What exactly was wrong with the Yearning for Zion ranch—home to a group identified with the Fundamentalist Church of Jesus Christ of Latter Day Saints—as a place to raise children? It is plain that with respect to any child for whom there is reason to believe that there is ongoing sex abuse—and the state did receive a phone complaint from a girl complaining of abuse—the state of Texas has a pretext—even a duty—to intervene. But what about the more than 450 other children, ranging in age from under a year to seventeen, that were removed from the ranch in early April? Generally, children in the U.S. cannot be removed from their families unless there is an immediate risk of physical harm. Indeed federal law provides that even in cases of prior physical abuse, there should be a presumption against placement outside the home. Other interventions are preferred.
Texas authorities say they were worried about the “culture” at the ranch. The Supreme Court of Texas, in its May 29 decision ordering the return of the children, said that the state was concerned that the ranch had “a culture of polygamy and of directing girls younger than eighteen to enter spiritual unions with older men and have children.” What is a “culture of polygamy”? Is it separate from or the same as the rest of the culture of the Yearning for Zion ranch? How are they related to what Texas authorities called “mainstream culture”? During the time that the Yearning for Zion children were in the care of the state, first held as a group with some of their mothers in a sports arena in San Angelo, Texas, and subsequently in individual foster homes, while the Texas authorities condemned the ranch for its “culture,” it also was at pains to demonstrate that it was respecting the children’s religious freedom and accommodating what they termed their “unique” cultural needs. The Texas Department of Family and Protective Services quickly produced a “Cultural Awareness Guide for Children from Eldorado” and a “Model for Care for Children from the Yearning for Zion Fundamentalist Latter Day Saints Sect,” which they posted on their website. The color red was eliminated from state facilities where the children were staying out of respect for the community’s aversion to the use of the color before the coming of Christ, who will be robed in red. Providers were reminded of the FLDS’s rules: no alcohol or tobacco; no T.V.; only organic food; modest clothing. In their periodic online news briefs, the Department assured the public that the children “would be allowed to worship freely,” that the Department “respect[s] and value[s] their strong sense of faith,” and that the children would not be “exposed to mainstream culture too quickly.” These children apparently needed both to be rescued from their culture and “affirmed” in their culture.
Culture, it appears, is both part of the problem and part of the solution. In any event, the word is indispensable. The word is used throughout the Texas filings and reports. Why culture? Tomoko Masuzawa has reminded us in her masterful essay in Critical Terms for Religious Studies, that the term “culture” has had many meanings since it first appeared in its modern sense in the eighteenth century. It is “dangerously capacious, semantically vague and confused, and finally taken as a whole, inconsistent.” And yet it is also, she acknowledges, “remarkably serviceable,” even foundational to our sense of reality, and “thoroughly naturalized in our everyday discourse.” Culture has, over this time, also strangely and ambiguously been linked to “religion,” as Masuzawa discusses. Sometimes religion is the same as culture; sometimes it is a part of culture; sometimes it precedes culture; sometimes it comprehends culture. The word has arguably only become more unglued in the ten years since Masuzawa wrote her essay. Thoroughly discredited by anthropologists, it is now everywhere. Culture both makes us whole and keeps us in bondage. And it also continues to be ambiguously related to religion. Together, perhaps, they appear to keep naturalistic explanations at bay and preserve a space for values, while enabling social engineering. The language in court filings in the Texas case moves uneasily among different accounts of what is wrong: a “pervasive system of belief”? A culture? Forced underage sex masquerading as “spiritual” marriage? Social pathology or bad religion?
For legal purposes, characterizing a practice as cultural, rather than religious, is arguably a useful way to limit legal restrictions on the regulation of religion; religion then can be reserved for what is good while culture can be good or bad and regulated accordingly. (Thus, the insistence, for example, that female circumcision is cultural rather than religious.) In U.S. law, it is the distinction between opinion and act that has permitted the regulation of unpopular religious practices. In 1879, in Reynolds v. U.S., the Supreme Court announced that constitutional protection for religious freedom was limited to opinions, while acts were punishable by law. Confirming the conviction of Mr. Reynolds on a charge of bigamy, the Court announced that “polygamy has always been odious among the northern and western nations of Europe, and, until the establishment of the Mormon Church, was almost exclusively a feature of the life of Asiatic and of African people . . . Polygamy leads to the patriarchal principle, and which, when applied to large communities, fetters the people in stationary despotism.” The 1879 Court refused to condemn as prejudicial the trial judge’s charge to the jury that “you should consider what are to be the consequences to the innocent victims of this delusion. As this contest goes on, they multiply, and there are pure-minded women and there are innocent children—innocent in a sense even beyond the degree of the innocence of childhood itself. These are to be the sufferers; and as jurors fail to do their duty, and as these cases come up in the Territory of Utah, just so do these victims multiply and spread themselves over the land.” The Utah court then, like the State of Texas today, was worried about the “culture of polygamy”—an insidious and infectious disease-like phenomenon that loomed over children like a monster from a horror movie.
The opinion/act distinction that enabled the legal reinvention of Mormon religion in the late-nineteenth century faltered briefly in the twentieth century. In 1972, the Supreme Court affirmed the constitutional right of Amish parents to withdraw their children from high school, in violation of state compulsory schooling laws, and to teach them instead the pre-modern skills of housekeeping and farming. Supported by the expert testimony of John Hostettler, a leading scholar and activist on behalf of the Old Order Amish community, the court lovingly recounted Amish history: “The history of the Amish sect [begins] with the Swiss Anabaptists of the 16th century who rejected institutionalized churches and sought to return to the early, simple, Christian life de-emphasizing material success, rejecting the competitive spirit, and seeking to insulate themselves from the modern world.” Full of admiration for the simple life and strongly affirming the rights of parents with respect to “religious training,” the majority opinion in the Yoder case makes clear that what is characteristic of really religious people is that their religion and their culture are coextensive: “Broadly speaking, the Old Order Amish religion pervades and determines the entire mode of life of its adherents.” The “culture” of Jefferson’s yeoman was ironically protected in the Yoder decision as religion. In Yoder, the comprehensiveness of culture seemed beneficial to children.
But Yoder has had no successors. While we continue to permit home schooling, we have drawn back from whole-hearted approval of the promise of insular communities to save us from ourselves. Not all religious people are the Amish. Indeed perhaps even the Amish are not the Amish, in the Yoder sense. Religion as coterminous with culture has proved a dangerous legal idea. In 1990, in an opinion denying constitutional protection to the use of peyote by the Native American Church (Employment Division v. Smith), the Court returned to and reaffirmed the opinion/act distinction made in Reynolds. Culture is now divisible again, legally speaking, and religion is thereby subject to extreme makeover by the government just as Mormon life was in the nineteenth century. Now we can protect FLDS culture insofar as it is like our imagined Amish community—foster families interviewed on the radio after the children were returned spoke admiringly of the girls’ maturity, of their cooking and sewing skills and deep religious faith—and condemn it insofar it is “odious”—FLDS women were mocked on YouTube for their “creepiness.” And still, we can insist—as Texas authorities have insisted to the media—that there is no threat to religion. We are not changing religion. Just culture.