State v. GreenState v. Green
Lead Opinion
On Certification from the Utah Court of Appeals
T1 A jury сonvicted Thomas Green of criminal nonsupport and four counts of bigamy. Green appeals his bigamy convictions. He asserts that they violate the Free Exercise Clause of the First Amendment to the United States Constitution. He also argues that Utah's bigamy statute,
BACKGROUND
1 2 An avowed polygamist, Green has participated in simultaneous conjugal-type relationships with multiple women. These women all use Green's surname and have borne children who also use the Green surname.
13 Some of the women entered into licensed marriages with Green. The remaining women participated in unlicensed ceremonies, after which they considered themselves married to Green. - Green avoided being in more than one licensed marriage at a time by terminating each licensed marriage by divorce prior to obtaining a license for a new marriage.
1 4 In 1995, Green and his family moved to Juab County, Utah, where they resided together in a collection of shared mobile homes that the family called "Green Haven." Green quartered in one mobile home, while the women and children quartered in others.
5 Each of the women shared with Green the duties of raising the children and managing the family by dividing the tasks of cooking for the entire family, doing the family laundry, and home schooling all of the children. In addition, the women assisted with the family business, which consisted of selling magazine subscriptions. All money earned by the family business was pooled into "the Green Family Household account."
T6 Between 1988 and 2001, Green appeared on various television shows with the women, consistently referring to the women as his wives, and the women likewise acknowledged spousal relationships. In these television appearances, Green acknowledged that his conduct was potentially punishable under Utah criminal statutes.
17 In April 2000, the State filed an information charging Green with, among other things, four counts of bigamy. Prior to a preliminary hearing on the charges, the State filed a motion asking that the court recognize the existence of a valid marriage between Green and Linda Kunz. The State based its motion on section 30-1-4.5 of the Utah Code, which codifies common law marriage principles, Whyte v. Blair,
T8 On July 10, 2000, the district court issued a memorandum decision declaring that Green and Linda Kunz were legally married pursuant to section 30-1-4.5. Specifically, the district court found that as of November 2, 1995 (the date on which Green divorced Hannah Bjorkman), both Green and Linda Kunz were single, were capable of giving consent to be married, and otherwise satisfied the requirements of
T 9 After the distriсt court issued its memorandum decision, the State amended its information against Green to alter the charging dates for the bigamy counts to a specific five-year period: November 1995 to November 2000. The information alleged that Green cohabited with Shirley Beagley, LeeAnn Be-agley, Cari Bjorkman, and Hannah Bjork-man while legally married to Linda Kunz in violation of Utah Code
T 10 The charges against Green were tried to a jury in March 2002. The jury convicted Green on all four bigamy counts. Green filed a motion for a new trial, which the district court denied. Green thereafter filed a timely notice of appeal. The court of appeals certified the appeal to this court pursuant to section 78-2-2(8)(b) of the Utah Code.
I. APPELLATE BRIEFING REQUIREMENTS
T11 Before addressing the substance of the arguments Green raises on appeal, we pause to review the importance of complying with appellate briefing requirements. " 'Our rules of appellate procedure clearly specify the requirements that litigants must meet when submitting briefs to this court. See
{12 In this case, Green has failed to comply with the requirements of rule 24. Green's table of authorities lacks "references to the pages of the brief where [the authorities] are cited,"
113 Green's most egregious deficiency is his failure to adequately brief the majority of the arguments that he raises on appeal.
114 Taking a shotgun approach to his appeal, Green's brief identifies thirty-nine separate issues for our review. The "argument" for eight of these issues consists of nothing more than a heading and the statement "[this issue will not be briefed at this time." For another three issues, the argument consists merely of a heading and a reference to another part of the brief. Many of Green's remaining issues receive only one paragraph of argument or argument that recites facts and states a desired outcome, but is devoid of authority to explain the legal basis for the desired outcome. In those rare instances where Green does cite authority, he fails to provide any pinpoint citations that would assist the court in locating the relevant statements or holdings claimed to be supportive of his position.
1 15 "It is well established that a reviewing court will not address arguments that are not adequately briefed." Thomas,
116 Utah's bigamy statute provides, in relevant part, as follows:
A person is guilty of bigamy when, knowing he has a husband or wife or knowing the other person has a husband or wife, the person purports to marry another person or cohabits with another person.
T17 The First Amendment states that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."
18 First, Green is not the first polygamist to launch an attack on the constitutionality of a law burdening the practice of polygamy. In 1878, polygamist George Reynolds challenged the constitutionality of the Morrill Antibigamy Act, which prohibited bigamy in all territories of the United States. Reynolds v. United States,
119 We are cognizant of the fact that Reynolds was decided over a century ago and may be antiquated in its wording and analysis. We are similarly cognizant of the fact that its reasoning may not necessarily comport with today's understanding of the language and apparent purpose of the Free Exercise Clause. Nevertheless, the Supreme Court has never explicitly overruled the decision. To the contrary, the Court has cited Reynolds with approval in subsequent cases, evidencing its continued validity. See, e.g., Hialeah,
120 Second, even if this court were required to extend its analysis beyond Reynolds, Utah's bigamy statute would survive a federal free exercise of religion challenge under the most recent standards enunciated by the United States Supreme Court. In Smith, the Court held that the state of Oregon did not violate the Free Exercise Clause of the First Amendment to the United States Constitution when it refused unemployment benefits to certain practitioners of the Native American religion who had been fired for illegally using peyote.
121 The Court applied and expounded on the rule enunciated in Smith in Higleak. In Hialeah, the Court reviewed various ordinances of the City of Hialeah that effectively prohibited members of the Santeria religion from sacrificing animals, a traditional practice of Santeria worship.
122 According to Higleah, a law is not neutral if the object of the law "is to infringe upon or restrict practices because of their religious motivation." Id. at 533,
123 In Hicileah, the church argued that the city ordinances prohibiting animal kill
24 Similarly, in the case now before us, Green and amici curiae argue that Utah's bigamy statute is not facially neutral. They contend that use of the word "cohabit" in the statute's text amounts to impermissible targeting of the religiously motivated marital practices of polygamists. In furtherance of their contention, Green and amici assert that "cohabit" must be read as plainly referring to polygamists because Utah is the only state that outlaws cohabitation between parties as bigamy and because early federal laws enacted in response to polygamy also made cohabitation an element of the crime of bigamy
125 In accordance with the standards adopted in Hialeah, Utah's bigamy statute explains what it prohibits in secular terms, without referring to religious practices. The statute does not on its face mention polygamists or their religion. In addition, the word "cohabit" does not have religious origins or connotations; rather, it is a word of secular meaning. See The American Heritage Dictionary of the English Language (Ath ed.2000). Green and amici attempt to infuse the word "cohabit" with religious animus, but in doing so they erroneously cireumvent and ignore the word's plain meaning.
126 "Facial neutrality is not determinative," however. Hialeah,
T27 In Hialeah, the Court found that although the city ordinances were facially neutral, they were not neutral in their operation because they accomplished a " 'religious gerrymander' " when applied to the citizens of the city. Id. (quoting Walz v. Tax Comm'n,
128 Utah's bigamy statute does not similarly operate to isolate and punish only that bigamy which results from the religious practices of polygamists. It contains no exemptions that would restrict the practical application of the statute only to polygamists. In fact, the last reported decision of a prosecution under the current bigamy statute in our state courts involved a man who committed bigamy for non-religious reasons. State v.
129 Green and amici argue that to complete our assessment of the statute's neutrality we also must consider the statute's legislative history and the motives and intent of the lawmakers who enacted the statute. The author of Higleah engaged in such an analysis in Part ILA.2 of that opinion.
30 The Court in Hialeah did "not define with precision the standard used to evaluate whether a prohibition is of general application." Id. at 543,
1 31 As noted above, Utah's bigamy statute does not attempt to target only religiously motivated bigamy. Any individual who violates the statute, whether for religious or secular reasons, is subject to prosecution. See, e.g., Geer,
132 It is true that Utah's bigamy statute has an adverse impact on those wishing to practice polygamy as a tenet of their religion. An adverse impact on religion does not by itself, however, prove impermissible targeting because "a social harm may have been a legitimate concern of government for reasons quite apart from [religious] discrimination."
T33 The Utah legislature has determined that prohibiting bigamy serves this state's best interests. Because Utah's bigamy statute is neutral and of general applicability, the State is not required to show that the interests it serves are compelling or that the statute is narrowly tailored in pursuit of those interests. Hialeah,
134 Amici argue that Utah's bigamy statute should nonetheless be strictly seruti-nized for a compelling interest because the statute violates not only Green's free exercise of religion, but also Green's constitutional rights of privacy and free association, thus presenting a "hybrid situation." "[When a free exercise claim is coupled with some other constitutional claim (such [as] a free speech claim), heightened serutiny may be appropriate." - Axson-Flynn,
135 We cannot address amici's arguments because Green neither preserved nor properly raised or argued any claims alleging violation of constitutional rights to free speech, privacy, or free association. It is a "well-settled rule that an amicus brief cannot extend or enlarge the issues on appеal," and we will consider only "those portions of the amicus brief that bear on the issues pursued by the parties to [the] appeal." Madsen v. Borthick,
1 36 Green failed to adequately present the issues on which amici rely. For example, Green's claim that Utah's bigamy statute violates his right of free speech consists of nothing more than a bare allegation, with no supporting articulation of how his right of free speech has been infringed. Similarly, the only mention of any case or argument relating to a right of privacy or free association is found in Green's reply brief. We therefore find that Green's appeal does not present a hybrid rights situation, and we need not inquire further into whether heightened serutiny would be appropriate.
137 Having concluded that the State need only show a rational relationship between its bigamy law and a legitimate government interest, we assess whether the State has met its burden in this regard. We conclude that Utah's bigamy statute is rationally related to several legitimate government ends. First, this state has an interest in regulating marriage. As stated in Reynolds, marriage may be viewed as a type of "civil contract": "Upon it society may be said to be built, and out of its fruits spring social relations аnd social obligations and duties, with which government is necessarily required to deal."
[mjarriage ... has always been subject to the control of the legislature. That body prescribes the age at which parties may contract to marry, the procedure or form essential to constitute marriage, the duties and obligations it creates, its effects upon the property rights of both, present and prospective, and the acts which may constitute grounds for its dissolution.
Zablocki v. Redhail,
1 39 Beyond the State's interest in regulating marriage as an important social unit, or in maintaining its network of laws, Utah's bigamy statute serves additional legitimate government ends. Specifically, prohibiting bigamy implicates the State's interest in preventing the perpetration of marriage fraud, as well as its interest in preventing the misuse of government benefits associated with marital status.
" 40 Most importantly, Utah's bigamy statute serves the State's interest in protecting vulnerable individuals from exploitation and abuse. The practice of polygamy, in particular, often coincides with crimes targeting women and children. Crimes not unusually attendant to the practice of polygamy include incest, sexual assault, statutory rape, and failure to pay child support. See Richard A. Vazquez, Note, The Practice of Polygamy: Legitimate Free Exercise of Religion or Legitimate Public Menace? Revisiting Reynolds in Light of Modern Constitutional Jurisprudence, 5 NY.U. J. Legis. - & Pub. Pol'y 225, 289-45 (2001).
[[ 41 All of the foregoing interests are legitimate, if not compelling, interests of the State, and Utah's bigamy statute is rationally related to the furthering of those interests. We therefore hold that Utah's bigamy statute does not violate the Free Exercise Clause of the First Amendment of the United States Constitution. - Having so determined, we turn our attention to Green's assertion that Utah's bigamy statute is unconstitutionally vague.
III. VAGUENESS CLAIMS
142 Green argues that Utah's bigamy statute is unconstitutionally vague, both as applied to his cireumstances and on its face. "Constitutional challenges to statutes present questions of law, which we review for correctness." - Provo City Corp. v. Thompson,
148 "[Vlagueness questions are essentially procedural due process issues, i.е., whether the statute adequately notices the proscribed conduct." State v. Morrison,
144 Although Green raises both "as applied" and "facial" vagueness challenges, we focus on his as applied challenge because Green has failed to convince us that the bigamy statute infringes his First Amendment freedoms or other constitutionally protected conduct. The United States Supreme Court has explained that " [vagueness] challenges to statutes which do not involve First Amendment freedoms must be examined in the light of the facts of the case at hand." " Hoffman,
145 We have held that Utah's bigamy statute does not violate Green's right to free exercise of religion, and as discussed above, we do not address the additional constitutional claims raised solely by amici or inadequately briefed by Green. Supra 1134-86. We therefore evaluate the statute's vagueness in light of Green's conduct and not according to hypothetical situations not before the court.
[ 46 We first examine whether the statute is sufficiently definite to have adequately warned Green that his conduct was proscribed. Green argues that the word "cohabit" in the statute is so vague in its meaning that he could not have been aware that his conduсt would fall within the purview of the statute. See Utah Code Ann. $ 76-7-101(1) (1999). According to Green, because "cohabit" is not specifically defined within the statute, the statute left him "in a quandary" over how often he could legally reside with and have sexual contact with the women. We disagree and hold that the word "cohabit" is not vague as applied to Green's conjugal-type associations.
147 The record is clear that Green intended to create and maintain spousal-type relationships with Shirley Beagley, LeeAnn Beagley, Cari Bjorkman, and Hannah Bjork-man. He referred to each of these women as a wife, regardless of whether a licensed marriage existed. The women likewise considered themselves Green's wives and adopted the Green surname. Green spent nights with each woman on a rotating schedule and succeeded in impregnating these four women eighteen times, collectively. The children born of these associations also
[ 48 In addition, Green could find his conduct described in dictionary definitions of the word "cohabit." See The American Heritage Dictionary of the English Language (Ath ed.2000) (defining "cohabit" as to "live together in a sexual relationship, especially when not legally married"); Webster's New Dictionary, Concise Edition (1990) (defining "cohabit" as to "dwell together as, or as if, husband or wife"). This court has similarly defined the word "cohabit" within the context of interpreting a cohabitation clause in a divorce decree. Haddow v. Haddow,
149 In Haddow, this court assessed whether cohabitation had occurred by looking for "common residency and sexual contact evidencing a conjugal association." Id. Green's conduct, as testified to by him and his "wives," fits squarely within these definitions. In addition, we note that Utah's bigamy statute contains a scienter requirement, which mitigates any existing vaguеness. Hoffman,
do not accede to [Green's] argument that the word is not precisely defined so as to apprise [him] of the proscribed conduct. Words are symbols of communication and as such are not invested with the quality of a scientific formula. It is enough that they can be construed with reasonable certainty. Beyond that it suffices to add that "one who deliberately goes perilously close to an area of proscribed conduct shall take the risk that he may cross the line."
State v. Jordan,
50 Having concluded that the statute is sufficiently definite to have notified Green that his conduct was prohibited, we next examine whether the statute is sufficiently definite so as to discourage arbitrary and discriminatory enforcement. Kolender,
§51 Green and amici argue that Utah's bigamy statute affords enforcement officials too much prosecutorial discretion because it does not specifically indicate which of the "myriаd of modern living arrangements" should be prosecuted. In an as applied challenge, however, we must foeus on the particular conduct at hand and not on the possible conduct of hypothetical parties. See United States v. LaHue,
1 52 We find that law enforcement officials encountering Green's cireumstances would not be left to pursue their own personal predilections in determining the applicability of Utah's bigamy statute. As we already have discussed, Green's conduct fell unmistakably within the statute's purview, leaving no room for law enforcement officials to decide, in their discretion, that the statute's provisions should not apply. We therefore hold that Green's vagueness challenge fails. In so holding, we express no opinion as to whether someone in factual cireumstances distinguishable from Green's could success
IV. CLAIMS INVOLVING UTAH CODE SECTION 30-1-4.5
1 53 We finally address Green's claims involving Utah's unsolemnized marriage statute,
(54 Although Green's argument is not clear, he apparently objects to the State's reliance on
1] 55 Green provides a single citation to the record to show that he allegedly raised and preserved these claims regarding the use of the unsolemnized marriage statute. That citation is to a memorandum in which Green briefly comments on the "novelty" of using
156 Green argues first that he had no notice that the State would consider him legally married under
157 Green's second argument is that the unsolemnized marriage statute improperly intermingled civil and eriminal proceedings. In this regard, we note that this is not the first time a claim under
T 58 Finally, Green alleges that the combination of a civil proceeding followed by a criminal proceeding allowed the State to enjoy a relaxed evidentiary burden at trial. Green claims that the jury found him legally married to Linda Kunz basеd on a preponderance of the evidence standard because the district court applied that standard in finding the existence of a marriage under
1 59 In Green's criminal trial, the jury was instructed that, in order to find Green legally married under
CONCLUSION
1 60 We affirm the district court and hold that (1) Utah's bigamy statute does not violate Green's federal constitutional right to free exercise of religion; (2) Utah's bigamy statute is not unconstitutionally vague as applied to Green's conduct; and (8) the State's use of Utah's unsolemnized marriage statute to establish a legal marriage between Green and Linda Kunz was not inappropriate.
Notes
. "We view the facts in the light most favorable to the jury verdict and recite them accordingly." State v. Loose,
. For convenience, we refer to the women who have associated with Green by their birth names.
. The district court found that as of the year 2000, Green had six children by Linda Kunz, six children by Shirley Beagley, four children by June Johnson, four children by LeeAnn Beagley, threе children by Cari Bjorkman, and two children by Hannah Bjorkman. In addition, at the time of trial, Linda Kunz, LeeAnn Beagley, Cari Bjorkman, and Hannah Bjorkman were pregnant.
. Green participated in a licensed marriage ceremony with Lynda Penman in 1970. Sometime prior to 1984, Green participated in an unlicensed marriage ceremony with Beth Cook. In 1984, Green divorced Lynda Penman. In 1985, Green participated in an unlicensed marriage ceremony with Linda Kunz. In 1986, Green participated in an unlicensed marriage ceremony with Shirley Beagley. Green created a licensed marriage between himself and Linda Kunz in 1986. In 1987, Green participated in an unlicensed marriage ceremony with June Johnson. Green divorced Linda Kunz in 1989, and participated in a licensed marriage ceremony with LeeAnn Beagley in 1990. In 1991, Green participated in an unlicensed marriage ceremony with Cari Bjorkman. Also in 1991, Green divorced LeeAnn Beagley and participated in a licensed marriage ceremony with Hannah Bjorkman. Green divorced Hannah Bjorkman in 1995. In 1996, Julie Dawn McKinley, who was underage, received court permission to marry Green, but permission was later rescinded. Though the record is somewhat unclear, it appears that at the time of triаl, Lynda Penman, Beth Cook, and June Johnson no longer maintained marital-type associations with Green.
.
(1) A marriage which is not solemnized according to this chapter shall be legal and valid if a court or administrative order establishes that it arises out of a contract between two consenting parties who:
(a) are capable of giving consent;
(b) are legally capable of entering a solemnized marriage under the provisions of this chapter;
(c) have cohabited;
(d) mutually assume marital rights, duties, and obligations; and
(e) who hold themselves out as and have acquired a uniform and general reputation as husband and wife.
(2) The determination or establishment of a marriage under this section must occur during the relationship described in Subsection (1), or within one year following the termination of that relationship. Evidence of a marriage recognizable under this section may be manifested in any form, and may be proved under the same general rules of evidence as facts in other cases.
. In Whyte,
. In this regard, we note that Green's free exercise claim is based solely on the provisions of the United States Constitution. Green raises no claim under the religious liberty provision of the Utah Constitution. See
. Green and amici refer specifically to the Ed-munds Act, 22 Stat. 30 sec. 3 (1882).
. We note additionally that Green and amici are mistaken in their assertion that Utah is the only state that includes cohabitation as an element of the crime of bigamy. See
. Ironically, the defendant in Geer argued unsuccessfully that the State selectively prosecuted "only those bigamists who practice bigamy for other than religious reаsons."
. Part ILA.2 of Hialeah states that "[rlelevant evidence [as to impermissible religious targeting] includes, among other things, the historical background of the decision under challenge, the specific series of events leading to the enactment or official policy in question, and the legislative or administrative history, including contemporaneous statements made by members of the decision making body."
. Justice Scalia, joined by Chief Justice Rehnquist, expressed the following concerning Part ILA.2:
I do not join that section because it departs from the opinion's general focus on the object of the laws at issue to consider the subjective motivation of the lawmakers, ie, whether the Hialeah City Council actually intended to disfavor the religion of Santeria. As I have noted elsewhere, it is virtually impossible to determine the singular "motive" of a collective legislative body, and this Court has a long tradition of refraining from such inquiries.
Hialeah,
. Nor is Utah unique in its prohibition of bigamy. As pointed out by amici, bigamy is a crime in every state. See, eg.,
. Green's circumstances illustrate this point. In addition to being convicted of bigamy, Green was also convicted of criminal nonsupport and rape of a child, Linda Kunz, who was thirteen years old at the time of her first sexual association with Green. The potential for conflicts of consanguinity in polygamous associations is illustrated by Green's relationships. - Among Green's "wives" are three sets of sisters and three of his own stepdaughters. For another example, see State v. Kingston,
. We note that federal and state courts have approached facial challenges somewhat differently. The Court of Appeals for the Tenth Circuit does not allow facial challenges unless a statute implicates constitutionally protected behavior. See Graham,
. Indeed, we can envision situations in which application of the word "cоhabit" could be problematic, and the statute might therefore deserve legislative consideration.
. According to the record, Green spoke with attorneys concerning
Concurrence Opinion
concurring:
T 65 In reaching its conclusion that Utah's bigamy statute does not violate the Free Exercise Clause, the majority applies the rational basis standard articulated by the United States Supreme Court in Employment Division, Department of Human Resources v. Smith,
I 66 In a long line of cases prior to Smith, the Supreme Court "respected both the First Amendment's express textual mandate and the governmental interest in regulation of [religious] conduct by requiring the government to justify any substantial burden on religiously motivated conduct by a compelling state interest and by means narrowly tailored to achieve that interest." Id. at 894-95,
T67 The Smith Court's abrupt departure from analyzing religious exercise issues under a strict serutiny standard has been widely criticized by courts and commentators alike, primarily on the basis that the majority opinion is unsupported by either history or precedent. See, e.g., City of Boerne v. Flores,
168 In an extensive line of cases, the Supreme Court has interpreted the Due Process Clause as providing heightened protection against governmental interference with the right of privacy, a right not expressly provided for in the Constitution. My purpose here is not to challenge the Supreme Court's right of privacy jurisprudence (al
T 69 The irony created by the juxtaposition of these differing standards is readily apparent from the facts in this case. As the majority correctly notes, had Green adequately briefed his argument with respect to a right of privacy, he would have been provided a greater degree of protection under an implicit right of privacy than he was under the explicit right to free exercise.
I 70 In short, Smith has essentially rewritten the Free Exercise Clause into the Free Belief Clause, a result that I believe to be inherently flawed. Because an impliсit right of privacy should not be afforded greater protection than an explicit right to the free exercise of religion-a concept upon which our country was founded and a protection deeply ingrained in the hearts and minds of American citizens-a state should not be allowed to burden religiously motivated conduct unless the state's interest is compelling and the burden is narrowly tailored to achieve that interest.
T 71 That being said, I believe Utah's bigamy law is supported by a compelling state interest for several of the reasons briefly touched on in the majority opinion. First and foremost, the State has a compelling interest in regulating and preserving the institution of marriage as that institution has been defined by the State. The Supreme Court has made clear that the right to marry is a fundamental right, the interference with which is appropriately the subject of heightened serutiny. Zablocki v. Redhail,
T72 Moreover, the concept of marriage possesses "undisputed social value." In re Marriage of Mehren & Dargan,
. I would apply strict scrutiny not only to free exercise claims under the United States Constitution, but to claims under the Utah Constitution as well. See
For an excellent article discussing the use of state constitutions to fill the free exercise protec-tional void created by Smith, see Christine M. Durham, What Goes Around Comes Around: The New Relevancy of State Constitution Religion Clauses, 38 Val. U.L.Rev. 353 (2004).
Concurrence Opinion
concurring:
T 62 I am constrained to concur with Justice Parrish's analysis of the application here of the "adjudicated marriage" statute and thus with the result of the majority opinion. I write separately to express my deep misgivings about the due process implications (not raised or briefed in this case) of using a statute designed to create civil Hability for family support to establish the predicate for criminal behavior. Green took calculated and deliberate steps to avoid violation of the bigamy statute. He never attempted to enter into more than one civil marriage at a time, going to great lengths to dissolve, by divorce, one legal marriage before entering into another. In that regard, his behavior differs little from that of many citizens who (for non-religious reasons) set up households with new partners while still legally married to others, and remarry after divorce, if at all. It was only the action of the State, undertaken pursuant to the adjudicated marriаge statute, that rendered his behavior criminal. Absent the application of a party for an adjudication of marriage pursuant to the statute, no legal marriage exists, and Green could not have been prosecuted. The analogy to the doctrine of entrapment, where a defendant is caused by agents of the state to commit acts he would not otherwise have committed, seems to me to be very strong. Here, it was only the prosecutors' application for an adjudication of marriage that created the necessary predicate for criminal bigamy, one that Green most probably, given his course of conduct, did not intend to create himself, and may not have even known was possible. Such a result strikes me as, at best, unfair.
T 63 I also note that I find myself generally in agreement with the views on free exercise expressed by Justice Durrant's concurring opinion, and observe that they may have significant relevance should this court be asked to develop its own jurisprudence under the religion clauses of the Utah Constitution. See generally Christine M. Durham, What Goes Around Comes Around: The New Relevancy of State Constitution Religion Clauses, 88 Val. U.L.Rev. 353 (2004) (discussing ways in which state constitutional religion clauses, given their history and language, may afford more hospitable venues to litigants in religious liberty cases).