Polygamist Rodney H. Holm's petition to the court does not raise an issue of "widespread national importance" and the case, which involved a minor, is not suitable for attacking the law, Asst. Attorney General Laura B. Dupaix said in the filing.
Holm, a member of the Fundamentalist Church of Jesus Christ of Latter Day Saints, claimed in his October petition that Utah's bigamy statute is narrowly used to prosecute those who practice polygamy as a religious tenet.
While states have the right to regulate marriage, Holm said in his petition, laws that ban polygamy are outdated, given modern cohabitation customs and recent rulings on liberty and privacy rights.
The Utah Attorney General's Office initially waived a response to Holm's petition, citing costs involved and the unlikelihood the high court would hear the case. But the court's clerk notified the state in November that the justices wanted to see its response before deciding whether to take the case.
Utah law unique
Dupaix argues that any decision by the U.S. Supreme Court would have little bearing on laws in other states since Utah's bigamy statute is, as Holm noted, "unique."
She also said that Holm's argument that the statute is used only to target polygamists is unfounded since one of two prior modern bigamy prosecutions in Utah had nothing to do with religion.
Holm, who was wed in a "spiritual" marriage to his wife's sister, was convicted in August 2003 of one count of bigamy and two counts of unlawful sex with a minor.
He was 32 at the time of the ceremony; Ruth Stubbs, the bride, was 16. Age was not a factor in the bigamy prosecution.
In its petition, the state recounts the unlicensed marriage ceremony that took place in 1998, when Stubbs became Holm's third wife. Warren Jeffs, the current FLDS president, conducted the ceremony.
Jeffs is currently awaiting trial on charges of being an accomplice to rape for overseeing another arranged marriage.
Holm, who was sentenced to a year in jail, appealed his convictions to the Utah Supreme Court, arguing in part that he could not be guilty of bigamy since he did not legally marry Stubbs.
The Utah court upheld Holm's bigamy and unlawful sex convictions, asserting that constitutional protections don't shield polygamists from prosecution. It also said that relationships could be judged as bigamous marriages even if they occur without state sanction.
One judge disagrees
But Chief Justice Christine Durham wrote a spirited dissent to the bigamy conviction, arguing that the state had adopted an "expansive conception" of marriage solely for the purpose of criminal prosecution. Durham said the statute is unconstitutional given the U.S. Supreme Court's decision in Lawrence v. Texas, which prohibits government intrusion in intimate relationships between consenting adults.
Durham's opinion gave Holm - and other fundamentalist Mormons who practice polygamy - hope of success at the higher court level.
But the "ruminations of a lone concurring justice" is not reason enough to take up the case, Dupaix states in her brief. Seeking protection under the Lawrence ruling doesn't hold up because the Holm case involved a minor, she said.
Holm is asking the court to declare that "hypothetical consenting adults, who have yet to be prosecuted, have a due process liberty interest in polygamous relationships," Dupaix argues. Holm "carefully omits" the circumstances - "an adult man entering into a polygamous relationship with an underage girl," she said.
A relic - or needed regulation?
There are approximately 37,000 fundamentalist Mormons in the Intermountain West, many of whom practice polygamy. Most of those are in Utah. Several polygamous groups as well as independent fundamentalists are helping to fund Holm's petition.
Joseph Smith, founder of The Church of Jesus Christ of Latter-day Saints, introduced polygamy as a tenet of the faith in the mid-1800s. In 1879, the U.S. Supreme Court upheld polygamy bans in its ruling in Reynolds v. United States. The LDS Church publicly abandoned the marriage practice in 1890 as a condition of statehood and a ban on the practice is included in the state's constitution.
Holm's petition challenges the validity of the Reynolds' ruling given modern-day cohabitation and marriage practices, calling it a "relic of bygone days." But Dupaix asserts that Reynolds has withstood changing times and mores, and continues to serve as a basis for the state regulation of marriage and other religious practices.
