On Thursday the Texas Supreme Court ruled that the State erred when it took hundreds of children from their families in the ranch of the FLDS cult. Eugene Volokh points out that the primary error was the State’s failure to treat cases individually. Instead, the State treated the entire ranch as a single “household” and removed all its children (and some adults), most of whom were in no immediate risk.
Now, Judge Barbara Walther, who rubber-stamped the original removal of the children, has compounded her error. Child Protective Services came to a legal agreement with the mothers wherein:
The families won’t be able to leave Texas until Aug. 31 but would be allowed to move back to the ranch. It also calls for parenting classes and visits by CPS to interview children and parents in the child abuse investigation.
Judge Walther first tried to change the agreement, and after being rebuffed, ruled that no children could be returned until every one of the mothers signed the agreement. (Since the mothers are spread throughout the state to be close to their children, this adds a significant delay, which may well have been the judge’s purpose.) It’s hard to fathom any reasonable justification to delay one reunion because a separate family has not yet signed the agreement. Furthermore, it exhibits an amazing judicial arrogance, since the Texas Supreme Court already ruled she was wrong not to treat the families individually.
The principle of individuality is important. I expect that the courts eventually will decide that some of the children are in danger and should be removed for their protection, but such decisions must be based on the facts of those particular cases. If the government can take away your children merely because the children of another family might be at risk, then no one is safe.
UPDATE (6/2): After three days, Walther signs the order.
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