As you may have heard:
A Texas appeals court ruled Thursday that state authorities and a lower court judge abused their authority by illegally seizing up to 468 children from their homes at a polygamist ranch in West Texas last month.
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According to the court, the state did not establish proper grounds to remove the children from their families, who belong to the Fundamentalist Church of Jesus Christ of Latter-day Saints, or F.L.D.S.
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The unanimous ruling by three judges of the Third Court of Appeals in Austin revoked the state’s custody over a large group of the children and by extension almost certainly the rest, for what it called a lack of evidence that they were in immediate danger of sexual or physical abuse.
The appeals court said the record “does not reflect any reasonable effort on the part of the department to ascertain if some measure short of removal and/or separation would have eliminated the risk.” It also said the evidence of danger to the children “was legally and factually insufficient” to justify their removal and it said the lower court “abused its discretion” in failing to return seized children to their families.
It could very well be that the Texas Department of Family and Protective Services could have done better in making its case. And, for all I know, there may not have been any "immediate" risk according to the law. Perhaps the evidence was "legally and factually insufficient" according to the law, and perhaps the department did "[abuse] its discretion" according to the law. But, then, the problem is with the law -- or, at least, the law is part of the problem, and, in this case, it seems that the law is at odds with justice.
On this, I agree with Echidne: "I disagree with the way abuse is defined as only physical one, and with the idea that it's perfectly acceptable to groom young girls to accept abuse until the moment of the abuse comes. I also wonder whether it really is true that the sect appeared to have an unusually small number of teenage boys, and if it is true, what happened to the missing boys. I would think abandoning them somewhere would constitute abuse... In general, I'm worried about any children who are brought up in isolation from the rest of the society. They may 'stay safe' that way or 'stay religious' or whatever, but their isolation also means that they cannot learn alternative ways of living and cannot get help if they indeed are abused."
If "immediate" and "abuse" are defined narrowly, as they were by the court, then, yes, the ruling may be the correct one -- the correct legal one, that is.
But from a liberal perspective, one that recognizes the preeminence of the individual, of his or her sovereign and inalienable rights, how is such a ruling in any way correct? Yes, liberalism is related to the rule of law, and, indeed, is inseparable from it. But when the law is wrong? Or when it defines, say, abuse too narrowly?
And we all know -- do we not? -- that this sort of lifestyle, the polygamy of a totalitarian religious cult, is inherently abusive. Indeed, it would not exist without abuse. Abuse is what keeps it going, what enables and supports it.
The women -- that is, the wives -- may defend it, and may say that they are there freely, that it is a choice, but there is a little something called false consciousness. How are these women in any way free? How are they in a position to choose freely? They have lived lives of totalitarian abuse. Their minds have been shaped by that abuse. Everything they say is a reflection of that abuse. They may think they are free and that what they are saying is a reflection of free will, but there is nothing free about them or their lives.
Similarly, the men -- that is, the husbands, including the totalitarian leaders of the cult -- may defend it along lines of religious freedom, but should one or a community ever be free to abuse? Is that what our "liberalism" has become?
Now, I admit, it is difficult, if not impossible, to establish the line between free will and false consciousness. And, obviously, questions persist: Is is possible to enter freely into an abusive relationship? From a legal perspective, should it be allowed to give up one's freedom? In a liberal society, how much liberty is permissible? What "alternative" lifestyles are permitted? What of "alternative" lifestyles or communities that are, in essence, illiberal?
To me, liberalism has lost much of its ability to stand up for itself. It has decayed into libertarianism, into permissiveness of the sort that leads to the inability to combat the forces of illiberalism both internal and external.
But let me be clear: This is not to say that liberalism requires a narrow moral code, a narrow definition of liberty. Rather, it is to say that liberalism must be able to stand up to and against those forces of illiberalism in the name of liberty itself. If it is unable to do so, it is no longer liberalism.
Just as there is illiberalism abroad, so is there illiberalism at home. And much of the illiberalism at home -- and, in this case, I'm talking about the United States -- is religious in nature. The christian fascists of the evangelical right are illiberal, for example -- the most obvious and pernicious example. And so is the totalitarian cult known as the FLDS, an isolated community of abuse.
Texas's Third Court of Appeals may have issued a ruling based on its interpretation of the law, but the law, in this case, allows for the perpetuation of abuse and for the persistence of noxious illiberalism.
Toleration of difference is one of the key aspects of a liberal society, including the United States, but no liberal society worth its name should tolerate the FLDS or anything like it.
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