Thursday, April 24, 2008

Not to say I told you so, but ... FLDS search warrants now called "shaky"

These two headlines, though eerily similar, came two weeks apart:
If me and readers of the Salt Lake City Tribune knew this two weeks ago, why did it take Texas authorities so long to figure it out? Two words explain it: Willful neglect.

The man named in the search warrant, Dale Barlow, actually lived in Arizona. He contacted authorities immediately after the Texas raid occurred to say they were after the wrong man, but Texas Rangers took their own sweet time investigating the bogus call. Why? I think it's because they didn't want it proven fake before the 14-day CPS hearing.

Reported the Standard Times, "In a media briefing immediately after the two-day custody hearing Friday, CPS spokeswoman Marleigh Meisner used Sarah more as a symbol than as a person." Usually "symbols," especially phony ones, aren't enough probable cause in court to justify house to house searches and seizing hundreds of kids.

Without the fiction of rescuing a sixteen year old rape victim to justify their military-style entry into the YFZ Ranch, everything that's happened begins to look like a modern day witch hunt. I've argued repeatedly that any real sexual predators would go free because the raid has been mishandled, and this shows why. It was quite foreseeable nearly from the beginning, which I can confidently say, having publicly foreseen it.

UPDATE: More on the subject from our new friend the Headmistress at The Common Room, responding in part to the excellent comments in reaction to this post. ALSO: It looks like this circus is coming to Austin: FLDS filed a motion yesterday with Austin's 3rd Court of Appeals challenging the search warrant, and oral arguments have been set for Tuesday. I couldn't get the documents to open this morning, strangely, but here's the link to filings in the case with the 3rd Court. The Aspen News reports that the motion revealed authorities already knew that Dale Barlow, the alleged perpetrator, was in Arizona and not at the YFZ Ranch when the military style raid was launched.

116 comments:

kbp said...

Could this apply to anything in the YFZ search?

Maybe I'm reading to much into it, as they toss in that "probable clause" qualifier, but... The thing that stumps me here is that the 4th limits what can be done, the state simply added to the rights of an individual by limiting it further. The SCOTUS ruling seems to add rights for state law enforcement that the state had passed legislation which withheld such.

Ron in Houston said...

Don't you just love political double speak?

I've had no doubt since the beginning that the call was a fake.

I just don't see that it really affects the validity of the CPS investigation. CPS has a duty to investigate each report.

In my CPS cases, I always look for what I internally call, "the shit stirrer." Probably 80% of the cases have a relative or friend who is stirring the pot.

kbp said...

Thanks Grits,

I should add that the SCOTUS ruling does not eliminate all the other problems Grits has done such a fine job of pointing out, but we can only guess how a court SHOULD rule on suppressing the fruits of that original search.

TxBluesMan said...

Obviously you do not understand the legal requirements for probable cause based on an anonymous tip.

I would suggest that you read up on the applicable case law, specifically the following:

Massachusetts v Upton, 466 U.S. 727 (1984), an anonymous tip is sufficient, with an agency's independent investigation, to provide probable cause.

Illinois v Gates, 462 U.S. 213 (1983), an anonymous tip, when corroborated by police, is sufficient to provide probable cause.

United States v Mays, 466 F.3d 335 (5th Cir, 2006), sets out the method that an anonymous or psuedoanonymous tip is corroborated.

The warrant will likely stand.

Gritsforbreakfast said...

Ron, there are many story lines here, all interconnected, some circular. The threshold for CPS to seize children is lower than the threshold for admitting evidence in a criminal prosecution. I think the seizures can legally go forward, but this will likely forbid any resulting criminal prosecutions, especially since the state seems so reticent to verify the source of the call or identify the "victim" who started all this.

Also, I think they've slow to investigate the fake call because at this point public relations is as important as the law, is the truth of it. That's why they released the second search warrant initially but kept the first one sealed, to stave off this analysis of the bogus claims they used to get in there.

There's more to the pre-raid story than has been reported yet ... I think probably much more.

Doran Williams said...

Grits, I know from whence you come with your argument, but I don't agree the raid was mishandled. I think it went off pretty much as planned and as well as could have been expected (maybe even better since none of the people there were incinerated). That is because I don't think the goal of the raid was to apprehend perps or even to "save children" from the perps. The goal of the raid was to destroy the FLDS church presence in Schliecher County. From that perspective, everything is jes' fine, as Pogo might have said.

And, can anyone provide a link to Sheriff Doran's affidavits and the warrants issued in response to those affidavits? Will certainly appreciate it.

Gritsforbreakfast said...

Doran, it's not all of them, but see the links to the sidebar in this story, and the links to affidavits about halfway down in this "Appendix" from Red State. Those are the only ones I know of that have been made public.

Gritsforbreakfast said...

txbluesman, have you similarly registered your sage views with the reporter at the San Angelo paper? I guess he's just another idiot, too, like everyone who disagrees with you.

There are many story lines here, and information from the searches may or not be available for different reasons, I think is the honest answer. I am not a lawyer. But the state has seemed oddly unconcerned with finding the "victim" from the beginning, which makes me think they had an inkling she likely didn't exist. It was always pretty obvious.

Anonymous said...

"txbluesman, have you similarly registered your sage views with the reporter at the San Angelo paper? I guess he's just another idiot, too, like everyone who disagrees with you."

Grits, haven't you been implying that the Texas ACLU and various legal scholars who have said the state has acted within its rights to investigate child abuse are unprincipled idiots? There are plenty of people on both sides of this fence, many intelligent people on both sides, most likely. You are not innocent of implying those not on your side are stupid, Constitution stompers, or "weenies."

Gritsforbreakfast said...

I hate arguing red herrings, anon, your comment says more about you than me. While "weenies" is a word I used, I didn't say the other two, nor have I called anyone an "unprincipled idiot." I'm happy to defend what I say, but not just any smear you choose to trot out.

In addition, the ACLU didn't say "the state has acted within its rights." They said "we question whether the current proceedings adequately protect the fundamental rights of the mothers and children of the FLDS."

If I've implied some on the pro-raid camp were dense, perhaps it's because it's taken the media two weeks to identify flaws in the investigation and premise for the raid that were available immediately.

Nancy Grace was still flashing Dale Barlow's picture on TV YESTERDAY! How dense is that?

Jerri Lynn Ward said...

Txbluesman,

The cases you cite require corroboration in the instance of an anonymous telephone call. What was the corroboration in this case?

Anonymous said...

"Searching for principled voices on the Eldorado raid"

"The ACLU and other civil liberties groups need to step to the plate on this issue and inject some *rationality* into the process."

"nothing more prominently than the *utter ignorance*"

Okay, Grits, you're right. You have not implied that people who are not taking your same stance are unprincipled and irrational.

You're entitled to calling people whatever you want. My point is that you shouldn't imply after the fact that you didn't say what you said, and then try to shame others for doing the exact same thing you did, ESPECIALLY when txbluesman didn't call anyone irrational, ignorant, weenies, or unprincipled.

And the ACLU provided a statement about balancing the rights of children with Constitutional rights, and legal scholars were quoted in papers as saying the state acted within its rights as a child protective agency. You're taking the ACLU quote out of context to support your argument while not making it known that they also support the individual rights of children to be free from abuse.

Ron in Houston said...
This comment has been removed by the author.
Gritsforbreakfast said...

If ACLU employees spent as much time examining this case as they apparently do anonymously parsing my prose, perhaps David Bernstein at The Volokh Conspiracy wouldn't be calling for "nationally respected" civil liberties attorneys to come provide adult supervision.

Gritsforbreakfast said...

Oh, and thanks Jerri. I'm sure you sent the bluesman scampering back to the law library on that one.

TxBluesMan said...

Grits, the site you mention has the 1st affidavit posted - it is not sealed (but you may have already realized that by now). It is the one labeled as No. M-08-001-S.

As regards to your other statement - I don't believe that my earlier post said anything about you, or anyone else, being an idiot. I normally don't pay much attention to reporters - as I tell my brother, an asst editor in the newspaper business, they rarely get things right.

I stated that you did not understand the case law involved, nor the legal principles.

As to corroboration?

The anonymous caller said she was 'married' at age 15 to a man named Dale Barlow and that she had a baby with him. Ranger Long confirmed that Dale Barlow had previously been convicted for a sexual conduct with a minor.

The anonymous caller had said that Dale Barlow was 49. Ranger Long confirmed that Dale Barlow's birthdate was 11/05/1957 and that he was 49.

The anonymous caller said that she had been medically treated at the ranch. Ranger Long confirmed that a Lloyd Barlow, MD, provided a clinic at the ranch.

The anonymous caller stated that she could not get out, that the ranch was guarded. Ranger Long observed two sets of fences and a guard house.

The anonymous caller stated that her maiden name was Jessop. Ranger Long confirmed that the man in charge of the ranch was Frederick Jessop.

As a legal standard, it is what is known at the time the warrant was issued that matters. Whether Sarah existed or not is irrelevant and immaterial so long as the information was corroborated and provided probable cause.

I have called some people idiots, well because they are. The ones that have argued on other boards that God wants us all to marry 13 year olds and that this supersedes state law (along with his posts on how the U.S. was founded by pedophiles).

I have not called you an idiot, nor have I implied that you were.

I do not expect everyone to agree with me, and I have little patience for outsiders telling us how to conduct our business, but I am, despite your assertion to the contrary, capable of civil discourse.

Good day, sir.

John said...

A lawyer friend tells me that polygamy charges may not be possible due to Texas law.

He says "Some of the commentators think that polygamy is illegal. It is not in
Texas as these people practice it, since the criminal code requires at
least one *legal* marriage. Tex. Penal Code Sec. 25.01. I understand
that they do not make legal marriages at all. If there *was* at least
one legal marriage, then purporting to then marry a person under 16 is a
first-degree felony."

Also, in Tues NY Times an expert is quoted saying in effect that the DNA tests won't readily show paternity.

"One DNA testing expert said the state’s goal of establishing lines of parentage, a key point in determining whether, as the state has argued, the sect has girls 15 or younger marry, is likely to be complicated by interrelated blood lines. Such lines are often found in an isolated group in which many of the people are related through a common forebear.

“It’s going to take longer than a typical paternity test,” said Dr. David Einum, the laboratory director at Identigene, a Salt Lake City company that does family testing.

“The sheer number of samples and relationships here along with this potential for interrelatedness will entail more testing and more advanced analysis,” said Dr. Einum, who said his laboratory was doing no work on the case.

Because of the group’s isolation, Dr. Einum said he thought it was likely that the parents of any given child were related by a common ancestor, and that any man examined as a possible father could share genetic traits with many other men in the group. The sect split off from the mainstream Mormon church, the Church of Jesus Christ of Latter-day Saints, decades ago after the Mormons disavowed polygamy in the late 19th century.

But even when family lines were established, he said, genetic testing would not illuminate anything about a central question in the state’s investigation: the age of mothers when they gave birth. That will depend on verification and records from the community."

I interpret that as very doubtful that the DNA samples will prove helpful to the state.

TxBluesMan said...

LOL,

Actually it is much easier to pull it up on Lexis than to scurry to the books...

It's also much faster...

Anonymous said...

Texas Family Law

§ 261.304. INVESTIGATION OF ANONYMOUS REPORT.
(a) If the department receives an anonymous report of child abuse or neglect by a person responsible for a child's care, custody, or welfare, the department shall conduct a preliminary investigation to determine whether there is any evidence to corroborate the report.
(b) An investigation under this section may include a visit to the child's home and an interview with and examination of the child and an interview with the child's parents. In addition, the department may interview any other person the department believes may have relevant information.
(c) Unless the department determines that there is some evidence to corroborate the report of abuse, the department may not conduct the thorough investigation required by this chapter or take any action against the person accused of abuse.

Ron in Houston said...

I think my favorite place to really keep my finger on the pulse of this story is this web site.

Grits does a good job of providing links to a lot of information. I've also gotten a lot of great info from kbp.

Thanks to a proofreading error I removed one comment about Grits calling people weenies.

Come on folks - get a sense of humor. Calling people in government weenies is both very accurate and very descriptive.

Gritsforbreakfast said...

I've heard of that new-fangled "Lexis" thing-a-majig, bluesman, don't they also make an automobile.;)

Actually one of my earliest part-time jobs was a gig at my Dad's law firm stuffing supplements into the backs of law books, so perhaps that explains the penchant for nostalgic legal references. best,

Anonymous said...

To 12:44, I'm simply copying and pasting below from another post.

"As far as needing one "legal marriage" to constitute bigamy once other marriages are entered into, maybe "informal marriage" between one man and woman would suffice to qualify all the others as bigamous."

Do you know if this is correct? Is there any precedence for this argument?

Gritsforbreakfast said...

Thanks, 12:51, for providing that from the Family Law code. So as I read that with an anonymous report, "the department shall conduct a preliminary investigation to determine whether there is any evidence to corroborate the report."

If they had, they'd have discovered that the caller didn't know how to pronounce the name of the town (there's a long "A" in the third syllable), used dialect foreign to FLDS, and had named a man that a Google search would show is a registered sex offender in Arizona. The Salt Lake City Tribune figured all this out virtually immediately after the raid.

Did they look for Dale Barlow? Run his name through any databases? Do any investigation at all? Not as far as I can tell.

On the affidavits, btw, they kept the first one sealed in the early days (using authority gained in a new law just passed last year) and only released the second one with the more salacious allegations of CPS. That was my reference, and it's what happened. It's why I opposed that new law at the Lege - those affidavits are primary sources of information without which its impossible to fact check statements from authorities. It lets the state manage what the media knows about what they're doing more than is proper.

rage said...

I just don't see that it really affects the validity of the CPS investigation. CPS has a duty to investigate each report.

So, taking over 430 kids out of their homes when only one alleged abuse is a reasonable investigation to you?

Anonymous said...

You're welcome. I'm not a lawyer either, but subsection (c) seems to limit the authority of CPS. Now, CPS may claim there was abuse in "plain view" or whatnot, but can that include future abuse? Did the CPS have the authority to "conduct the thorough investigation required by this chapter" or not? BTW, TalkLeft links to a post of hers.

http://www.5280.com/blog/?p=3109

FLDS hired a big gun.

rage said...

Also, I think they've slow to investigate the fake call because at this point public relations is as important as the law, is the truth of it.

Correct me if I'm wrong, but didn't the Rangers trace the call to Colorado prior to the raid? In which case they knew the girl wouldn't be there already?

Ron in Houston said...

rage

Slow down there.

I just don't see that it really affects the validity of the CPS investigation. CPS has a duty to investigate each report.

So, taking over 430 kids out of their homes when only one alleged abuse is a reasonable investigation to you?


I don't know where you jumped to the assumption in the second statement from my statements in the first.

Slow down take a deep breath and don't become a rage-a-holic.

Doran Williams said...

Grits, the Appendix link you posted has, in turn, links to The Smoking Gun, where all three affidavits are posted: The affidavit by CPS in support of the civil suit, the first affidavit by Texas Ranger Long (he has a great career as a fiction writer ahead of him) dated 4/3/08, and the second affidavit by Ranger Long dated "April 6, 2008 at 10:12 pm."

The first search and arrest warrant is dated April 3, 2008 at 5:50 pm; the second search and arrest warrant is dated April 6, 2008 at 10:15 p.m., just three minutes after Ranger Long signed his affidavit. Maybe the Judge is a speed reader, or maybe she had the opportunity to review the second affidavit and discuss it with Ranger Long before he signed it. Or maybe the Judge just signed the warrant without reading the affidavit. Who knows....

Maybe with this information about dates and times, someone can put together a tighter time-line about the call from dear Sarah, Ms. Meisner's "symbol."

I'm starting to think that Sheriff Doran did not execute any affidavits, although he is referred to in Ranger Long's narrative.

kbp said...

Texas appellate court set to hear appeal

"A Texas appeals court this morning agreed to hear arguments on whether the state can place more than 400 FLDS children into foster homes without giving their families individual hearings..."

and

Utah attorney: Polygamous sect parents denied constitutional rights


""Just because they're all part of a group doesn't mean you put the group on trial - the church on trial," Parker said Wednesday during a panel discussion at a Salt Lake County Bar Association luncheon. "The constitutional rights of these people are individual rights." "

Anonymous said...

This link will take you to the case status/filings on this case at the 3rd Court of Appeals web site.

http://www.3rdcoa.courts.state.tx.us/opinions/case.asp?FilingID=13736

John said...

A commenter provoked Godwin's Law in another thread.

It occurs to me that a more suitable analogy for the Eldorado raid is that of the Falun Gong and the Peoples Republic of China.

Here's a quote from Human Rights Watch:

"Cloaking this campaign in rhetoric about the ‘rule of law' doesn't give any greater legitimacy to China's crackdown on Falun Gong. The official ban on Falun Gong should be lifted. The government's announcement that it was a ‘true cult' and must be suppressed should be rescinded. All Falun Gong members in detention, formally charged, or sentenced to labor camps for peaceful activities should be immediately released." See http://hrw.org/english/docs/1999/11/09/china1959.htm

And to think, China detained only a hundred plus sect members. Nowhere near 437 kids.

Similarly, today's NY Times has a timely article on persecution of religious sects in Russia. These "sects" are various protestant denominations, such as Methodist, Lutheran, Baptist, Seventh Day Adventist, etc. Non-sect religions vary but the only guaranteed non-sect religion is Russian Orthodox.

The NYT article says the Russian Constitution guarantees religious freedom. Ours is pretty good too. China's constitution is just wonderful for human rights, better than ours I've heard. All three of us ignore them when they are not convenient, and trumpet them to the heavens when these rights aren't at issue.

Nope, we don't need to dredge up old time Nazis. We can do just fine with China, Russia, and the US.

kbp said...

While that "INVESTIGATION OF ANONYMOUS REPORT" code looks to be a very important prerequisite to the next step in the process, one needs to remember they took FOUR DAYS to respond to that DOUBLE DUTY life threatening emergency (pregnant wife physically abused).

I'd imagine there were a few events within that lengthy time span they can (re)classify as part of a preliminary investigation.

doran williams said...

Thank you, John. Your comment may illustrate precisely why I essayed that Warsaw gambit.

rage said...

I don't know where you jumped to the assumption in the second statement from my statements in the first.

You said you don't see how a phony tip on a single girl risks the overall investigation. An investigation where they could have taken out the "Sarah" who called (except they already knew she was in Colorado), or even all of the Sarahs. But they took every kid there, and you don't see that as a problem?

You can't see my point because it logically progresses from cause to effect. All you care about is the desired result, while paying lip service to the Constitution. Your cognitive dissonance is deafening.

TxBluesMan said...

John,

A lot of people, primarily those from states that require the second bigamous or polygamous marriage to be a 'legal' one with a license don't think that Texas can prosecute for Bigamy.

I am afraid that they are mistaken.

Once a person is married in Texas, whether by license or by common law, all that is needed to prove a charge of Bigamy is that they "held out the appearance" of being married. By being 'spiritually' married, by living together, by having children, it is enough to prove the "appearance" of marriage and therefore support a Bigamy conviction. See Stevens v State, 243 S.W.2d 162 (Tex Ct Crim App 1951)

You might also want to look at a more recent decision (not published, limited use in pleadings) that denied a defendant the use of a spousal defense in his trial for Sexual Assault of a Child. See Dorre v State, 2000 Lexis 695 (Tex App Dallas 2000). In this case his bigamous common-law marriage did not allow him to use a spousal defense in his trial since the second marriage is void ab initio (note that this does not prevent the state from trying him on the Bigamy charge also). His claim of free exercise of religion to support his bigamous lifestyle also did not stand.

Grits, are you the one that made me hate the supplements in the back? ;)

TxBluesMan said...

kbp,

The appeal won't do much - they filed for a writ of mandamus, which is the correct way to deal with it if there has not been a 14-day hearing.

Remember, case law shows that the failure to do a 14-day hearing is a procedural, not a jurisdictional issue. This means that the most that will happen is that the 3d Ct of App will order Judge Walther to hold individual 14-day hearings for the children in the appeal.

It does not remove the children from the custody of CPS, nor does it change anything on future proceedings, other than delay the individual hearings that have already been ordered.

I doubt in this situation that the appellate court will want to delay the hearings any further, so I think the appeal will fail.

kbp said...

OT questions to any mothers here:

While Walther did back off to Plan C, that still foceses on a group, not individuals (<12 months).

When is the standard age most breast feeding discontinues?

Is that cut off acceptable?

Do FLDS mothers feed longer?

Is it out of the ordinary to go say 18 months?

Are there circumstances that require breast feeding after 12 months?

Sincere questions I am clueless on.

Ron in Houston said...

rage rage rage

Stop jumping to so many conclusions.

The investigation is a separate issue from the outcome. Due process in this case is more than just the fact that the initial report was a lie.

Actually, yes I do see it as a problem that they jumped in treated a bunch of individual cases like they all shared the same fact scenario.

Actually, if the truth be known, I have a lot of problems with this case. I have a lot of problems with the way CPS and the judicial system handled these people. I also have a lot of problems with the FLDS and believe that they could be harming some of these children from an emotional/social development standpoint.

So, I'd say you're hearing cognitive dissonance where it doesn't exist. Perhaps your rage is making you delusional.

rage said...

I have a lot of problems with the way CPS and the judicial system handled these people.

Yet you're OK with the detainment continuing.

I also have a lot of problems with the FLDS and believe that they could be harming some of these children from an emotional/social development standpoint.

Yet they had no evidence to go after all of the kids, including two who are legally married and now being treated like children in custody, and when it's all said and done you're still OK if their rights are violated.

That's not jumping to conclusions, that's clarifying your point. I know you won't say it so openly, but that's what it amounts to. "I like the Constitution, but I dislike them, so I'm OK if their constitutional rights are violated."

backing you into a corner is not jumping to conclusions, it's forcing you to admit that you don't give a damn about a group's rights as long as you just so happen to disagree with their beliefs. You're in the company of historical greats like Hitler and Stalin on that one.

Again, first they came for the FLDS, and I said nothing...

Anonymous said...

So what if they blew it this time - with all the interrogation lets hope they find a polygamist with an under aged wife somewhere. If he lived in another LDS compound or two prior to coming to Texas that's bound to give someone cloaked in the authority of law enforcement probable cause to raid those compounds. I'm gettin out the map and settin up the tent so I can see me one of those righteous raids first hand.

rage said...

So what if they blew it this time - with all the interrogation lets hope they find a polygamist with an under aged wife somewhere. If he lived in another LDS compound or two prior to coming to Texas that's bound to give someone cloaked in the authority of law enforcement probable cause to raid those compounds.

Here's the kicker: they can't use evidence discovered because of an illegal search in a later prosecution.

Google "fruit of the poisonous tree."

TxBluesMan said...

While you are at it, Google 'good faith exception search warrant'.

They had a warrant.

They executed it in good faith.

That means the evidence still gets in.

Oops.

Ron in Houston said...

rage

Ding Ding Ding. Godwin's law has been validated. Not only that you hit a double, you invoked Hitler and Stalin in the same comment.

Did I say I was OK with the detainment continuing? Once again you're getting so caught up in your rage that you must be getting delusional.

There are a whole lot of rights that need to be carefully balanced in this case. One of those rights is the right of the government to protect children from bad parents of any persuasion.

John said...

Txbluesman said:

A lot of people, primarily those from states that require the second bigamous or polygamous marriage to be a 'legal' one with a license don't think that Texas can prosecute for Bigamy.

I am afraid that they are mistaken.

Once a person is married in Texas, whether by license or by common law, all that is needed to prove a charge of Bigamy is that they "held out the appearance" of being married. By being 'spiritually' married, by living together, by having children, it is enough to prove the "appearance" of marriage and therefore support a Bigamy conviction. See Stevens v State, 243 S.W.2d 162 (Tex Ct Crim App 1951)

No way am I, a retired computer programmer, going to argue Texas Law with a Texas lawyer. However, my lawyer friend is a Texas lawyer.

He says it takes a (one) legal marriage. His understanding and mine is that the FLDS members don't have ANY legal marriage, or at least not provably legal.

The idea I gathered is I have one marriage recognized by Texas law, then I take up another, perhaps informal marriage, with a second woman, like H. L. Hunt, you know. That would be bigamy.

But the gist of what my friend says is that none of the marriages are legal. Surely if I have more than one sexually involved relationship at a time, I may be overexerting myself, but I'm not polygamous, am I?

Perhaps my friend is mistaken?

Gritsforbreakfast said...

Increasingly I believe authorities ignored problems with the anonymous tip and studiously avoided any investigative trail that might debunk it, bluesman. They'd had to have done so to avoid the obvious discrepancies. I've got a feeling we'll learn a lot in the coming weeks and months about the extent to which the warrant was obtained and executed in "good faith." My guess is not so much.

rage said...

txbluesman: google "they knew the calls were coming from Colorado but raided the compound in Texas anyway."

So much for good faith.

Oops.

Anonymous said...

You can't contract a second informal marriage while already married (Texas Family Code - Section 2.401 (d)). I'll bet these FLDS people all file their taxes as single, which is more proof they don't consider themselves to have a civil marriage. Even if they told others that any one woman was their wife they would have only meant it spiritually. Yes, they are scamming the system but both parties (male and female) know that and like it that way.

If you really don't like polygamy, make it legal and tax and regulate it. And while you're at it change those child abuse laws, to make social workers, psychologists et al liable for their statements and don't allow them to be experts in court. Psychology, psychiatry, and social work are at best arts not sciences and no one is really an expert. Note that the judge in this case didn't follow the advise of the expert but rather the social workers, who seemed to be all over in their numbers and claiming everything they saw was abuse. Note the signed the child removal order stating they had made reasonable attempts to remedy the solution. In fact they never tried anything - that seems like fraud on the court and perjurous testimony to boot.

Jerri Lynn Ward said...

"Perhaps your rage is making you delusional."

Ron, I have to admit that when I thought they were going to rip nursing infants away from their mothers, I was so enraged that I found myself on the telephone with some lady in Rick Perry's office yelling that his hair wasn't going to save him from this fiasco--and I'm actually a Republican--albeit a Ron Paul Republican. (I also said something about a part of his anatomy being in a crack)

kbp said...

TBM
On that Dore v. State, there is nothing quick & free online, so I'll have to take your word on it.

If accurate, that would certainly answer one of the questions I've had on the topic of whether bigamy conflicts with sexual assault.

On that appeal, we are not even sure all 437 have attorneys yet. Maybe some would feel better off to demand individual "14-day" hearings. "Procedural" = 'if they did not get a hearing at all, too bad, move along now'?

But then again, I must admit that the moment of individual attention the 5 YO boy w/Down's syndrome received left him classified as being in "imminent" danger of abuse.

(been having trouble posting on ALL "blogger" sites?)

kbp said...

In the Doran interview he mentions "CPS", often shifting responsibility to them (CYA). This little stirng of questions and comments illustrate it best;

Mankin: And, what was the nature of that call?

Doran: A 16-year-old girl called to say that she was at the YFZ Ranch and that she had been abused.

Mankin: Physical abuse, or sexual abuse?

Doran: She reported being physically abused, even to the point of needing medical treatment. And, I believe there was a second call from the girl.

Mankin: Didn’t she also claim to be the mother of an 8 month old baby?

Doran: I believe that to be the case. She also said she was pregnant again.

Mankin: Okay, if she was 16 and her birthday was in early January, as described in the warrant, calculating the age of her baby and an extra nine months for pregnancy, that would make her 14 at the time the baby was conceived.

Doran: Probably.

Mankin: Wouldn’t that also indicate that there had been sexual abuse of her as a child?

Doran: I can’t argue with that.

Mankin: So, that was enough probable cause?

Doran: The request from CPS was our probable cause, but we combined that with information that myself and others have gathered over the past four years. All of that went on the affidavit requesting a warrant.


He doesn't know much, but admits helping (as we all knew).

"...that would make her 14?" "PROBABLY"!!!!!!

We already know they were rather selective about what Penal Code to include in the affidavit for the search / arrest warrant; Sexual Assaul of a Child. They left out the Physical assault that would be more life threatening to a pregnant mother.

Was it because they forgot it? Doran remembers it.

Could it be because it looked foolish to include it FOUR DAYS after the call for help? Possibilty.

I lean more towards the theory that with the Dorant having looked for that probable cause for 4 years, he saw "Warren Jeffs Type Cause" of sexual assault more appealing!

Might even tell us the MULTIPLE crimes they were looking to find before they even headed that way.

The fact they had 11-12 CPS workers to find ONE victim - with 700 warriors there to do the search - indicates there was more in their minds when they arrived than just poor little SARAH!

Anonymous said...

Thank you for support of anonymous comments in this forum.

Questions you might want to start asking:
1. How did the Feds get pulled into this?
2. Did Federal involvement increase bravery & risk-taking on the part of CPS and Texas authorities?
3. How equipped are CPS/Texas authorities to handle the paperwork of this case? Even in this digital age, Lawyers particularly like having hard copies.
4. Has Dr. Walsh contacted the Feds in order to offer his expertise? Federal investigations may be more open to additional expertise.
(see http://tinyurl.com/6kg84q )

kbp said...

Thanks Anon, for the link to Brooke's Blog!

She does a great job.

That story reminds me of the Canadian horticulturist that Hurlbert, the DA, brought in to testify about the DNA in the Kobe case!

"We don't need no science, we gotta Media Doc!"

Anonymous said...

txbluesman, thanks for the information about informal and bigamous marriages. I made the same points as you previously, and it's helpful that you also cite case law.

I'm of the opinion that it can be argued informal marriages were entered into because the people in those relationships presented themselves to others as married, even if it was only within their own sect. If they live together, bear children together, raise children together, run a household, and share domestic and economic responsibilities, they come across as married.

What this makes me wonder is if bigamous, marriage-relationships between all men or all women could be legal, because the state does not currently provide any recognition of same sex marriages, so even an informal marriage same-sex relationship could not legally bar homosexuals from bigamous relationships. Does anyone know how this would play out?

TxBluesMan said...

Basically Dorre v State said the following (from the Lexis Headnotes):

HN1 - A person commits the offense of intentionally or knowingly having prohibited sexual conduct with a child, who is a person younger than 17 years of age who is not the spouse of the actor. The statute further provides that "spouse" means a person who is legally married to another.

HN2 - If an impediment to the creation of a lawful marriage exists, as when one party is married to someone else, there can be no common-law marriage, even if all the other statutory prerequisites are present.

HN3 - The prohibition of bigamy is on its face a neutral law of general applicability. Religious freedoms are not implicated by neutral laws governing activities which the government has the right to regulate merely because such laws incidently prohibit religiously motivated activity.

HN4 - The United States Supreme Court has consistently rejected constitutional attacks on the application of anti-bigamy laws.

Anonymous said...

For all of you who are into "googling" law-related concepts regarding evidence discovered as a result of an illegal detention or arrest, google Texas Code of Criminal Procedure 38.23, and then roll that up and smoke it. Yes, it does provide more protection than the Supremes have held the federal Constitution provides. . . .

Jerri Lynn Ward said...

This could be interesting.

"In a sweeping indictment of the raid on a secretive polygamist compound in Texas, Aspen attorney Gerry Goldstein is accusing law enforcement there of reckless disregard, unlawful taking of DNA and he is demanding a review of their actions."

--snip--

“Moreover, prior to executing the initial warrant, (Schleicher County Sheriff David Doran) was advised that Dale Barlow was in Arizona and not on the premises sought to be searched. In fact, prior to entering the premises Sheriff Doran actually spoke to Dale Barlow in Arizona by cell phone, confirming his driver license number and the fact that he was in Arizona.”

Barlow advised the sheriff that he did not know Sarah Jessop, he had not been to Texas in over 20 years, nor had he ever been to Yearning For Zion Ranch, according to the filing. Thus, Goldstein argues, law enforcement had been advised and verified that the only person suspected of posing an immediate risk to children was not located at the polygamist compound."

RFB said...

I really appreciated your comments on Wednesday and today. You have brought out some very good points concerning the judicial fiasco going on in Texas.

First of all, I must say that I do not agree with the FLDS on theological and social grounds. Nevertheless, I am sickened by what has been going on and the fact their rights have been trampled.

Officials in Tom Green County have acted more like the Gestapo than American government officials. What is more, they are either extremely stupid or they were looking for the slightest pretext to go after the FLDS and are being deceptive about their aims.

I say this because of several problems with their original explanation. First, this Sarah claimed to have gone to the nearby hospital once or teice because of bruised ribs. Unless Texas is extremely backward, the people at the hospital should have reported a possible abuse case and there should have been records the CPS and police could have checked.

Second, the woman in Colorado who appears to have made the calls would not have sounded like a 16 year old girl from the FLDS. The accent would have been different and the vocabulary would have been completely different (the FLDS use a number of words and expressions that are not familiar to those on the outside). Certainly someone (if not the CPS or police than definitely Flora Jessop - ex-FLDS and outspoken critic of the FLDS - would have realized very quickly they were not talking to an FLDS girl. If they did not, that is a very sad commentary.

There are a number of other issues that could be mentioned. Suffice it to say, this is an attack on people's rights and most of America sits by and watches approvingly. We need to keep in mind that the Nazis first took the undesirables, then they went after other groups of people. Where will this lead us?

TxBluesMan said...

anonymous (7:17PM) said:
"You can't contract a second informal marriage while already married (Texas Family Code - Section 2.401 (d)). I'll bet these FLDS people all file their taxes as single, which is more proof they don't consider themselves to have a civil marriage. Even if they told others that any one woman was their wife they would have only meant it spiritually. Yes, they are scamming the system but both parties (male and female) know that and like it that way."

Thats all well and good, but the criminal prohibition is not contained in the Family Code, but in the Penal Code, at Sec 25.01. All bigamous marriages are void ab initio, illegal, null and void, but that doesn't prevent the state from proving Bigamy.

See again, Stevens v State, 243 S.W.2d 162 (Tex Crim App, 1951), which stated:

"In two cases this court has announced the rule that the crime of bigamy may be founded upon a common-law marriage. [internal citations omitted] Neither of these cases, however, entered into a discussion of the question, especially in the light of the contention now made, which is that the parties to a common-law marriage cannot agree or enter into a contract to do that which is absolutely void."

The court answered the question as follows:

"The word 'marry' used in the statute, as applied to the second marriage, does not mean a valid one. All bigamous marriages are void."

"While it has been held that the subsequent marriage must be of such a character that but for the existence of a prior legal marriage it would be valid, the weight of authority is that, where the form of ceremony of marriage with another person is gone through, there is a sufficient marriage on which to predicate a charge of bigamy, the view being taken that the word 'marries,' when applied to a subsequent marriage, means going through a form of marriage, and does not mean a valid marriage; added formalities are not necessary where mutual consent of the parties alone is sufficient to constitute matrimony, and a common-law marriage is sufficient."

Believe me, the fact that the bigamous marriage cannot be legally entered into does not prevent the person from being prosecuted for Bigamy.

TxBluesMan said...

As much as I have been doing on this, I should be billing someone....

Anonymous said...

Grits, do you think people should be prosecuted for practicing bigamy? Do you think they should be prosecuted for sexual assault if they're in a bigamous relationship with someone who's younger than adult age?

I'm asking in general, outside the procedural circumstances of this case.

Anonymous said...

TxBluesMan, doesn't Lawrence v. Texas change the landscape since 1951?

TxBluesMan said...

Nope.

See Holm v Utah, Utah Supreme Court, 2006, cert denied.

He cited Lawrence. The court held that Lawrence did not apply to the public institution of marriage. The U.S. Supreme Court declined to hear the case.

The 10th Circuit said the same thing in another case.

Lawrence does absolutely nothing for polygamy, the dicta in Scalia's desent notwithstanding.

Plus, although interesting reading, it is very hard to make the desent the focal point of your case, and even harder when it is dicta in the desent.

Headmistress, zookeeper said...

"The word 'marry' used in the statute, as applied to the second marriage, does not mean a valid one. All bigamous marriages are void."

You seem to be focusing on the subsequent marriages/relationships.

I think the question being asked is, what if there is NO valid marriage, no 'first' wife- just a group of people living together?

If a couple move in together without getting married, are they automatically considered 'Common Law' spouses, or does it take a certain length of time?
If she spends the night at his apartment or they married? If they move in together for a month, does Texas call that married? If several people move intogether to form a threesome or foursome or some other icky arrangement, are they automatically being bigamists in Texas, or does some threshold have to be crossed for the first marriage to be considered a marriage?
-----------

Bfing- worldwide, the average age to end breastfeeding is actually in the fourth year. The American Academy of Pediatrics recommends exclusive breastfeeding for the first six months, and continued nursing to 12 months, and even later if it's preferred by child and mother.

It is very hard on baby and mother to stop breastfeeding abruptly- but a 12 month old does have other options for nutrition and hydration that younger children don't. I do think the judge was kind of clueless to deny nursing mothers of children over 12 mos the right to stay with their nurslings- but she was no more clueless than the majority of Americans.

WHO/UNAIDS/UNICEF infant feeding guidelines are for breastfeeding to extend up to two years of age or beyond.

The benefits of extended breastfeeding are extensive, and they aren't just about nutrition, either. But I could go on and on and on about it. If you're really interested, there are some extended nursing factsheets here

Headmistress, zookeeper said...

This is a good enough standard for corroboration?

"The anonymous caller said she was 'married' at age 15 to a man named Dale Barlow and that she had a baby with him. Ranger Long confirmed that Dale Barlow had previously been convicted for a sexual conduct with a minor."

Publicly available information which anybody else could have confirmed, too. And in confirming it, law enforcement would also have confirmed that he was in Arizona, not Texas.

"The anonymous caller had said that Dale Barlow was 49. Ranger Long confirmed that Dale Barlow's birthdate was 11/05/1957 and that he was 49."

Also publicly available, and making it certain sure that later claims from CPS and law enforcement, that maybe it was a 'different' Dale Barlow are utterly bogus.

"The anonymous caller said that she had been medically treated at the ranch. Ranger Long confirmed that a Lloyd Barlow, MD, provided a clinic at the ranch."

I can't believe the existence of a clinic is viewed as verification.

"The anonymous caller stated that she could not get out, that the ranch was guarded. Ranger Long observed two sets of fences and a guard house."

Likewise.

"The anonymous caller stated that her maiden name was Jessop. Ranger Long confirmed that the man in charge of the ranch was Frederick Jessop."

Right. This is like somebody claiming somebody named Yoder molested her in a Mennonite or Amish community.

The entire ranch descends from four people. Half of them are named Jessop, and so are the two most vocal former FLDS members I know of, Carolyn and Flora.

Did she offer any details that weren't available via google?

The Local Crank said...

"Do you know if this is correct? Is there any precedence for this argument?"

When they prosecuted Warren Jeffs (or it may have been one of his lieutenants) in Utah they successfully argued that he was common law married to his other "spirit wives" and therefore guilty of polygamy. As another commenter pointed out, you can't do that in Texas. If you are "formally married" to one person, you can't be "informally" or common law married to someone else, though this seems to set up a conflict with the legal definition of bigamy in Texas, which requires that the defendant be legally married to one person and "purports to marry or does marry a person other than his spouse in this state, or any other state or foreign country, under circumstances that would, but for the actor's prior marriage, constitute a marriage; or (B) lives with a person other than his spouse in this state under the appearance of being married" Tex. Penal Code 25.01. As for the validity of the warrant, that issue only applies to any criminal prosecutions because CPS doesn't need a warrant, valid or otherwise, to do a removal, merely an affidavit of "reasonable" cause. And while I think this warrant probably strains the "good faith exception" into the "willful ignorance" category, I agree with Bluesman that, given the current state of Texas appellate law, where the ONLY error is "harmless error," I think there's a good chance it will stand. Of course, that doesn't solve the whole "bill of attainder" issue, but that's another topic.

Anonymous said...

"If she spends the night at his apartment or they married? If they move in together for a month, does Texas call that married?"

Are you serious? Anyway. . .

You talk about the importance of breast feeding (which I believe in, 100%), but then you admit that you know this:

"The entire ranch descends from four people. Half of them are named Jessop, and so are the two most vocal former FLDS members I know of, Carolyn and Flora."

You know that the extensive inbreeding in the FLDS has resulted in multiple cases of Fumarase Deficiency, right? And that they have opposed taking measures to prevent the severe birth defects caused by their inbreeding? In Texas, it's child abuse to bear a child addicted to drugs. To me, that addiction is more forgivable than intentionally entering marriages where it's likely you'll bear a child with an IQ of 25 who is missing part of their brain and has a seizure disorder because you'd rather marry your cousin than think of your children's welfare and health.

The FLDS do not make their children's health their first priority. They make self-destructive traditions and human made beliefs with no basis in physical evidence and scientific fact their priorities. They would not be having sex with their blood relatives and bearing children if their own mental and physical health were reduced to the level of their disabled children's. Nobody would pat a mother on the back who drank herself silly every day, in the expectation of having a child with fetal alcohol syndrome, as long as she said she'll take great care of the kid.

http://deseretnews.com/dn/view/
0,1249,635182923,00.html

"They claim to be the chosen people, the chosen few," Bistline said. "And their claim is they marry closely to preserve the royal bloodline, so to speak."

They choose lives of medical hardship for their children to preserve their beliefs. It's admirable that they care so well for their retarded children, but they also receive state financial support for the care, even though they can afford enormous temples and hold government military contracts. If they can manage these moderately sophisticated systems, why do they choose to ignore widely understood medical science and cultural customs that frown upon intermarriage?

It's all just so quaint and misunderstood, ain't it?

kbp said...

Jerri Lynn Ward,
Thanks for the link on the new motion!



Headmisstress,
Thanks for the response on the breast feeding. I think Walther should have stuck with the case-bay-case (if she could have trusted CPS to follow her directions!)

Headmistress, zookeeper said...

"If she spends the night at his apartment or they married? If they move in together for a month, does Texas call that married?"

Are you serious? Anyway."

I don't know why you picked this out instead of the main point I was making. Well, I do. But I'll try again, anyway. I really do not know what constitutes Common Law marriage in Texas. I understand the points being made that it doesn't matter if they have civil marriages or not, they are still guilty of bigamy- but John is saying that his lawyer friend tells him, that bigamy:
(one) legal marriage. His understanding and mine is that the FLDS members don't have ANY legal marriage, or at least not provably legal."

Nobody has answered this point, and I am curious. It's mainly academic curiosity- I have no idea if the FLDS people typically have ONE legal marriage to start with (I assumed they did, fwiw). I just want to know if John's friend is right. If there are NO legal marriages at all, is it bigamy? Or is common law marriage in Texas ridiculously easy to fall into?

As for the rest of your comment about Fumarase Deficiency, you seem to be implying that they should lose their kids because they don't practice Eugenics. Are you aware that several Amish and other Anabaptist communities also have high rates of birth defects due to inbreeding? Should they be found guilty of child abuse and lose their kids, too?

I am the mother (through adoption) of a child with serious multiple disabilities (she is profoundly retarded, among other things), probably genetic, and I cherish my child deeply and none of those of us who know her and care for her think it would have been better if she'd never been born, so I find that the nicest thing I can say about your comments is that maybe you don't realize that what you are advocating smacks of eugenics and at any rate, Fumarase Deficiency has absolutely nothing to do with why the YfZ ranch in Eldorado was invaded by Texas CPS workers and law enforcement or why they lost their kids, nor is it a legal issue or a CPS issue or an issue brought up in court by the estate. Not that it matters, but so far, I have heard of only one special needs child in this group, and he has Down's Syndrome.

Lowery said...

I have a legitimate question about race so please don't pounce on me.
All of the people I have seen connected to FDLS are white. Is his correct?
A commenter earlier said that Flora is black.I don't know if it is true but a black woman would not have been in a white compound as a confidential informant or anything else.Ever.
Can someone help me out who is familiar with their beliefs?
I used to live in Amish country and don't remember seeing anything other than white folks. Is that the way it is?

Headmistress, zookeeper said...

I *think* that they would not have any blacks in their group.
But Flora is white.

It's the anonymous phone caller- Rozita Swinton of Colorado who is black.

Ron in Houston said...

Regarding race:

I don't know if you guys remember, but when Mitt Romney was running for president one of the issues being brought up was that open discrimination against blacks only ended in 1978 in the LDS church.

So, since the FLDS is naturally going to be a more extreme reflection of the LDS church, I'd be willing to bet that blacks are not welcome.

Anonymous said...

Highly unlikely that the FLDS would have black members.

Warren Jeffs:

"The black race is the people through which the devil has always been able to bring evil unto the earth."

"Today you can see a black man with a white woman, et cetera. A great evil has happened on this land because the devil knows that if all the people have Negro blood, there will be nobody worthy to have the priesthood."

There's more.

John said...

Lowery asks about race. The FLDS attitude on race, as expressed by Warren Jeffs, stinks. The Southern Poverty Law Center classifies the FLDS as a hate group. The SPLC has some disgraceful quotes from Jeffs on blacks. See
http://www.splcenter.org/intel/intelreport/article.jsp?sid=342
for some odious racism.

Wacky Hermit said...

KBP, I can answer a few of your OT questions about breastfeeding.

When is the standard age most breast feeding discontinues? Probably about 6 months.

Is that cut off acceptable? Depends who you ask. La Leche League folks will say no. World Health Organization recommends 2 years.

Do FLDS mothers feed longer? That I don't know, but I would consider it likely; otherwise they'd have some massive expenditures on baby formula.

Is it out of the ordinary to go say 18 months? It is out of the ordinary in that not a lot of women do it, but a sufficient minority do that it's not freaky. BTW it is also uncommon but not freakily so to nurse two babies at the same time (tandem nursing). I did this with my kids that were 20 months apart. More common is that women give up on breastfeeding with the baby's first major growth spurt because nobody explained to them that the milk supply takes a couple of days to catch up with the baby's hunger supply.

Are there circumstances that require breast feeding after 12 months? Yes, there are. Of my four children, two have had to be nursed past 12 months due to medical conditions. One of them had food allergies including milk, so I had to be on his allergen-free diet and nurse him because I was his only source of milk. The other child has Asperger's Syndrome (a form of autism) and had a deep psychological and sensory need for nursing to continue. He nursed until he was over 2 years old because of his developmental delays.

Anonymous said...

Rev. Charles from Tulia:

I see in the paper this morning that children are likely to be separated from their mothers, then more stuff about the wierd practices of FLDS. Shaky search warrant. Reminds me of WMD then no WMD but the war was a good thing anyway. Saddam was a bad man.

I hate to see the race issue injected into this. FLDS stance on race has no bearing on this thing. I especially hate to see the Amish linked by implication with FLDS. No connection whatever.

To set the record straight, I'm no fan of FLDS, polygamy or polygyny or even serial monogamy. I've participated in and officiated at too many weddings and funerals with multiple spouse complications. But I do insist on constitutional protections for FLDS, and I don't think they got them. Of course their "regular" Mormon predecessors didn't either.

kbp said...

Wacky Hermit
Thanks for sharing information on breast feeding (limits).

Walters' Plan B still looks like it at least gave each case individual considerations.

Plan C in place now does eliminate the CPS from being involved in deciding which mothers continue feeding, as I go out on the limb in search for some good in this process!

Now imagine the nightmare IF they happen to loose a child to an illness while in custody.

Jerri Lynn Ward said...

To Anon who thinks it's child abuse to bring a disabled child into the world.

I, like Headmistress, have a profoundly retarded family member. My sister has brought more joy into my family's world than you can imagine. So, let me ask you, do you support passage of laws preventing older women from conceiving--because of the higher percentages of Downs Syndrome? Do you support passage of laws requiring screening of pregnant women and forced abortions if the screenings reveal defects in order that the child abuse of life is not inflicted upon these children? 95 % of Downs Children are aborted because of attitudes like yours as well as relentless pressure often placed on parents by eugenically-minded medical professionals. If not, why not? If you think bringing such children in the world is "child abuse", wouldn't the logical result, according to you, be to outlaw their births?

As a matter of fact, Time Magazine, quotes a so-called expert, speaking about FLDS families, as having "suggested that families discontinue having children once the disorder presents itself, or test for the gene during pregnancy and selectively abort pregnancies with the deficiency. All were approaches rejected by the FLDS. "It's not something they are willing to do," Tarby says."

Will CPS force pregnancy screening on the teenage mothers? I wonder.

As barbaric as polygamy and underage marriage is, given attitudes about bringing disabled children into the world, I think that our world is much more barbaric. I especially can't get over Judge Walther's comments about nursing babies as an example of unfeeling barbarity. I will NEVER get over that comment.

Anonymous said...

Though cps has magnanimously allowed nursing mothers to remain with their kids, fact is hundreds are being scattered across TX.

When the house of cards investigation/prosecution collapses, will the kids be promptly returned to the parents, or will cps continue to move for termination of parental rights?

rage said...

Everyone here who goes to church discriminates. A Muslim can't be a member of your Christian church. The race issue here is a red herring, and yet another reason to dislike the group that has nothing to do with abuse allegations.

Christians only want Christians, Boy Scouts don't want gays (something I'm sure you're OK with), and the FLDS has no blacks.

What dopes that have to do with allegations of abuse? Nothing.

Anonymous said...

Now imagine the nightmare IF they happen to loose a child to an illness while in custody.

I don't think that would be a nightmare for them. They'll blame it on the mother for lying about the child's medical condition or they will say that it was the result of a prior condition being negligently treated by the parents. They'll add a new charge against the parents and inflame the public.

Brenda

Anonymous said...

Yesterday, in State of Utah v. Holm (UT Sup. Ct., May 16, 2006), Utah's Supreme Court yesterday upheld the constitutionality of the state's bigamy statute which provides that "[a] person is guilty of bigamy when, knowing he has a husband or wife or knowing the other person has a husband or wife, the person purports to marry another person or cohabits with another person." Utah Code Ann. § 76-7-101. The majority held that the state's statute bars polygamous marriages that are solemnized through religious ceremonies even when no state marriage license has been sought.

The court rejected defendant's claim that outlawing polygamous marriage violates his free exercise rights under Art. I, Sec. 4 of Utah's constitution. In so holding, the majority focused on the explicit ban on polygamy placed in Utah's constitution (Art. III, Sec. 1) as a condition of statehood, as required by the 1894 federal Utah Enabling Act. The majority also rejected the contention that criminalizing religiously motivated plural marriage violates the First Amendment to the U.S. Constitution. Finally the court rejected the defendant's claim that the U.S. Supreme Court's 2003 decision in Lawrence v. Texas protects polygamous relationships as a fundamental liberty interest.

The case involved the conviction of FLDS member Rodney Holm, who had been a police officer in Hilldale, Utah. Charges were filed after he married a 16-year old third wife (the sister of his first wife), and fathered her two children.

An interesting dissent by Chief Justice Durham takes the position that Utah's polygamy ban only applies to licensed marriages, and not to a mere religious union where there has been no attempt to obtain state recognition of marital status or the legal benefits of marriage. She also held that imposing criminal penalties on Holm’s religiously motivated entry into a religious union violates the state constitution's provisions protecting religious freedom. Finally she argued that if Holm's polygamous relationship had been with an adult instead of a minor, it would be protected under the U.S. Supreme Court's Lawrence v. Texas holding.

The Salt Lake Tribune reports on the case in two news articles. 1, 2 .

http://religionclause.blogspot.com/2006/05/utah-supreme-court-upholds-polygamy.html

Anonymous said...

". . . so I find that the nicest thing I can say about your comments is that maybe you don't realize that what you are advocating smacks of eugenics. . ."

The FLDS are applying eugenics because they think they have to carry on a holy bloodline, free from racial minorities and anyone other than FLDS descendants.

And to jeri lynn ward, who said:
"If not, why not? If you think bringing such children in the world is "child abuse", wouldn't the logical result, according to you, be to outlaw their births?"

No, the logical result would be to not breed with people you are related to by blood. There is such a thing as making an informed choice based on medical science.

Headmistress, zookeeper said...

"[a] person is guilty of bigamy when, knowing he has a husband or wife or knowing the other person has a husband or wife, the person purports to marry another person or cohabits with another person."

That clause begins with 'knowing he has a husband or wife....' I understand that in those circumstances, even cohabitating is bigamy. But I am not asking about those circumstances.
What if nobody is married to anybody, they are ALL just cohabitating? Is it bigamy in Texas if three or more people are kinky and want to live together so long as NONE of them have a single wedding license among them?

When I was a young teen some 33 years ago I briefly babysat for a rather strange group of people- they were a group of hippie types, and by the end of the first week it was obvious that the six people in the house slept interchangeably with one another, and I overheard two of them discussing the baby I was caring for and wondering which of the men he looked most like.
None of the people there had ever been married to anybody.
Is that bigamy for everybody cohabiting in the state of Texas, or is it just a crime if they have religious reasons for living together, or is it not a crime at all if there isn't a single legal marriage at all?
That's why I am asking what makes a 'common law' marriage- if there are NO legal FLDS marriages, at what point did living together make them common law marriages? In one state we lived, I was told by a friend that it was only a Common Law marriage when they'd lived together for five years. And since the FLDS haven't been in Texas that long....?

Once more- to the person in favor of eugenics- these are red herrings. NOBODY here has claimed that the FLDS sect is pure as snow and completely without troublesome and disturbing and even quite icky doctrines.
Being a bigot is disgusting, but it is not a crime for which you should lose your children, so it's a red herring.

There is no law stating that it is illegal or child abuse to marry somebody with whom you might have disabled children or to birth those disabled children, so that is a red herring.

Your snide, "It's all just so quaint and misunderstood, ain't it?" is purely a strawman, as that is not something anybody here or anywhere else I've seen has posited.
Believing icky things is not illegal and not cause to lose your children.
Even practicing icky things that are not illegal is not cause to lose all your children.
Even practicing some things that ARE illegal is not necessarily cause to lose all your children- convicted criminals do not automatically lose their children

What we keep saying, and for some reason some of you keep misreading, is that crimes against under-aged girls SHOULD BE PROSECUTED. But that's not what's happening here. What's happening is an entire group of people are not being treated as individuals under the law, and they are losing their kids not for what they do but for what they believe. And you are okay with this because you find them otherwise distasteful. So do I- but unlike you, I don't believe that my distaste for your beliefs justifies removing your children on the basis of fraudulent phone call and hearsay from a hostile witness who has never even met you or been in your home, or guesses about the ages of your children based on how they look to me.

Anonymous said...

I may have missed it in the volume of posts above, but has anyone noted that, if they cannot be prosecuted for bigamy, then the adult men likewise have no spousal defense to sexual assault against a child under 17 (if they did). Isn't the allegation that in some of these cases there were girls under 17 having children? If they were unmarried, and the father more than a couple years older, then that is a sexual assault. If they were married, and the father is also married to someone else, that is bigamy. One of the two must be true (except in the cases of the older women, of course).

rage said...

headmistress: I Texas, a common law marriage is as simple as representing yourself as married to a third party.

But note, there is no such thing as a common law divorce (would that there were...).

anon 10:32: 17 is the age of consent for sex, regardless of the age of the man.

So no, your false dichotomy doesn't hold up.

(Mike: a false dichotomy is when someone wants to make you choose between two choices, when you actually have other options)

Ron in Houston said...

rage

Technically, there is (in a sense) a "common law" divorce.

If the common law couple split and if neither party goes to court to establish the validity of the common law relationship within 2 years, then no one can establish that relationship.

Technically, I'd call that a common law annulment, but you get the gist.

kbp said...

To all that are working so feverishly to decipher what may or may not be bigamy, your great discussion here creates more questions in my mind.

QUESTION 1:
The barrier on AGE OF CONSENT seems to be 17, with an EXCEPTION for those that are legally married at any younger age.

What allows those legally married under the age of 17 to have MORE rights, allowing that select group to give consent while those of the same age that are NOT legally married do not have that right?

QUESTION 2:
There is an AGE DIFFERENCE exception to the Sexual Assault of a Child. It appears (as I read it) to allow an adult within a limted variance in age of a girl under the the Age of Consent to have a right to that relationship which other adults (maybe one day older) do not have. It looks to even be possible for one adult to be convicted even if he if younger than another, depending upon the age of the girl under the age of consent (greater variance between the two in that intimate relationship)

What allows that the possibility of that one day difference in the difference in age to give one adult more rights than the other?


TIA :)

Anonymous said...

"What allows those legally married under the age of 17 to have MORE rights, allowing that select group to give consent while those of the same age that are NOT legally married do not have that right?"

Parental consent.

"There is an AGE DIFFERENCE exception to the Sexual Assault of a Child. It appears (as I read it) to allow an adult within a limted variance in age of a girl under the the Age of Consent to have a right to that relationship which other adults (maybe one day older) do not have. It looks to even be possible for one adult to be convicted even if he if younger than another, depending upon the age of the girl under the age of consent (greater variance between the two in that intimate relationship)

What allows that the possibility of that one day difference in the difference in age to give one adult more rights than the other?"

Sexual activity between any person over 14 and any person under 14 is aggravated sexual assault, based only on the age of the victim. The age of the perpetrator doesn't matter under the law. This does not mean that a DA or parent who knows about the activity might decide that prosecuting the offense isn't the proper course of action.

If both actors are over 14, but one is -more- than three years older than the younger actor, and they are not legally married, it is sexual assault, and the DA does not have prosecutorial discretion.

If the actors are within three years of each other in age, even if one is under 17 and the other is over 17, the DA can choose to prosecute or not, depending on the facts and the victim's willingness to cooperate or testify against the older actor. Hypothetically, if a 15 year old willingly has sex with an 18 year old, the DA can choose not to prosecute if the younger person will not cooperate or file charges. They also could choose to prosecute based on the facts of the case.

These scenarios include a lot of variables. Someone please correct me if I'm wrong.

Anonymous said...

To 10:17, you seem to have a problem with disassortative sexual selection. It's not the same as involuntary eugenics.

Jerri Lynn Ward said...

The State has been taking such good care of these children. From the El Dorado Yellow Press--I mean, Sucess:

"Five buses loaded with YFZ children stopped in Eden, Texas Friday morning because one of the children was reportedly ill. An ambulance met the bus, as shown in the photo below. The condition of the child is unknown at this time."

Link

kbp said...

FLDS attorney challenges Texas count of pregnant minors from polygamous sect
"Of the three teenagers listed as pregnant, Parker said, one is about to turn 18 and another refused to take a pregnancy test, he said. "That leaves us with one," he said.

Anonymous said...

Texas statutes of limitations

1. Prosecution of the offense of sexual assault may commence at any time IF "during the investigation of the offense biological matter is collected and subjected to forensic DNA testing and ¦the matter does not match the victim or any other person whose identity is readily ascertained." Tex. Code Crim. Proc. art. 12.01(1)(B).
2. Prosecution of the offenses of sexual assault and aggravated sexual assault must commence within ten years of the offense. Tex. Code Crim. Proc. art. 12.01(2)(E).
3. The prosecution of all other felony sex offenses must commence within three years of the offense. Tex. Code Crim. Proc. art. 12.01(6). These offenses include: indecency with a child, Tex. Penal Code § 21.11; improper relationship between educator and student, Tex. Penal Code § 21.12; and prohibited sexual conduct, Tex. Penal Code § 25.02.
4. Prosecution of the offenses of indecency with a child, sexual assault, and aggravated sexual assault, if the victim was under the age of eighteen at the time of the offense, must commence within ten years of the victim's eighteenth birthday. Tex. Code Crim. Proc. art. 12.01(5).

http://www.rainn.org/public-policy/sexual-assault-issues/state-statutes-of-limitations

Were these laws recently changed?

DB said...

2,000 years ago, it was common in Jewish communities for parents to arrange marriages (betrothal) of girls with older men. The typical age of marriage was 13 for girls and 18 for men after a period of a few years of this betrothal period (aka "spiritual marriage").

On this basis it is likely that Mary was married to Joseph when she was 13, became impregnated by God at about that time and bore Jesus at the age of 14. Given the widespread celebration of that act by many churches, I propose that a warrant be issued to investigate the background of all Christian parents and remove their kids from this potentially dangerous environment until they prove that they are not abusing their kids.

TxBluesMan said...

Headmistress said:

"[a] person is guilty of bigamy when, knowing he has a husband or wife or knowing the other person has a husband or wife, the person purports to marry another person or cohabits with another person."

I don't know where you found that, but it is not the definition of Bigamy in Texas. I invite your attention to the Penal Code, Sec 25.01, which states:

"(a) An individual commits an offense if:
(1) he is legally married and he:
(A) purports to marry or does marry a person
other than his spouse in this state, or any other state or foreign country, under circumstances that would, but for the actor's prior marriage, constitute a marriage; or
(B) lives with a person other than his spouse in
this state under the appearance of being married; or
(2) he knows that a married person other than his
spouse is married and he:
(A) purports to marry or does marry that person
in this state, or any other state or foreign country, under
circumstances that would, but for the person's prior marriage,
constitute a marriage; or
(B) lives with that person in this state under
the appearance of being married."

Lets break this down into easy portions.

A legally married person includes married by license or by common law. Common law is easy to prove in Texas, and by stating 'first wife,' etc., the person generally meets that requirement. Note that there is not a requirement for cohabitation, although this helps to prove a common law marriage. There is no minimum time in Texas to establish a common law marriage.

The second 'marriage' can occur when there is a 'spiritual' marriage, they live together, they hold themselves out as being married, and have children together.

Note that the second and any subsequent marriages are not legal marriages.

In addition to charging the husband with Bigamy, each of the wives after the first wife can also be charged with Bigamy. If one of the parties is under 18, and the proper affidavit is not filed with the County Clerk attesting to parental consent and that neither party is currently married, then the offense is a 1st Degree Felony with a sentence of 5-99 years or life in prison.

I imagine that the prosecutors will use this to get information from the wives, especially since felony charges on the wives will not help them get their children back. If they don't want to cooperate, then they face prison time also.

kbp said...

Kids missing now?

The Local Crank said...

Bluesman correctly restates the definition of bigamy I had already listed above. However, I disagree that it is "easy" to prove common law marriage in Texas. In fact, it is quite difficult, mostly due to the requirement that the parties "agreed to be married" and that the couple "represented to others that they were married." Absent things like filing taxes jointly or listing someone as a spouse on rental papers or things like that, you just don't see alot of common law marriage being proved in contested settings. Of course, an essential element of a common law marriage missing in the YFZ case (at least from the evidence seen so far) is that you can't be ceremonially or common law married to more than one person and minors can't get common law married, parental consent notwithstanding. Tex. Fam. Code sec. 2.401(c)(1) & (2). So, the State cannot use informal marriage to prove either bigamy or marrying someone under age in Texas the way they did in Utah.

TxBluesMan said...

Crank, I'm sorry, but your interpretation of the law on Bigamy is incorrect, as I had posted above, and will repost here:

See again, Stevens v State, 243 S.W.2d 162 (Tex Crim App, 1951), which stated:

"In two cases this court has announced the rule that the crime of bigamy may be founded upon a common-law marriage. [internal citations omitted] Neither of these cases, however, entered into a discussion of the question, especially in the light of the contention now made, which is that the parties to a common-law marriage cannot agree or enter into a contract to do that which is absolutely void."

The court answered the question as follows:

"The word 'marry' used in the statute, as applied to the second marriage, does not mean a valid one. All bigamous marriages are void."

"While it has been held that the subsequent marriage must be of such a character that but for the existence of a prior legal marriage it would be valid, the weight of authority is that, where the form of ceremony of marriage with another person is gone through, there is a sufficient marriage on which to predicate a charge of bigamy, the view being taken that the word 'marries,' when applied to a subsequent marriage, means going through a form of marriage, and does not mean a valid marriage; added formalities are not necessary where mutual consent of the parties alone is sufficient to constitute matrimony, and a common-law marriage is sufficient."

Believe me, the fact that the bigamous marriage cannot be legally entered into does not prevent the person from being prosecuted for Bigamy.

---
Common law can be hard or easy to prove, depending on the facts and circumstances of the case.

First, are their any documents showing the 'spiritual' marriage? Did any of the 'wives' give statements to CPS or police? Are the wives willing to face Bigamy charges themselves if they don't want to cooperate? Is there a child born to the couple? Do they live together?

The intent of the couple can be proven by acts, you don't necessarily need an overt statement.

The Local Crank said...

"Crank, I'm sorry, but your interpretation of the law on Bigamy is incorrect, as I had posted above, and will repost here"

You're right, I totally missed your citation. That is extremely interesting. Assuming it's still good law (and I can't imagine there are just a huge number of bigamy cases prosecuted in Texas, much less appealed), you are clearly correct that informal marriages CAN be used to prove bigamy. What were the facts of that case? Did it involve an underage person? I really have a hard time seeing how the State could "prove" an informal marriage that couldn't exist by its own terms due to age restrictions. I mean, by that reasoning, the State could "prove" a defendant was common law married for purposes of bigamy even if the purported marriage met NONE of the requirements of the Family Code. Thanks for, unlike many commenters, actually citing the law. You're going to force me to go research this now.

Headmistress, zookeeper said...

"To 10:17, you seem to have a problem with disassortative sexual selection. It's not the same as involuntary eugenics."

When somebody uses birth defects common to a given population to bolster his assertion that the entire population deserved to lose their kids to CPS, I don't think so.

Txblues man:
"[a] person is guilty of bigamy when, knowing he has a husband or wife or knowing the other person has a husband or wife, the person purports to marry another person or cohabits with another person."

I don't know where you found that, but it is not the definition of Bigamy in Texas. I invite your attention to the Penal Code, Sec 25.01, which states:"


I invite your attention to this thread- I was replying to a previous comment just two posts above the one of mine you're taking issue with, and the section that you refer to when you say you 'don't know where [I] found that?' I'm quoting from that earlier post, a 09:25:00 AM anonymous. So I 'found' it right here.

I wasn't posting something new to the thread to prove anything- I was quoting something somebody else had posted as a reference point for the questions I had about it.

You say, "The second 'marriage' can occur when there is a 'spiritual' marriage, they live together, they hold themselves out as being married, and have children together.

Note that the second and any subsequent marriages are not legal marriages."

I'm sorry if I seem dense, but I am confused because every answer to my question begins by talking about how it doesn't matter if the second or later marriages are valid or not even though my question has nothing to do with the second or any subsequent marriages. My question is about the FIRST marriage- or more accurately, the lack of one. What I am trying to understand (just to satisfy my own curiosity) is what if there never was a first marriage- what if, in fact, there are no 'marriages,' just a group of people cohabiting and sharing more than the rent and utility bills.

If I am understanding your claims correctly, then it seems to me that cohabiting with more than one person is bigamy in Texas, even if none of the parties have ever married anybody. I have a friend whose husband left her to move in with his girlfriend- it was almost a year before their divorce was final. If he'd been living in Texas, would he be guilty of bigamy?
And if cohabiting doesn't have to be part of a Common Law marriage, than are all adulterers in Texas committing bigamy?

I want to stress again that this is purely curiosity on my part- I am not making any claims for FLDS in this matter as I have no idea what their marriage arrangements are.

So if you're just kinky and you just want to live with two people without any form of a marriage with either one- is that bigamy?

kbp said...

From what I get in the posts on Stevens v State, the most recent changes describing the 2nd+ marriage in the Bigamy code were not needed, or from the opposite view, the Stevens case is no longer needed. One might be safe to presume the state used the Stevens case to determine the wording of the revisions in the latest code.

I saw nothing in the posts that helped me to realize there could be a marriage classified as bigamy absent a "prior legal marriage".

I see Cranks comment telling of the difficulties proving a common-law marriage IF needed to establish a "prior legal marriage", and TBM's telling us how easy it is to establish such. The quotes from the Stevens case do not appear to weigh in any on how a "prior legal marriage" is established.

Maybe there is more in the Stevens case, but it is not available on any free sites I could find.

Anonymous said...

Sorry for the confusion.

"[a] person is guilty of bigamy when, knowing he has a husband or wife or knowing the other person has a husband or wife, the person purports to marry another person or cohabits with another person."

Is from the Utah Supreme Court opinion and applies to Utah. There is a link in that post to the blog post and from it to the opinion itself.

kbp said...

Holm v. Utah
From my limited knowledge on law, it looks like the problem in the Holm v. Utah case was not strongly centered on whether there is a problem with it being a right to practice religion, but that particular case lacked two consenting adults.

Similar to what may arise as a problem in the YFZ case[s] that could come about, I guess.

That does weaken the idea that the other wives, if 'consenting adults' when they married, will be forced to testify because they fear being charged with bigamy. Such a case may the prime ticket to take the religion question (and the Lawrence v. Texas question) all the way to SCOTUS.

The Local Crank said...

"And if cohabiting doesn't have to be part of a Common Law marriage, than are all adulterers in Texas committing bigamy?"

No. In order to prove common law marriage in Texas, you have to show that "the man and woman agreed to be married and after the agreement they lived together in this state as husband and wife and there represented to others that they were married". Tex. Fam. Code Sec.2.401, et. seq. Notice there is no time limit on the cohabitation. You could live together for 50 years and not be common law married. Note also the cohabitation has to occur in Texas AND they have to represent to others WHILE IN TEXAS that they are married. Both of those might be relevant in the YFZ Ranch cases. I still have a hard time understanding how a minor, who by definition, is incompetent to enter into any binding legal agreement, can nevertheless "agree to be married" when the common law marriage statute specifically states that minors CANNOT be common law married. Frankly, the State would be MUCH better off prosecuting for sexual assault of a child (there is no statutory rape statute in Texas anymore), assuming they can prove it, then trying to prove common law marriages so they can prosecute for bigamy.

Anonymous said...

crank, that brings up other interesting questions. Statutes of limitations cannot be ex post facto. See Stroger v. California, 539 U.S. 607. Also, Jessop was convicted of rape because of the complaint of being forced into the marriage. Is there the same allegation here? If not, and if any illegal impregnation, is the issue statutory rape and its statute of limitations at the time?

kbp said...

In case any missed it;
Lawyers: 2 sect kids missing
"...State child welfare authorities responded that no children have been lost, but family relationships are muddled, hence the need for genetic testing to determine them."

Now you have to just keep crying, maybe with a bit of laughter, after reading that response.

The story is they are "boys, ages 16 months and 11 years,", so the reports are they should be going to seperate locations IIRC.

So I am guessing we're to understand that once they have genetic testing completed - maybe even wait to determine who the parents are - they'll be able to do a better job of counting heads, tracking numbered bracelets and sorting the ID's onto a list of location records.

I can hear the crew thinking of a media response; "Yeah that's right, the testing is the answer, we need DNA test results to find those kids!"

TxBluesMan said...

Crank,

I Shepherdized Stevens and it appears to be the most recent case law on common-law marriage being a applicable to a bigamy charge.

That particular case did not involve an underage wife and I can't find a case on point. Having said that, the Legislature clearly intended for Bigamy to be applicable in those cases, as a charge of Bigamy where the the second spouse is underage is enhanced from a 3rd Degree Felony (2-10 years) to a 1st Degree Felony (5-99 years or life).

As for prosecuting Bigamy, it is not as rare as you might think. Darrell Yates was charged with Bigamy in 2005 and got 15 years. Last year a Guadalupe County man was convicted of Bigamy. Two Hardin County men were indicted on April 17th of this year for Bigamy. This is just what I can remember off the top of my head.

The last Bigamy case I could find for the Court of Criminal Appeals in Lexis was Casanos v State, 364 S.W.2d 400 (Tex. Crim. App. 1963) on a different point of the law. There could be later ones, I didn't spend much time looking.

The last case in the Court of Appeals was an unpublished decision, Charles v State, 2007 Tex. App. LEXIS 1294 (Tex. App. Houston, 2007), again, not on point for this situation.

Remember, in the Bigamy statute, one only has to hold out the appearance of being married, which means that none of the requirements for marriage in the Family Code would necessarily need to be met.

TxBluesMan said...

headmistress said:

"I'm sorry if I seem dense, but I am confused because every answer to my question begins by talking about how it doesn't matter if the second or later marriages are valid or not even though my question has nothing to do with the second or any subsequent marriages. My question is about the FIRST marriage- or more accurately, the lack of one. What I am trying to understand (just to satisfy my own curiosity) is what if there never was a first marriage- what if, in fact, there are no 'marriages,' just a group of people cohabiting and sharing more than the rent and utility bills."

I wasn't trying to be rude - I just didn't know where the quoted definition of bigamy came from - and I missed the earlier post to that effect in this thread.

If, arguendo (for the sake of argument), there was no 'first' marriage, then there can be no bigamy. I don't think that that will be the case in the YFZ case. Too many of the FLDS speak of 'first wifes' and second 'spiritual' marriages.

By calling is a 'spiritual' marriage, whether the first or the second, by living together, by having children, etc, it becomes a common-law marriage and the subsequent spiritual/common-law marriages become prosecutable.

I hope this helps clear it up - basically their own words and documents will convict them.

TxBluesMan said...

Crank said:

"I still have a hard time understanding how a minor, who by definition, is incompetent to enter into any binding legal agreement, can nevertheless "agree to be married" when the common law marriage statute specifically states that minors CANNOT be common law married."

That's understandable. Although the state does not allow minors to marry without parental consent, it provides for the annulment of such a marriage in Family Code Sec 6.102. If the marriage was not completed, there would be no need for an annulment.

In addition, in Husband v Pierce, 800 S.W.2d 661 (Tex App 1990), which stated:

"the common-law or informal marriage of Relator and Rana was established as a matter of law, and that marriage is, under the law valid unless it is annulled by judicial decree. Rana's age does not constitute any impediment to her common-law union"

and

"the informal common-law marriage of Relator and Rana are voidable only. The public policy expressed in § 2.01 is that "every marriage entered into in this state is considered valid . . . unless it is expressly made voidable by this chapter [chapter 2] and is annulled as provided by this chapter.""

This is basically a case where an underage girl entered into a marriage, the parents later attempted to force the girl to return home, and the court held that the underaged girl had entered into a common-law marriage, based on a reading of the entire statute, saying:

"because of her age, no marriage license authorizing her marriage could have been issued without the Holts' consent; and that no clerk in this state was authorized, for the same reasons, to record a declaration of her informal or common-law marriage to Relator... Those arguments do not take into account the public policy established by the legislature that a marriage entered into by an underage (14 years of age or older but less than 18 years of age) party is voidable, not void."

Basically, once a common-law marriage is established, whether within the statute or not, it still is a marriage.

The Local Crank said...

"the marriage was not completed, there would be no need for an annulment"

I believe that is incorrect. An annulment in Texas can be granted to declare a marriage void, it does NOT mean the marriage was ever valid. To the contrary, the effect of the annulment is that the marriage never existed in the first place. Some of the specified grounds for annulment include age, consanguinity and (because this is Texas) being too drunk to know you were getting married; all of those would render a marriage void. The annulment, in those cases, is the mechanism by which the marriage is voided. If parties to such a marriage got a divorce, and no one raised the issue, then THAT would have the effect of "completing the marriage."

TxBluesMan said...

kbp,

Such a case may the prime ticket to take the religion question (and the Lawrence v. Texas question) all the way to SCOTUS.

I would tend to doubt it based on the following:

1. The Lawrence court stated "This case does not involve minors, persons who might be injured or coerced, those who might not easily refuse consent, or public conduct or prostitution."

2. Every court that has considered the question of bigamy or polygamy in connection with Lawrence has held that the public institution of marriage is not covered by the decision of Lawrence. See the following cases:

a. Muth v Frank, 412 F.3d 808 (7th Cir 2005) - not applicable to adult brother and sister who married and committed incest.

b. Houghton v Secretary of the Department of Children and Family Services, 358 F.3d 804 (11th Cir 2004) - does not authorize a homosexual couple to adopt, which is a public act.

c. Cook v Swensen, 500 F.3d 1099 (10th Cir 2007) - does not authorize the public act of polygamous marriages

That's just a sampling, but thus far the US Supreme Court has refused to hear any of these type cases, and their language in Lawrence does not indicate that this will change, Scalia's desent notwithstanding. Remember, the act of marriage is a public act, not a private one, and Lawrence specifically excluded public acts.

TxBluesMan said...

Crank,

You may be right on the annulment part, but I am confident that the case I cited clearly showed that an underage girl entered into a common-law marriage.

Of course, this will wind thru the appellate system, so who knows what will happen.... :)

Anonymous said...

TBM,

I stated "...if 'consenting adults' when they married", so the wording did not convey my message well.

The "married" I was ID'ing was that in which the state says a "spiritual..." is a public marriage. They could just as easily said that about the relationship lawrence was involved in.

Your 1 does not cover it.

2a is "incest".

2b is a public act of adoption.

You finish telling "the act of marriage is a public act, not a private one", but I am uncertain that a "spiritual marriage" has to be anymore public than the gay relationship behind closed doors. Parties in both relationships leave during the day going into public view. The state is who makes a "spiritual..." marriage a public act, after the fact.

I like how Utah's Chief Justice Christine Durham pointed out "that the majority’s expansive definition of marriage includes even private relationships", in her dissent.

2c Cook v Swensen I'd need to read.

I do not see it as so cut & dried the either by the way you explain it or what I have read on it.

I'd also guess most Texans did not expect the Lawrence case to turn out as it did.

Another matter I question (never researched any) if how a minor gains rights others may not have when they marry (1.104. CAPACITY OF SPOUSE)?


kbp

Having trouble signing in for some reason.

kbp said...

Uncertain why sign in did not work last post. Sorry

The Local Crank said...

"Of course, this will wind thru the appellate system, so who knows what will happen.... :)"

God help us, then, considering how little most appellate judges (not to mention the Texas Supremes) know about Family Law.

"Another matter I question (never researched any) if how a minor gains rights others may not have when they marry (1.104. CAPACITY OF SPOUSE)?"

Once a minor gets married, their disabilities are removed and they are legally adults, at least as far as being able to enter into contracts. That notwithstanding, I'm pretty sure you still can't vote or serve on a jury until age 18. Seems to be a difference of opinion on whether or not you could drink champagne at your own wedding reception.

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