[MizSterious]

---

MARCI A. HAMILTON

hamilton02@aol.com

---

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...

[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.

[Old Professer]

Go here to read a Publishers Weekly review of God and the Gavel - http://www.amazon.com/exec/obidos/tg/detail/-/0521703387/findlaw-20

One paragraph which I will have to transcribe reads:

“She is vocal in her criticism of efforts to exempt religious groups from the laws secular organizations must abide by, saving particular disdain by deal-making lawmakers, whom she compares to “hear-no-evil, see-no-evil, speak-no-evil monkeys.”

11 years ago she was preaching the exact opposite; her body of works is now characterized by a strong pro-child mindset and sets about righting what she as wrongs committed by religious dupes.

[firefly2]

As in her other articles on this case, Marci Hamilton does not address why all children were taken, if only five girls are or have been pregnant. She wants us to believe that the existence of polygamy threatens the physical safety of all 450+ children. It does not.
As for all the evidence Hanilton sees - hearsay from a nine-year-old girl, CPS Voss’ statement that all the children “looked frightened” (with 700 law enforcement officers with tanks and guns outside), etc. - that ain’t evidence, folks.
It was CPS who brought up the belifs of the FLDS. And that was a big mistake, because the US Supreme Court has already ruled that a government entity cannot take action against someone based on his/her beliefs.
Beliefs are not the issue here; actions are. Out of 450+ kids, there is evidence that something like five MAY have been abused.
That does not meet the Texas law that all the kids were in imminent danger of being physically or sexually abused, and that CPS made reasonable efforts to not remove the kids.

[ConfusedAndLovingIt]

No one will ever know the actual motives of these three Republican judges, but the opinion strongly suggests unthinking deference to claims of religious and parental “rights,” even though those claims do little more than cloak criminal behavior that puts children at risk.

Does that sentence bother anyone else as much as it does me? What does it matter what political party the judges belong to? Why impugn the motives of the judges? Weren't they clear in their opinion? Why put "rights" in quotes when associated with religion and parents?

That whole sentence reeks of an agenda that I find troubling.

[Lurker]

Wow. A Federal Copyright lawyer trying to explain why a Texas Court, interpreting a Texas State law is wrong.

Her opinion on the matter is just about as valid as if one got an opinion on brain surgery from a proctologist.

This woman wouldn't even have standing to be declared an 'expert' in this Courtroom.

L

[Diamond]

Regarding the first prong of the Statute regarding physical danger, Hamilton does quote it correctly, I'll give her that, yet there is not a single word in her entire article establishing exactly how hundreds of pre-teen children in the various households were in imminent physical danger.

She ignores the Statutory burdens of proof required of the CPS with respect to each child, and she ignores the Statutory requirement that the CPS meet its burden of proof with respect to each child within 14 days of the taking of each child:

"Second, the lower courts had already begun individual hearings to reunite some parents with their children, under CPS family service agreements – thus mooting the appeal with reference to these children. Those lower court judges, with the benefit of individualized evidence, were in a far better position to assess the potential harm to each individual child and to craft terms of reunion in a way so as to protect the children."

That's what the trial court was SUPPOSED to do with respect to each child within 14 days. Apparently that little statutory prescription doesn't mean anything to Marci.

Here she simply assumes in a conclusory manner evidence not adduced at trial with respect to each and every child:

every child is in danger in both the real sect and in the two hypotheticals, and state officials should be given the latitude necessary to secure their safety. The facts establish that the FLDS is a fundamentally lawless group, which has no respect for marriage laws, rape laws, child abuse laws, or even the legal requirements governing birth certificates. (Others who have escaped from the organization detail welfare fraud and child labor law violations as well.) As currently constituted, they offer no environment for children, period.

The CPS appeal is as pathetic as this article. If the S.C. sees it the way I do, The CPS is going to lose at the S.C. level, too. Their appeal consists of a lot of flailing around and more impromptu excuses for their own monumental screw-up. They are still reprehensibly using hundreds of young children that they have traumatized and continue to traumatize to do nothing other than stall for time.

Cordially,

[antisocial]

Well the Texas Supreme Court just reached a verdict
and ruled the children have to be returned to their families

[AndyJackson]

How could the appeals court ignore such compelling facts and conclude there was no real danger to all of the children?

This so-called expert is an idiot. First, apparently, she and the judge in the case, as is all too common, cannot read and apply an unquestionably clear law.

Second, for a legal expert her standard of proof defies logic, justifying the removal of "all" on the basis that we cannot assure the safety of "all." But law is particularized and the standard of proof is not for the defense to prove not not all, or whatever perverse logic she is applying, but for the State to prove its case, for "each" child that it does seek to remove.

By her logic we should lock up all university professors or all residents of New York City because we cannot prove that they are "all" innocent. Wait, maybe .......

[anymouse]

Texas Supreme Court to Marci Hamilton.

[Southack]

"They presented their dubious challenge as a petition for a writ of mandamus – an extraordinary remedy that is only rarely granted. Yet the court ruled in favor of the women, and against the Texas child protection authorities."

The above argument from the author is called an appeal to emotion (or a bow to authority right or wrong), rather than law. That a petition for writ is rarely granted is not per se reason-enough to deny a new one...ergo, such an argument is meaningless.

Yet it was the author's *first* point!

Very weak...intellectually and legally vapid.

[Southack]

"That decision was not just wrong, but wrongheaded – for it applied the opposite approach to questions involving child abuse and religious entities than it should have: the court focused on religious belief while downplaying the actual conduct at issue. ... I wrote about the constitutional issues involving the removal of the children by Texas’ Child Protective Series (CPS) in a prior column. The appellate decision, though, did not address constitutional issues. Rather, it only addressed the Texas law governing the removal of children from their parents."

Can any thinking person see the author's self-contradiction above?!

[Southack]

"To begin, the decision was poorly timed, for two reasons. First, as the state argues in its pending appeal, the judges should have waited for the soon-to-be released DNA results, which are necessary to learn which children belong to which adults – and thus may also reveal provide evidence regarding which children are the victims of or the result of statutory rape. Given the intense intermarriage practices within the organization, the results will also clarify any questions regarding incest."

Nope. That's known as fishing for new evidence.

In contrast, the court is supposed to stick to the *existing* charges...not go after potential new ones as Priority One.

[Southack]

"There are three criteria under Texas law that govern whether CPS may remove children from their homes. Here is the most relevant language from each criterion, and the language on which the Texas appeals court focused: There must be (1) “a danger to the physical health or safety of the child”; (2) “reasonable efforts, consistent with the circumstances . . . were made to eliminate or prevent the child’s removal”; and (3) reasonable efforts have been made to enable the child to return home, but there is a substantial risk of a continuing danger. . . .”

One can't just Cry Wolf and expect children to be separated from their parents by the state. Evidence of abuse must be obvious, undeniable, and severe.

One phone call probably won't sway the Texas Supreme Court as such incontravertible evidence.