Why a Texas Appellate Court Seriously Erred

FindLaw ^ | May 29, 2008 | Marci Hamilton

[MizSterious]

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MARCI A. HAMILTON

hamilton02@aol.com

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Professor Marci A. Hamilton holds the Paul R. Verkuil Chair in Public Law at the Benjamin N. Cardozo School of Law, Yeshiva University, where she is the founding Director of the Intellectual Property Law Program. She has been a visiting scholar at Princeton Theological Seminary, the Center of Theological Inquiry, and Emory University School of Law.

Professor Hamilton is an internationally recognized expert on constitutional and copyright law. She is frequently asked to advise Congress and state legislatures on the constitutionality of pending legislation and to consult in cases before the United States Supreme Court. She represented the City of Boerne, Texas in a successful challenge to the Religious Freedom Restoration Act, a case that resulted in the Court's landmark decision in Boerne v. Flores, 521 U.S. 507 (1997).

Professor Hamilton clerked for Associate Justice Sandra Day O'Connor of the United States Supreme Court and Chief Judge Edward R. Becker of the United States Court of Appeals for the Third Circuit. She received her J.D., magna cum laude, from the University of Pennsylvania Law School where she served as editor-in-chief of the University of Pennsylvania Law Review. She is a member of Phi Beta Kappa and Order of the Coif.

Professor Hamilton's most recent work is God vs. the Gavel: Religion and the Rule of Law (Cambridge University Press 2005), now available in paperback. Professor Hamilton's forthcoming book, which will be published this spring is entitled Justice Denied: What America Must Do to Protect Its Children (Cambridge 2008). She is also a Board Member of NAPSAC.

[patton]

For what it is worth, Response from FLDS Lawyers

[MizSterious]

Just pinging a few who might be interested in the legal aspects of this case...

[MizSterious]

It’s not. But without some sort of id, and with mothers lying about everything from their names to their ages, you can’t just start handing out kids to whoever asks for one. They HAD to do the testing, or the next complaint would have been from mothers whose kids were given to someone else.

Heck, if we did it your way, all you’d have to do if you wanted a free kid is to put on a “prairie” dress and go ask for one.

[MizSterious]

One would expect exactly that kind of response from an advocate. It doesn’t mean they’re right. Frankly, I think Hamilton has a little bit more expertise in this area than any of those lawyers.

[highball]

“Such testing was necessary because FLDS members and the medical personnel who attend at their births routinely fail to file birth certificates”

Somebody please tell me if this is breaking any state or federal law!!!

Can't speak for Utah, but in New York the hospital is legally required to file paperwork on every birth. I'd be really surprised if any state didn't have a similar law.

[MizSterious]

We might finally get to see what the TSC answer is--

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FLDS Supreme Court Decision Possible Today
5/29/2008

Newsroom

A Texas Supreme Court decision on a state appeal was actually expected Wednesday but instead the high court asked for another legal brief from attorney’s representing the families of 120 FLDS children currently in state custody.

The Third Court of Appeals ruled last week in favor of some of the FLDS families clearing the way for those children to be returned but the state appealed that ruling to the Supreme Court saying in part that if the children are returned the families could leave the state once reunited.

Attorney’s for Texas Rio Grande Legal Aid worked late into the night preparing this latest legal brief that is due to be delivered to the Supreme Court this morning, leading to speculation that the high court might rule today or tomorrow on the issue. Rio Grande Legal Aid spokeswoman Cynthia Martinez isn’t bothered by the long hours. "We are committed to these women and if the state needs a response by 9 they will get a response by 9."

[MizSterious]

Families are routinely separated, sometimes taken out of state. Children are taken from their mothers and given to other women to raise; entire families (mothers, children) are given to other “husbands” as punishment, and so on.

And yes, you bring up a disturbing subject—the baby graves outside of Colorado City, many of them unmarked, and Flora Jessup has documented the fact that their numbers grow far too quickly for what would be a death rate in normal communities. How did they die? Why? I hope there’s a court case somewhere that will address this, too.

[patton]

The footnote on page 13 of the ACLU’s amicus brief makes a verying interesting point.

[lady lawyer]

CPS has been floundering around like mad, trying to find a legal basis for what they have done. Let’s hope the Texas Supreme Court is a clear-eyed as the Court of Appeals. I’m somewhat worried because they asked for extra briefing. It should not have been necessary.

[Alice in Wonderland]

Let’s hope the Texas Supreme Court is a clearer-eyed than the Court of Appeals.

[mouser]

the baby graves outside of Colorado City, many of them unmarked, and Flora Jessup has documented the fact that their numbers grow far too quickly for what would be a death rate in normal communitie

First off Flora Jessup has an agenda

Those communities have been there for about 70 to 80 years first as one community then split as two how long has those graveyards been there if for the whole time more distortions.

[mouser]

The footnote on page 13 of the ACLU’s amicus brief makes a verying interesting point.

Could you please post a link I have not seen that yet.

Thanks

[2harddrive]

What about the TRAINLOADS of dead babies discovered when Ronald Reagan was President, and to which he went and prayed over, circa 1986? Or did the media ever let you hear about that? Of course..the media said those babies did not count!

They were aborted, after all.

[lady lawyer]

The state can’t snatch away a child simply because the parents’ belief system, might at some time in the distant future, lead the child into some bad situation. If that were the standard, it would be sufficient to snatch away probably every child in every housing project in the state. The odds of those kids getting into criminal activity or underage sex are astronomical.

But that’s what Texas has done, then tried to cobble together legal justifiction after the fact.

The only children even arguably in imminent physical danger — and that is the standard — were the pubescent girls.

[savedbygrace]

For example, if a group believed in polygamy and child brides and bemoaned the laws against those practices, but still abided by the law, no legal sanction could be applied. They could proclaim their beliefs in every legislature and from every rooftop, and no one could make them stop. This is one of the great cornerstones of the American experiment with religious liberty.

This would be correct if the First Amendment did not include the phrase "the free exercise" (of religion). Exercise involves actions, not merely speech. To interpret the First as Hamilton would prefer, it would not need the establishment and free exercise clauses at all. The free speech clause would suffice.

[patton]

"3 Before the Court of Appeals, DFPS reframed its argument, relying instead on interpretations of “endangerment” in the context of parental termination proceedings. See Real Party in Interest’s Response to Amended Petition for Mandamus, at 30-32. These cases, however, interpret not Family Code § 262.201, the relevant standard in this case, but Family Code § 161.001, a substantially different standard, used to examine claims for permanent termination of the parental relationship after full investigation of the interests of the child. See id. at 30-32 (citing cases relating to the endangerment standard under § 161.001)."

Footnote 3, page 13, ACLU Amicus Brief

[MizSterious]

Idiotic argument. If I start a church that has bank robbing as a sacrament, the law would—and should—intervene. Same with human sacrifice and other illegalities.