Today a state district judge ordered that the more than 460 children who had been removed from a polygamist sect in Texas be returned to their families. The chief objects of official discussion so far have been, on the one hand, the imminence of child abuse and, on the other, parents' desire to be reunited with their children. Although the sensationalism of the idea that polygamy is alive and well today, in the twenty-first century, has fueled some of the national attention the case has received, religious liberty arguments against the state's actions seem so far to have lain mostly dormant. Yet there is good reason to believe that the state's justifications for acting may contravene the families' First Amendment right to the free exercise of religion.
In recent years, the Supreme Court has moved away from rigorously evaluating burdens placed upon individuals' free exercise of religion. Instead, in the 1990 case of Employment Division v. Smith, Justice Scalia explained that "neutral laws of general applicability" would be presumptively valid, even if they did impede a person's ability to engage in practices central to her religion. This rhetoric distinctly recalled the first religious liberty decisions, nineteenth-century cases involving Mormons' assertion of a right to engage in polygamy as part of their religion. In one of those cases, the 1878 decision in Reynolds v. United States, the Court insisted on the validity of general laws against bigamy, and maintained that permitting polygamy would violate the country's "law of social life." To the extent that Smith echoes Reynolds, then, it would not seem to encourage a religious liberty line of resistance to Texas' actions.
Even after Smith though, the Court has insisted that the state cannot single out practices for adverse consequences simply because they arise out of a belief of a particular religious group or religion as such. When a locality tried to restrict certain forms of animal sacrifice because a Santeria church had moved to town, the Court struck down the resulting ordinance in Church of the Lukumi Babalu Aye v. City of Hialeah, determining that it impermissibly targeted religion.
Texas' allegation that it was justified in removing hundreds of children from the ranch in question because they were being raised under an "umbrella of belief that having children at a young age is a blessing" suggests a similarly impermissible targeting of religious belief as well as practice. Although under the current legal regime individuals have little recourse against neutral laws of general applicability, they can assert rights against this kind of singling out of a religious community. While the U.S. Supreme Court, unlike other countries' legal systems, has been largely unwilling to protect religious beliefs and activities on a group basis, it has at least restricted the extent to which the government itself can target religious groups for adverse consequences.
Furthermore, the Court suggested in Smith that it might still be willing to scrutinize more closely religious liberty claims that were brought in conjunction with other assertions of rights--the so-called "hybrid claimms" that Murad Hussain recently discussed in a Note in the Yale Law Journal. The classic example of such a case was that involving Amish parents' contention in Wisconsin v. Yoder that their children should be exempted from the requirement of attending public school past the eighth grade. Rehearsing the history of the Amish and citing the self-sufficiency of their community within the United States, the Court accepted the proposed arrangement. In that context, not only the parents' right to the free exercise of religion but also their fundamental right to raise their children as protected by the Fourteenth Amendment provided the constitutional support for the decision.
The parents at the Texas ranch could have raised similar arguments for the presence in their case of a hybrid claim in their case of religious liberty and parental autonomy. Not only has the state targeted their community for adverse consequences because of the presence of a "pervasive belief system"--what others might describe as religious doctrine--but the result of this targeting has been to curtail the rights of parents within the collectivity to raise their children without a specific showing of parental unfitness or an imminent harm facing the child.
While there may be very good reason for the state to intervene to protect some of the children being reared at the Texas ranch, the government's asserted grounds for acting suggest that it has impermissibly targeted religion. Asking the courts to decide this case based upon the parents' religious liberty claims might have been helpful, if only to illuminate how little we have actually progressed over the past century and a half in understanding the role of religion in our public sphere.