With a handful of court rulings over the past century upholding the constitutionality of Utah's ban on polygamy, those who choose to contest the prohibition face "an insurmountable hurdle," a federal judge said Wednesday.

With that, U.S. District Judge Ted Stewart dismissed a lawsuit brought last year by three Utahns — a married couple and the man's would-be second wife — challenging the state's bigamy law and seeking a court order directing the issuance of a marriage license for the man and second woman.

The trio sued Salt Lake County Clerk Sherrie Swensen in January 2004, claiming their constitutional rights to free exercise of religion, of association and to privacy were violated by the Dec. 22, 2003, denial of a marriage license.

Attorney Brian Barnard said he intends to appeal the decision — in which, he said, Stewart offers "little or no discussion or explanation" of his reasoning — to the 10th U.S. Circuit Court of Appeals.

Noting that challenges to the constitutionality of Utah's bigamy laws are "not a new question before the courts," Stewart cited rulings that have repeatedly found the prohibition on polygamy to be in line with the U.S. Constitution.

In 1878, the U.S. Supreme Court upheld the polygamy conviction of George Reynolds, personal secretary to early LDS leader Brigham Young. The Supreme Court then rejected the argument that anti-polygamy laws violate the First Amendment right to free exercise of religion, and the case has never been overturned, Stewart noted.

The Reynolds case was cited, and upheld, by the 10th U.S. Circuit Court of Appeals in 1985 and again in 2002, Stewart wrote. Last year, the Utah Supreme Court rejected a constitutional challenge to the state's bigamy statute in upholding the criminal conviction of well-known polygamist Tom Green.

The state Supreme Court is again considering the constitutionality of the bigamy law in the case of polygamist and former Hildale police officer Rodney Holm. In oral arguments earlier this month, Chief Justice Christine Durham questioned whether a recent U.S. Supreme Court ruling striking down Texas sodomy laws could point to a change in the way states are allowed to regulate private sexual relationships.

In his Wednesday order, Stewart struck down a similar argument, saying the issue goes beyond private relationships. The Supreme Court's ruling in Lawrence v. Texas, he said, cannot be read to require the state to give "formal recognition to a public relationship of a polygamous marriage."

"Contrary to plaintiffs' assertion, the laws in question here do not preclude their private sexual conduct," the order says. "They do preclude the state of Utah from recognizing the marriage . . . as a valid marriage under the laws of the state of Utah."

Arguing before the court in August, Assistant Attorney General Jerrold Jensen maintained that Lawrence v. Texas is a narrow holding that does not extend to the state's legitimate interest in regulating marriage.

"There is a major distinction between private sexual conduct and marriage," Jensen said. "That's what the law has held for years, is the state has the right to regulate marriage."

The state's interest in forbidding plural marriage is well established in previous case law, Stewart said, citing a 1985 appeals court ruling that stated: "the state of Utah . . . has established a vast and convoluted network of other laws clearly establishing its compelling state interest in and commitment to a system of domestic relations based exclusively upon the practice of monogamy as opposed to plural marriage."

Despite Stewart's finding to the contrary, Barnard said the Supreme Court's decision in Lawrence clearly applies in this case.

"The Utah statute makes criminal a married person living in a sexual relationship with a person of the opposite gender to whom he is not married," Barnard said. "Such cohabiting is the crime of polygamy. Such a choice is a private sexual decision which is protected by Lawrence v. Texas.

"When Lawrence is applied to our facts case, we hope the result will be different."


E-mail: awelling@desnews.com