Marci Hamilton

Prosecuting Polygamy

There is nothing so dangerous for a child as an insular, patriarchal religious organization, and the Fundamentalist Latter Day Saints, whose compound in El Dorado, Texas, is now under control of the Texas authorities, is one of the scariest examples. It took the extraordinary bravery of a 16-year-old girl to set in motion a chain of events that should have happened long ago.

She reported that she had been "married" to a 50-year-old man, forced to have sex, get pregnant, and have a baby. Because of her, Texas authorities have taken hundreds of children and women to safety. From all reports, they have yet to find her.

I give the Texas law enforcement and child protective agency officials a great deal of credit for moving in on the compound. They bucked the three trends in our culture that have kept these children at risk for far too long.

First, authorities in general are too fearful of intervening in religious enclaves, even when the harm is so awful and apparent. Yet, there is no right of religious liberty to engage in child and spousal abuse, or polygamy for that matter. The taboo against holding religious entities accountable is simply foolhardy.

In fact, enforcement of the polygamy laws could have stemmed many of these abuses. Yet, it is the rare prosecutor who will prosecute on the basis of the polygamy laws, despite the fact those laws are utterly clear and repeatedly have been upheld against constitutional attack. The largest enclave of FLDS resides in Bountiful, British Columbia. A misguided Canadian public official announced just yesterday that the government cannot go forward with a prosecution of polygamy against the FLDS (where the accounts of abuse are legendary), because of concerns about religious liberty. If Canadian law, though, protects polygamy, it also protects the child and spousal abuse that inevitably follow. That is not religious liberty, but rather religious licentiousness. American prosecutors have been marginally better, though there are many more cases out there that they ignore on daily basis.

If authorities (in TX, AZ, NV, and UT) had vigorously enforced the laws against polygamy, we would not have dangerous cults like the FLDS that are premised on extreme obedience of women and girls to domineering men and the disposal of teenage boys. Instead of preventing systemic abuse and neglect, authorities have been timid in the face of specious claims of religious liberty. It cannot be said often enough: no public official should tread lightly in the face of child abuse even if those perpetrating the abuse don the cloak of religion.

The sheer amount of statutory rape in the FLDS culture (along with physical abuse and neglect) is staggering, but it took the FBI years to put their prophet, Warren Jeffs, on the Ten Most Wanted List and then to apprehend him for taking underage girls across state lines to be married to older men. He was convicted in Utah for his involvement in the "marriage" of a 14-year-old girl to a 19-year-old boy and will face further state and federal charges in separate proceedings. His conviction alone should have put all authorities in the jurisdictions where the sect resides on the alert to rescue the women and children. (The boys do not fare well, either, as many are abandoned in adolescence in order to keep the ratio of men to girls favorable for the men.)

Second, Hollywood has romanticized polygamy. Thanks to actress Rita Wilson, Tom Hanks's wife, the fundamentalist Mormons' practice of polygamy has been glamorized in the nauseating HBO series, Big Love. When the members of Tapestry, a group of formerly polygamous wives fully (and sadly) educated on how the FLDS operates, objected to the show before it even appeared, she ignored their entreaties.

Big Love is business, obviously, but it's business that profits from the abuse of women and children. Hollywood pays tremendous attention to suffering children in Africa, but which ones have stood up for the American child victims of sex abuse at the hands of polygamist Mormons? It is a sad fact that American children who are victims of child sex abuse in all categories (clergy abuse, incest, teacher abuse, etc.) receive far less attention and support than foreign children. Do you know why children's issues are so difficult to get through state and federal legislatures? Children's advocates will tell you: "Children don't vote." It's also because too many wealthy adults don't give to suffering American children.

Third, as a culture, we are slow to react to evidence of child sex abuse. We worry about tarring the reputation of adults far more than we do about early intervention when a child is in trouble. It takes a whole culture for children to be sexually and physically abused -- adults to do it and others to take no action when they suspect what is happening. The worst thing that could happen in the El Dorado situation is that the apparent stonewalling by a number of the adults convinces authorities to restore these children to the cult. Adult members who will not talk truthfully to authorities should be prosecuted for obstruction of justice. Every humanly possible effort needs to be made to protect the children from further abuse.

The question that should be on everyone's mind at this point is where is the girl who tipped off authorities? I am afraid to know the answer, to be perfectly honest.

That leaves the question of justice for all of the other children in the cult.

Because of the insular nature of the FLDS and the general culture's failure to intervene earlier, it will likely take decades for FLDS victims to find the ability to come forward and demand justice from their perpetrators. They deserve whatever time they need to heal and to find that justice and, therefore, offer yet another reason to eliminate the statutes of limitations for childhood sexual abuse.

The Wages of Intolerance

The immediate reaction to Justice Sandra Day O'Connor's resignation was so strident from both sides that the President has asked everyone to tone it down. Senate leaders are also asking groups to be more cordial. The problem with silence, though, is that we need to know what agendas are out there, and one of the cardinal problems in American politics is that too many times religious political pressure happens behind closed doors.

Before the calls for civility, though, plenty of groups were able to show their hands in this emotional debate over who to choose to replace Justice O'Connor, a moderate Goldwater Republican. Litmus tests abound, with conservative evangelical Christians claiming an entitlement to have a Supreme Court appointee who reflects their singular religious values. In the end, the President simply cannot choose a Justice based on their religious criteria.

This country was not founded on a single religious viewpoint, as the far right would have it, but rather on a wide diversity of religious beliefs. The current far right believers are reminiscent of the Puritans who settled what would become Massachusetts and who established their religion as the religion of the colony (and then the state). The Puritans believed in the right to believe whatever one wanted, so long as dissenters left their cities and communities. They believed in a religious culture controlled by the majority. Rhode Island was founded because of the Puritans' rank intolerance.

Many of the dissenting Christians in Massachusetts were Baptists, whose charismatic preachers, including the Revs. Isaac Backus and John Leland, preached the separation of church and state. Backus declared that the "notion of a Christian commonwealth should be exploded forever" while Leland called established religions, "all of them, anti-Christocracies."

Yet, far right Christians today, many of them Baptists, have no respect for disestablishment principles. They are intent on removing barriers between government and religion, and, in fact, making government the servant to religion. They want their religious messages on courthouse walls, their theology in the science classrooms, their prayers in public schools, and their values to mandate constitutional policy. They even argue that Protestants are a majority and therefore have the right to have the government deliver their religious messages. This is their agenda for the next Supreme Court Justice.

Not only are they opposed to the separation of church and state, they are also opposed to a balanced government. Right now, they are insistent that they have a right to dominate not just the Congress (witness the Terri Schiavo bill) and the President (he's harder to dominate, but he persistently plays to them), but also the Supreme Court. They say they are entitled to take the third branch.

Moreover, their primary criterion for a good Justice is one where they can predict how that Justice will vote on every issue that matters to them. In other words, they don't think too much of the independent judiciary, either. If they could, they would place an automaton in the Supreme Court that could be controlled by remote control. I wish that were an exaggeration, but their rhetoric is not terribly opaque.

I'm a conservative, a Republican, and a Christian, and I must say that I find this Christian triumphalism scary. Good for the liberals that are finally speaking up and saying that their Christianity is just as legitimate as arch-conservative Christianity. The voices we need next in the public square are the many silent conservative Christians who find it offensive that any religious group would attempt to control the federal government solely by its religious lights.

The far right has said repeatedly in recent years that it would like this country to return to its religious roots and to judging according to original intent. One can only hope that this President, who is not nearly as doctrinaire as his so-called "base," understands that the roots of this current movement are considerably closer to the Puritans than the Baptists at the time of the framing.

Under No God But Their Own

Last week, the House Judiciary Committee voted to send the Pledge Protection Act to the full House, which is likely to take it up today. The Act – a bill that has many cosponsors – would deprive all federal courts, even the Supreme Court, of jurisdiction to hear constitutional challenges to the "under God" Pledge of Allegiance. This is only the latest attempt by Congress to force a pluralist society into a one-size-fits-all set of beliefs.

This is a remarkable violation of the separation of powers and the Establishment Clause. If the Act were to become law - and if it were, itself, to be upheld as constitutional - only state courts would be able to hear constitutional challenges to the Pledge.

We would therefore have a 50-state collection of views as to what the Free Exercise Clause, and the Establishment Clause, mean in this context. And that would be constitutional lunacy. Moreover, we would have Congress making its actions that involve compelled speech and religious viewpoint unreviewable!

The Impetus for the Act: Two Decisions on the "Under God" Phrase in the Pledge

The Act was introduced as a response to two high-profile decisions in a case involving the Pledge.

First, there was the federal decision by the U.S. Court of Appeals for the Ninth Circuit in Newdow v. Elk Grove United School District. There, the Ninth Circuit held that it is unconstitutional to require students to recite the phrase "under God" in the Pledge of Allegiance. This requirement, the Ninth Circuit reasoned, violates the Establishment Clause. (As I discussed in an earlier column, I believe the Ninth Circuit's ruling was correct.)

The Act may also have arisen from Congressional disappointment with the United States Supreme Court's ruling in Newdow. Rather than reaching the Establishment Clause issue, the Court held the plaintiff lacked standing - that is, the legal right – to bring the challenge.

The Supreme Court's ruling opened the way for another possible challenge to the "under God" pledge - one that, with a plaintiff who did have standing - could go all the way to the Supreme Court on the merits.

That, of course, is as it should be. The U.S. Supreme Court is properly the ultimate forum for questions concerning the interpretation of the U.S. Constitution. But the new Act would cut off that proper, time-honored path - and, as I have noted, it would leave Pledge issues to the state courts alone.

The Act Is A Grave Mistake - and a Case of Craven Political Pandering

The reason the Act is moving through Congress now is no mystery. Various polls showed that a majority of the American public believed that the phrase "under God" should stay in the Pledge of Allegiance. So now, in an election year, politicians are pandering to their constituents by supporting a bill that they can spin as one that would protect the Pledge.

Congress's actions are appalling. Of course, polls do not determine what laws should be laws. Far from it. Our elected representatives are supposed to be acting in the public good and according to constitutional principles, not led around by polling numbers. And if members of Congress looked to their constituents' deeper beliefs about the freedom of conscience and the freedom of speech, and to the good of the country, they would strongly oppose the Pledge Protection Act. There should be memorable oratory fighting this latest attempt to impose popular views on every American.

Americans do not support forcing children to choose between pledging allegiance to their country and being true to their religious beliefs. Nor do they support giving the government the power to force its citizens to recite any mantra, whether it is patriotic or not. The powers that be at the moment have covered over these fundamental beliefs with misleading blather about how this is a "Christian" nation, implying that Christians are the sole keeper of conscience and morals in the country.

The truth is, when forced to choose and not responding to some abstract polling question, Americans support the very freedoms our Constitution guarantees: The freedom to freely exercise one's religion, and the freedom from any religion established by the government. This is a country built on the freedom of conscience, a right that must be renewed by each subsequent generation.

Constitutional Principles and Structure Are at Stake, and Are Being Betrayed

The Establishment Clause was motivated by the fear that Congress would oppress the American People in exactly the way Congress is now trying to do. It says that "Congress shall make no law establishing religion. . ." But by attempting to insulate the monotheistic "under God" Pledge from court review, in the Pledge Protection Act, that is exactly what Congress is trying to do. It's a one-God-fits-all formula that hearkens back to Britain under Queens Mary and Elizabeth, who practiced the same principle, and only differed on which religion received their imprimatur.

From their own experiences in Britain and Europe, the Framing Generation knew the baleful consequences of joining the power of a national government with religion. The colonists came here in the wake of the Reformation and the extreme religious turbulence that resulted when Protestants and Catholics jockeyed for power under the British monarchs. They knew, many of them firsthand, what happens when a centralized government becomes a partner with a particular religion.

This was why the Framing Generation instituted one of the most innovative aspects of the Constitution: a rule that denied any religious entity sovereign power, and thereby privatized religion. The result has been to make America a teeming, robust, and extraordinary marketplace in religion like the world has never seen.

The Framers also believed in the absolute freedom to believe whatever one wants - and therefore, they coupled the Establishment Clause with the Free Exercise Clause. They did not believe, of course, in an unfettered right to act, because actions can harm others, and the framing generation believed bad actions should be capable of being punished, regardless of the identity of the actor. But they believed religious practices ought to be left sacrosanct, as long as they stayed within the bounds of the duly enacted laws. They also believed in protecting, under the Constitution, a diversity of religious beliefs.

This is not a country that is based on any single religious vision - nor do we have a Constitution based on any single source, whether religious or secular. To the contrary, the Constitution was built on ideas taken from more than one Protestant theology, Roman and Greek government, and philosophers like Locke, Burke, and Hume. (The Framers also drew heavily on their experiences under the Articles of Confederation – when the country came very close to dissolving into 13 potentates, as opposed to a collection of states with common interests.)

Many of the Framers had rich classical educations - as did those with whom they corresponded. It is an insult to the Framers to reduce the sources from which they derived the Constitution to one aspect of some of their religious beliefs.

In sum, the House is not doing its homework if it believes that the government imposition of "under God" phrase reflects the views of the Framers. The country we have now is the one the Framers envisioned - one filled with religious believers of every stripe. It is an experiment they initiated that has had breathtaking success. Attempting to impose uniformity at this point through the "under God" Pledge betrays, rather than serves, the Framers' vision.

An Attempt to Destroy the Judiciary's Ability to Provide a Check on Congress

The Pledge Protection Act also betrays the Framers' vision in another way - it is a frontal attack on the valuable constitutional check provided by the federal judiciary.

The Framers, of course, believed in the absolute necessity of limiting power and pitting power against power so that no entity could get overweening power. Yet Congress is now attempting, with the Act, to deprive the federal courts of jurisdiction to check Congress's wayward ways – in an arena where Congress was specifically believed by the Framers to be dangerous. (Recall that phrase from the First Amendment's Establishment Clause, "Congress shall make no law.....)

Do the members of Congress genuinely think that 50 state supreme courts - with a host of disparate views - could possibly keep Congress in check? Or do they perhaps, believe that as members of Congress, they need no check? My money is on the latter, but either way, they are very wrong.

The Public Square Does Not Need to Be Protected from the Federal Courts

There is no majority religion in the United States. No sect commands a majority of the United States population, though Protestants (which is in fact a category containing a collection of wildly differing beliefs) have formed a bare majority. However, that majority is slipping away year-by-year. Thus, it will not be long before the multiplicity of religions in this country will be such that Protestants are no longer a majority, and Protestantism is one among many other beliefs. That variety of beliefs fills the public square and fosters debate.

The fundamental disconnect in this entire debate was beautifully illustrated by former Alabama Judge Roy Moore's testimony before the House Judiciary Committee on an even more extreme bill stripping the federal courts of constitutional review. He said that current Establishment Clause doctrine "requires the complete removal of God from the public square." This is constitutional sleight of hand. The public square is that place where the many private voices in this society can be heard. The First Amendment exists to keep the government from intruding on that square, not to ensure the government – or a cabal of believers – dominates it.

In fact, after many years of federal judicial review of First Amendment issues, the public square is filled with a wide array of voices, including many religious voices, like Moore's. What Moore and those behind this embarrassing bill are chafing against is the fact they cannot use the government's power to back up their religious views.

They can hardly succeed in arguing that their views are excluded from the culture. If they are not influencing Congress to enact this crazy law, who is?

A number of religious organizations are admirably fighting this bill. Other religious interests should not squander their moral authority in an attempt to achieve political ends that are inimical to the Constitution and freedom. The Pledge Protection Act is just such an attempt. It is doomed to fail in the courts (for federal courts – least of all the Supreme Court – cannot be stripped of jurisdiction this way). Yet it also signals a larger failure on the part of institutions and persons who should be upholding our system, not trying to undermine it. This is not the time to abandon liberty.


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