Wait, You Forgot Something !!

I don't know how we missed this. I mean - there's no mention of it in the Brown decision.  Everybody seems to have forgotten about it. 

A few years back, in his relentless campaign against our culture, Snortleff cooked up this cunning idea to target us further.  His battle cry was always about "the children" and the abuse he believed was rampant in our communities.  Well, he wasn't wrong about Warren Jeffs.  Warren Jeffs was having group sex with young tweens and teens. He should be killed.

Convictions of Tom Green and Rodney Holm demonstrated the State's ability to target adult polygamists, but their partners were (in some cases) minors. The "adult" bigamy statute (merely a third-degree felony) didn't give Sharkleff all the teeth he wanted.  He hit upon the idea of a "Child Bigamy" statute.  He convinced the Utah state legislature to go along with the plan.  With little resistance the bill passed, and it is now law.  Here is the language of the statute:


76-7-101.5. Child bigamy -- Penalty.
(1) An actor 18 years of age or older is guilty of child bigamy when, knowing he or she has a wife or husband, or knowing that a person under 18 years of age has a wife or husband, the actor carries out the following with the person who is under 18 years of age:
(a) purports to marry the person who is under 18 years of age; or
(b) cohabits with the person who is under 18 years of age.
(2) A violation of Subsection (1) is a second degree felony. 

I always had problems with this move.  The "adult" bigamy statute was broad and vague enough to ensnare any polygamist, but Sharkleff had to have more. 

The first problem is that the statute singles out a religious minority for disfavorable treatment.  Why? - because if a 20-year-old guy with a wife takes a 17-year-old as a second "wife", he will serve 15 years in prison, whereas if it's just a "girl-friend"(/adultery) situation, the law must look the other way.  What determines whether the guy walks free or does 15 years is his religion.  If he is a Fundamentalist Mormon, he's done for!

The second problem is that paragraph (b) would make me a second-degree felon if my family lived in Utah.  I "cohabit" with my kids who are minors. They live in my houses.  "Cohabit" is too vague and ill-defined.  You'd have to put half the state in prison.

The fourth problem is that, despite having opportunities to use the statute on some of Utah's truly bad polygamists, law enforcement never used it.

The fourth and BIGGEST problem is that Waddoups just struck down the "cohabits" language from Utah's (dumb) adult bigamy statute, so this one is therefore equally doomed.

Maybe it won't matter.  Maybe the voiding of one statute will result in the voiding of the other one(s) spawned by it.  We'll see.

76-7-101.5. Child bigamy -- Penalty.
(1) An actor 18 years of age or older is guilty of child bigamy when, knowing he or shehas a wife or husband, or knowing that a person under 18 years of age has a wife or husband, theactor carries out the following with the person who is under 18 years of age:
(a) purports to marry the person who is under 18 years of age; or
(b) cohabits with the person who is under 18 years of age.
(2) A violation of Subsection (1) is a second degree felony. - See more at: http://statutes.laws.com/utah/title-76/chapter-07/76-7-101-5#sthash.KkpWJRxE.dpuf

76-7-101.5. Child bigamy -- Penalty.
(1) An actor 18 years of age or older is guilty of child bigamy when, knowing he or shehas a wife or husband, or knowing that a person under 18 years of age has a wife or husband, theactor carries out the following with the person who is under 18 years of age:
(a) purports to marry the person who is under 18 years of age; or
(b) cohabits with the person who is under 18 years of age.
(2) A violation of Subsection (1) is a second degree felony. - See more at: http://statutes.laws.com/utah/title-76/chapter-07/76-7-101-5#sthash.KkpWJRxE.dpuf

76-7-101.5. Child bigamy -- Penalty.
(1) An actor 18 years of age or older is guilty of child bigamy when, knowing he or shehas a wife or husband, or knowing that a person under 18 years of age has a wife or husband, theactor carries out the following with the person who is under 18 years of age:
(a) purports to marry the person who is under 18 years of age; or
(b) cohabits with the person who is under 18 years of age.
(2) A violation of Subsection (1) is a second degree felony. - See more at: http://statutes.laws.com/utah/title-76/chapter-07/76-7-101-5#sthash.KkpWJRxE.dpuf

Throw Away The Key!

I have been watching the results of my poll (to the left of the recent post) on this blog.  I am grateful to all of you who have expressed your opinion.  I will maintain the poll to see if the yes/no balance remains constant.

It appears that a sizeable portion of the respondents are convinced that polygamous men and women need to be incarcerated.  No one knows exactly how many polygamists live in the U.S. but it could be hundreds of thousands.  What is a polygamist?  We know that there are several thousand Fundamentalist Mormon polygamists.  Then there are many Protestant Christian polygamists.  There are numerous Muslim polygamists.  Finally, there are probably hundreds of thousands of polygamous, recreational copulators - people who shack up serially or who are having affairs with the secretary or the neighbor's wife.  We shouldn't forget all the married men who are frequenting the Las Vegas whores who work in Harry Reid's state.  I guess we should also ask if the many gays and lesbians in Northern California are polygamous by nature or conduct.

If we borrow the bizarre reasoning of British Columbia's Attorney General, Craig Jones, all of the above classes of people are polygamists.  I want to ask the affirmative responders to my poll if they are willing to pay for the doubling of America's prison cells to house these offending polygamists.  I also would ask them if they themselves have been morally pure throughout their lives.

Before the Supreme Court's decision in Lawrence v. Texas (2003), some states required gays to register themselves as sex offenders.  Merely the orientation or inclination to homosexuality (generally a permanent condition) was sufficient to establish criminality.  You must all agree that this is SO disingenuous, that it is not a surprise that Texas and Oklahoma did not enforce this draconian rule.

Tom Green and Rodney Holm both recently served prison sentences in Utah for polyga-bigamy.  They are now back home with their wonderful wives.  I have asked this question before, but how long should a polygamous person's prison sentence last?  Most polygamists I know are polygamous for life.  They CANNOT limit themselves to the monogamous lifestyle.  Once released from prison, they go back and re-offend.  I cannot remember the last person who was returned to prison for repeat polygamy after parole.  It seems that the state lacks the lust for a sincere, widespread polygamy prosecution campaign.  During the Brown family's recent videotaped confessions, the State appeared to be watching a different channel - probably HBO (and Big Love).  The Browns fled to Nevada, and, as of this writing, I have not been made aware of any extradition proceedings.

Here's the bottom line.  You simply cannot have it both ways or have your cake and eat it too (or other cliches).  If you believe that polygamists belong in prison, you must also believe that they are unrehabilitatable (is that a word?) and that they must therefore remain behind bars until death.  Just throw away the key!

I have to think that not too many years back a large number of Americans and Canadians felt that gay people needed to be incarcerated for life or executed.  Fashion trends changed all that.

I am tempted to run a poll asking if anti-polygamy hate groups should be incarcerated for bigotry.

Two Sides Of The Mouth

There's an interesting paradox that puzzles me about the current criminal (bigamy) investigation into the Kody Brown family. Here's why I think it will go nowhere.

Our august A.G., Mark Shurtleff, has declared emphatically on numerous occasions that he will not prosecute consenting-adult polygamists. He has given a number of reasons why -

Insufficient witnesses and evidence.
Insufficient law-enforcement resources.
Insufficient penitentiary space.

Yes, I know you all know these excuses are bogus and are designed to quiet the media and the hater-nasties. The real reason is that the AG doesn't want to disturb the tenuous tentacles of the Reynolds decision and let the plygs invoke Lawrence, as they soon will in Texas.

Here's the real (little-known) kicker:

When Rodney Holm appealed his adult bigamy conviction to the U.S. Supreme Court, the Court declined to hear the case but, before declining, it exchanged exploratory pleadings with the two parties' attorneys. At the time of Holm's "crimes", there had been no "CHILD-BIGAMY" statute, so Utah could only attack Holm with the ADULT bigamy statute (despite the complaint that his "wife" was only 16). Utah's chief prosecutrix, Flora Yoplait, insisted to the court that a direct appeal of Utah's (nutty) bigamy statute was irrelevant, because Utah categorically ONLY prosecuted polygamists who had minor partners. She argued that Holm was only charged for relations with Ruth Subbs when Stubbs was a minor. Duplait was actually very wrong! What she had overlooked was that Holm's charging documents addressed alleged sex acts during the times when Stubbs was 16, 17, 18, and 19. In effect, Florplait was LYING to the Court! It WAS NOT TRUE that Holm was not also charged for adult bigamy.

Maybe that is a hairsplit, but Utah is definitely conflicted. Not long ago, hater-nasty Tapestry harpies waved the Jim Harmston/Rachael Strong case in the faces of Utah's AGs. They stood their ground and refused to pursue the case because Strong became a plural wife at 19.

It seems that there must be opposing pressures:

One side despises the polygamists and just wants them dead and gone - OFF WITH THEIR HEADS !!!! Prosecute, Convict, Incarcerate (AND orphan all the kids!).

The other side sees the writing on the Supreme Court's wall. Arrest a harmless plyg family like Kody's, and a bright, enthusiastic lawyer will run the case all the way to the highest court in the land - which court will have to acknowledge that just because a man has a legal wife and then has sex with a different (unmarried) woman, he cannot be charged with felony bigamy (unless we still live in the dark ages).

Is the Church/State establishment so boneheaded and myopic that it cannot anticipate the NATIONAL media circus and backlash that will ensue when it puts Meri, Janelle, Christine and Robyn behind bars? One almost wonders if Ciudad Juarez would be a safer home for innocent Americans and a Constitution gasping its last breath.

Stay tuned . . . .
-------------------------------------------
WAIT - Shurtleff just called Utah's KSTU (Channel 4) to announce that he will not prosecute the Browns. . . . . . YAY !!!!!!!!!!!!!!!!!!!!! He did however say that he is "monitoring" the family for potential "other crimes" (WHAT? - like irritating the Church?).

Renn - "1" Naysayers - "0"

Isn't "monitoring" kind of a SOVIET concept . . . . ?

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.

Frontier Justice - Mob Jubilation

I know some people who went to the Raymond Jessop trial this week. I really would have given a small limb or at least a tooth to have been there. Barbarous Wartthug must be salivating over the opportunity to get some revenge on those filthy polygs who embarrassed her. I know she must be equally steamed over the fact that, now that there has been a conviction, the illegally-obtained evidence can be impeached or challenged or suppressed (or whatever the legal term is).

I understand that, when the jury (guilty) verdict was read, one of the honorable Texas Rangers inside the courtroom radioed his Ranger buddies standing outside. Their celebratory hootin' and hollerin' was so loud that it could be heard by those inside the courtroom. Now that's decorum!

Apparently, a conviction was the inevitable conclusion of this trial/lynching. Barbie coached the prosecutors and denied the defense's legitimate objections. Rather than beat this topic to death, I shall just make two more points - one dealing with human compassion - the other dealing with the law.
-----------------------
1. I have observed these polygamy witch hunts over the last several years, and I have observed the following:

Tom Green married a 13.5 year old and did five years. The girl faithfully waited for Tom.
Rodney Holm married a 16 year old and did seven months with work release.
The guy who raped Heidi Mattingly's 13-year-old daughter while she was in forced foster care did a few months of prison time.
The Colorado City "Eight", who faced trials in Kingman before Judge Steven Conn, did a few weeks or months of prison time for marrying 16- and 17-year-olds.

Raymond Jessop's sentencing phase is underway and continues next week. The prosecution is rounding up disaffected apostates to plead against leniency. "String him up!", "Throw away the key!" This filthy, disgusting, warped, perverted, lecherous, polygamist pedophile had the nerve to MARRY A 16-YEAR-OLD !!!!!!!!!!!!! My heavens - why don't we just slit his throat? His wives and children don't need him. The least we can do is put him in prison for 20 years! Barbie can smell blood in the water. Let's put this guy away for the rest of his life so that we can set a precedent and send a message, and let's do this again and again until we put the other eleven guys away for 20 years, too. This is not Eldorado, Texas - this is Carthage, Illinois! Cut off his head! Kill the beast!

The other key point to remember is that Jessop's and the other defendants' marriages were sanctioned by their prophet. Now that the church's leader has long-since forbidden any future underage marriages, I am supremely confident that NONE will occur. So what message does the jury need to send? - "Don't marry any more minors"?! Any prison time at this point is would be malicious and spiteful and (as another esteemed blogger has pointed out) a hypocritical denunciation of the great Bible patriarchs whom God loved and endorsed as paragons of virtue and integrity.

2. The crime with which Raymond was charged was alleged to have occurred in November of 2004. If Texas truly had jurisdiction, and the crime could be shown to have occurred in Eldorado, then Texas's laws regarding age of consent (in 2004) would govern. In 2004, the age of consent was 14. The law was changed to reflect a higher age of consent (17) in September of 2005. So here's your homework assignment, kiddies - help me to figure out how Raymond Jessop can have been found to have been guilty of unlawful sexual assault, by an ex post facto law enacted after the date of the alleged crime.

-------------------------

I'm no lawyer, so don't let me get carried away here, but it seems to me that something is rotten in Denmark.

The Texas Court of Appeals and the Texas Supreme Court are likely to have fun with this one. I'm sure that Barbie and her SturmTruppen are as proud as peacocks to have the taste of revenge. So, if they ever read this blog, my message to them comes from Proverbs 16:18 -

"Pride goeth before destruction, and an haughty spirit before a fall."

Renn

They came to their senses !!! Or did they?

Well, I don't know who was responsible for bringing the court or its clerks to their senses but, lo and behold, the Utah Supreme Court has re-scheduled the Warren Jeffs appeal hearing, and now it won't be at the Happy Valley Law School. Now all we have to do is make sure that Justices Durrant, Nehring, Wilkins and Parrish don't come within a mile of the pending decision. After all, they are the ones who said that Rodney Holm should be found guilty of felony bigamy because his third wife wore a white dress to their informal marriage ceremony, thus inflicting great harm on the venerable institution of Holy Legal Matrimony. Durrant confessed that he didn't dare go against the current tide of public opinion. Perhaps the legal system in Utah should be conducted like American Idol, and guilt or innocence can be established through a popularity contest and a tally of viewer phone calls. I think that's what nailed Jesus in the end.

Today I am feeling sympathy for atheists. Just think - they will never have the satisfaction of finally knowing that they were right. I think a lot about atheism and Darwinian evolution theories. I watched that Ben Stein movie about evolution, and I confess that I experienced some wicked pleasure watching Ben Stein make Richard Dawkins look silly. Richard Dawkins is the Oxford University professor who serves as the academic poster-child of the atheist/Darwinian movement. He delights in mocking Christians and religious believers. Like other evolutionists, he wishes that governments would step in and prevent parents from teaching religion to their children. He reminds me of Korihor and Nehor (of Book of Mormon fame). In the movie he muses about the possibility that "space aliens" seeded the earth with living creatures and then left. He is comfortable with the concept of space aliens, just not with the concept of a benevolent God.

I recently read a book called Darwin's Black Box by Michael Behe, professor of biochemistry at Lehigh University in Pennsylvania. The message of the book is that, in living organisms, there are biochemical processes and mechanisms which are extraordinarily complex; including sight, immunity and blood-clotting, to name a few. Without ever satisfactorily explaining how life showed up on this planet, Charles Darwin proposed that evolutionary changes in living species occurred very gradually over billions of years. Behe's challenge to Darwin's claims is that some of the mechanisms of life are "irreducibly complex". Some functions of life rely on the complex collaboration of many sophisticated protein molecules and cellular components, the absence of any of which would cause the system to fail and the organism to die. If these complex mechanisms came about only gradually, then the creature could not have lived and thrived while waiting around for eons until all of the indispensable elements were in place.

Darwin had no answer for this problem because, in his day, the complexities of the cell were not known. Behe uses the clever example of the common mousetrap. If you were walking about in the rain forest and stumbled across an intact mousetrap, you would automatically assume that someone designed and assembled it. Moreover, no one would accuse you of being a religious fanatic for concluding that some intelligent design process had been involved. Behe explains that the mousetrap cannot work if even one of the components is missing. Take away the spring, and the mouse is safe. It couldn't just emerge through a gradual chain of microscopic improvements.

Thus, the mousetrap is an example of an irreducibly complex machine. Likewise, the mechanism of blood clotting depends on over twenty critical factors and events. If one is missing, like vitamin K or the Christmas factor, then the system fails, and the creature bleeds to death or solidifies and becomes a solid blood clot. The amazing checks and balances of the blood clotting process rely on many critical interactions and perpetual feedback. In my opinion, Behe proves masterfully that no gradual, microscopic, evolutionary steps could have arrived at this brilliant biochemical system, and that we would all have died long ago while waiting for all the pieces to finally be in place. 

It is generally a waste of time arguing with atheists and evolutionists. They embrace Darwinian evolution with blind, (almost religiously) unshakeable faith, even though there is so incredibly little scientific evidence to support it. They take as true, incontrovertible fact the assertions of other modern scientists that all living creatures have a common ancestor, and that life was generated spontaneously from inanimate substances. Truth is - they don't just believe in evolution - they desperately need it to be true. They don't want there to be a God. They prefer Hammurabi's Law - which says that there are no absolutes in the universe, and all that matters is what makes one feel good.

There is a trend in today's world towards greater polarization. Obama wants to take over the private sector and everything else you hold dear. People are lining up on opposing sides of important issues. I don't think it is merely godless liberal secular materialism versus godly conservatism. I think there are just two kinds of people - those who would starve rather than kill their neighbor for food, and those who would rather kill their neighbor than starve or share food. Soon we'll get to see which group each of us falls into. You watch!

P.S. Just for more giggles - I am reproducing a graphic here from the cover of Behe's book. This little diagram shows a mechanism which is part of a SINGLE CELL (a bacterium). The mechanism is called a "flagellum" (Latin = 'whip'). Actually, it is like a propeller and rudder all-in-one. This whip or tail protrudes through the cell's outer membrane and rotates and paddles to provide propulsion so that the cell can travel. It would be tempting to think that this flipper thingy has muscles, but this is all part of just one cell. The energy consumption is achieved through the transfer of acids. The movement is accomplished by chemical reactions between PROTEINS !!! When one side of the whip needs to contract, the molecules become more "sticky".  The big question is - how do the molecules "know" how to do that?  Don't try to convince me that this all developed through some random Darwinian ACCIDENT !!!!!!!!!!!!!!!!!!!!

A salmonella bacterium with an immobile whip cannot self-propel.  It cannot reproduce or even survive.  The only explanation for its current, viable existence on earth is that someone (or some thing) designed it here, or someone designed it elsewhere and then brought it here.  When you look at an automobile, you have no doubt that someone designed and then created (assembled) it.  When you look at a human being (or a cat, for that matter) how do you think it came about?
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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