The Advocate's Illusion

by Teresa Burrell

  Judge Castro looked at Sabre and shook his head. “I know your position, counselor.”

  Sabre sighed with relief and sat down.

  Judge Castro made his orders. “The children will be detained with Mr. and Mrs. LaFiura in Pasadena, California.” Todd’s face reddened and Wes once again tried to calm him by gripping his arm. The judge didn’t look up as he continued with his orders. “The father will have supervised visitation with Mr. Andrew LaFiura as the supervisor. The times and places to be arranged by the Department of Social Services. If Mr. LaFiura is unable to supervise, the Department will use a supervisor of their choice until this matter is sorted out. The court grants the father’s motion for Change of Venue to Los Angeles County once the children are moved to Pasadena. All other orders remain in full force and effect.”

  Chapter 40

  The Fowler Case

  The counsel table was filled from left to right with Deputy County Counsel Linda Farris, Sabre, Candace Fowler, her attorney Irene Serlis, Bob, and his client, Seth Fowler. Judge Hekman was on the bench.

  “We’re here for the demurrer today. I see the pleadings were filed by Mr. Fowler. The meet and confer was unsuccessful, is that correct?”

  All the attorneys agreed.

  “What is the position of Mrs. Fowler?”

  “She is in agreement with the father, Your Honor. However, Mr. Clark will be making the oral argument.”

  “And I see that both the minor’s attorney and county counsel filed responses. I’m willing to hear from both of you, but please do not repeat the same arguments. Saying it twice doesn’t make it any more plausible. Who wants to take the lead?”

  Sabre and Linda looked at each other. “I’ll be glad to,” Sabre whispered to Linda. Linda nodded. “Fine with me.”

  “I will, Your Honor,” Sabre said. She was very vested in this and wanted to make a clear record. She trusted Linda would pick up any points that she might miss.

  “Very well, then, Mr. Clark?” Judge Hekman said.

  “Your Honor,” Linda said, “did you get a chance to see the supplemental report this morning?”

  The judge opened her file and read. “Are you serious?” she said.

  “Yes, Your Honor, the minor, Mary Margaret, went missing from church yesterday.”

  “And she hasn’t been found?”

  “No, Your Honor. We don’t know if she was kidnapped or if she ran away. The parents have been very cooperative.”

  “The entire congregation of the Square With God Church has formed a search party, Your Honor,” Irene said. “They were out until late last night, and those who could were back out again this morning. The parents stopped only to come to this hearing.”

  “Would you like to continue this to another date?” the judge asked.

  “We discussed that, Your Honor,” Bob said. “Our clients would like to go forward with the hearing, if the court permits.”

  “Very well, then. Mr. Clark, would you like to start?”

  Bob stood up. “Thank you, Your Honor. Let me start by saying that my client does not believe his rights come from the U.S. Constitution, but rather from Almighty God. However, I know the court wants to hear the law and it is our contention the law supports his position. The First Amendment to the U.S. Constitution has a double aspect with regard to religion. First of all, it prevents compulsion by law of the acceptance of any creed or the practice of any religion. It permits freedom of conscience and freedom to adhere to any religious organization or form of worship. Secondly, it safeguards the free exercise of the chosen form of religion. My client is merely exercising his First Amendment right.”

  Sabre stood up. “May I, Your Honor?”

  “Go ahead, counselor.”

  “We agree that the First Amendment grants those rights. However, the first aspect is absolute, the second is not. A person’s conduct must remain subject to regulation for the protection of society. If it were otherwise, one could excuse any behavior by claiming it was the expression of a professed religious belief.”

  Bob said, “According to United States v. Ballard, (1944) 322 U.S. 78—”

  “Please dispense with the cites or we’ll be here all day. I can see them in your pleadings.”

  “Thank you, Your Honor. In Ballard, while a court can inquire into the sincerity of a person's beliefs, it may not judge the truth or falsity of those beliefs. My client wholeheartedly believes that God wants Lester Gibbs and his daughter to be wed. In fact, God spoke to him and told him so. He also believes that the government does not overrule the will of God. The marriage of two people is a holy sacrament, not a governmental contract.”

  “Forgive me, counselor, but I’m obviously not familiar with the practices of this church. As for the sacraments, I know the Roman Catholic Church has seven of them. I know some Protestant churches have two, Baptism and the Eucharist. So, I need you to school me here. What sacraments does this church practice?”

  Bob whispered with his client. “They have three, Your Honor, the two you mentioned and Holy Matrimony.”

  “Okay, please proceed.”

  “It is my client's contention that God, not the state, sanctions marriage. The government can't compel affirmation of a religious belief according to Torcaso v. Watkins, nor penalize or discriminate against groups or individuals due to their religious beliefs as found in Fowler v. Rhode Island.”

  “Is that a relative?” Judge Hekman asked facetiously.

  “Not that we’re aware of, Your Honor. However, I’m sure my client would appreciate any Fowlers before him setting a precedent. My client should not be penalized for his religious beliefs, and religious belief is absolutely protected.”

  “We agree that religious belief is absolutely protected,” Sabre said. “However, religiously-motivated conduct is not, according to Sherbert v. Verner. Such conduct ‘remains subject to regulation for the protection of society,’ as determined by Cantwell v. Connecticut. According to Wisconsin v. Yoder, religion clauses only serve to protect those claims rooted in religious belief. We contend that marriage to a twelve-year-old is not rooted in the religious beliefs of the Square With God Church.”

  Bob responded, “The issue is not the age of the bride, but rather that the church has the right to marry whomever God compels them to marry without permission from the state in the form of a license or a court order. Even the State of California does not have any minimum age whatsoever for a minor to marry. Technically, a six-year-old could marry.”

  “If they had a court order,” Sabre said, shaking her head. “This minor did not. There is a proposed bill, SB 273, right now, to regulate child marriage, due to the deleterious effects created from young marriages, especially to older men.”

  “As Ms. Brown said, it is a proposed bill and is not in effect. As to the Yoder case that Ms. Brown mentioned, it was also found that government action that burdens religious conduct is subject to a balancing test, in which the importance of the state's interest is weighed against the severity of the burden imposed on religion. The greater the burden imposed on religion, the more compelling the government interest at stake must be. We contend that if the church has to get permission to marry every time God tells them to, it will create an overwhelming burden on the church and one of its basic tenets.”

  “The Supreme Court in applying that balancing test has allowed some religious conduct to be banned entirely,” Sabre said with more fervor. “The court upheld the law against polygamy; it upheld mandatory participation of Amish in the Social Security system; it upheld compulsory vaccinations for communicable diseases; it upheld license requirement for religious parades; and it permitted the state to prohibit parents from allowing their children to distribute religious literature when necessary to protect the children's health and safety. It would certainly apply to the marriage of a twelve-year-old girl for her safety and well-being. Studies have shown that women who marry as girls face greater vulnerability to domestic and sexual violence. They have more medical and mental
health problems. They have an increased high school dropout rate, increased risk of future poverty, as well as up to 80% divorce rates.”

  “That has not been the experience of the couples who have married within the Square With God Church. Quite the contrary. The divorce rate is extremely low, as are mental health problems and the high school dropout rate.”

  “Your Honor, in the well-known Reynolds v. United States, the Supreme Court held that Congress could constitutionally apply to Mormons a prohibition against polygamy, and, in so doing, promulgated a basic test for the constitutionality of state legislation. If the court does not allow more than one wife, it certainly would seem that it wouldn’t allow an adult to marry a twelve-year-old.”

  Sabre took a deep breath and tried to calm herself because her arguments were getting too passionate.

  “Really?” Bob shook his head at Sabre.

  “Counselor, make your point,” Judge Hekman said.

  Bob cleared his throat. “Reynolds is a case from 1878 which, if it were tested today, would likely be overturned.”

  “But it hasn’t been overturned, has it, Mr. Clark?” Hekman said.

  “No, Your Honor,” Bob said. “Not yet.”

  Sabre continued. “It is still the law. The Supreme Court held in Reynolds that ‘the history of the laws against polygamy showed that the condemnation of the practice was a matter of the gravest social importance.’ It found in polygamy ‘the seed of destruction of a democratic society.’ It viewed the practice as ‘highly injurious to its female adherents.’ Allowing a marriage or even the illusion of a marriage to a twelve-year-old is certainly injurious to that child. It strips her of her basic freedom.”

  Bob responded, “In that case, the Court also compared polygamy to human sacrifices and funereal immolation of widows, which is a little extreme and archaic. On the other hand, in People v. Woody, the Supreme Court found that there was an unconstitutional infringement of the freedom of religion guarantee of the First Amendment of the Constitution of the United States. In Woody, a group of Navajos met in an Indian hogan in the desert to perform a religious ceremony that included the use of peyote. The Indians were arrested and convicted for the unauthorized possession of peyote. The Court concluded that ‘since the defendants used the peyote in a bona fide pursuit of religious faith, and since the practice does not frustrate the compelling interest of the state, the application of the statute improperly violated the First Amendment's guarantees of freedom of religion.’”

  "Your Honor,” Sabre said, “that case can be distinguished because the Navajos had a long history of the practice of peyotism. It is essential to the ceremony of the Native American Church, a religious organization of Indians. It is documented as such as far back as 1560. The sacramental use of peyote composes the cornerstone of their religion.”

  “Just as marriage initiated by God Himself does in the Square With God Church, or as the bread and wine does in other Christian churches.”

  “To the American Indians, peyote is more than a sacrament. The court determined that it was so engrained in the practice of their religion, to prohibit it would result in a prohibition of the practice of their religion. It then went on to the second step, to determine if there was a compelling state interest that would override the defendant's First Amendment right. The Supreme Court found there was not.”

  “We would contend, Your Honor,” Bob argued, “that if the court does not allow marriage initiated by God, it would also result in a prohibition of the practice of my client’s religion. After all, what is more powerful than the Word of God? In Reynolds, at the time, the court considered polygamy a ‘serious threat to democratic institutions.’ This is quite the opposite. Marriage is a basic foundation of family and our democratic society. We want that upheld. In Woody, the Supreme Court realized that religions are practiced differently, and we have a basic right under the Constitution. The difference between the Reynolds case and the Woody case is eighty-six years of living in a democratic society under our great Constitution of the United States.”

  Sabre rolled her eyes. “The Supreme Court distinguished Reynolds v. United States from the peyote case for two fundamental reasons. First was the degree of abridgment of religious freedom. They determined that polygamy was a basic tenet in the theology of Mormonism, but it was not essential to the practice of the religion. On the other hand, peyote is the sole means by which defendants are able to experience their religion. Without it, they could not practice their faith. Second was the degree of danger to state interests. In Reynolds, it far exceeded that in the peyote case. Reynolds is the case that needs to be applied here because of the extreme danger put on children. As in Reynolds, it is a ‘serious threat to democratic institutions and injurious to the morals and well-being of its practitioners.’”

  “The determination of who is to marry whom is a basic tenet of my client’s religion,” Bob said, making another attempt to argue his client’s point. “Mr. Fowler regularly receives the word of God directing him to arrange the marriage of two persons, and in this case, God, Himself, directed the reverend to marry Lester and Mary Margaret. Not permitting him to do so would be keeping him from practicing his religion.”

  “Are all marriages arranged in that manner, Mr. Fowler?” Judge Hekman directed her question to Bob’s client.

  Mr. Fowler said, “All marriages within the church are sanctioned by God, not the state. I will not perform a ceremony if the couple feels they need permission from the state.”

  “Why is that?”

  “Because if God has not told them to marry, then they should not marry.”

  “So, sometimes God tells the couple and sometimes He tells you. Is that correct?”

  “Yes, God does not limit His voice to me alone, but I always consult Him in such matters.”

  “Your Honor,” Sabre cut in, “another thing that is considered by the courts is the history of the tenet. Whether or not the religion has a long history of these marriages being arranged, and if these marriages were successful. There is little history of the tenets of this church because it was established only eighteen years ago.”

  “Exactly,” Bob said. “The tenet of the church is as old as this religion itself. It began day one. They have a history of successful marriages by those who follow the tenets of this religion, with no harmful consequences, including that of my client and his wife. They have been married for thirteen years and are still married and happy today. We ask that the court allow my client to practice his religious freedoms given to him by the United States Constitution, find that a valid marriage exists between Lester Gibbs and Mary Margaret Fowler, and grant our demurrer.” Bob sat down.

  “Ms. Brown?”

  “I would only add, Your Honor, that this practice subjects my client and similarly situated minors to abuse, deprivation of their right to education, and circumstances similar to indentured slavery without presenting opportunities for independence. This is particularly true for my client as she does not want to be married to Mr. Gibbs.”

  Bob stood. “We object to the last comment Ms. Brown made regarding her client’s desires. That is a factual issue, which we would contest given the opportunity.”

  “I will not take that into consideration in making my ruling, Mr. Clark.” She turned to County Counsel. “Ms. Farris, what is your position?”

  “I concur with minor’s counsel and request that the court deny the demurrer.”

  “Ms. Serlis?”

  “I concur with Mr. Clark.”

  “Thank you.” She looked down at her notes and then back up again. “I’ll let you know when I’ve made my decision.” She looked at the parents. “I hope they find your daughter really soon. You must be very worried.”

  “So is her husband,” Mr. Fowler said.

  “I’m sure he is,” Hekman said. She tapped her gavel on the sound block. “Court is adjourned.”

  Chapter 41

  JP waited in Miles Cunningham’s office with Miles’ wife, Julie.
/>   “Miles will be here in a second,” Julie said. “Can I get you something to drink?”

  “A water would be good.”

  “I’ll be right back,” Julie said and walked out.

  The office was simply decorated. Miles’s desk was tidy, with only a computer, a pen holder, an 8 x 10 photo of his family, and one basket with a couple of files. The only things hanging on the walls were a painting of the Star of India, a framed California insurance license, and a certificate of some sort purporting to recognize his excellence in sales.

  Miles and Julie walked into the office. Julie handed JP the water, and Miles greeted him and took a seat behind his desk. “I expect this is about Mary Margaret being missing. What can we do to help?”

  “I’m sure you’ve spoken to the police, but I have a few questions.”

  “Of course.”

  “Did either of you see Lester Gibbs leave the church during the service?”

  “No,” they both said.

  “Did you see Mary Margaret and her supervisor leave?”

  “No, I’m afraid not,” Miles said.

  JP looked at Julie when she didn’t answer right away. “I didn’t either, but Penny did.”

  Miles looked surprised. “Why didn’t you tell me that?”

  “She told me last night just before she went to sleep. I didn’t think it was important.”

  “What did she tell you exactly?” JP asked.

  “She said she saw Mary Margaret leave, and that’s when she asked me if she could go to the bathroom. I told her to wait, that the service wouldn’t be much longer.”

  “Do you know if she saw Lester leave?”

  “I don’t know.”

  “I’m not accusing your daughter of anything, but sometimes kids don’t realize the consequences for their actions. Do you think there’s any chance Penny planned to help Mary Margaret run away?”