Tuesday, May 16, 2006

Polygamous or plural marriages are forever prohibited

State v. Holm, 2006 UT 31

The Utah Supreme Court affirmed Rodney Holm's convictions for bigamy and unlawful sexual activity with a minor. The opinion is eighty-five pages with a dissent from Durham and a concurrence, responding to Durham's dissent, from Nehring. Durrant wrote with Wilkins and Parrish joining.

In brief, the majority held the following:

(1) The term marry in the phrase "purports to marry another" in the bigamy statute is not limited to State sanctioned marriages:

The crux of marriage in our society, perhaps especially a religious marriage, is not so much the license as the solemnization, viewed in its broadest terms as the steps, whether ritualistic or not, by which two individuals commit themselves to undertake a marital relationship . . . The fact that the State of Utah was not invited to register or record [Holm's marriage] does not change the reality that Holm and Stubbs formed a marital bond and commenced a marital relationship.
(2) Bigamy in any form is not protected by the Utah Constitution. The irrevocable ordinance, Art. 3 section 1, specifically prohibits the practice of plural marriage. The only plausible interpretation of that article that is consistent with the history of the Utah Constitution is that the framers intended to prohibit not just state sanctioned plural marriage, but plural marriage in practice.

(3) Utah's bigamy law does not violate the free exercise clause of the United States Constitution. Reynolds v. United States, 98 U.S. 145 (1879), which upheld a criminal polygamy prosecution in Utah against a free exercise claim, is still good law. The U.S. Supreme Court has never overturned it and has, in fact, cited it with approval in several modern free exercise cases.

(4) There is no fundamental liberty interest under Lawrence v. Texas, 539 U.S. 558 (2003), to engage in the type of polygamy involved in this case. Lawrence is limited to "private and intimate acts engaged in by consenting adult gay s and lesbians." Polygamy, on the other hand, "implicates the public institution of marriage."

(5) The bigamy statute does discriminate against religion in violation of the Equal Protection Clause. The court reaffirmed its holding in State v. Green that the bigamy statute is both facially neutral as to religion and has no discriminatory intent towards religion. The court pointed out, interestingly, that in 1988 an equal protection challenge was unsuccessfully brought against the bigamy statute on the ground that it was only used to prosecute non-religious polygamists.

(6) The bigamy statute does not infringe on Holm's right to association because (a) there is no fundamental right to engage in polygamous behavior, and (b) living a polygamous lifestyle is not necessary to associate with those who espouse polygamy.

(7) The bigamy statute is not unconstitutionally vague. "[W]e are at a loss to comprehend how Holm can plausibly argue that he did not purport to marry Stubbs when he participated in a marriage ceremony with her an subsequently engaged in a relationship that mirrored that of a traditional marriage."

(8) Testimony regarding the "social history and health of polygamous communities" was not relevant to the question of whether Holm committed bigamy.

(9)The trial court had jurisdiction over the charge of unlawful sexual conduct with a minor. The court clarified that this issue is properly raised only after the bindover and is a question of law for the trial court to decide, not a question of fact for the jury.

(10) The unlawful sexual conduct with a minor statute does not, by incorporating an exception for married couples, violate the Equal Protection Clause. The court determined that the State has a sufficient interest in regulating sex with minors to distinguish sex with a minor and sex with a minor spouse. "While the State's power to interfere with the private relationships of consenting adults is limited, it is well established that the same is not true where one of the individuals involved in the relationship is a minor."


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