In re Tex. Dep’t of Fam. & Protective Health Servs., No. 08-0391 (orig. proceeding)

Filed: May 23, 2008

This afternoon, the Texas Department of Family & Protective Health Services sought mandamus relief from the Texas Supreme Court to overturn yesterday’s decision of the Austin Court. The State also sought an emergency stay.

The Austin paper has this brief post, as well as links to the Department’s petition for mandamus and its motion for emergency relief.

Update 5-24: Here is the response to the State’s motion. The Court’s docket sheet is now also online, as is a page with the electronic versions of the briefs (which should be updated if more briefs are filed).

On reading through the State’s papers, I was struck that they are sticking to their argument that — for most of these children — the FLDS belief system is sufficient evidence for the State to take custody. That seems like a dangerously thin argument, especially given the constitutional problem with relying on religious beliefs as the motivating basis for a government decision. As far as I can tell, “belief” is the booster that the State uses to turn pregnant teenagers into an assumption that each pregnancy resulted from child abuse (which is not the assumption the State makes about pregnant teenagers in Texas high schools; there is no mass movement to seize custody of them on some assumption that their parents’ peers rather than their own were the fathers). And “belief” is also the glue used to try to transform the evidence about those pregnant children into evidence of a risk to all other children — including those too young (or too male) to themselves become pregnant anytime soon.

If you piece together the State’s argument, it is: “Any reasonable person would be appalled at these beliefs and find them dangerous. The appellate court can’t second-guess that.”

I wouldn’t be terribly surprised if the Court granted emergency relief just to have a few days to process this request but then rather quickly denied review. The dilemma would be how long would be fair to consider the merits — the harm, after all, is the separation.