An anti-polygamy group believes that if voters decide to ban gay marriages in Utah's constitution this Nov. 2, they'll also be opening a "legal loophole" that could make prosecuting polygamy tougher.

However, two attorneys who have successfully prosecuted polygamy say that by clearly defining marriage as the union of "a man and a woman," Amendment 3 could make cases against polygamists easier to prove.

Vicky Prunty, executive director of Tapestry Against Polygamy, said lawmakers declined to address polygamy when they refused to change the wording to define marriage as "one man and one woman."

At the time, lawmakers said the amendment didn't need to address polygamy, which is already outlawed by the state Constitution. While gay marriage is prohibited under Utah statutes, lawmakers want to strengthen the prohibition by writing it into the constitution.

Former Juab County prosecutor David Leavitt and Monte Stewart, who together prosecuted polygamist Tom Green, said in a joint release that polygamy is actually hidden behind gay marriage, so barring one would strengthen the state's case against the other.

"Polygamists want nothing more than legal approval of gay marriages and same-sex civil unions because that will open the door to legalized polygamy," said Stewart, who is co-chairman of the Utahns for a Better Tomorrow campaign supporting the amendment.

But Prunty added that the amendment does not allow the state to give the "same or substantially equivalent legal effect" as a marriage to any other "domestic union, however denominated."

She said the fallout of the amendment's language is that polygamists will have a constitutional argument saying the state cannot recognize their "domestic unions" as marriages and, therefore, can't prosecute them.

"If a domestic union isn't going to be recognized as marriage, how can polygamist marriages be recognized for the purpose of prosecution?" Prunty said.

Prunty was referring to the state's common law marriage statute, which can be used to establish a state-recognized marriage, even if no license has been issued. That statute was used to prosecute polygamist Tom Green, who was legally married to one wife and cohabitating with others, for bigamy.

"It would be very irresponsible to pass this amendment without looking at the repercussions," Prunty said, adding, "As we shut the door and bar the door to gay marriages, in actuality, this is opening the door for polygamy."

Leavitt said the amendment would have no impact on the common law approach for prosecuting bigamy.

"Marriage is when a man and a woman engage in a ceremony and are married, or their conduct is such that the state of Utah can say they are acting like they're married," Leavitt said.

Scott McCoy, manager of the Don't Amend Alliance campaign against the amendment, said he can't guarantee that a polygamist would be successful in using the amendment to avoid prosecution, but "I can guarantee he'll try . . .

"This is yet another area of Utah law where this amendment clouds the issues and creates confusion," McCoy said. "If there are any doubts, the conservative position is to sit down and really think this through."

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