Holm was legally married to Suzie Stubbs in 1986. Subsequent to this marriage, Holm, a member of the Fundamentalist Church of Jesus Christ of Latter-day Saints (the "FLDS Church"),1 participated in a religious marriage ceremony with Wendy Holm. Then, when Rodney Holm was thirty-two, he participated in another religious marriage ceremony with then-sixteen-year-old Ruth Stubbs, Suzie Stubbs's sister. After the ceremony, Ruth moved into Holm's house, where her sister Suzie Stubbs, Wendy Holm, and their children also resided. By the time Ruth turned eighteen, she had conceived two children with Holm, the second of which was born approximately three months after her eighteenth birthday.
As is all too often the case in such cases, the participancy of a minor complicates this case. But, the ruling upholding his conviction for "bigamy" raises some troubling issues. Perhaps, this is why there was a dissent respecting the aspects of the case not involving the minor. The dissent was in fact written by Chief Justice (of the Utah Supreme Court) Christine Durham.
Part of the ruling deals with statutory matters. The majority held that "marriage" as understood under the law here covered a "relationship existing between a man and a woman who agree to and do live together as spouses." The couples here did not "purport" to be married in a state sanctioned way. They "purported" to be married in a religious ceremony. This was enough ... "cohabitation alone would constitute bigamy pursuant to the statute's terms."
But, more of concern is the assume limits of a legitimate state interest: "The formation of relationships that are marital in nature is of great interest to this State, no matter what the participants in or the observers of that relationship venture to name the union. ... the public nature of polygamists' attempts to extralegally redefine the acceptable parameters of a fundamental social institution like marriage is plain."
What is the limit to this sentiment? Polygamy has a special history (and special concerns arise ... but this isn't late 19th Century, change or no statehood, any more*) in Utah, but the reasoning used was rather open-ended. Homosexuals "marry" in church sanctioned ceremonies all the time. They wish to "redefine" what is an acceptable relationship. They cannot be married by the state in all states but one. But, can a state ban them from considering themselves married in some sense? Consider the proposed federal anti-gay marriage amendment [28A]:
Neither this Constitution, nor the constitution of any State, shall be construed to require that marriage or the legal incidents thereof be conferred upon any union other than the union of a man and a woman.One or more states have a law on the books comparable. They don't just want to refuse to legitimize state sanctioned same sex marriages, but bar same sex couples from even having the rights to anything like marriage -- even certain aspects. Utah opens the way here -- a religious ceremony plus living together is enough for bigamy.
As noted by the dissent, the state law involved here is not followed neutrally:
That the state perceives no need to prosecute nonreligiously motivated cohabitation, whether one of the parties to the cohabitation is married to someone else or not, demonstrates that, in the absence of any claim of legal marriage, neither participation in a religious ceremony nor cohabitation can plausibly be said to threaten marriage as a social or legal institution.
The mention of equal protection of the rights of homosexuals sometimes leads to scare stories. [Next up, marriage to Rover.] The facts of this case even more so. But ... First, the ex-police officer here (no liberal hippie, he) could be targeted for deliquency of a minor. Second, the relationship is not state sanctioned.
Third, the libertarian side has its own scare stories. A religious ceremony is enough for criminalization. Untraditional living arrangements that in some fashion threaten what the state thinks is proper "marriage" relationships can be targeted. The dissent is right that such private family and intimate relationship choices was left to the individual in Lawrence v. Texas. And, as Lawrence in part recognized, the unfavored classes tend to be targeted quite selectively.
Sort of like how all those condemnations by Jesus of divorce are passed by to use biblical opposition by Paul (assuming they are used appropriately) against homosexuality.
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* The dissent in part argued on religious freedom grounds ... the Utah Constitution clearly protects religious acts, more so than current Supreme Court doctrine recognizes this in respect to state law. Recent federal legislation supplies more protection when federal statutes are at stake. She argues in part that opposition in the 19th Century was prejudicial, comparable to many whom deemed Catholics a menace. Again, this is different from requiring the state to legitimize the marriage:
Our state's network of laws may indeed presume a particular domestic structure--whether it be that a man will live with only one woman, that a couple living together will enter a legal union, or that each household will contain a single nuclear family. However, any interest the state has in maintaining this network of laws does not logically justify its imposition of criminal penalties on those who deviate from that domestic structure, particularly when they do so for religious reasons. In my view, such criminal penalties are simply unnecessary to further the state's interest in protecting marriage.
This might suggest a somewhat too restrictive regime (no state sanctioned same sex marriages) might be possible, but it underlines the step too far measures some propose.