Deseret News, Aug. 20, 2002
By Geoffrey Fattah
In his 30 years as an attorney, John Bucher said, the appeal in the bigamy conviction of polygamist Tom Green will be his largest and most ambitious case.
The Utah Court of Appeals has set Sept. 18 as the filing deadline for an appeal and any other briefs in the case, which is expected to open a rare legal debate on where the practice of plural marriage stands, legally, in Utah.
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Many legal eyes are watching. Several civil liberties groups say they are poised to join the legal fight in tying a knot in the barrel of Utah’s weapon of choice against polygamy: its bigamy statute.
It was a unique pairing of Utah’s bigamy and common law marriage statutes which led to the conviction of Green in May of last year. Juab County Attorney David Leavitt convinced a jury in Provo that Green’s cohabitation with five women constituted a common-law marriage. After a 4th District Judge ruled earlier that Green was still legally married to head wife Linda Kunz-Green, Leavitt argued that because Green was legally married to one woman, and cohabitating in a common law marriage with four other women, he was in violation of Utah’s bigamy statute.
It was the first time in more than 50 years that a polygamist was sent to prison for his practice. Green is currently serving a five-year sentence at the state prison. Other polygamous groups say the writing is on the wall.
“This case is bigger than Tom Green. It’s always been bigger than Tom Green,” Bucher said. At issue is where the state draws its line when it comes to freedom of religion.
Since 1878, the U.S. Supreme Court has used Reynolds vs. United States as its standard for deciding cases involving religious practice. The nation’s highest court has essentially said that although citizens have a right to believe what they want, freedom of religion does not extend necessarily to actual practices.
“Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices,” the high court stated in its 1878 ruling.
That standard allowed Utah to ban the practice of polygamy in its state Constitution.
Bucher said he plans to challenge the Reynolds standard, and he knows it won’t be easy.
Brian Barnard, attorney for the Utah Civil Rights and Liberties Foundation, said his group plans to intervene, albeit reluctantly given Green’s practice of marrying young, sometimes underage, brides. “This case is an opportunity for the appellate court in Utah to take a look at the issue of polygamy and determine if that is protected,” Barnard said. “Part of the problem with Tom Green’s case is that the issue we’re interested in, the practice of polygamy for religious purposes, is clouded by the ages of the wives.”
Green was recently found guilty on one count of child rape for fathering a child with Kunz-Green when she was 13. Green faces up to life in prison when he is sentenced Aug. 27.
Gnade said the ACLU is also weighing Green’s penchant for young brides before it gets involved.
A third group, the Coalition for Religious Freedom and Tolerance, is also poised to file as a friend of the court.
Bucher said he realizes that Green’s past actions may not be popular, but the case itself still raises some valid legal challenges. Because he plans to take up some 23 separate legal claims in his appeals brief, Bucher said he plans to seek a filing extension with the court of appeals before Sept. 18.