This will be one to watch if the Supremes grant certiorari.
abanet.org
POLYGAMOUS UNION SPARKS SPLIT
Divided Utah Supreme Court Holds Lawrence Doesn’t Protect Plural Marriages
BY STEPHANIE FRANCIS WARD
The Utah Supreme Court has upheld the bigamy conviction of a polygamist but split over whether the landmark U.S. Supreme Court ruling in Lawrence v. Texas reaches beyond consensual sex between same-sex couples.
The court rejected the appellant’s argument that a law prohibiting plural marriages violates his constitutional privacy rights. And though lawyers may take opposite sides on the case, several agree that its arguments may have an effect on the legal battle over same-sex marriage.
Utah law defines bigamy as a married person purporting to marry or cohabiting with someone other than his or her spouse. Under Utah law, a union does not have to be legally sanctioned to be considered marriage, so the bigamy statute could also apply to a polygamous arrangement where no unions were legally recognized, say lawyers on both sides of the issue.
The defendant, Rodney Holm, was legally married to one woman at the time of his conviction, and had two "spiritual wives" with whom he was sealed in Fundamentalist Latter Day Saints ceremonies. One of his wives was 16, and Holm was also convicted of unlawful sex with a minor.
In his appeal, Holm argued the state bigamy law should be struck down under Lawrence v. Texas, 539 U.S. 558, the 2003 ruling that found sodomy laws unconstitutional. The majority in Holm’s appeal disagreed, finding that Lawrence only applies to private, consensual sexual acts involving adults of the same sex. The Utah opinion notes that Lawrence specifically exempts minors.
"Despite its use of seemingly sweeping language, the holding in Lawrence is actually quite narrow," Justice Matthew B. Durrant wrote for the majority. "Specifically, the court takes pains to limit the opinion’s reach to decriminalizing private and intimate acts engaged in by consenting adult gays and lesbians." Utah v. Holm, No. 20030847 (May 16). Three other justices concurred with Durrant.
Chief Justice Christine M. Durham wrote a 37-page dissent to the 39-page opinion. While she agreed Holm’s conviction on having unlawful sex with a minor should be upheld, Durham argued the bigamy conviction should be overturned. Under Lawrence, she wrote, the due process clause of the U.S. Constitution’s 14th Amendment provides protection to private relationships between consensual adults. Considering that, Durham found the state bigamy law unconstitutional.
"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," she wrote. "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."
Holm was convicted in 2003, and had already served his sentence by the time the opinion was published May 16.
Rodney R. Parker, a Salt Lake City lawyer who represents Holm, says his client may appeal to the U.S. Supreme Court. Under Lawrence, Parker says, consensual sexual acts between people of the same gender and polygamy are not distinguishable.
Laura B. Dupaix, an assistant Utah attorney general in Salt Lake City, represented the government in Holm’s appeal.
"Lawrence is a narrow holding, and it only applies to consensual, intimate sex between two consenting adults," she says. "It does not apply to matters concerning public interest or conduct involving minors. Since we had both of those components here, Lawrence was not applicable."
The fact that one of Holm’s "spiritual wives" was a minor does complicate the issue, says Suzanne Goldberg. A former Lambda Legal Defense senior attorney who now teaches at Rutgers School of Law-Newark, N.J., Goldberg doubts the Supreme Court would accept an appeal from Holm. However, she disagreed with how the Utah court interpreted Lawrence.
Goldberg notes Holm only had one legal marriage.
"To the extent he was engaged in a private relationship outside of his marriage, it seems to me that the constitutional privacy guarantee would protect that," Goldberg says. "That’s where the majority overreaches, because Lawrence clearly protects the rights of adults to make decisions about intimate relationships."
Lynn D. Wardle, a professor at Brigham Young University’s J. Reuben Clark Law School, disagrees. According to Wardle, the Holm opinion is a "stalking horse" for same-sex marriage, and the majority in Lawrence went out of its way to distinguish the conduct in question from same-sex marriage.
"Lawrence involved a criminal statute that prohibited private sexual behavior between consenting adults involving no commercial incentives. It did not involve marriage," says Wardle, who teaches family law at BYU. "Redefining marriage by allowing multiple spouses or allowing people of the same gender to marry has a very direct impact on marriage, which many people reasonably believe will weaken, degrade and jeopardize the basic social unit of society."
He mentions recent media interest in polygamy and the Fundamentalist Latter Day Saints. The group’s leader, Warren Jeffs, is accused of orchestrating polygamist marriages for underage girls and is on the FBI’s Ten Most Wanted Fugitives list.
The FLDS paid for Holm’s defense, according to Parker. Parker has represented the group, including Jeffs, for some time, and Parker says FLDS members will not abandon polygamy because the practice is a key part of their beliefs.
In fact, according to both Parker and Dupaix, the state does not prosecute adults who engage in consensual polygamy. Such cases are hard to prove, Dupaix says, and the state can better use its resources prosecuting other crimes.
However, according to Parker, polygamists engaged in consensual relationships with adults are persecuted in Utah, largely because of the state’s history. Settled by Mormon pioneers who often engaged in polygamy, Utah made the practice illegal as a condition of becoming a state in 1896.
"The state uses the fact that they’re polygamists to injure them in some other way," says Parker, a former member of the more mainstream Church of Jesus Christ of Latter-day Saints. Parker is now a Roman Catholic.
"These are people who are not going to change. They are sincerely religiously motivated people who have been living with the threat of legal action for more than 100 years," he says. "If someone commits a crime like having sex with a minor or welfare fraud, then [the government] should prosecute those crimes. But that does not mean they should prohibit an entire lifestyle."
Brian M. Barnard, a fellow Salt Lake City lawyer, agrees. He represents a man and two women in a polygamous relationship who were denied a marriage license there. Their civil rights case was dismissed in U.S. District Court, and an appeal is pending in the 10th U.S. Circuit Court of Appeals, based in Denver.
Barnard says his client’s appeal is similar to Durham’s dissent in the Holm opinion.
"If society accepts that unmarried people want to live with each other in a sexual relationship, which was verboten in the not too distant past, and they say that homosexuals can engage in sexual acts, tell me how polygamy differs from that?" Barnard asks.
©2006 ABA Journal |
