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Spring court season: Witch trials out, evidence in

 

“The sad parallels between the Texas polygamy raid and Guantánamo” is the subtitle on a Slate column reviewing our post-9/11 impatience with the niceties of American jurisprudence. This is actually the least alarming of the historical precedents invoked since April 3, when law enforcement (including Texas Rangers) and Child Protective Services raided the Yearning for Zion ranch outside Eldorado, searching the grounds, interrogating the residents, and eventually making off with 400-odd children of the Fundamentalist Mormon sect — enough underage wards to repopulate Terlingua. (The state’s ambitions are more urban for the most part, and at an estimated expense of $5.2 million and counting, excluding court costs, the children were dispersed from El Paso to Beaumont.)

Critics and proponents have, of course, recalled an even more disastrous armed intervention in Waco in 1993 against a strange and reputedly polyamorous sect, when a 51-day siege of the bunkered residents ended in tear gas, fire, and the deaths of approximately 77 Branch Davidians, including almost two-dozen children.

The specter of Waco may have made the state more cautious in its approach to YFZ’s religious outliers, as Express-News Editor Bob Rivard speculated in an April 17 editorial. But that editorial also displayed the rabid ad-hominem moralizing that eventually helped the state overcome its well-deserved Waco hangover.

“[Convicted sect leader Warren] Jeffs’ record should have removed any doubt left in the minds of indifferent state and federal authorities about what was going on inside the Eldorado compound,” wrote Rivard. “The Express-News published ample reports after the compound was established. It didn’t take much imagination to guess what was going on inside those walls.” How could the state wait four years? he railed.

But, of course, imagination isn’t enough to convict in a court of law (or in a newsroom, one would hope). The Third Court of Appeals felt much the same, ruling May 22 that the state’s case for removing the minors was “legally and factually insufficient.” The sanctity of our families is among our dearest rights and privileges and it can’t be violated based on insinuation and what has been an especially tacky media focus on the beds in the temple and the presumed violation of “pubescent virgins.”

Slate’s interesting commentary aside, we don’t have to travel to Guantánamo for a solid historical analogy (or lesson, if you’re looking for one). The 1953 Arizona Short Creek raid has been invoked in the last 30 days, too, and its lesson is spelled out in Jon Krakauer’s Under the Banner of Heaven. Krakauer’s book is unsparing and detailed in its indictment of polygamist Mormons from Joseph Smith to Brigham Young to the incarcerated Jeffs, building a convincing case that this branch of Latter Day Saints deserves to be investigated and prosecuted. Yet, he notes, when a posse of lawmen (including National Guard troops) “rescued” 263 polygamist children from their parents in Short Creek, public opinion quickly swung against them, setting back the cause of addressing polygamy’s underlying injustices another generation or two.

Although those wild swings in the approval ratings (a year later, the governor who backed that raid was voted out of office) took place in a state with much larger Mormon and Fundamentalist Mormon populations, the spectacle that alarmed people here as there was of distraught mothers and children forcibly separated from each other. That sight cuts against our most basic sympathies, and against an ingrained belief that most parents, however different from us, do not want to harm their children.

Of course, that may be exactly what is happening at Yearning for Zion, the false informant notwithstanding. Following its whipping in the Appeals ruling, the state posted a defense of its tactics, and noted that it had proof from YFZ itself of nine girls living at the ranch, ages 16-17, who are “spiritual wives” of adult men.

Why, you might reasonably wonder, did the state not begin its efforts by building a solid case for removing just those young women? This might have met the court’s benchmark “of the imposition of certain alleged tenets of that system on specific individuals,” and it would have put them in a strong position to investigate YFZ further, with the judicial branch’s support.

The state’s argument all along has essentially been that because YFZ’s residents have not been forthcoming about their familial relationships and identities, this case is really, really hard, and the court needs to overlook some of the judicial safeguards that protect conventional and weird families alike who aren’t doing aything illegal. But the state’s bungled handling of this case sadly bolsters those who believe government agencies are mostly good for expensive screwups and meddling where they don’t belong. And as an editorial in the The Arizona Republic pointed out, ripping children away from the only home they’ve known only reinforces any learned fears or prejudice against the outside world.

Now we’ll have to address these avoidable outrages before we can successfully address the enduring outrage of forcing young women into lives of sexual servitude. The state is moving ahead with its legal and public arguments — using photos of Jeffs and alleged sect relationhips to continue to argue that one sect resident is just like another — while the State Supreme Court reviews the Appeals Court’s order. By the time you’re reading this we should know whether the court is going to make the state build its case like it would have to against any other defendant, or whether in Texas fear and prejudice will trump the law.

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