Monday, February 9, 2009

Christine Durham for President

America has gone stark raving mad! The People were asked to lend $750 billion to the banks who stole our money, so they can lend it back to us and charge us interest! This is almost as absurd as claiming that Ruth Stubbs' informal wedding was criminal because, by wearing a "white dress" for the ceremony, she was mimicking legal marriages and harming the sanctity of the holy government institution of licensed legal marriage. Perhaps we should vote Christine Durham for President, since, as evidenced by her statements below, she may be one of the few remaining sane American public servants.

Utah Supreme Court Chief Justice Christine Durham’s Remarks.
(from her dissent in the State v. Holm appeal decision [May 16th, 2006])

‘As interpreted by the majority, Utah Code section 76-7-101 defines “marriage” as acts undertaken for religious purposes that do not meet any other legal standard for marriage- -acts that are unlicensed, unsolemnized by any civil authority, acts that are indeed entirely outside the civil law, and unrecognized as marriage for any other purposes by the state- -and criminalizes those acts as “bigamy”. I believe that in doing so the statute oversteps lines protecting the free exercise of religion and the privacy of intimate, personal relationships between consenting adults.’ (p.48-49)

‘Because I do not agree that the state can constitutionally criminalize private, religiously-motivated consensual relationships between adults, I believe Holm’s conviction under section 76-7-101- -which does not rely on the fact that Holm’s partner in his alleged bigamy was a minor- -must be overturned, and I therefore respectfully dissent from Part I of the majority’s opinion.’ (p 49, paragraph 134)

‘I understand the declaration in section 30-1-2, that certain “marriages” are prohibited and void, to mean that any attempt by those described to enter into a legal union in fact results only in a purported marriage. The contrary reading suggested [by the majority] simply leads to the perplexing question - in what sense can the state legislature prohibit and declare void a relationship that does not claim any legal status?’ (p.53)

‘The majority’s interpretation will subject religious leaders to criminal sanction for performing religious ceremonies that are not intended by anyone involved to have significance beyond the community in which they occur. …. For example, a minister officiating in a commitment ceremony involving a same-sex couple may now be held in violation of section 30-1-15(2) (though perhaps only if at least one partner is wearing a white dress[ !!!! ]).’ (p.57)

‘It is apparent that the majority wishes to emphasize the importance of the private commitment between two partners [more so than the state marriage license] who pledge to each other lifelong love, companionship and support. The majority also alludes to the sanctification such a commitment receives when the partners participate in a religious ceremony in accord with their faith. Undoubtedly, a couple may feel it is their commitment before God that gives their relationship its legitimacy or permanence. However, it is beyond dispute that such private commitments alone, even when made before God, DO NOT CONSTITUTE ‘MARRIAGE” IN OUR STATE OR IN OUR LEGAL SYSTEM.’ [emphasis added] (p.57)

‘In my view, those who choose, for religious or other personal reasons, to refer to themselves as “married,” even though they know the law does not so regard them, are free to do so within their private sphere and cannot by that act alone fall subject to criminal penalties. Imposing criminal penalties on such a basis is equivalent to disciplining an individual who goes by the name of “Doctor W,” but who is not, in fact, a licensed physician, for violation of state licensing requirements, even though he has never professed to be a legally licensed doctor or to have the medical expertise which that status is designed to ensure.’ (p.58)

‘It is not inconceivable that the drafters [of Utah’s constitution], while conceding that polygamous unions could never receive legal recognition, believed that private polygamous practice, including cohabitation with former “wives” and their children, might continue.’ (p. 63, paragraph 153)

‘I conclude that imposing criminal penalties on Holm’s religiously motivated entry into a religious union with Ruth Stubbs is an unconstitutional burden under our constitution’s religious freedom protections.’ (p.69, paragraph 166)

‘While some in society may feel that the institution of marriage is diminished when individuals consciously choose to avoid it, it is generally understood that the state is not entitled to criminally punish its citizens for making such a choice, even if they do so with multiple partners or with partners of the same sex.” (p.75 paragraph 172)

‘I similarly conclude here that an individual is free to appropriate the terminology of marriage, a revered social and legal institution, for his own religious purposes if he does not thereby purport to have actually acquired the legal status of marriage.’ (p.75 paragraph 173)

‘The State has provided no evidence of a causal relationship or even a strong correlation between the practice of polygamy, whether religiously motivated or not, and the offenses of “incest, sexual assault, statutory rape, and failure to pay child support.”’(p.77 paragraph 175)

‘…one scholar has concluded that “criminalization of polygamy is largely a symbolic tool that seems unlikely to either provide substantial protection to victimized adult and teenage women or to enhance state oversight and regulation of fundamentalist communities.”’ (Footnote #28, p.77)

‘The State of Utah has criminal laws punishing incest, rape, unlawful sexual conduct with a minor, and domestic and child abuse. Any restrictions these laws place on the practice of religious polygamy are almost certainly justified. However, the broad criminalization of the religious practice itself as a means of attacking other criminal behavior is not.’ (p.79 paragraph 176)

‘…I could not uphold Holm’s bigamy conviction on the basis that the religiously motivated conduct at issue is inherently harmful to children who grow up in polygamous homes, and are thereby exposed to the “culture” of polygamy. Our previous rulings and legislative policy support this conclusion. For example, this court has previously held that those engaged in the practice of polygamy are not automatically disqualified from petitioning for adoption of a child.’ (p.80 paragraph 177)

‘…The majority concludes that the private consensual behavior of two individuals who did not claim legal recognition of their relationship somehow constitutes an abuse of the institution of marriage, thus rendering Lawrence inapplicable.’ (p.81 paragraph 180) ‘…I do not believe that the conduct at issue threatens the institution of marriage, and I therefore cannot agree that it constitutes an “abuse” of that institution. The majority fails to offer a persuasive justification for its view to the contrary.’ (p.81 paragraph 181)

‘I agree with the majority that marriage, when understood as a legal union, qualifies as “an institution the law protects.” … However, the Court’s statement in Lawrence that a state may interfere when such an institution is “abuse[d],” … together with its holding that the sodomy statute was unconstitutional, leads me to infer that, in the Court’s view, sexual acts between consenting adults and the private personal relationships within which these acts occur, do not “abuse” the institution of marriage simply because they take place outside its confines.”’ (p.82 paragraph 183)

‘In my opinion, these holdings correctly recognize that individuals in today’s society may make varied choices regarding the organization of their family and personal relationships without fearing criminal punishment.” (p.82 paragraph 183)

‘The majority does not adequately explain how the institution of marriage is abused or state support for monogamy threatened simply by an individual’s choice to participate in a religious ritual with more than one person outside the confines of legal marriage. Rather than offering such an explanation, the majority merely proclaims that “the public nature of polygamists’ attempts to extralegally redefine the acceptable parameters of a fundamental social institution like marriage is plain.” … It is far from plain to me.’ (p.83 paragraph 184)

‘I am concerned that the majority’s reasoning may give the impression that the state is free to criminalize any and all forms of personal relationships that occur outside the legal union of marriage. While under Lawrence laws criminalizing isolated acts of sodomy are void, the majority seems to suggest that the relationships within which these acts occur may still receive criminal sanction. Following such logic, nonmarital cohabitation might also be considered to fall outside the scope of federal constitutional protection. Indeed, the act of living alone and unmarried could as easily be viewed as threatening social norms.’ (p.83 paragraph 185)

‘…this individual liberty guarantee essentially draws a line around an individual’s home and family and prevents governmental interference with what happens inside, as long as it does not involve injury or coercion or some other form of harm to individuals or to society.’ (p.83 paragraph 186)

‘The Court determined [in Lawrence] that when “adults…with full and mutual consent from each other” enter into particular personal relationships with no threat of injury or coercion, a state may not criminalize the relationships themselves or the consensual intimate conduct that occurs within them.’ (p.84 paragraph 186)

‘In my view, Holm was not properly subject to prosecution under the “purports to marry” prong of section 76-7-101 because he never claimed to have entered a legally valid marriage. Moreover, I would hold Holm’s conviction under the “cohabits” prong of section 76-7-101 invalid under the religious freedom provisions of the Utah Constitution. In addition, I believe the majority has erred in suggesting that the Supreme Court’s decision in Lawrence v. Texas … does not recognize private relationships between consenting adults as entitled to protection under the Fourteenth Amendment’s Due Process Clause.’ (p.85 paragraph 188)


www.utcourts.gov/opinions/supopin/Holm051606.pdf

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