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.”
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