In his petition, Rodney H. Holm also asks the nation’s highest court to reconsider whether the polygamy ban enshrined in its 1879 Reynolds decision is justified today, given modern mores and more recent rulings on liberty and privacy rights.
The petition does not challenge the Reynolds provision that affirmed the right of states to regulate marriage; instead, it questions state efforts to regulate intimate relationships that occur outside marriage.
“Widespread popular departure from traditional marriage practices has made the anti-polygamy laws, like laws against cohabitation, adultery, and fornication, anachronistic,” the petition states.
“These laws are not enforced against those practicing contemporary lifestyles, but are asserted as weapons, in this case, against those living a traditional, family-grounded religious-based life.”
Holm’s petition hinges on liberty rights, due process, free exercise and jurisdictional claims. The Utah Attorney General’s Office will have 30 days to respond to the petition; it will likely be months before the U.S. Supreme Court decides whether to hear the case.
The petition joins another lawsuit currently seeking a higher court test of the polygamy ban, though the other case’s challenge stems from denial of a marriage license (see sidebar).
Holm, a member of the Fundamentalist Church of Jesus Christ of Latter Day Saints, was convicted in 2003 on a bigamy charge related to his 1998 religious sealing to Ruth Stubbs. At the time, the former Hildale police officer was 32 and Stubbs was 16, though age was not an issue in the bigamy prosecution.
The FLDS church, based in Hildale and the adjoining town of Colorado City, Ariz., considers plural marriage a religious obligation. The fundamentalist Mormon sect is one of several that carry on the practice, given as a revelation to LDS Church founder Joseph Smith in 1843 and publicly revealed in 1852.
LDS Church leaders, in fact, asked George Reynolds, a Salt Lake City 32-year-old bookkeeper who was legally married to two women, to serve as the test challenge of a federal bigamy act that made plural marriage a crime.
The mainstream Church of Jesus Christ of Latter-day Saints publicly abandoned the practice in 1890 as a condition of statehood, a concession reflected in the polygamy ban contained in Utah’s constitution. The LDS Church excommunicates members who support or practice polygamy and has no connection to self-described fundamentalist Mormons.
Despite that, the practice has flourished. Today, there are an estimated 37,000 fundamentalist Mormons in the Intermountain West, many of whom practice polygamy.
Rod Parker, the Salt Lake City attorney representing Holm, writes in the petition that “widespread” enforcement activities, using selectively applied laws, are filling state courts with polygamy-related cases.
Many of those cases pivot on the Reynolds ruling, which asserted government’s compelling interest in controlling certain religious practices. Reynolds also affirmed the states’ interest in regulating marriage and set monogamy as the nation’s ideal family form, describing it as critical to safeguard society.
That argument in particular has faded, Holm maintains, and moral disapproval of certain behavior does not justify criminalizing it.
Subsequent U.S. Supreme Court decisions have redrawn the line between government regulation, certain religious practices – from home schooling to animal sacrifice – and consensual adult behavior without directly revisiting Reynolds.
“When the courts in Utah talk about polygamy they think their hands are tied by the Reynolds case,” Parker told The Salt Lake Tribune. “My argument in this case is that Reynolds does not prevent the courts from recognizing due process and privacy rights of polygamous families.”
When Reynolds was decided, Parker said, the crime of bigamy was more narrowly defined than it is in Utah’s current law – which extends to those who “purport to marry” or cohabit with another person.
That allows the state to prosecute polygamists like Holm for bigamy though they do not enter legal marriages, as the Utah Supreme Court said in its 4-1 decision upholding Holm’s conviction.
In her dissenting opinion, however, Chief Justice Christine Durham called that an “expansive conception” that gives the state latitude to both define and defend legal marriage and label certain relationships “marriages” solely for the purpose of criminal prosecution.
The state has only extended that definition to polygamous relationships, Holm’s petition argues. Asks Parker: “Why isn’t the institution of marriage threatened by people who cohabit and never marry?
And that, he believes, places adult, consensual polygamy beyond the reach of any compelling state interest in criminalizing it. “The state needs to establish that link if it wants to outlaw this practice,” Parker said.
Fundamentalist Mormons, who are helping to fund both polygamy-related appeals, view the two challenges as the first foray in a civil rights movement.
Win or lose, a decision from a higher court will tell much about “rational and what their logic is for future cases, how to overcome the obstacles before us,” said Laura Fuller, a representative of a coalition of polygamist communities and member of the Latter Day Church of Christ. “What I would like is to prove polygamy in and of itself doesn’t hurt people, that there is not a compelling state interest in a person choosing their mate,” she said.