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Court rejects polygamy defense

Published May 17, 2006 12:53 am

Utah's chief justice dissents, says state law violates privacy
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The Utah Supreme Court rejected a former Hildale police officer's bid to decriminalize polygamy Tuesday, in a historic split decision that wrestles with same-sex unions and the meaning of marriage.

Four of the court's five justices said Rodney Holm's relationship with a 16-year-old ''spiritual wife'' fell ''squarely within the realm of behavior criminalized by our state's bigamy statute.'' The majority added that constitutional protections for religion don't shield polygamists from prosecution.

But in a 37-page dissent, Chief Justice Christine M. Durham said she would have overturned Holm's bigamy conviction, finding the law doesn't apply to relationships that lack a marriage license.

Durham pointed to the increasing number of couples who live together outside the bonds of a traditional marriage, and noted they are not prosecuted.

"While some in society may feel that the institution of marriage is diminished when individuals consciously choose to avoid it," she wrote, "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 partners of the same sex."

It took the court just over 15 months to release the 85-page opinion.

Assistant Attorney General Laura Dupaix said the decision ensures the state will continue to enforce laws against bigamy, a third-degree felony, especially when children are involved.

"I assure you there will be [more prosecutions] 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."

Attorney Rodney Parker, who represented Holm in the appeal, said the outcome was disappointing and he will consider an appeal to the U.S. Supreme Court. He said Durham's dissent is a legal landmark.

"In my recollection, this is the first time you see such a scholarly and rigorous analysis of this issue yielding a conclusion that the practice of polygamy should be a constitutionally protected practice among consenting adults," he said.

Purporting to marry: Holm had appealed one bigamy and two sex offense convictions stemming from his "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. All were members of the polygamous Fundamentalist Church of Jesus Christ of Latter Day Saints.

State law says a person is guilty of bigamy when, "knowing he has a husband or wife or knowing the other person has a husband or wife, the person purports to marry another person or cohabits with another person."

Holm argued he did not "purport to marry" Stubbs because neither expected to gain the benefits of a legal marriage.

Justice Matthew B. Durrant, writing for the majority, responded that Utah lawmakers did not intend to narrowly define marriage as a state-sanctioned union. There can be no doubt that Holm purported to marry Stubbs, Durrant wrote, citing her white dress, her vows and their life together.

"The crux of marriage in our society, perhaps especially a religious marriage, is not so much the license as the solemnization . . . by which two individuals commit themselves to undertake a marital relationship," Durrant wrote.

Durham disagreed, saying the state interest in marriage does not extend to those who enter informal religious unions. The majority's ruling subjects religious leaders to criminal sanctions for performing ceremonies "that are not intended by anyone involved to have significance beyond the community in which they occur," Durham wrote.

"For example, a minister officiating in a commitment ceremony involving a same-sex couple may now be held in violation of [the law,] (though perhaps only if at least one partner is wearing a white dress)," she wrote.

Assailing the polygamy ban: Attacking the constitutionality of Utah's ban on polygamy, Parker argued Holm 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 as part of his religion.

Reynolds v. U.S., a famous 1879 U.S. Supreme Court ruling that upheld the prosecution of a religiously motivated Utah polygamist, is a "hollow relic of bygone days" of fear and prejudice, Parker contended.

But Durrant said the U.S. Supreme Court continues to cite that decision and has since said a state statute can restrict an individual's exercise of religion if it is a neutral law that applies to everyone.

The framers of Utah's constitution clearly understood the ban - a condition of statehood - "to mandate the prevention of polygamy and not to merely prohibit government recognition of polygamy," he wrote.

But Durham concluded the ban was meant only as an acknowledgment that polygamous marriages would not be legally recognized. She would find Holm's relationship with Stubbs qualified as an exercise of religion.

Also at issue: the impact of a landmark 2003 U.S. Supreme Court ruling, Lawrence v. Texas, that struck down that state's same-sex sodomy law. It found private, consensual sexual behavior is protected by the due process clause of the 14th amendment.

But Durrant wrote that ruling was limited to private, intimate acts by gays and lesbians. The Utah case hinged on the institution of marriage, which involves both private and public behavior, he said.

Dupaix agreed.

"What the majority points out is marriage is more than just private sexual relationships," she said. "Marriage has always been recognized as an institution the state has an interest in defining."

'Differing from the norms': Rowenna Erickson, co-founder of the Salt Lake City-based Tapestry Against Polygamy, was overjoyed with the ruling.

"Polygamy itself is a breeding ground for other types of abuses," said Erickson, who left the Salt Lake City-area Kingston polygamous clan in 1992. "The more people become educated about polygamy, the more aware they'll become of its diabolical conditions."

Anne Wilde of Principle Voices of Polygamy, a group that supports decriminalization of plural marriage, said she was not surprised by the decision. Pointing out that it took years for blacks, women and gays "to get anything close to equal rights," Wilde said the ruling is a step in the process and hopes the case will go to the U.S. Supreme Court.

"Just recently people have been speaking out in defense of the

lifestyle," said Wilde, a widowed plural wife who describes herself

as a fundamentalist Mormon.

Salt Lake City civil rights attorney Brian Barnard was pleased that Durham acknowledged the law criminalizes consenting adults who "chose to live in an intimate relationship differing from the norms of the majority."

He and Parker criticized the majority for relying on the century-old Reynolds case. "A majority of the Utah Supreme Court . . . keeps Utah jurisprudence in the 19th century," Barnard said.

A Utah federal judge in 2005 rejected a similar challenge from Barnard to the prohibition on polygamy. Despite the rulings, Barnard said "a thorough and intellectual discussion [about polygamy] is going to have to occur."

The prosecution of Rodney Holm

* Hildale police Officer Rodney Holm was "spiritually" married to 16-year-old Ruth Stubbs in 1998. Then 32, Holm was legally married to Stubbs' sister and had another spiritual wife.

* He was charged in October 2002 with one count of bigamy and two counts of unlawful sexual relations with a 16- or 17-year-old, third-degree felonies.

* A Washington County jury convicted him in August 2003. He was sentenced that October to one year in jail and has since been released.

* Holm's Utah certification as a police officer was revoked after his convictions.

Quotes

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

Justice Matthew B. Durrant,

Writing for the majority

"Any two people can make private pledges to each other, with or without the assistance of a religious official, but these private commitments are not equivalent to marriage absent a license or an adjudication of marriage."

Chief Justice Christine M. Durham

The Holm ruling "probes a particularly sensitive area of our state's identity. 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."

Justice Ronald E. Nehring