If it looks like a marriage and sounds like a marriage, then the polygamous marriage of former Hildale police officer Rodney Holm to his then-16-year-old bride did indeed run afoul of Utah's bigamy statute.
That was the opinion of the majority of justices of the Utah Supreme Court in a politically charged ruling released Tuesday. In a 4-to-1 decision, the justices ruled Utah's use of its bigamy statute to go after polygamists is not unconstitutional and upheld Holm's conviction on two felony counts of unlawful sexual conduct and one count of bigamy.
Holm was "obviously disappointed" but did not say much else about the ruling to his lawyer, Rod Parker.
"He was pretty quiet about it," Parker said Tuesday. "You could tell in talking to him, his demeanor, that he found it very disappointing."
Parker said he did not know if he would appeal the ruling. He has 90 days to decide.
Not every justice agreed with the ruling. In a dissenting opinion, Chief Justice Christine Durham said she felt the ruling would leave open the ability of the state to tread into the religious practices and personal relationships of its citizens.
In dispute is the definition of marriage. Writing the majority opinion, Justice Matthew Durrant said that when Holm took 16-year-old Ruth Stubbs as his third plural wife, their ceremony was akin to a marriage.
Stubbs wore a white wedding dress, vows were exchanged and, as Stubbs later testified at trial, the then "spiritual" bride answered "I do" as her vows.
"At the ceremony, Stubbs wore a white dress, which she considered a wedding dress," Durrant wrote. "In short, the ceremony in which Holm and Stubbs participated appeared, in every material respect, indistinguishable from a marriage ceremony to which this state grants legal recognition on a daily basis."
The fact that the two lived together and had regular sexual relations adds to this assertion, the justices said. According to the bigamy statute, people have violated the law when they "purport to marry" or cohabit with another while married to another person.
In a move that proved contentious with Durham, Durrant declared that the Utah Legislature deemed the definition of the word "marriage" to include those ceremonies not sanctioned by the state but for the narrow purpose of prosecution.
"It is clear that the Legislature intended 'marry' to be construed to include marriages that are not state-sanctioned," Durrant wrote. "The Legislature has acknowledged that the attainment of a marriage license from the state is not determinative of whether a marriage exists."
Holm had maintained that he never sought a legal marriage with Stubbs, knowing it would violate state law. But the justices concluded that Holm had "purported to be married" to Stubbs by the nature of their wedding ceremony and their relationship.
Durham countered that such an interpretation creates two different definitions of marriage under Utah law. She noted the Utah Legislature's intent under Amendment 3, which states, "Marriage consists only of the legal union between a man and a woman."
Durham also objected to allowing the criminalization of those who undertake unions outside of the law. "I believe that in doing so the (bigamy) statute oversteps lines protecting the free exercise of religion and the privacy of intimate, personal relationships between consenting adults," she wrote.
In an opinion supporting the majority, Justice Ronald Nehring countered that Utah's Constitution specifically bans polygamy and that the dissenting opinion overlooked historic events that led to that ban.
Nehring also noted the politically perilous task of crafting an opinion in this case. "I also suspect that I have not been alone in speculating what the consequences might be were the highest court in the state of Utah to be the first in the nation to proclaim that polygamy enjoys constitutional protection," Nehring wrote. But he added, "I do not intend to suggest that the majority opinion in any way was shaped by the fears of a public backlash against sanctioning polygamy."
Assistant Utah Attorney General Laura DuPaix said the ruling has preserved an important tool for prosecutors. She stressed that the Attorney General's Office was going to continue to focus on polygamist marriages involving minors.
"This lays to rest once and for all many of the legal claims polygamists raise," DuPaix said. Those include Holm's claims that his relationships were protected under religious freedom and that he was not legally married to Stubbs.
"This was a marriage in every sense of the word," DuPaix said. "It walked like a marriage, it talked like a marriage, it sounded like a marriage. There was a wedding dress and there was a wedding ceremony, presided by Warren Jeffs."
The ruling comes at a time when Jeffs, leader of the Fundamentalist LDS Church, is a fugitive and on the FBI's Ten Most Wanted list. He is charged in Utah and Arizona with arranging polygamous marriages between teenage girls and older men. Holm is a member of the FLDS Church.
Parker, Holm's lawyer, said the ruling makes outcasts of thousands of polygamists living in Utah.
"Those people, I think, deserve to be treated as full members of society," he said. "By not doing that, we create great social problems."
DuPaix said people shouldn't worry about being prosecuted for cohabitation if they are not married. She also said prosecutors are not going after polygamist marriages between two adults, mainly because prosecuting such cases is difficult and resource intensive. However, the Attorney General's Office will continue to pursue marriages involving minors.
"We are concerned about older men marrying younger girls and taking them as younger wives," DuPaix said. "Quite frankly, we believe that's child abuse."
Both sides of the polygamy debate reacted quickly to Tuesday's decision. Utah's leading anti-polygamy group, Tapestry Against Polygamy, said it was "elated" by the court's decision. However, the group's Vicki Prunty said people need to be more educated about the abuses within plural marriage.
"Especially here in the state of Utah, you'd think it would be more of a black and white issue, but it really isn't," she said Tuesday. "We do not want the door opened to decriminalization."
Mary Batchelor, of the pro-polygamy group Principle Voices, said she was "disappointed but not surprised" by the court's decision. She also pledged to continue "education" about polygamy and its positive side.
"We need to change the understanding that people have about our families," she said. "This is the way the court works. Generally an antagonistic opinion comes down first and then later it's overturned."Comment on this story
Batchelor said the troubles facing the FLDS Church have made polygamy the focus of much negative attention.
"Especially with the events of Warren Jeffs, this was completely expected," she said.
In their ruling, Utah's high court justices said that the issues surrounding polygamy will continue in the state."No matter how widely known the natural wonders of Utah may become, no matter the extent that our citizens earn acclaim for their achievements, in the public mind, Utah will forever be shackled to the practice of polygamy," Nehring wrote.