SALT LAKE CITY (AP) — Utah Supreme Court justices pounded state attorneys with questions Thursday in a convicted polygamist’s appeal, suggesting at least some doubt over the state’s 100-year-plus ban on the practice of plural marriage.
Rodney Holm, a former police officer in the polygamous community of Hildale, was convicted of bigamy and illegal sex with a teenage girl that he had taken as a third wife. His lawyer, Rodney Parker, argued Wednesday that polygamy is essential to Holm’s religion, and barring him from practicing it violates his First Amendment rights.
Polygamy is among the teachings of Mormon church founder Joseph Smith. But the practice was abandoned by the mainstream Church of Jesus Christ of Latter-day Saints in 1890 as the Utah territory sought statehood.
Still, it remains a prickly issue. It’s believed that tens of thousands in Utah and more than 30,000 across the West continue the practice, which the religion canonizes as the highest form of religious exaltation.
Many of them are members of the Fundamentalist Church of Jesus Christ of Latter Day Saints, who live in the isolated twin border towns of Hildale and Colorado City, Ariz.
“It’s a large group of people, and your decisions in this case should not be based on stereotypes and anecdotal evidence … . That’s all the state has,” Parker told the court.
Besides simply banning bigamy, as most states do, Utah law allows prosecutors to file bigamy charges when people are spiritually, but not legally, married and cohabitating.
Parker said that makes the law unconstitutionally vague, because it could subject roommates to criminal prosecution.
To at least some degree, several of the five Supreme Court justices seemed to agree.
Justices grilled Assistant Attorney General Laura Dupaix on the constitutionality and fairness of Utah’s bigamy law, which Chief Justice Christine Durham said could be endangered by a 2003 U.S. Supreme Court decision striking down statutes against gay sex as a violation of an individual’s right to sexual privacy.
She also said the law as written would subject a person to criminal charges if they were separated, but not divorced, and seeing someone else.
“How could you avoid … the statute would apply to people who are shacking up?” Durham asked.
And the century-old debate over polygamy could have a new twist since voters passed a constitutional amendment in November to ban gay marriage and limit the institution to “one man and one woman.”
“If it’s one man and one woman, doesn’t that mean a man and three women isn’t marriage?” Justice Michael Wilkins asked.
Dupaix said Holm “did everything to make it a marriage except get a license,” and insisted the state was not persecuting Holm for his religious beliefs.
Instead, she said he was prosecuted because he was a 32-year-old man having sex with a 16-year-old girl. She also argued that the state didn’t violate Holm’s religious freedom by prohibiting polygamy because he can believe whatever he wants, but can’t act on those beliefs is they counter state law.
She likened it to white supremacist groups, whose members have the right to hold racist views, but not harm minorities because of them.
“Nobody’s telling Mr. Holm he can’t be in a church that believes in polygamy,” Dupaix said.
Attorney General Mark Shurtleff has vowed a get-tough attitude toward polygamists who engage in abuse or illegal sexual behavior, but said outside the courtroom Thursday his office doesn’t have the resources or inclination to prosecute cases in which there’s no child abuse.
“And if we were to convict all of them, what does the state do with their tens of thousands of children?” he said.
Durham also rejected Dupaix’s arguments that allowing polygamy could put the state in muddy legal water if couples divorce and end up in fights over custody and property.
“I see no difference in kind, and I suspect no difference in quantity, than lots of other relationships,” she said. “The notion that these problems are exacerbated based on religious beliefs instead of individual desire is a peculiar one for me.”
Shurtleff said he was undeterred by the court’s tough questioning of his assistant, and didn’t think it meant they would toss out Utah’s bigamy law.
“I saw that as a real good intellectual exchange,” he said.