Judge dismisses challenge to Utah ban on polygamy

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."