[posted by Justin Levine]

It is a lengthy [PDF] decision. Vote was 4 to 3.

The majority decision goes well beyond the narrow question of gay marriage. It also holds for the first time that sexual orientation is a “suspect classification” under the California’s Equal Protection Clause. Therefore, any law in the state that discriminates against homosexuals will be subject to “strict scrutiny” by the court - essentially treating it the same way as laws that discriminate against racial minorities. [This part of the ruling can be found in Section V-B of the decision PDF, starting on pg. 95.]

Since California has already passed numerous legislative statutes protecting homosexuals in terms of housing, workplace, etc., this broad holding probably won’t change the practical legal landscape in the state all that much. However, this ruling indicates that even if those legislative statutes were somehow repealed, the anti-discrimination rights of homosexuals would still be retained constitutionally.

As with other court decisions on this issue (both in California and many other states), the dissenting opinions make for interesting reading and are sure to inspire another round of debate over the broader issue of judicial activism (apart from the specific political debate over gay marriage).

Updated note: The City of San Francisco performed marriage ceremonies for roughly 4,000 gay/lesbian couples, before being enjoined by the courts. The state Supreme Court originally invalidated those marriages without ruling on the constitutionality of gay marriage itself. [It merely held that San Fransisco had no power to unilaterally offer gay marriage ceremonies before the courts had ruled on the question.] As Justice Kennard’s concurring opinion underscores [starting on pg. 122 of the PDF decision], those 4,000+ marriages do not suddenly become valid with this decision. Those couples will have to go through the ceremony process again, presumably resulting in a double-dip windfall for the state in marriage license fees….

Second updated note: While I have no problems with the result of this decision as a matter of social policy, it remains problematic in terms of the judicial activism debate. In addition to the dissenting opinions, you might want to pay particular attention to footnote # 52 in the majority’s decision (starting on pg. 79 of the PDF document) which underscores the problem. Ironically, the majority doesn’t seem to grasp the obvious contradictions and tensions in their reasoning that footnote 52 presents. Merely citing past court decisions is not a valid substitute for reasoning in this instance, nor is it adequate to explain the blatant double standards in social policy (beyond the personal whims and political preferences of the Justices).

[Justin Levine]

UPDATE BY PATTERICO: Comments are now enabled. I don’t know why they were turned off before.

[Guest post by DRJ]

Is sexually enticing speech on the internet a crime if it’s directed at minors? The Utah Supreme Court heard argument today on just that issue:

“Can the state convict someone of enticing a minor over the Internet based on their words alone? That issue was the subject of lively debate among justices of the Utah Supreme Court on Wednesday.

At issue is whether or not Utah’s Internet Enticement statute is unconstitutional by saying a person engaged in sexual speech over the Internet need only believe they are chatting with a minor in orded to be convicted.

“All you’re doing is criminalizing speech,” said attorney Ann Taliaferro. “There has to be something more.”

The Utah case concerns James Gallegos who was convicted and sentenced to a year in jail for enticing an adult Utah Internet Crimes agent posing as a 13-year-old girl on the internet. Gallegos chatted with the agent/girl twice online and described how he wanted to sexually touch her. They arranged a meeting but when Gallegos drove by the designated place, he sped off. Agents tracked him using his license number.

Gallegos claimed he just wanted to see what the person looked like:

“Gallegos claims he had never believed the person he was chatting with was a minor. At some point, Gallegos said he was convinced the person was a gay man posing as a girl because in the past he had arranged meetings with supposed females only to meet a man. The reason he showed up at the meeting site, was out of curiosity about this person.”

The statute requires that the suspect must believe the person they are chatting with is a minor. At one end of the spectrum was Gallego’s defense counsel who argued that internet chat is fantasy, not grounded in reality, and people can be anyone they want online. At the other end, a Justice suggested that if a party says they are a minor, “log off.”

Chief Justice Christine Durham noted that Gallegos went beyond sexual speech — he solicited a meeting with someone who claimed to be a minor and he showed up at the meeting place. She likened it to sexual solicitation of a 13-year-old on the street. However, another Justice was troubled by the law:

“Justice Michael Wilkins asked Gray if it was illegal for someone to have “cyber-sex” with someone claiming to be a minor. “Does the state consider cyber-sex to be sexual activity?” Wilkins asked. Gray said the state did not, but if the person solicited sex and believed it was a minor, that is what the law requires.

Wilkins wondered how the state can establish what a person believes short of having a full confession. He said he was “troubled” by the law and concerned about its constitutionality. In this case, Wilkins said it appeared all the state needed to do to convict someone was to go online, set up a meeting for sex and that is enough.

Typically, state agents will try to get the suspect to show up at a pre-arranged location and time in order to prove legal intent.”

Gallegos also complained that he was not allowed to call an expert witness whose testimony was offered to show that Gallegos is not attracted to young girls and is not a pedophile. The trial court ruled the evidence was not relevant but some justices indicated that if a crime involved intent, defendant should be allowed to challenge that with expert testimony.

– DRJ

[Guest post by DRJ]

The Texas Department of Family and Protective Services has published statistics that break down the children removed from the compound by age and gender. In addition, the website also has a Cultural Awareness Guide to help CPS workers and caregivers deal with the unique needs of the FLDS children.

The Guide notes that FLDS children, especially young boys, have made derogatory comments to “staff of color.” The children have become upset when they see people wearing jewelry, men with facial hair and men who aren’t wearing long-sleeved shirts.

The Guide also notes that the children have been socialized to believe sexual activity with adults is positive. They use the slang term “poofers” to refer to girls who suddenly disappear to take part in an arranged marriage.

Former FLDS member Carolyn Jessop told the Deseret News that FLDS members believe it is immoral to wear jewelry and have facial hair. She also said that Warren Jeffs’ taught racist ideology and banned books, the color red, and pork.

In related news, the Eldorado Success newspaper published the Bishops’ Records seized at the FLDS compound. There are 45 pages that includes columns for Name, Age, Relationship and Residence. The notation “R17″ under Residence is a reference to the Eldorado compound.

Many of the families listed in the Record seem to be traditional nuclear families but others are not. For instance, the Record lists one 67-year-old man with 21 wives ranging in age from 24 to 79, and 36 children from 6 months to 21 years of age.

– DRJ

[Guest post by DRJ]

In a much smaller version of the Texas FLDS case, New Mexico police have removed 3 children from a church compound near Clayton NM because of allegations of inappropriate contact between minors and an adult leader. A fourth child was interviewed but lives elsewhere and was not removed.

A New Mexico spokesperson indicated they received information that warranted removal of the children but declined to state what that information was. Two children were placed in foster care and the other was put in voluntary placement.

The leader, Wayne Bent, professes to be the Messiah. He reportedly has 70 followers and has acknowledged having sex with the wives of 2 of the followers and with his daughter-in-law “at the direction of God.” Bent, 66 and known in the church as Michael Travesser, accused the State of kidnapping his children and going “against God.”

Bent’s son Jeff denied any child abuse and posted the following message on the internet:

“The group educates its children “to avoid the slavery you seek to impose on them, and to experience the freedom they have in God,” Jeff Bent wrote.

“We have given everything to prepare them for an eternity with God. We haven’t oppressed them with your atheistic globalist curriculum, socialist indoctrination, and ‘alternative lifestyles’ dogma that comprise modern public education. We have taught them higher values than the values of your slave-state, and have sought to shield them from the abuse that is institutionalized in your system,” he wrote.”

Jeff Bent also wrote to NM Governor Bill Richardson: “Now that you have moved against us because of our faith, the cup of God’s anger is full to the brim, and now He is free to move against you.”

It’s deja vu all over again.

– DRJ

[Guest post by DRJ]

A previously scheduled hearing before the Texas Health and Human Services subcommittee of the Texas Legislature included some surprising testimony about the FLDS boys and young children:

“Texas officials told legislators Wednesday that they’re investigating the possible sexual abuse of some young boys taken from a polygamist sect’s ranch, as well as broken bones among other children.

The disclosures are the first suggestions that anyone other than teenage girls may have been sexually or physically abused at the ranch run by the Fundamentalist Church of Jesus Christ of Latter Day Saints, a renegade Mormon sect.

In written and oral testimony provided to lawmakers Wednesday, officials with the state Department of Family and Protective Services said interviews and journal entries suggested that boys may have been sexually abused

Earlier, the department’s commissioner, Carey Cockerell, told lawmakers that at least 41 children, some of them “very young,” have evidence of broken bones.”

An FLDS spokesman denied the allegations, calling it “a deliberate effort to mislead the public.”

The testimony also shed light on the problems officials had during the initial investigation:

“Cockerell told a legislative committee the investigation has been difficult because members of the church have refused to cooperate. Mothers who stayed with their children for two weeks after the raid launched a coordinated effort to stymie investigators, coaching their children to not answer questions, Cockerell said.

He said the women and children would gather into apparent family units, with the children referring to several women as their mother, then the “women switched children in these family units … making it difficult.”

“When asked, women and children would change their names and ages,” he said.

The CPS report also said authorities “tried to use bracelets to identify children, but the women and children removed the bracelets or rubbed the wording off them.”

I’m a Texan and I hope the officials have acted appropriately in this case, but for the children’s sakes I hope they are wrong about these suggestions of sexual and physical abuse.

UPDATE 1: The FLDS had a licensed physician at the compound. This San Angelo Standard Times’ article discusses physicians’ obligations to report possible abuse.

UPDATE 2: It sounds like Utah leaders plan to join forces to combat polygamous and FLDS sects in that state.

UPDATE 3 - The FLDS on-site physician, Dr. Lloyd Barlow, had this response regarding the children’s broken bones:

“Lloyd Barlow, the ranch’s onsite physician, said he was caring for a number of FLDS children with broken or fractured bones at the time they were removed from the ranch. He said he has referred a number of families to emergency rooms in nearby San Angelo and to orthopedic specialists.

“Probably over 90 percent of the injuries are forearm fractures from ground-level or low-level falls,” Barlow said from his office at the Eldorado compound. “We don’t live in a community where there is a pattern of abuse.”

Forearm fractures in grade-school children probably are more common and that sounds like a reasonable response.

On the other hand, the same link also indicated that there may be more than 31 underage pregnant girls because some of the girls refused to take a pregnancy test.

It also stated that the mothers would share breast-feeding duties, making it hard to tell who was the mother of each infant.

UPDATE 4: Officials are investigating whether the younger boys were abused by older boys, not adults.

– DRJ

[Guest post by DRJ]

The Houston Chronicle reports today that, according to the Texas Department of Health and Human Services, more than half of the 14- to 17-year-old FLDS girls are pregnant or are already mothers:

“More than half the teenage girls seized from a West Texas polygamist sect were either pregnant or have children, state officials said today.

Thirty-one of the 53 girls between the ages of 14 and 17 were either mothers or expectant mothers, Stephanie Goodman, a spokeswoman for the state’s Health and Human Services, said this afternoon.”

In court news, the Austin appeals court hearing scheduled for Tuesday has been canceled now that all the children have been relocated. The hearing was scheduled to consider an emergency motion filed on behalf of FLDS mothers asking the court to prevent the removal of the children from the San Angelo facilities. The attorney for the mothers conceded that the motion is now moot.

UPDATE 4/29/2008: The Houston Chronicle reports that one girl is in labor and has been taken to the hospital has been taken to a nearby hospital. The FLDS spokesman claims the girl is an 18-year-old adult but State officials believe she is a minor.

EDIT: She had a baby boy and it sounds like a female FLDS relative was present.

The Deseret News reports that 26 of the 53 girls classified as between the ages of 14-17 claim they are 18 or older but state officials don’t believe they are.

– DRJ

[Guest post by DRJ]

The remaining FLDS children have been relocated from the temporary quarters in San Angelo to foster care across Texas. Here’s a report from the Abilene Reporter News that indicates the Abilene-bound children are enjoying the playground equipment:

“It is unclear how many of the 437 children seized from the ranch were placed in Abilene. Officials at the Hendrick Home for Children also declined to give ages for the children placed there.

David Miller, president and CEO of the Hendrick Home for Children, said the facility typically admits children ranging in age from five years to 16 years. “We sometimes take children younger than five, but we need a special variance from Child Protective Services to do that,” he said, declining to say if the facility had received any such variances from CPS in order to foster the YFZ children.

Special needs, medical and dietary concerns, as well as figuring out how best to play with the YFZ children are among the first concerns Hendrick Home staff will address, Miller said.

“We have to work with them, build up their trust,” he said, over the sounds of the children playing on the facility’s playground. “They love the playground,” Miller said. “Their eyes got as big as saucers when they got off the bus and saw the playground.”

Their favorite playground equipment? “They’re most interested in the slides and monkey bars,” Miller said. “They are having fun.”

In the next few days, the children will be introduced to the horses kept on the 50-acre property and will be given carrots to feed them. They will also be tested to see “where they are” academically, Miller said. The facility has been given special regulations in regards to the children’s care, such as diet and television restrictions.

“We’ll follow the rules in the next few weeks and see how they do,” he said.”

There are several photos at the link.

– DRJ

[Guest post by DRJ]

My frequent posts on this topic makes it appear I’m more interested than I really am but it seems like there’s new and interesting information everyday. Today’s Houston Chronicle has news about the FLDS women that I think is encouraging:

“Forty women opted Thursday to go to a family violence shelter rather than return to the West Texas ranch where authorities allege children are unsafe because of the polygamist group’s practice of “spiritually marrying” underage girls to older men.

Seven of the women who had been staying with their children in public shelters for the past three weeks returned to the Yearning for Zion ranch near Eldorado.

The number of women choosing to go to an undisclosed family violence shelter was a turnaround from last week, when six sought shelter and 51 returned to the isolated compound.

“It was entirely up to them,” said Patrick Crimmins, a spokesman for the Texas Department of Family and Protective Services.”

Seventeen mothers with infants under 1 were taken to San Antonio where they will be housed together at the Baptist Children’s Ministries.

The total number of children in State care was revised to 462 with the addition of 25 girls who claimed they were adults but who are believed to be minors.

– DRJ

[Guest post by DRJ]

Like the Elian Gonzalez and the Terri Shiavo cases, people are polarizing over an emotional story in the news - in this case, the FLDS child custody case. It seems to me there are three main viewpoints:

1. Some people approve of the State’s action because they believe the State has an interest in protecting girls in polygamous sects from underage sex.

2. Others need more evidence that underage FLDS girls were having sex with older men and getting pregnant. They don’t believe the CPS allegations and/or they don’t agree children should be taken away from their parents without clear proof.

3. Others aren’t concerned about underage sex or pregnancy because they are already pervasive in society. These persons require more evidence of neglect or abuse than underage sex or pregnancy to justify removing children from their homes.

People in the second and third groups are overlapping for now but their divisions will become more clear if the State comes forward with clear proof of its allegations. From what I’ve read about the Texas system, the State will present its evidence at the adversarial hearings on or before June 5 so we should learn more then.

Which group or groups do you fit in, and have I left someone’s views out?

– DRJ

[Guest post by DRJ]

In a hearing today, the Deseret News reports that Judge Barbara Walther ruled that infants under 12 months will not be separated from their mothers:

“The Texas judge who is overseeing the massive custody case involving children seized during a raid on the Fundamentalist LDS church’s ranch earlier this month said today she will not separate mothers from their infants. But mothers whose children are over 12 months will have to be separated, according to the judge.

The decision came during a briefing between the judge and Texas child-welfare authorities.

Lawyers for the Texas Department of Family and Protective Services said that officials relocated 111 children on Tuesday. “All arrived safely at their destinations and are making adjustments and doing well so far,” said attorney Gary Banks.

The state’s Child Protective Services said its plan was to separate mothers from their children when they began placing the rest of the children who are still inside the San Angelo Coliseum. But Judge Barbara Walther said she would prefer that the 18 girls with infants would not be separated.”

Based on the use of the term “girls,” it’s possible there are 18 underage girls with infants. It’s hard to tell if that was a quote or if the term ‘girls’ refers to underage mothers or younger - but not underage - mothers. [EDIT: It could also refer to underage mothers with children over 12 months of age, since all mothers with infants under 12 months will stay together pursuant to the Judge’s order.]

The report indicated the Judge “peppered” the CPS representative with questions:

“Throughout the hearing the judge peppered CPS with questions about the conditions for the children once they are placed in foster care.

She moved quickly over topics such as parental visitation, practice of religion and education. CPS officials said the children will be free to practice their religion. Educational assessments also will be done.

“It might be down the road, they would be integrated into the school system but that is not the plan right now because there may be a little bit of culture shock,” Banks said.

The judge also asked if CPS could provide clothing that meets the unique aspects of the FLDS Church. Girls wear long prairie-style dresses and boys wear long-sleeved shirts.

“We think that is something that needs to happen because it is a big part of who they are,” said Banks.”

All children have had DNA samples taken and placement in foster care facilities is continuing.

– DRJ

At the Washington Post, Stephen Barr has a piece about the Hatch Act and federal employees. Barr describes the Hatch Act in this way:

The law prohibits federal employees from engaging in political activity while on duty, wearing campaign buttons in the office and putting campaign bumper stickers on a government car. It also bans soliciting, accepting or receiving political contributions, and prohibits employees from using their official positions to influence or interfere with an election.

Most of the piece describes the sanctions that federal employees face for using federal work equipment to electioneer; this seems noncontroversial and completely constitutional. But I am disturbed by the notion that the Hatch Act also regulates what federal employees can do at home, on their own time:

Blogging about politics at work falls into the don’t-do category, but blogging from home may also get a federal employee in trouble.

Presidential campaign Web sites, for example, encourage supporters to create blogs on the site to advocate the candidate’s positions. They also usually carry a link for campaign donations, and that can be trouble for a federal employee, even when using a home computer. The OSC may view the donate button as soliciting for political contributions, another no-no under the Hatch Act, and set off an investigation.

Wow. So if you’re a federal employee, the federal government can prevent you from soliciting political contributions for your preferred candidate? Even when you’re at home, on your own time, using your own communications equipment?

I’m no expert on election law, but my non-legal gut reaction is that this is inconsistent with the First Amendment.

Tell me where I’m wrong.

[Guest post by DRJ]

Now that Texas has taken temporary custody of the FLDS children, I’m posting for future reference the Texas Family Law Foundation’s questions and answers about proceedings in Texas family law cases. Click on this link or view the questions and answers beneath the fold.

In addition, the text of the Texas Family Code is here.

– DRJ

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