Prof. Bernstein objects to removing children from the FLDS compound without an individualized showing of child abuse or neglect, and he’s right about that. But what about removing children from an inherently abusive culture? Particularly when that culture is religious in nature? This is obviously a very, very hard problem.
The starting point of the analysis must be the principle that children have rights valid against parents, including the right not to be raised in an abusive or neglectful environment. The state has the legitimate authority to enforce these rights against parents. The state obviously has the legitimate power to take a child away from parents who beat him, or from a family of homeless alcoholics who neglect him. The fact that parents act abusively or negligently because they believe that God wants them to does not change the analysis. It cannot change the analysis, because it would, of course, create an easy route around laws that validly protect the rights of children: just assert that abuse is part of your religion. Heaven knows that’s been tried many, many times.
Prof. Bernstein complains that removing children from the custody of a cult is troubling because it “would place Amish and some of the more insular ultra-Orthodox Jewish communities in jeopardy.” But of course we know from the Yoder case that the children of Amish communities can be taken out of neglectful or insular orthodox communities and educated by the state to at least some degree. The child has a right not to be, so to speak, falsely imprisoned in a mental asylum due to the parents’ superstitions—and the state has the legitimate authority to defend that right, again, within certain (often vague) boundaries set by a parent’s right to direct the upbringing of a child. The latter right, however, must yield to a child’s objective welfare. In other words, while a parent has broad discretion to direct the education and upbringing of a child, that discretion exists within boundaries which the state may police, and keeping children away from education, medicine, &c., are things which—at least at some level—exceed those boundaries. Incidentally, it’s worth remembering that despite their popular image of quaint harmlessness, the Amish have had more than a few incidents of child abuse and sexual abuse requiring the state’s legitimate interefernece.
I believe that the FLDS cult is, in at least some respects, inherently abusive. That being said, I repeat that Prof. Bernstein is right to say that without without an individualized showing of abuse or neglect, the state has a weak justification for interceding. The state can’t simply declare—without some specific, objectively ascertainable grounds—that a child is being subjected to an unacceptable environment, and then remove that child.
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