The FLDS Case & Religious Belief as Evidence of Behavior

The NYTimes reports today:

A judge in Texas ordered more than 460 children seized in April from a polygamist sect to be released from state custody on Monday, while imposing conditions on their families that would allow officials to monitor the children’s welfare.

Judge Barbara Walther of the State District court in San Angelo issued the order following a contentious hearing on Friday that broke down when she left the courtroom as lawyers for the families, members of the Fundamentalist church of Later Day Saints, objected to her imposing conditions on the release of the children.

As some observers have noted, the F.L.D.S. case involves the difficult and interesting question of the use of religious beliefs to predict behavior. This question is in certain respects similar to the problem of the use of "character" to predict (or infer) behavior. See P. Tillers, "What Is Wrong with Character Evidence?," 49 Hastings Law Journal 781 (1998). Cf. Levin v. United States,119 U.S. App. D.C. 156, 338 F.2d 265 (1964) . Some observers have said (newspapers report) that religious beliefs won't hack it as evidence of behavior and that only "specific" evidence will do. But I don't think the attempted specific-non-specific distinction cuts the mustard. Cf. P. Tillers, "If Wishes Were Horses: Discursive Comments on Attempts to Prevent Individuals from Being Unfairly Burdened by their Reference Classes," 4 Law, Probability and Risk 33 (2005). However, the First Amendment implications of using religious belief to predict (or infer) behavior cannot be ignored. If any supervision of the children and their parents is designed to eradicate a religiously-grounded belief in polygamy or in a patriarchal social system, that would obviously be improper on constitutional grounds -- no matter how distasteful the rest of us might find polygamy or patriarchy. The courts' treatment (in this context) of F.L.D.S.'s religiously-based beliefs about sexual relations of women under the age of consent in Texas is the harder problem. Outright judicial attempts to eradicate even such beliefs still seem improper on constitutional grounds. But can religiously-grounded beliefs about this be used as evidence to support the imposition of "conditions" on the release of the F.L.D.S. children to their parents -- such as the condition that the Texas child protection service have the right to enter a residence to check up on the status of an underage female? (Newspaper accounts suggest that the Texas trial judge who is now again handling the case has no doubt that she can and should use F.L.D.S. beliefs as evidence for this purpose.)