Examination of polygamy case continues


	Edward M. Stern, J.D., has a private law practice in Newtonville, Mass. Stern serves as assistant dean for pre-law advising at Boston University and is a visiting lecturer for the University of Massachusetts/Boston Department of Sociology.

By Edward Stern, J.D.

Last month, this column discussed the majority opinion in the case of Shepp v. Shepp, Supreme Court of Pennsylvania. This column will explore the opinion offered by the dissent in that case.

The dissenting opinion describes the facts and the lower courts' determinations independently, as follows:

Tracey Roberts and Stanley M. Shepp converted to Mormonism before their June 1992 marriage. Their child, Kaylynne, born in February 1993 was seven years-old at the time of their separation in 2000. The mother testified that the reason for the separation was the father's conversion to what is commonly referred to as fundamentalist Mormonism. That differs from traditional Mormonism in its tenet that the Church of Jesus Christ of Latter Day Saints improperly strayed from the teachings of its founder, Joseph Smith, when it renounced polygamy. The child lived with the mother and her three other daughters from previous marriages. After a February 2001 divorce, the father filed a petition seeking shared legal and physical custody of the child.

On May 6, 2002, the trial court held a hearing to consider Shepp's petition. His belief in fundamentalist Mormonism, including its tenet of religiously mandated polygamy, was undisputed. The father testified that he had not set a limit on the number of wives he would like and that his new and current wife supported him in his faith. Further, he acknowledged that he had told Kaylynne of the possibility that she would have additional mothers. The father testified that he wants to teach his child about polygamy because, as he sees it, her happiness depends on having choices in life and it's a father's responsibility to teach children alternatives.

The mother testified that her former husband had indicated his desire to take five wives. She expressed concern that he would introduce the child, now age 9, to polygamy so that she would be ready to marry into a polygamist relationship at age 14. Accordingly, the mother sought an order prohibiting the father from teaching polygamy.

Importantly, Manda Lee, one of Tracey's daughters from a previous marriage and Kaylynne's halfsister, testified that when she was 14, Stanley told her that if she failed to practice polygamy she would go to hell. He suggested that because he and Manda were already living under the same roof, it only made sense for them to marry. While the father denied that he had suggested marriage to Manda, he didn't deny her other testimony.

The trial court found Manda's version of what occurred credible. Acknowledging an important distinction between the father's right to express opinions regarding illegal and immoral activities (criminalizing polygamy) and his willingness to commit and coerce the child to commit such activities, the court found that his conduct visāvis Manda indicated that he "clearly would" seek to act and use his parental control to convince Kaylynne to act illegally and immorally. With this glaring exception, the trial court found him to be an appropriate parent to the child. Accordingly, it fashioned an order granting him partial custody subject to the sole restriction that he be specifically prohibited, while the child is a minor, from teaching her about polygamy, plural marriages, or multiple wives.

The dissenting opinion analyzed the situation:

"The Superior Court read the trial court's opinion as ruling that, notwithstanding its supported factual findings, Father's conduct in espousing and urging Child toward a polygamist lifestyle presented no grave threat to harm Child. The Superior Court disagreed, however, that this conclusion was supported by the facts of record."

"The Majority Opinion treats this case as presenting fundamental challenges to Father's expressive rights under the First Amendment to the United States Constitution and to his fundamental right, coequal to Mother's, to direct the education and upbringing of Child. It is imperative, however, to distinguish matters of free expression from matters of immoral and criminal conduct. Where the former amounts to indoctrination into the latter, constitutional rights begin to yield to society's interests in regulating such conduct. Compare Davis v Beason 133 U.S. 333, 344 (1890) ("[W]hile [laws] cannot interfere with mere religious belief and opinions, they may with practices.") with Romer v Evans 517 U.S. 620, 649 (1996) (noting that Davis has been overruled "to the extent, if any, that it permits the imposition of adverse consequences upon mere abstract advocacy of polygamy"). The state also has an unquestionable parens patriae obligation to protect its children and serve their best interests."

And finally, stating an application of his beliefs to this case, the dissenting judge states:

"In the case at hand, relying on Manda's testimony and the father's statements toward the child, the trial court found, as a matter of fact - and in isolation from its restatement of what it took to be the governing standard - that he had crossed the line between expression and conduct finding that the father had every intention of acting on his beliefs and, unchecked, would do whatever he could, in his position of considerable authority as a parent, to lead her into a life of polygamy while still of tender years. In light of this factual findingthe court's remedy granting father partial custody and restricting him only from teaching his daughter about polygamy is not only constitutionally tolerable, but indeed laudably restrained. The trial court's order was narrowly tailored to edge against his coercive conduct in seeking to induct the child into a repugnant and criminal activity in adolescence at a time when her lack of autonomy and worldly sophistication would make it difficult for her to protect herself and make an informed decision. On this basis alone, I would rule that the trial court's order was constitutionally permissible and appropriate to protect the child in light of the facts of record."

What is really the issue here? There seems to be a presumption, in Pennsylvania, in favor of a parent (any parent) being able to raise his or her child and exposing that child to many ideas, whether or not someone else might find those ideas offensive. However, some conduct, particularly illegal conduct is not to be permitted. The larger question might be, where is that line between the transference of ideas and the participation in conduct, particularly, when the recipient of those ideas is a child?

Perhaps there is a second issue that is not discussed by any of the three opinions written by judges of this court. This second issue is how to enforce any decision of the court in the future. With the majority opinion only discernable and provable conduct by the father will provide a cause for future court action. If the dissenting opinion prevailed, every conversation or every piece of information presented by the father, or probably by his associates, could return this case to a court, again and again. Courts try to research finality whenever possible. This case will serve as precedent for this family and all families in Pennsylvania who are similarly situated. This philosophy of courts to reach finality differs from psychologists' practices in that a psychologist, absent an emergency situation, may allow a situation to percolate and develop. In this case, do you believe that the court system will be seeing the Shepps again? Sometimes there is no good answer to a problem about which everyone has an opinion.

Examination of polygamy case continues (March 2007 Issue)

By Edward Stern, J.D.

Examination of polygamy case continues
(March 2007 Issue)