Justices with the Utah Supreme Court questioned Thursday whether state prosecutors should use Utah's bigamy statute to go after polygamists a key law used to go after those who practice the controversial way of life.
Justices have also called into question whether the passage in Utah's constitution banning polygamy, should be revisited, given modern changes in attitudes toward various kinds of sexual relationships.
In a lengthy hearing, the attorney for former Hildale police officer Rodney Holm, who was prosecuted for taking his 16-year-old sister-in-law as his third "spiritual" wife, argued before the state's high court that prosecutors are selectively targeting polygamists using the bigamy statute because of their religious beliefs.
"Non-religious actors are not targeted by law enforcement by this law," said attorney Rodney Parker, pointing to the various residents who live in non-married relationships. "Holm is not seeking legal recognition of his relationship or change the institution of marriage."
Parker said Holm, who is a member of the Fundamentalist Church of Jesus Christ of Latter-day Saints a polygamist group lead by Warren Jeffs believes it is his constitutional right to practice his religion, which includes plural marriage.
The 32-year-old officer took his 16-year-old sister-in-law, Ruth Stubbs, as his third wife in December 1998. Holm was eventually convicted in 2003 on two counts of unlawful sexual intercourse with a minor and one count of bigamy.
Assistant Attorney General Laura Dupaix argued it was clear, in the Utah Supreme Court's own ruling in the appeal of polygamist Tom Green, that those who try to establish a "marital" relationship with more than one person run afoul of Utah's bigamy statute.
However, justices said the biggest difference between Green and Holm was that Green was found to have been legally married to two women at the same time. In Holm's case, he never sought a legal marriage with Stubbs, although he was legally married to his first wife, justices noted.
Prosecutors have used Utah's bigamy statute to prosecute those who practice plural marriage. Utah's bigamy law uses cohabitation, or living together as husband and wife, as a standard for prosecution. Three other states, Rhode Island, Colorado and Texas, have similar laws.
However, Chief Justice Christine Durham said simply living together does not constitute a crime. Durham also cited the recent U.S. Supreme Court ruling, Lawrence vs. Texas, which struck down the state's sodomy laws, as evidence that the state cannot regulate private sexual relationships.
Dupaix countered that the U.S. Supreme Court ruling dealt with sexual contact between two consenting adults, and not minors as with Holm.
Justice Matthew Durrant questioned what the difference is between Holm's relationships and college roommates who live in a non-sexual way.
Dupaix said bigamy is about prohibiting "multiple marital relationships." However, Durham said she believed the bigamy statute was meant to prevent fraud in which one married person pursues another marriage without the spouse's knowledge.
Durham said times have changed since the 19th century. Now the U.S. Supreme Court has recognized the right for adults to pursue various relationships without prosecution. "We're in a different place in the 21st century," Durham said, where the mores of sexual relationships have changed.
The passage of Amendment 3 last year has also thrown in a twist. "If the constitution defines marriage as one man and one woman, then one man and three women is then not marriage," Justice Michael Wilkins said.
This distinction could render the bigamy law useless unless a person seeks more than one legal marriage through the state, leaving prosecutors apparently unable to prosecute polygamists for their lifestyle.
Outside court, Utah Attorney General Mark Shurtleff was asked what he and prosecutors will do if the court strikes down Utah's bigamy law. Shurtleff said he would accept the court's decision but continue to prosecute those in polygamy who abuse women and children.
"It's not about religion. It's about protecting women and children and crime in those sects," Shurtleff said.
Justices also called into question a passage in Utah's constitution banning polygamy. The passage reads: "No inhabitant of this State shall ever be molested in person or property on account of his or her mode of religious worship; but polygamous or plural marriages are forever prohibited."
Wilkins said from a religious freedom argument, Utah's ban on polygamy appears questionable.
"What if it banned Buddhist ceremonies?" Wilkins theorized.
Parker said the case for his client is about religious freedom, not simple belief but the right to practice.
"Sitting around and talking about it is not enough," Parker said.
Dupaix said the court should not lose sight that this case was about a man who was already married to one woman who brought in her 16-year-old sister to take as a bride.
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