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Challenge of Utah polygamy law swatted down

The Salt Lake Tribune, USA
Feb. 17, 2005
Pamela Manson
www.sltrib.com

ReligionNewsBlog.com • Thursday February 17, 2005

Monogamy reaffirmed: A Supreme Court ruling on sodomy laws does not apply, the judge rules

A federal judge has refused to strike down Utah’s ban on polygamy, dashing hopes for a walk down the aisle by a Salt Lake County man who wants to add another wife to his marriage.

In an order issued Wednesday, U.S. District Judge Ted Stewart rejected an argument that the prohibition on polygamy is an unconstitutional violation of religious and privacy rights and ruled that the state has an interest in protecting monogamous marriage.

His decision is backed by a line of appeals court rulings stretching back to the 1878 Reynolds case, which upheld the criminal conviction of a Mormon man in Utah for practicing polygamy, Stewart wrote.

And, he said, even Lawrence v. Texas, a 2003 opinion by the U.S. Supreme Court overturning an anti-sodomy law as a violation of the privacy of consenting adults, grants no right to plural marriage in Utah.

“Contrary to plaintiffs’ assertion, the laws in question here do not preclude their private sexual conduct,” Stewart said. “They do preclude the state of Utah from recognizing the marriage of plaintiff G. Lee Cook to plaintiff J. Bronson as a valid marriage under the laws of the state of Utah.”

The Church of Jesus Christ of Latter-day Saints, which once embraced polygamy, officially ended the practice in 1890. The Utah Constitution “forever banned” plural marriage as a condition for the state to join the union.

Bronson and Cook, accompanied by legal wife D. Cook, applied for a marriage license in December 2003 at the Salt Lake County Clerk’s Office. After G. Lee Cook wrote on the application that he was married and said he wanted to legally marry a second wife, clerks refused to issue the license and refunded the fee.

The trio, who do not use their first names in court papers, then filed suit challenging prohibitions in Utah law and the state constitution against bigamy and polygamy. They say the doctrine of plural marriage is a central tenet in their religious beliefs.

Civil rights attorney Brian Barnard, who represents the three, said the ruling was expected.

“We knew it would be well nigh impossible to successfully argue that a federal trial court should reverse a long-standing decision of the United States Supreme Court,” he said.

Barnard said Bronson and the Cooks will appeal to the 10th U.S. Circuit Court of Appeals and then, if necessary, to the U.S. Supreme Court. He had argued that the state should not criminalize consensual intimate relationships and pointed to the Lawrence v. Texas decision as backing for his position.

But Jerrold Jensen, an assistant Utah attorney general, countered that the state has the right to regulate marriage.

“There is a difference between private sexual rights and marriages that are recognized by the state,” he said Wednesday.

Although he acknowledged that G. Lee Cook technically could be prosecuted for bigamy just by living as husband and wife with J. Bronson, Jensen said the state focuses on cases involving other offenses, such as marriage to an underage girl.

In a separate case, polygamist Rodney Holm, a former Hildale police officer who had a legal wife and two “spiritual” wives, is challenging the polygamy ban in an appeal of his 2003 bigamy conviction to the Utah Supreme Court.

A decision in that matter is pending.

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