When indictments arrive in the FLDS case . . .

. . . be prepared for a deluge of disinformation designed to sensationalize, demonize, mislead and paint everyone associated with the FLDS ranch in Eldorado, Texas with the same brush. This is how Judge Walther and Texas CPS began their case. Their style of play is unlikely to change, especially now that their credibility has been so tarnished by their rebuke by the Texas Supreme Court.

That rebuke was over the emergency removal of any of the kids belonging to any of the parents who lived anywhere at the ranch. Walther and CPS were dead wrong on that removal of any of those kids. That conclusion will never change, no matter what happens from today forward. Walther and CPS violated the law. But expect Walther — despite her official duties as impartial arbiter — to make every effort to take as many of these kids back, permanently, as she possibly can.

When indictments arrive, they are not a finding of guilt, but only the grand jury’s finding that a trial should be held. Yet, remember how Mike Nifong broadcast his case against the Duke lacrosse players. The indictments themselves (see copies here) were lurid and sensational. And the press treated them as if they were conclusions of fact rather than propositions to be tested at trial. I expect more of the same in west Texas.

Like Mike Nifong, Sheriff Doran has already begun beating the drum, psychologically conditioning the jury pool in San Angelo to stereotype — “when all of the criminal charges come forward it is going to be very hard to practice their [FLDS] beliefs within the state of Texas”. Note well the structure and content of the phrase. “When all of the charges come forward, it’s going to be very hard . . . .”

Doran ’s words — to the extent they are accurately reported — suggest that he doesn’t want to wait for a trial. All he needs are a few lurid charges to persuade San Angelenos that being FLDS alone means you are guilty of a crime.

As the drums grow louder, I believe that the people of the United States will need to consider four key questions:

1. Do we really believe the promises of due process and an impartial jury contained the 5th, 14th and 6th Amendments to the U.S. Constitution?

2. Were any crimes committed — as those crimes were defined in Texas at the time any relevant acts were performed — by any individual members of the FLDS faith or individual residents of the YFZ Ranch?

3. What are the limits of “religion” and its free exercise under the 1st Amendment?

4. What are the religious practices and policies followed by individual members of the FLDS faith and to what extent do those practices make the individual practioners (who are likely only a subset of the FLDS community) so socially dysfunctional that the law should treat them differently from other arguably odd-ball religious groups like Catholic priests who never marry (but have a reputation for sexual abuse)?

Make no mistake: Some FLDS individuals may have committed crimes. Some may do things that are not crimes but are morally repugnant. But the same might be said of any number of other residents of San Angelo, Texas. My desire here is to prepare readers against the tendency to shortcut due process, unfairly stereotype entire groups, and to assume, without analysis, that “weird” religious practices should be legally penalized just because some people find them weird.

Those of you who have been fighting against polygamy your entire lives may face a reality that in a constitutional, pluralistic democracy there is no principled basis for the fight. Some may have to choose between their religion and the Constitution of the United States of America.