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The Utah Supreme Court rejected a former Hildale police officer's bid to

decriminalize polygamy Tuesday with a split decision that wrestles with

contemporary relationships ranging from Utah couples who live together

to same-sex unions.

In an 85-page opinion that took just over 15 months to issue, a majority

of the justices ruled Rodney Holm's relationship with a 16-year-old

"wife" fell "squarely within the realm of behavior criminalized by our

state's bigamy statute."

Guarantees of religious freedom in the state and federal constitution

don't shield Holm or other polygamists from prosecution, wrote Matthew

B. Durrant for the majority.

"Marital relationships serve as the building blocks of our society,"

Durrant wrote. "The state must be able to assert some level of control

over those relationships for the smooth operation of laws...The people

of this state have declared monogamy a beneficial marital form and have

also declared polygamous relationships harmful."

Holm had appealed bigamy and sex offense convictions stemming from his

so-called "spiritual" marriage in 1998 to 16-year-old Ruth Stubbs, with

whom he had two children. At the time, Holm was 32, legally married to

Stubbs' sister, and had another spiritual wife.

Chief Justice Christine M. Durham parted ways with the majority in her

37-page dissent, saying she would have reversed Holm's bigamy

conviction. State bigamy laws only apply to those who have worked to

make their relationships a legally binding contract, she argued.

"I do not believe the state's interest extends to those who enter a

religious union with a second person but who do not claim to be legally

married," she wrote.

Pointing to the numbers of Utah couples that co-habitate outside the

bonds of marriage, Durham noted they are not prosecuted for living

outside the norms of traditional marriages.

"While some in society may feel that the institution of marriage is

diminished when individuals consciously choose to avoid it, it is

generally understood that the state is not entitled to criminally punish

its citizens for making such a choice, even if they do so with multiple

partners or with partners of the same sex," she wrote.

Justice Ronald E. Nehring wrote a separate decision, agreeing with the

majority. He said today's ruling "stands apart" from other cases

"because it probes a particularly sensitive area of our state's

identity," Nehring wrote. "No matter how widely known the natural

wonders of Utah may become, no matter the extent that our citizens earn

acclaim for their achievements, in the public mind Utah will forever be

shackled to the practice of polygamy."

Holm, Stubbs and the other women were members of the Fundamentalist

Church of Jesus Christ of Latter Day Saints, which embraces polygamy,

and has been traditionally based in Hildale, Utah, and Colorado City, Ariz.

Holm was sentenced in 2003 to one year in jail after his conviction in a

jury trial and has since been released.

During arguments before the high court in February 2005, defense

attorney Rodney Parker argued polygamists should be able to have a legal

marriage with a first wife, then enter into religious unions with other

women as a way to reach the highest degree of heaven. Parker was not

immediately available for comment Tuesday.

Assistant Attorney General Laura Dupaix said the opinion ensures the

state can legally enforce its bigamy laws.

"The opinion itself may not mean there are going to be more

prosecutions, but I assure you there will be as we get evidence of

underage marriage, welfare fraud, tax fraud," she said. "We are going to

continue to go after these crimes. This means polygamists are not going

to be able to commit these heinous crimes and shield themselves under

the cloak of religion."

Yet the Holmes case also demonstrates the difficulties of such prosecutions.

"Ruth Stubbs is an example of that," Dupaix said. "This prosecution was

only successful, I think, because our prosecutor was able to track her

down and serve her with a subpoena and compel her to come to court."

Stubbs testified she knew her union with Holm would not be legally

recognized, but wore a white dress she considered a wedding dress and

exchanged vows with Holm during a ceremony conducted by Warren Jeffs,

the FLDS president and prophet. Jeffs, 50, is now a fugitive sought on

Utah and Arizona sex abuse charges in connection with other underage

marriages.

Prosecutors have lost the ability to file criminal charges against

Jeffs, Dupaix said, based on deadlines set in statute of limitations.

Tuesday's ruling could have implications in Utah beyond the polygamy

debate, recognizing the state's right to define marriage in a time when

gay marriage has been debated. Dupaix disagreed with Durham's dissent.

"She's making this argument under [another case] that she views this as

private, intimate conduct," Dupaix said. "What the majority points out

is marriage is more than just private sexual relationships. Marriage has

always been recognized as an institution the state has an interest in

defining. What's important in this case, too, is it's involving a minor."

Rowenna Erickson, co-founder of the Salt Lake City-based Tapestry

Against Polygamy, was overjoyed with news of Tuesday's ruling.

"Hallelujah! This is wonderful," she said.

"Polygamy itself is a breeding ground for other types of abuses," said

Erickson, who left the Salt Lake-area Kingston polygamous clan in 1992.

"It's just a disguise. It's all done in the name of religion. The more

people become educated about polygamy, the more aware they'll become

aware of its diabolical conditions."

Yet Salt Lake City civil rights attorney Brian Barnard said the dissent

acknowledged a defect in state law that criminalizes the behavior of

consenting adults who "chose to live in an intimate relationship

differing from the norms of the majority."

"The majority opinion, like the opinion in the Tom Green [bigamy] case,

just accepts the statute, doesn't analyze the problems and doesn't

recognize there's a problem with the statute," he said.

He also criticized the majority for relying on an 1879 case.

"The majority...fails to consider the analysis now used by the United

States Supreme Court in religious practice cases," he said. "A majority

of the Utah Supreme Court ignores that change and keeps Utah

jurisprudence in the 19th century."

A federal judge in 2005 rejected a similar challenge from Barnard to the

prohibition on polygamy as an unconstitutional violation of religious

and privacy rights. Despite that decision and the Holm ruling, Barnard

said the polygamy issue will not go away, adding that "a thorough and

intellectual discussion is going to have to occur."

- Elizabeth Neff