Rodney Holm’s petition comes as the 10th Circuit Court of Appeals in Denver grapples with similar claims in a case brought by a Utah couple and a woman who wants to join their family as a second wife.
The three are independent fundamentalist Mormons who also regard plural marriage as a tenet of their faith. Their case, unlike Holm’s petition, does directly challenge government regulation of marriage.
The trio, identified as J. Bronson, G. Lee Cook and D. Cook, sued the Salt Lake County Clerk’s Office in 2004 after being denied a second marriage license. A lower court rejected their claim that the denial violated their constitutional rights.
The Bronson appeal targets Utah’s constitutional ban on polygamy as well as the 1879 U.S. Supreme Court Reynolds decision prohibiting it.
Both the Bronson and Holm appeals also leverage the 2003 U.S. Supreme Court ruling in Lawrence v. Texas, which held that constitutional protections extend to private sexual conduct of consenting adults.
In light of Lawrence and other rulings, polygamy bans violate the right to free exercise of religion, privacy rights and the right to association, said Brian Barnard, a Salt Lake attorney representing the Bronson trio, in his court brief.
They also unfairly stigmatize a “distinct and specific religious practice” whose adherents must live under constant threat of prosecution.
A ruling in the Bronson appeal could come anywhere from three months to two years from now, Barnard said.
Annina Mitchell, Utah solicitor general, expects a quick decision. First, the state believes the plaintiffs don’t have the right to sue the clerk who denied them a license, because they have not tied the denial to any realistic fears of prosecution.
Second, numerous rulings have upheld Utah’s right to prohibit plural marriage, she said.
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