State vs. church

Texas authorities confronted with the question of what to do with the 416 children removed from a polygamist compound earlier this month face an unenviable choice, one brought home to outsiders by the wrenching media images of the youngsters’ weeping mothers. Anachronistic hairdos and prairie dresses notwithstanding, their pain at being cut off from contact with their children is apparent. Yet should the children be returned to a family environment in which underage girls are sometimes sent to live with older men who have multiple wives, or should they be placed in foster homes?

Last week, state District Judge Barbara L. Walther ruled that the children should stay in state custody for the moment. They are undergoing DNA testing to untangle the complex family ties in a community where children identify all the women in a household as their mothers, and where wives are sometimes reassigned to new husbands. Once the testing is completed, the children’s fates will be decided in individual hearings running through June.

At the heart of many of the cases will be determining whether children at the Yearning for Zion ranch are in danger even if they don’t live in households in which physical or sexual abuse has taken place. Walther found enough evidence of such danger to keep all the children away from their parents, at least for the short term. But if that kind of logic guides permanent custody decisions, it could set a very dangerous precedent, and ultimately harm the very children the state is trying to protect.

The DNA test results should make it easier for authorities to identify those responsible for abuse. If it’s clear that an underage girl gave birth, the father, the church elders who arranged the marriage and the girl’s parents (if it can be found that they were complicit in statutory rape) could be subject to criminal charges. But presumably there will be many families in which there is no such evidence of abuse.

The polygamist lifestyle is deeply distasteful on many levels, but society’s disgust matters far less than the welfare of the sect’s children. Does anybody believe they’d be better off in the foster system than returned to loving, nonabusive parents who are fully capable of caring for them? If the courts are worried that the parents will train their children to perpetuate and accept sexual abuse, they can appoint child welfare officials to monitor individual families.

The alternative is to punish families for their religious ideology, not their behavior. That could well run afoul of the 1st Amendment and other protections, and it’s a legal can of worms that Texas would be wise not to open.