.S. Supreme Court of the 1930s, which struck down much of the New Deal, fits here as well: "The Court ... has improperly set itself up as ... a superlegislature ... reading into the Constitution words and implications which are not there, and which were never intended to be there."

    The California court's majority descended into especially slick sophistry when it suggested that the many gay-rights reforms that the state's elected branches had already adopted were not a reason to let the democratic process work but rather a mandate for judicial imposition of gay marriage. The message to voters in other states may be: If you give the judges an inch on gay rights, they will take a mile.

    Also disingenuous was the majority's vague dismissal of the powerful argument by opponents of judicially imposed gay marriage that the made-up constitutional principle underlying the decision would also--if seriously applied--require the state to recognize polygamous and incestuous marriages among adults.

    Chief Justice Ronald George's majority opinion exuded impatience bordering on contempt for the government by the people that is the foundation of our democratic system. California's voters and elected branches had already made great progress toward full legal equality for gay couples. They enjoyed all of the state-law rights and privileges of marriage except the name, which 61.4 percent of the voters had reserved for heterosexual couples in a 2000 ballot initiative. California's domestic-partnership laws were more generous to gays than the laws of almost all other states and almost all nations.

    But to the majority, this domestic-partnership-but-not-gay-marriage compromise--also advocated by Barack Obama, Hillary Rodham Clinton, and John McCain--was "a mark of second-class citizenship." George analogized domestic partnerships to the "separate but equal" laws of the segregated South, including laws making interracial marriage a crime in some states until they were struck down by the U.S. Supreme Court in 1967. (The California court, admirably, had voided that state's ban on interracial marriage in 1948.) The chief justice thus insulted the voters--not to mention all three presidential candidates--and treated California's denial of official benediction as the legal equivalent of the Jim Crow South's system of grinding oppression.

    This is not to deny the importance to many gay couples and their children of being officially recognized as "married." They should be treated as married. But to decree this by judicial fiat has large costs to democratic governance. Judicial power to override the deeply felt values of popular majorities should be used sparingly, to enforce clear constitutional commands or redress great injustices, not deployed whenever the judges think they can improve on the work of the elected branches or accelerate progressive reforms already under way.

    Also troubling is the majority's eagerness to move beyond enforcing substantive rights into dictating what words the government must and must not use: Same-sex couples, the majority ruled, have a "fundamental right ... to have their official family relationship accorded the same dignity, respect, and stature as that accorded to all other officially recognized family relationships."

    This urge to regulate government speech resonates with the logic of those federal judges who have sought to strip "under God" out of the Pledge of Allegiance. Can court-ordered erasure of "In God We Trust" from U.S. currency, and perhaps a judicial rewrite of the National Anthem, be far behind?

    Also troubling is the majority's eagerness to move beyond enforcing substantive rights into dictating what words the government must and must not use.

    It's true, as defenders of the California decision stress, that the justices there and elsewhere are politically astute enough to avoid flying too boldly into the teeth of public opinion; that Gov. Arnold Schwarzenegger has accepted the decision; and that California's voters will have a chance to override it, if they choose, through the state's ballot initiative process. All of this mitigates the affront to democracy. But it is still an affront, no less for the fact that three of the four majority justices are Republican appointees.

    And while conservative judges are not above displacing democratic choices with made-up constitutional law (see my July 7, 2007, column, p. 12), that urge seems stronger on the Left.

    Looking to the future of the U.S. Supreme Court, a sharp lurch to the right seems unlikely. Even if McCain wins the presidency and ends up replacing liberals John Paul Stevens and Ruth Bader Ginsburg--who at 88 and 75, respectively, are the oldest justices--an enhanced Democratic majority in the Senate would no doubt block any strong conservative nominees to replace them.

    A Democratic president, on the other hand, would probably have a free hand to appoint the sort of justices envisioned by Obama, who opposed the nominations of Chief Justice John Roberts and Justice Samuel Alito. Obama has suggested that his criteria would not be fidelity to constitutional text or modesty in the use of judicial power, but rather "what is in the judge's heart" and "one's deepest values, one's core concerns, one's broader perspectives on how the world works, and the depth and breadth of one's empathy."

    Based on the wish lists published by liberal judges and law professors, justices who fit Obama's description might well invent federal constitutional rights not only to gay marriage but also to Medicaid abortions, physician-assisted suicide, human cloning, and perhaps free medical care, food, and housing for poor people; strike down the death penalty (as Stevens recently advocated) and laws making English the official language; ban publicly funded vouchers for poor kids to attend parochial schools; bless ever-more-aggressive use of racial and gender preferences; and more.

    As a policy matter, this prospect worries me less than it does my conservative friends. I support legislative adoption not only of gay marriage but also of Medicaid abortions and some other policies on the liberal wish list. And I would not much miss the death penalty, "under God," or "In God We Trust."

    But I am concerned about the gradual, relentless strangulation of Abraham Lincoln's vision of ours as "government of the people, by the people, for the people," by judges who see constitutions not as binding law but as invitations for judicial rule.

    I am also struck by the official list of "Attorneys for Respondent" joining amicus briefs supporting gay marriage in the California case. It included more than 700 lawyers, law firms, and legal groups. Justice Antonin Scalia had a point in complaining 12 years ago, when his colleagues struck down a Colorado ballot initiative in the name of gay rights, that they were enforcing not the Constitution but rather "the views and values of the lawyer class from which the Court's members are drawn."