Stanley Shepp still has only one wife, but after a four-year legal battle, the would-be polygamist has overturned a court order that barred him from promoting the virtues of plural marriage to his 13-year-old daughter.
The Pennsylvania Supreme Court held last week by a 5-1 majority that a trial judge abused his discretion in restricting Shepp's religious expression. As part of a child custody decision, the judge said Shepp, who now lives in Utah, could not teach his daughter Kaylynne “about polygamy, plural marriages or multiple wives” while she is a minor.
“Where, as in the instant matter, there is no finding that discussing such matters constitutes a grave threat of harm to the child, there is insufficient basis for the court to infringe on a parent’s constitutionally protected right to speak to a child about religion as he or she sees fit,” the majority opinion said.
But the dissenting justice said the trial judge, Stephen M. Linebaugh, had made the required finding. “I believe the trial court’s opinion indicates that it found a sufficiently grave threat to warrant restricting Father’s ability to indoctrinate Child into criminal conduct,” Justice Max Baer wrote in his dissent.
Kaylynne's mother, who divorced Shepp in 2001 because he wanted more wives, is considering an appeal to the U.S. Supreme Court. She has said she she does not want her daughter to interact with polygamist families or “to be taught polygamy in any way.”
In his September 2002 opinion, Linebaugh said trial testimony had shown that Shepp “clearly would” pursue his belief in polygamy. Among other things, Shepp's stepdaughter testified he told her that if she didn't practice polygamy, she would go to hell.
But the trial judge went on to conclude, “While we may have evidence of moral deficiency of [F]ather because of his belief in having multiple wives, there has been no evidence of a grave threat to the child in this case.”
According to Baer, that finding is consistent with granting Shepp partial custody of Kaylynne. But Linebaugh also prohibited the teaching of polygamy, Baer said,
to hedge against Father’s coercive conduct in seeking to induct Child into a repugnant and criminal activity in adolescence at a time when Child’s lack of autonomy and worldly sophistication would make it difficult for her to protect herself and make an informed decision.
The earlier analysis of Pennsylvania's intermediate court of appeals only adds to the confusion. The Superior Court affirmed the trial court's order, but said its factual findings were not consistent with “its conclusion that [Shepp] poses no grave threat to his daughter.”
The welfare of a minor is far too serious a matter to be decided on such a murky record. Linebaugh, at the very least, should have clearly and unambiguously stated why he was restraining Shepp's speech despite finding no "grave threat" to the child.
By Matthew Heller