To Appeal Or Not To Appeal

Utah Governor Gary Herbert

I'm not a lawyer, though I play one in my dreams.  I'm also not a politician, so I won't be going to hell.  Nevertheless, I want to look more closely at the question of whether the future Attorney General of the pretty, great state of Utah should or will appeal the decision in Brown v. Buhman which decriminalizes my polygamous brethren in Utah.

First, an appeal would require a good attorney.  When Laura DuPaix defended the state in the Holm case, she blubberingly argued with Chief Justice Christine Durham that Rodney Holm was in fact married to Ruth Stubbs, even though there was no legal marriage in place between them.  If the state cannot find anyone smarter than her or Jerrold Jensen to plead before the 10th Circuit, it should quit while it is behind.

Secondly, an appeal would, in this case, be a bizarre legal anomaly, because the gist of it would be as follows:

 "Dear 10th Circuit justices, Judge Clark Waddoups recently decriminalized polygamy in Utah.  Utah vehemently disagrees with the ruling and wants the polyga-bigamy statute reaffirmed.  These evil, criminal polygamist outlaws must not be permitted in our State.  We have said before that we have ABSOLUTELY no intention of EVER prosecuting any of them, we just desperately want you to restore the law so that we can go back to calling them criminals and so that we can feel better." 

Thirdly, Waddoups spent many pages of his published Brown ruling demonstrating how racist and reprehensible the Reynolds decision was.  For the 10th Circuit to reverse him in Brown, it will have to come out in full support of Reynolds, an opinion which should have died 100 years ago along with Davis v. Beason (1890) ( - denied Mormons' voting rights) and Late Corp. (also 1890) - in which the court said: 

"The organization of a community for the spread and practice of polygamy is, in a measure, a return to barbarism. It is contrary to the spirit of Christianity, and of the civilization which Christianity has produced in the western world."  [to hell with Church/State separation! {R.O.}]

Those two odious rulings faded into ignominy without ever needing to be overturned.

Fourthly, the new AG may perhaps not win on appeal.  Yesterday's evisceration of Utah's bigamy/polgamy ban, applies ONLY to Utah.  If a 10th Circuit appeal were to fail, then the decision would reach at least many of the other western states that have also somewhat half-heartedly prohibited polygamy. A subsequent appeal to the U.S. Supreme Court could result in the voiding of Reynolds nationwide and the end of all anti-polygamy laws.  I wonder if the LDS Church(/Gary Herbert) really wants to take such a risk.

Fifthly, if a 10th Circuit appeal resulted in the reversal of Waddoups, Utah would find itself in the same asinine situation in which the province of British Columbia, Canada, now finds itself.  Chief Justice Robert Bauman issued hundreds of pages of contortions in his ruling that polygamy must continue to be criminalized in Canada - the main argument of which was that polygamy is "inherently" harmful - - it hurts Canadians - just like knives and automobiles do.  I semi-sincerely expected the RCMP to raid Winston Blackmore's and Jimmy Oler's homes the next day and incarcerate them.  On the contrary, the reaffirmation of the law (SB-293) has not resulted in any indictments - so the the whole thing was a joke.  I'm sure that B.C. realizes that if it goes after a polygamist, the whole appeal process will likely start all over again.  

If Utah won a reversal of Brown on appeal, it would face the same absurd dilemma.  If it were to flex the claws of the reaffirmed statute (and its anti-cohabitation prong), it would be obligated to go straightway over to Joe Darger's house in Herriman and arrest Joe, Alina, Vicki and Valerie Darger (not to mention the Brown tribe in Las Vegas).  After all, Joe has confessed numerous times to felony bigamy on television and in his book, Love Times Three.

There is the $39,000 question - would Utah still doggedly refrain from prosecuting polygamists, or would it start a new round of convictions, imprisoning ten thousand religious cohabiters?  How would that go over with the liberal public?  Is there enough prison space?  Are there enough foster families?  Or would Javert lose his bloodlust and jump off a bridge into the Seine?

If I were Jonathan Turley, I would be champing at the bit to go to Denver and take a second whack at Utah's corrupt Attorneys General before the 10th Circuit.

Again, this is an exquisite dilemma for the governor, the Church, and the next A.G.  I trust they will approach it with a minimum of wisdom, compassion and inspiration.

They Punted

Okay, I'm not a lawyer, although I play one in my house.  It's time for me to weigh in on the urination contest between Utah's very Supreme Court and Federal Judge Dee Benson.

The Utah Supremes are miffed because, after they elected to ignore the merits of the FLDS church's claim against the State for reforming its trust, Judge Benson addressed the merits head-on and found egregious Constitutional violations (primarily from Diseased Lintbag).  The Supremes hinged their decision (to effectively "punt" the matter) on a legal doctrine known as "Laches".  The idea of Laches is that, if you feel you have been wronged, you have a duty to make any valid protests within a reasonable time period (or else too much water will flow under the bridge, and people will have moved on with their lives and placed faith in the new status quo).  This is not necessarily a bad principle but, the way Judge Benson looked at it, if what the State (and Limprag) did was a Constitutional violation ab initio, then irrespective of the (late) timing of the complaint, the trust beneficiaries had been being abused from the very start, and on a continual, ongoing basis.

If I am comfortable with Benson's argument for any reason, it is at least because Brute Wisass conducted a spiteful, selfish, disdainful campaign of disregard against the FLDS leadership and membership from day one.  It might well be argued that, if Warren Jeffs was telling the folks to "Answer them nothing!", they were risking having everything taken from them by the Fooles and the Hischers.  Judge Benson sagely noted that, if that was what the beneficiaries really wanted, it was NOBODY's business to charge in and compel them to do otherwise.  Attorney Rod Parker suggested that the period of inaction was framed as a "test of faith" for the membership.  Let's not also forget that, whenever an FLDS member showed his or her face in a Utah courtroom, he or she was immediately slapped with a subpoena to cough up the whereabouts of Warren Jeffs or else face detention in Arizona's Florence dungeon till the start of the next millennium.  The persecution of the people became intolerable.

So what are the key principles in this situation?

1.  The Fooles and the Hischers had conflicts of interest in the trust reformation in that they were suing the trust for gain and then colluded in the rewriting of the UEP trust language.

2.   Jugg Desleaze Lintrag showed extraordinary prejudice at every turn and should have been removed from the start.

3.  Brutal Wisass was a disgrace to the LDS Church and to the accounting profession in that he waged a personal and self-serving war against a generally innocent community.

4.  The Utah Supreme Court waxed spineless (as it did in State v. Holm) and did not want to get to "the merits", so it punted the case, finding comfort in the convenience of the "Laches" excuse.

5.  Judge Benson watched the case from a distance and agreed (in 2008[?]) to get involved in the event that the Utah Supreme Court failed to take appropriate action.  The Supremes punted the case, so Benson thought long and hard about the merits and his own eligibility to decide the matter.  He concluded that he does have jurisdiction, that the reformation of the trust was fraudulent at the start, and that, since the Supremes had punted the matter of the merits, he must step in and remedy the error.

The Supremes are irritated because Benson disagreed with the Laches excuse and insisted that a State can never invade a private trust and alter it at will in violation of its original intents.  The Supremes are now toying with motions from both sides regarding whether they can or should disregard the federal court's ruling (plus there are two other FLDS matters still pending in their court).

The hardest part of this is that this is relatively uncharted legal territory.  The last (and perhaps only) instance of such an egregious trust invasion was the one perpetrated against the LDS Church in the 1880's.  Either way, the entire siege was disingenuous, deceitful, collusive, and criminal from the beginning.  It was reminiscent of Missouri Governor Boggs' extermination (of Mormons) order - - public officials twisting the legal process in an effort to achieve devious political ends.  Such gross official license and creativity has no place in honorable government.  Even the LDS Church must be having second thoughts about the wisdom of confiscating church trusts for mere gits and shiggles.

I think that despite Justice Christine Durham's sincere desire to hear reasonable new pleadings from both sides, it is (ironically) too little - too late.  They had their chance to explore the merits before, and they punted. Now, everybody involved can see the writing on the wall. This is another tar baby.  Whisetrash is about to be convicted of felony trespass.  Snortlips doesn't need any more public embarrassments.  The 10th Circuit is bound to stand behind Benson, and, if Spent Bunshaker is onto something more than a rumor (for the first time in his weasely career), there could well be a season of healing and renaissance in the community. In large part, Fundamentalist Mormons are extraordinarily loyal and committed people.  Public officials prefer the "divide and conquer" program, since they fear that united we will be strong.  It's one thing to boast of having tackled the "polygamy problem", but entirely another to trample on the property and free agency of an entire culture.  It backfired in 1953 and 2008, and backfire it will again.

VINDICATION !!!!

IN THE SUPREME COURT OF THE STATE OF UTAH

CONCLUSION
"¶53 Because we hold that the trial court’s instructions to the jury regarding lack of consent were in error, we reverse Jeffs’ two convictions of rape as an accomplice and remand for a new trial."

Wow !!! Yours truly could not possibly be happier today. I always said that I wished that I could have been on the Warren Jeffs jury, because I would have hung that jury faster than you can say NOT GUILTY. Frankly, I cannot figure out why intelligent, upstanding American jurors like those in Warren's case did not also see the absurdity of the charges. Could it be that people can be swayed by religious prejudice and bigotry?

This morning, the Utah State Supreme Court ruled (unanimously) that Warren Jeffs' conviction as an "accomplice to rape" was BOGUS (in particular because of erroneous jury instructions).

If I am enjoying satisfaction over this, it is because I know that the people who pursued Warren Jeffs did not have clean hands. They had hatred and malice and hubris. They wanted his blood, and they would stop at nothing to inflict harm on him, even though they knew that they were guilty of lying and cheating and distorting. They stretched the statute of limitations; they fabricated evidence; they committed perjury on the witness stand.

I believe our Republic is dead. Just look at ObamaCare and Cap and Trade! Our government is entirely corrupt and headed for the dung-heap of history. However, those conspirators who lusted for Warren's blood will reap the sorrow and despondency that they sowed. Today, they will have some wind knocked out of them, because Utah's justices faced up to the fact that you can't charge someone as an accomplice to rape for performing a void ceremony where the intent to rape was absent.

I rejoice with those members of Warren's family who must now finally be seeing some light at the end of the tunnel. I laugh loudly at the prospect of a re-trial, since JEFFS-TRIAL II would be a bigger circus than the first. Does Utah's Attorney General seriously want to risk his precious reputation by getting that pack of lying jackals back on the stand to perjure and fabricate, when everyone knows they are frauds? I think not.

I think back to August of 2006, when the hysteria was peaking. Warren was on America's Top Ten Most Wanted list with Charles Manson, Theodore Bundy, Saddam Hussein, Timothy McVeigh, Obama Bin Laden, Adolf Hitler and the Unabomber. All that fuss!!! Do you think polygamy had anything to do with it?

Warren's jailers have scorned him not a little for fasting and praying for justice and vindication. Arizona has dropped its charges. He is free of Utah's charges. Now, all that is left is for Texas to charge him with having sex with a girl with whom he could not possibly have had sex.

Maybe Texas, Utah and Arizona should arrest him again and charge him with felony unpopularity or something similarly creative and fantasmagorical. I can't count on a momentum shift, but I sure wouldn't mind if the Court were soon to stick it to Lintbag and Wisass, too.

Bill Medvecky makes some good points

I was reading the FREE THE FLDS CHILDREN website today and found the following post from Bill Medvecky. There are also several intelligent comments below his post.

http://www.flds.ws/2010/02/17/when-is-a-co-operative-not-a-co-operative/

I have noticed that the Utah Supreme Court has a handful of FLDS cases in its lap, and much of Christendom waits with bated breath (or is it baited hook ???) for the decisions.

I know it's cheap, but I am tickled to watch what this august panel will do. I read with great gusto the language of the majority in the Rodney Holm (State v. Holm) case. One of the justices (I can't remember if it was Wilkins or Nehring) launched into a bizarre diatribe about how he would never want to be seen to be worrying about public backlash, but he didn't dare be the first judge to legitimize fundamentalist Mormon polygamy when so many people cringe and shudder at the practice.

In my experience (and I don't know which ones of the Justices are card-carrying LDS) the anti-polygamy sentiment in the mother Church is institutional and hard-coded in the DNA. The message to Latter-day Saints, whether overt or subliminal, is - "We hate polygamy/ists so deeply, that, if you get a chance to do some harm to one of them - get him or her fired, get them out of the neighborhood, avoid associating with them, etc., - then do it, and all will be well with you at the last day."

So, back to the Utah supremes - how should they rule? In the Warren Jeffs "rape-as-an-accomplice" appeal, Wally Bugden made enough brilliant arguments (about the absurdity of the conviction), that any self-respecting Constitutionalist would acquit Warren. However, there is the sticky part. If you vote for Jeffs, you are voting against Monson, irrespective of the Constitution and good legal principles.

In the question of whether District Court Judge Disease Lintbag did the right thing when she corrupted the 1998 UEP trust intents and installed Bruise (LDS) Weaselin to plunder the trust and besiege the beneficiaries, - again, it is sticky. Some would say that the beneficiaries are foreclosed from protesting because they did not do it soon enough. That is kind of like a passport for Shurtless and Weasan to trample on the FLDS ad libitum/ad infinitum. When the A.G. alleges abuse on the part of the UEP trustee, he can do whatever and whenever. When the FLDS people point out the hubris and barbarism of the "S.O.B." Fiduciary, they are told they are out of time and out of luck.

The third of these cases to be adjudicated involves whether an attorney for the earlier incarnation of the UEP trust may maintain his attorney/client confidentiality privilege in the face of Weaselin's demand to invade it after it has been reworked beyond recognition.

How the majority will rule and write may hinge on their fealty to the Mother-Ship or on their allegiance to to the God-given principles of the Constitution, but the beautiful thing is that they have to SAY SOMETHING. They have to come up with some kind of rationale (however contorted) to explain why they are ruling against the FLDS (if they do). They cannot simply parrot the words of Justice Morrison Waite, who wrote that "Polygamy has always been odious among the northern and western nations of Europe . . " http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/reynoldsvus.html

Sincerely, I wish that these decisions were not so fraught with political and ecclesiastical implications, but I do pray that common sense will prevail (as it clearly did in Justice Durham's stinging rebuke of the majority in Holm) - - GO CHRISTINE !!!!!, (and GO Mike Z. !!!). Plus, I pray that, despite the individual failings and imperfections of FLDS members, the people and courts of the state of Utah will realize that bullying defenseless citizens will not accelerate their journey towards glory in this life or the next.

Supreme Questions

A friend of mine attended the Utah Supreme Court appeal hearing yesterday regarding Warren Jeffs' rape-as-an-accomplice conviction. Apparently, Wally Bugden made some compelling arguments against the legitimacy of the charges and convictions. Before I elucidate, I want to make a comment about our sense of justice in America.

I don't really like Shaquille O'Neal. I don't know him at all, although I saw him in a bad movie once. Truth is - I dislike him because he never played for my favorite team. I think that a lot of Americans can build up a similar, simmering hatred for people on the opposing team, or for people who are different. I think that we Americans like to be polarized, and to see things as black-or-white. There is no gray. It is this social phenomenon that makes it easier for us to throw our consciences out of the window and let the end justify the means. We violate our own principles due to our desperate need for victory. It is the necessary drawback of the Jeffersonian polemic model.

Tom Green's unlawful-sex-with-a-minor trial was a media circus. His "wife", Linda (of 17 years), had borne him seven children, and is presumably happily still with him to this day. The complexity of Tom's case was that Linda was "married" to him and impregnated with her first child when she was 13 1/2 years old. Now, back then (circa 1986), marriage in several states was perfectly tolerated at 13, so the question of propriety depends on how you view things and on local history and traditions.

The prosecutors (David Leavitt and Monte Stewart) faced the challenge that so many years had passed since the time of the alleged offense that the statute of limitations had already run. In 1986, the statute was 'eight years from the date of the offense'. At the time of the trial the statute had already been changed to 'four years from the date the offense was reported to law enforcement'. Neither provision could catch Tom, but, since the prosecution was hell-bent on a conviction, it brought in a string of witnesses to testify that they "didn't report the crime" (so that Tom couldn't claim that the statute of limitations clock had already started to run in 1986). The judge cooperated, and, through an amazingly creative contortion of the statutes, Tom was convicted and incarcerated. Today, he his back with his family, even perhaps continuing to do some of the things that got him arrested in the first place. So why won't the prosecutors arrest him again? You already know the answer - POLITICS.

So Wally Bugden argued yesterday that Warren Jeffs was charged with the wrong crime. Instead of arresting him for solemnizing the (void) marriage of a minor to a young man, they arrested him for aiding and abetting a rapist and for abusing his special position of trust as a minister. Bugden made the interesting point that the prosecution had completely omitted at trial to introduce any evidence that Jeffs had coaxed Allen Steed to have non-consensual sex with Elissa Wall. He only encouraged the alleged "victim" to follow through consensually with her marital duties. Based on this, Jeffs cannot be charged either as the rape's actor or as the aider and abettor. Further, Bugden argued that, since no rape conviction was achieved for Steed, the presumed 'rapist', it is absurd to convict Jeffs for having been an accomplice to a rape that has not legally been shown to have occurred.

Now, if it is true that Elissa was coerced against her will at the tender age of fourteen into a monogamous (and non-legal) "marriage" with a young man she did not love, then that is sad. Whoever did the coercing should acknowledge his or her error and make amends. This is one of the many accusations leveled at Warren Jeffs. Bugden apparently also asked if Elissa's family was not eminently more implicated in choreographing the wedding - and why are they not in prison instead?

My point is this - Utah politicians have made great publicity out of demonizing Warren Jeffs and painting him as a perverse, megalomaniacal despot. This was enough to get him on the FBI's 10-most-wanted list. Mormon politicians = good; Polygamists = evil. I wonder if it is that simple. Even if Warren Jeffs is different or eccentric, or even an iron-fisted leader, why does that excuse society in locking him in the stocks and throwing rotten vegetables at him for days? Why is it okay to charge him with a laundry-list of crimes that do not fit his actions? Is he so vile that we must throw truth and justice to the wind and punish him by any means available to us?

I believe that the State's attorneys don't care. I believe that they hate the FLDS and Warren Jeffs so much, that they don't care about following the spirit of the Constitution and good laws. They just want to "get them" at all costs. Why else would they try to get Texas to change its laws just so that it could ensnare the residents of the YFZ Ranch? Why else would they side with the angry enemies of the FLDS and condone Wisan and Lindberg's shameless plundering of the UEP? Maybe we all sleep easily because a reportedly evil man was crucified or tarred and feathered. That is not justice - it is brutality.

Addam Swapp blew up an LDS chapel in 1987. 22 years later, he still sits in a prison with no hope of a parole date. Ironic, wouldn't you say, when the average murderer serves nine years? This all stems from Utah's intense animus against Fundamentalist Mormons and polygamists. Why does the legal system tolerate such barbarism? You already know the answer - POLITICS. I am reminded of the state-sponsored raids and massacres of the early Mormons.

In yesterday's hearing, Chief Justice Christine Durham asked deputy A.G. Laura DuPaix if a Baptist minister should be incarcerated for counseling a member of his congregation to stay with her husband after complaining that she doesn't love or desire him anymore. Bugden wondered if parents who take their 15-year-old daughter in for contraceptives should not also be prosecuted for aiding and abetting non-consensual sex for a minor who legally cannot consent to it.

I pray that the Utah Supremes will see the State's naked malice and bad faith inherent in the Jeffs prosecutions and overturn them. If he really did commit a crime, then charge him with the crimes he truly committed - not some craftily twisted contortion of a wildly inapplicable statute because you hate him. This nation is fixing to undergo a dramatic metamorphosis (see Isaiah's "marvelous work and a wonder"), and such heavy-handed abuses of power might just bite some of the rest of us if we don't look out.

I am sickened when I think back to the remarks of Justice Nehring when he concurred in the Rodney Holm decision. In one of the most pathetic, milque-toast utterances I have ever read, he wrote:

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 the first in the nation to proclaim that polygamy enjoys constitutional protection. . . . . .

It would be a violation of my oath of office to permit my apprehensions about the public reaction to any ruling of this court to participate in my decision-making effort or to influence in any way my vote on a case. Moreover, I do not intend to suggest that the majority opinion is in any way shaped by fears of a public backlash against sanctioning polygamy.

If this kind of waffling is indicative of how Nehring will rule in Jeffs' case, I fear the worst. I fear also that, if Warren is forced to take his case to the next higher Court, it won't be around by the time he gets there.

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