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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