State v. Green

mаtter, lying bring criminal case and as such cannot and should have dismissed without independent appeal reaching of a bond for- appeal.1 an direct the merits of the order in the criminal case. As a feiture

result, argues that the court the State CONCLUSION jurisdiction appeals lacked to entertain the {10 appeals The order of the court of is alternative, appeal at all. In the appeal vacated and the dismissed for lack of existed, jurisdiction contends that if the court jurisdiction. by appeals refusing erred to follow this previous holdings agent's court's an DURHAM, 111 Chief Justice Justice knowledge imputed principal. is to his DURRANT, PARRISH, Justice and Justice NEHRING concur in Associate Chief Justice

STANDARD OF REVIEW opinion. WILKINS certiorari, 17 "On we review the appeals,

decision of the court of not decision of trial court." State v. Har (Utah 1995).

mon, Ques 910P.2d subject jurisdiction,

tions of matter because issues, may are threshold be raised at

any resolving time and are addressed before 2004 UT 76 Snyder, other claims. v. Hous. Auth. 28, ¶ 11, Utah, UT 44 P.3d 724. Because Appellee, this case STATE of Plaintiff fully analysis juris resolved our question, diction we do not address the alter GREEN, Thomas Arthur Defendant native raised the State. Appellant.

ANALYSIS No. 20010788. dispositive question presented T8 The Supreme Court of Utah. surety bring independent is whether a can an Sept.3,2004. appeal direct of a bond forfeiture order in a criminal case when the defendant in the same appeal.

action takes no The answer is no. surety A bring cannot a direct

appeal in a criminal case because it is not a

party to the criminal case. While Sun cer

tainly had an interest proceedings surety bond, only behind the bail parties

state and the defendant are actual Harrison,

the criminal action. State v. 33, ¶ 30, 24

UT P.3d 936. Because Sun was party,

not a an independent appeal direct Moreover, improper. ap an "[where taken,

peal properly is not appellate] [an jurisdiction

court lacks and ... must dis Valencia, Bradbury

miss."

¶ 8, Consequently, P.3d the court of

appeals jurisdiction lacked to decide this independent appeal,

1. Rather judgment than an direct from a final [of criminal conviction proper remedy non-party surety for a who seeks standing defendant], alone, the order appeal appealable." a bail bond forfeiture order is an ex- Id. at 1109. Where there is no traordinary conviction, Heninger appeal writ. As we noted in ap- of the criminal no direct Court, (Utah 1987), peal Ninth Circuit 739 P.2d 1108 of the bond forfeiture order is available and appeal proper "a bond remedy extraordinary forfeiture order is reviewable on is an writ.

BACKGROUND polygamist, 1 2 An par avowed Green has ticipated conjugal-type in simultaneous rela tionships multiple women. These wom en all use Green's surname and have borne Shurtleff, Att'y Gen., L. Laura B. Mark children who also use the Green surname.2 Gen., Dupaix, Att'y City, Lake Asst. Salt 1996, Between 1970 and Green formed rela plaintiff. Lynda Penman, Cook, tionships with Beth Kunz, Johnson, Shirley Beagley, Linda June Morrison, Bucher, John R. Grant W.P. Salt Beagley, Bjorkman, LeeAnn Cari Hannah City, Lake for defendant. Bjorkman, McKinley. Julie Dawn Ricks, McCullough, W. Andrew Trenton K. Through relationships women, his with these Midvale, for amicus Utah Coalition Reli- approximately twenty-five Green has fathered gious Freedom and Tolerance. chi ldren.3 Barnard, Harris, Jr., Brian L. M. James City, Rights Salt Lake for amicus Utah Civil 13 Some of the women entered into li marriages and Liberties Foundation. censed with Green. The re maining participated women in unlicensed On Certification from the Utah ceremonies, they after which considered Appeals Court of themselves married to Green. - Green being avoided in more than one licensed PARRISH, Justice: marriage by at a terminating time each li ‍‌​​‌​​​​​​​​​‌‌‌​‌​‌‌​‌‌‌‌‌‌‌‌​‌‌‌‌​‌​‌​​​‌​​​​‌‍ jury T1 A convicted Thomas Green of marriage by prior censed divorce to obtain nonsupport criminal biga- and four counts of ing a marriage.4 license for a new Green my. appeals Green his convictions. then relationships continued his with each they He asserts that violate the Free Exer- of the women he divorced as if no divorcee cise Clause of the First Amendment to the had occurred. United argues States Constitution. He also 1995, statute, family 1 In that Utah's Green and his Utah Code Ann. movеd (1999), County, Utah, § unconstitutionally Juab 76-7-101 where resided to- vague gether and that court in a collection of the district erred shared homes mobile applying family marriage Utah's unsolemnized stat- that the called "Green Haven." Green ute, quartered home, Utah Code Ann. 80-1-4.5 one mobile while the affirm. quartered women and children in others. light 1986, 1. "We ceremony view the facts in the par- most favorable with Linda Kunz. In Green jury accordingly." to the verdict and recite them ticipated marriage ceremony in an unlicensed State v. Loose, Shirley Beagley. 11, ¶ 2, 994 P.2d 1237. with Green created a licensed marriage between himself and Linda Kunz in convenience, 2. For we refer to the women who participated In Green in an unli- by have associated with Green their birth names. marriage ceremony censed with June Johnson. Green divorced Linda Kunz and partici- year 3. The district court found that as of the pated marriage ceremony in a licensed with Kunz, by Green had six children Linda six Beagley by Shirley Beagley, children LeeAnn in 1990. In 1991, Green four children partic- ipated marriage ceremony in an unlicensed Beagley, June Johnson, four LeeAnn children by Bjorkman, three children Cari and two chil- Bjorkman. Cari in 1991, Also Green divorced addition, Bjorkman. dren Hannah Beagley In at the participated LeeAnn a licensed marriage ceremony Beagley, time Bjorkman. trial, Kunz, Linda LeeAnn with Hannah Cari Bjorkman, Bjorkman preg- and Hannah were Bjorkman Green divorced Hannah in 1995. In nant. McKinley, underage, Julie Dawn who was Green, permission marry received court participated marriage 4. Green in a licensed cere- permission Though was later rescinded. the rec- mony Lynda Penman in 1970. Sometime unclear, appears ord is somewhat that at the prior participated Green in an unli- trial, Penman, Cook, Lynda time of Beth marriage ceremony censed with Beth Cook. In longer marital-type June Johnson no maintained Lynda Green divorced Penman. associations with Green. participated in an unlicensed evidentiary hearing court held an home areas were set of the mobile Some areas, dining laundry Linda Kunz was allowed to intervene. common aside as family the bathrooms scat- shared July T8 On the district court The women among the mobile homes. tered declaring issued a memorandum decision individually with Green in his spent nights Kunz that Green and Linda were rotating schedule. home on a mobile pursuant Specifi married to section 30-1-4.5. cally, the district court found that as of No shared with Green 5 Each of the women (the manag- raising the children and vember date on which Green the duties of Bjorkman), Hannah family by dividing the tasks of cook- divorced both Green and ing the single, capable family, doing family Linda Kunz were were ing for the entire married, schooling giving all of the chil- consent to be and otherwise laundry, and home addition, requirements assisted with satisfied the of section 80-1-4.5 dren. the women business, family creating marriage. of sell- a valid unsolemnized which consisted the subscriptions. money Accordingly, All the district court found that ing magazine family pooled and Linda Kunz shared a valid mar the business was Green earned Family riage 1995.6 Household account." as of November The district into "the Green probable court also found cause to bind ap- Green T6 Between 1988 bigamy charges. Green over on the four shows with the peared on various television women, consistently referring to women T 9 After the district court issued its mem- the decision, wives, ac- orandum the State amended its in- as his and the women likewise relationships. against charging In these formation to alter the knowledged spousal Green acknowledged specific dates for the counts to a five- appearances, television Green year period: potentially punishable November 1995 to November that his conduct was alleged information that criminal statutes. 2000. The Green under Utah Shirley Beagley, with LeeAnn Be- cohabited infor April In filed an State Bjorkman, Bjork- agley, and Hannah Cari with, among charging Green other mation Kunz in man while married to Linda bigamy. to a things, four counts of Prior violation of Utah Code section 76-7-101. hearing charges, preliminary on the charges against T were tried asking recognize that the court 10 The Green filed a motion jury jury marriage to a in March 2002. The convicted of a valid between the existence bigamy counts. Green filed Kunz. The its Green on all four Green and Linda State based trial, Code, a motion for a new which district on section 30-1-4.5 of the Utah motion timely filed a marriage princi court denied. Green thereafter codifies common law Blair, appeals appeal. The court of certi- Whyte P.2d 793-94 notice of ples, pursuant to this court appeal fied the (Utah 1994), finding of a and allows for the 78-2-2(8)(b) of the Utah Code. Utah marriage in the of solemnizat section valid absence 78-2-2(8)(b) (2002). §Ann. the district Code motion, response to the ion.5 (1), relationship provides in Subsection described 5. Section 30-1-4.5 as follows: year following termination of (1) one within marriage ac- A which is not solemnized relationship. marriage rec- cording chapter legal that Evidence of to this shall be and valid may ognizable a court or administrative order establishes be manifest- if under this section form, arises out of a contract between two may any proved under the ed in be consenting parties who: general in other rules of evidence as facts same consent; (a) giving capable of are cases. (b) legally capable entering a solem- § 30-1-4.5 Utah Code Ann. marriage provisions of this nized chapter; ex- this court Whyte, cohabited; (c) have plained section 30-1-4.5 of the stat- that under duties, (d) mutually rights, assume marital ute, marriage a valid a court can find that obligations; previously as of that entered into and lawful (e) have who hold themselves out as and today entered establish time: "An order general reputation acquired a uniform and in existence was contracted and husband and wife. past." Id. at 793. sometime in the determination or establishment of The during marriage under this section must occur

ANALYSIS "shall contain the contentions and reasons of appellant respect pre to the issues I. APPELLATE BRIEFING authorities, sented ... with citations REQUIREMENTS statutes, parts of the record on." relied 24(a)(9) addressing "Implicitly, requires just T11 Before the substance of rule arguments appeal, authority raises on development we bald citation to pause importance complying to review authority analysis and reasoned based " appellate briefing requirements. Thomas, authority." 'Our on that State v. clearly (Utah 1998). appellate procedure specify rules of P.2d As we have noted requirements litigants must before, meet many times depos "this court is not a submitting when briefs to this court. See itory in appealing party may which the dump R.App. easy Utah P. 24. The rules are the burden of and research." step-by-step approach understand and offer a Gamblin, 44, ¶ 6, State UT P.3d " writing appellate an brief" Beehive Tel. omitted). (quotations and citations Comm'n, 18, ¶ 12, Co. v. Pub. Serv. Taking shotgun approach to his (quoting MacKay Hardy, 89 P.3d 131 appeal, thirty-nine Green's brief identifies (Utah 1998)). P.2d 947-48 Rule 24 of separate issues "argu- for our review. The Appellate Utah Rules of Procedure con eight ment" for of these issues consists of unambiguous requirements tains for a briefs nothing heading more than a and the state- organization and Failure to contents. adhere " "[this ment issue will not at be briefed this requirements to these 'increase[s] the costs issues, time." For argu- another three litigation parties unduly of for both and bur " merely ment heading consists of a judiciary's energy." den[s] time and Id. part reference to another Many of the brief. 949). (quoting MacKay, 973 P.2d at Failure of remaining Green's issues receive one requirements adhere to the invite the paragraph argument of or impose court consequences, serious such outcome, recites facts and states a desired briefs, disregarding striking or or authority is explain legal devoid of assessing attorney against offending fees basis for the desired outcome. In those rare lawyer. 24(J). R.App. Utah P. authority, instances where Green does cite he {12 case, In this has Green failed to com- provide any pinpoint fails to citations that ply requirements with the 24. rule locating would assist the court in the relevant Green's table of authorities lacks "references holdings statements or sup- claimed to be pages to the of the where [the brief authori- portive position. of his cited," 24(a)(8), R.App. ties] are Utah P. applicable Green does not articulate stan- 1 15 "It is well reviewing established that a appellate dards of for each review arguments court will not address that are not 24(a)(5). issues required raised as rule Thomas, adequately briefed." 961 P.2d at provide Green also fails to either a "citation Consequently, we will restrict our re- to the showing record issue [each] was view of this case to those issues to which preserved in the trial court" or "a statement has Green devoted sufficient attention for us grounds seeking review of an issue not informed, meaningful analysis. conduct an preserved in the trial R.App. court." Utah Only arguments three of Green's appeal on (B). 24(a)(5)(A), addition, P. Green's cita- They meet this standard. consist of Green's tions to the record are in selective contraven- (1) bigamy claims that statute violates 24(a)(7), provides tion of rule which that "[al]ll his federal constitutional to free exer- pro- statements of fact and references to the (2) religion; bigamy cise of statute is ceedings supported by below shall be cita- unconstitutionally vague light in of Green's tions to the record." conduct; and the State's use of Utal's egregious deficiency 113 Green's unsolemnized most statute to establish a his adequately majority legal marriage failure to brief between Green and Linda arguments appeal. that he Kunz improper. raises will review each of 24(a)(9) Rule appellant's states that an brief these claims in turn. Act, Antibigamy prohibited bigamy

II. FREE EXERCISE OF in RELIGION CLAIM Reyn all territories of the United States. States, olds v. United 162- pro 116 Utah's (1878); Soc'y 25 L.Ed. 244 see also vides, part, as follows: in relevant Whitehead, Separationists, Inc. v. when, person guilty A know- (Utah 1993). Reynolds argued knowing ing has a husband or wife or he guilty he could not be found under the law wife, person the other husband marrying inasmuch as he believed that more marry per- purports to another person religious duty. than one woman was his person. son or cohabits another Reynolds, Supreme 98 U.S. at 161-62. The 76-7-101(1) (2008). Ann. Utah Code Court held that the law did not violate the argues that statute is unconstitu Green this Free Exercise Clause of the First Amend tional under the First Amendment to the ment, finding, part, are made "[lJaws punish United States Constitution because actions, government for the and while practices marital violation of his es his religious cannot interfere with mere belief freely religion.7 Specifi right to exercise his opinions, they may practices." Id. effectively cally, argues that a law quoted at 494 U.S. at prohibiting religiously motivated Otherwise, Court, S.Ct. 1595. reasoned the (which polygamy) cannot with we refer to as "professed religious doctrines of belief [would challenge under the standards articu stand land, superior to the law of the be] Supreme lated the United Court States ... permit every effect citizen to become Aye, Babalu Inc. v. Church the Lukumi Supreme law unto himself." Id. at 167. The Hialeah, City 508U.S. 113S.Ct. practice polygamy, reviewed the constitu L.Ed.2d Green's undesirable, socially up found it to be ques challenge presents tional to a statute Reynolds' bigamy held conviction. law, tions of which we review correctness. Thompson, City Corp. Provo ¶ 5, 735. cognizant 119 are of the fact that T17 The First Amendment states that Reynolds century ago was decided over a "Congress respecting shall make no law an may antiquated in wording and be its and religion, prohibiting establishment of the analysis. similarly cognizant We are of the amend. free exercise thereof." U.S. Const. reasoning may necessarily fact that its appli I. The Free Exercise was made Clause comport today's understanding with of the by incorporation cable to the states into the language apparent purpose of the Free Div., Employment Fourteenth Amendment. Nevertheless, the Exercise Clause. Su Smith, 872, Dep't Human Res. v. 494 U.S. preme explicitly has Court never overruled 876-77, 1595, 110 108 L.Ed.2d 876 S.Ct. contrary, To the the the decision. Court seope The and contours of the Free Reynolds approval subsequent in cited defined over time Exercise Clause have been cases, See, validity. evidencing its continued Supreme These the United States Court. Hialeah, 535, e.g., 508 U.S. at 113 S.Ct. 2217 analysis our the cases inform mandate (citing Reynolds proposition for the that "a that conclusion statute does legitimate harm con social have been a not violate the First Amendment as inter quite apart government cern of for reasons preted Supreme the United States Court Smith, discriminаtion"); from 494 U.S. at following reasons. 878-79, (discussing Reynolds 110 S.Ct. 1595 First, explaining in has "never held polygam-

18 is not the first that religious ist to launch an attack on the constitutionali- that an individual's beliefs excuse ty compliance valid burdening practice polyga- of a law him from with an otherwise my. George Reynolds prohibiting that is free polygamist law conduct Lee, constitutionality regulate"); challenged the of the Morrill to United States 455 U.S. regard, religious liberty provision of the In this we note that Green's free exer- claim under I, solely provisions cise claim is based on the art. Utah Constitution. See Utah Const. United States Constitution. Green raises no 252, 257, 71 L.Ed.2d 127 102 S.Ct. City effectively that nances Hialeah (1982) (citing Reynolds support prohibited religion for the members of the Santeria animals, religion sacrificing prac all burdens on from a "[nJot statement traditional unconstitutional"); Yoder, 524-28, worship. tice of Wisconsin Santeria 508 U.S. at 205, 220, Drawing holding 92 S.Ct. 32 L.Ed.2d 113 S.Ct. 2217. from in U.S. Smith, (citing Reynolds proposition emphasized principle the Court individuals, general that "it is true that activities of that "a law that is neutral and of applicability justified by need not a based, be com religiously even when are often sub ject regulation by pelling governmental to the States the exer if interest even the law power promote burdening par cise of their undoubted has the incidental effect of health, welfаre, safety, general or the religious practice." ticular Id. at (citing the exercise of its S.Ct. 2217 Federal Government 1595). delegated powers"); Cleveland United The Court then examined the States, City U.S. 67 S.Ct. 91 L.Ed. Hialeah ordinances and found (1946) (citing Reynolds upholding general applica were neither neutral nor of 532-46, bility. Id. at In 113 S.Ct. 2217. transporting Mann Act convictions for wom stead, purpose en across state lines for the of mak- the ordinances were written in such a ing plural cohabiting way each woman a wife or target only killings as to those animal such, despite challenge her as based religious occurred attendant to Santeria Clause); 535-36, 542-46, on the Free Exercise see worship. also Pot Id. at Murray City, tor v. additionally 760 F.2d 1066-70 2217. The Court found that the (10th Cir.1985) (recognizing city compelling governmental the continued va had no interest lidity Reynolds, finding support the state had the ordinances. Id. at Consequently, S.Ct. 2217. compelling the Court invali prohibiting bigamy, interest affirming ruling discharge that the of dated the ordinances as violative of the Free police practice officer based on the officer's Exercise Clause of the First Amendment. polygamy did not violate the officer's Id. at 113 S.Ct. 2217. We follow the religion). analysis free exercise of court This set forth the Court Hialeah disregard and, therеfore unable to accordingly, United examine Utah's Supreme holding States Reynolds. Court's statute to determine whether ‍‌​​‌​​​​​​​​​‌‌‌​‌​‌‌​‌‌‌‌‌‌‌‌​‌‌‌‌​‌​‌​​​‌​​​​‌‍is neutral general applicability. and of Second, if even this court were re- quired analysis Higleah, beyond Reyn- to extend its According a law is not olds, object statute would survive a if infringe neutral of the law "is to religion federal free exercise of challenge upon practices or restrict because of their 533, the most recent religious standards enunciated motivation." Id. at 113 S.Ct. by Supreme the United States In Court. 2217. We determine whether a law has this impermissible object by assessing the law's the Court held that the state of Ore- gon did not violate the Free Exercise Clause facial and operational neutrality. Id. at 533- 40, neutrality 113 S.Ct. 2217. Facial is as of the First Amendment to the United States Constitution when it unemployment text, 533, refused examining sessed the law's id. at practitioners 2217, benefits to certain operational of the Native neutrality S.Ct. while religion American who had by examining been fired for assessed "in the law its real 535, operation," at illegally using peyote. 890, id. 113 S.Ct. 2217. We at U.S. begin by text, S.Ct. 1595. The Court announced that looking a at the law's "for the applicability need not minimum requirement neutrality a general is that neutral law of justified compelling governmental 533, be a law not discriminate on its face." Id. at neutrality 113 S.Ct. 2217. "A facial law lacks interest if even the law has the incidental burdening particular effect of a religious if it religious practice refers to a a without practice. Id. at meaning 110 S.Ct. 1595. secular discernable from lan guage or context." Id. applied The expounded Court Higleak. Hicileah, the rule enunciated in in Smith In In argued the church Hialeah, city the Court reviewed prohibiting various ordi- ordinances kill- animal

$27 neutrality 126 "Facial is not determi facially neutral because ings were and "ritual." The words "sacrifice" Hialeah, used the native," however. 508 U.S. at however, explaining that disagreed, Court targets 2217. action that 113 S.Ct. "Official "ritual" have words "sacrifice" and while the religious conduct for distinctive treatment "current use admits religious origins, their compliance be shielded mere cannot meanings." Id. at of secular also neutrality." requirement of facial Id. addition, In the ordinances de S.Ct. Therefore, must the statute's we also assess " terms, in without 'sacrifice' secular fined neutrality. at operational Id. 113 S.Ct. referring religious practices." Id. text, a ("Apart from the the effect of us, Similarly, in the case now before operation strong evidence of law its real argue that amici curiae Utah's Green and оbject."). They facially neutral. bigamy statute is not Hialeah, In found that al T27 of the word "cohabit" contend that use city facially though the ordinances were neu tar impermissible amounts to statute's text tral, they operation were not neutral in their marital geting religiously motivated " they accomplished 'religious ger because polygamists. In furtherance of practices of " applied rymander' when to the citizens of contention, and amici assert their Comm'n, city. (quoting v. Tax Walz plainly referring to must be read as "cohabit" 664, 696, 90 25 L.Ed.2d only state polygamists because Utah is (1970) (Harlan, J., parties concurring)). The that outlaws between cohabitation early federal laws enact and because of a series of ordinances consisted narrow polygamy made cohab response ed in also paralleled by exemptions, id. at prohibitions bigamy8 of the crime of itation an element 113 S.Ct. the net result disagree. any killings that "few if of animals other than Santeria sacri prohibited [were] standards 125 In accordance Hialeah, fice," "Indeed," bigamy statute adopted in Utah's 113 S.Ct. 2217. id. terms, prohibits noted, it in secular explains what drafting "careful ensured the Court that, prohibit although sacrifice is Santeria referring religious practices. The without polygam ed, does not on its face mention necessary killings that are no more addition, religion. the word ists or their all other cireumstances are humane almost religious origins or does not have unpunished." Id. at "cohabit" connotations; rather, of secular is word not simi- statute does Heritage Dic meaning. See The American punish only that larly operate to isolate and (Ath tionary English Language prac- religious from the bigamy which results ed.2000). attempt amici to infuse Green and exemp- no polygamists. It contains tices animus, religious "cohabit" with the word applica- practical restrict tions that would they erroneously doing cireumvent so polygamists. tion of the statute meaning.9 plain ignore the word's fact, reported prosecu- of a the last decision "refers to bigamy statute is not a statute that bigamy statute our tion under the current mean religious practice without secular committed courts involved a man who state language." ac ing from the discernable non-religious reasons. State v. facially bigamy for cordingly hold that it is neutral. having or wife specifically at the time a former husband to the Ed- 8. Green and amici refer Act, ..."); munds 22 Stat. 30 sec. 3 living, Tex. a fine . see also Penal shall pay (Vernon 2003) ("An § individu- Code Ann. 25.01 additionally are Green and amici 9. We note that he is marriеd commits an offense if: al only their assertion that Utah is the mistaken in (A) marry marry purports does to or and he: cohabitation as an element of state that includes state, any spouse person than his in this or other bigamy. § Colo.Rev.Stat. 18-6- the crime of See foreign country, under circum- other state or who, (2003) ("Any person married while still 201 the actor's mar- would, that but for stances prior married, state with marries or cohabits in this (B) marriage; riage, lives with a or constitute bigamy...."); RI. Gen. Laws another commits spouse person in this state under other than his (2003) ("'Every person § who shall be 11-6-1 ..."). being appearance of married. another, being married to or of convicted of wife, cohabiting with another as husband and (Utah Geer, 1, 1-2 Ct.App.1988).10 although found that the ordinances bigamy objectives, that We thus find Utah's statute is had stated were underinelu- facially, operationally, as well as neutral. in carrying objectives sive out those because they punished religious conduct of Santerians argue amici 129 Green and that to com exempting while almost all similar secular plete our assessment of the statute's neutral 543-45, conduct. Id. at 2217. S.Ct. The ity legis we also must consider the statute's Court observed that the "ordinances 'have history lative and the motives and intent of every appearancе prohibition of a that soci the lawmakers who enacted the statute. The ety prepared impose upon is to [Santeria Higleah engaged analy author of in such an " worshipers] 545, upon but not itself' Id. at opinion. sis Part ILA.2 of that 508 U.S.at (alteration original) 113 S.Ct. 2217 (quot 540-42, Only 2217.11 S.Ct. one other B.J.F., ing Florida Star v. however, justice, joined in Part IILA.2 of 2603, (1989)). 109S.Ct. 105L.Ed.2d 443 The Hialeah, and two of remaining seven ordinances thus general failed the test of justices expressly disavowed it. Id. at applicability. 557-58, 113 S.Ct. 2217.12 We therefore find analysis requested by above, the additional bigamy 31 As noted Utah's statute appropriate, Green and amici is not attempt and we target only does not religiously requirement move instead to the bigamy. Any second of motivated individual who vio statute, the Free Exercise requirement Clause-the lates the religious whether or burdening religious practice reasons, "laws subject must secular prosecution. is general applicability." See, be of Geer, Id. at e.g., Thus, 765 P.2d at 3. S.Ct. prohibition on prohibition is not a society that our "prepared impose upon 30 The Court in Hialeah did "not define [polygamists] Hialeah, upon but not itself." precision the standard used to evaluate (quotation U.S. 113 S.Ct. 2217 prohibition general whether a is of applica omitted).13 citation did, tion." Id. at 113 S.Ct. 2217. It however, "[nleatrality general note that 132 It is true that interrelated," applicability id. at has an impact adverse on wishing those emphasize principle practice polygamy religion. tenet of their "government, pursuit legitimate impact inter An adverse by does not religion ests, itself, however, cannot in a selective impose manner prove impermissible target- burdens on conduct ing motivated reli because "a social harm have been a belief," gious id. at legitimate 113 S.Ct. 2217. concern government for reasons analyzing ordinances, City the Hialeah quite apart [religious] from discrimination." Ironically, argued lawmakers, ie, the defendant in Geer un- motivation of the whether the successfully selectively prosecuted that the State City actually Hialeah Council intended to disfa- "only bigamists practice bigamy religion those who vor the of Santeria. As I have noted religious other than reasons." P.2d at 3. elsewhere, to deter- virtually impossible singular leg- mine the "motive" of a collective body, islative long and this Court tradi- 11. Part ILA.2 of Hialeah states "[rlelevant refraining inquiries. tion of from such impermissible religious evidence targeting] [as to Hialeah, 508 U.S. at includes, 113 S.Ct. 2217 among things, other the historical back- (Scalia, J., concurring). ground challenge, spe- decision under leаding cific series of events to the enactment or unique prohibition biga- 13. Nor is Utah in its policy question, legislative official and the amici, my. pointed As out is a crime history, including contemporane- administrative eg., See, § state. Ala. Code every 13A-13-1 ous statements made members of the decision (2003); 2003); (Deering § Cal.Penal Code making body." U.S. at 113 S.Ct. 2217. (2003); Colo.Rev.Stat. 18-6-201 Conn. Gen. (2003); § Stat. § 53a-190 Ga.Code Ann. 16-6- joined Justice Scalia, Chief Justice Rehn- (2003); (2003); § 20 Idaho Code 18-1101 Mich. quist, expressed following concerning the Part Comp. (2003); § Laws Ann. 750.439 N.Y. Penal ILA.2: (2003); § § Law 255.15 Or.Rev.Stat. ‍‌​​‌​​​​​​​​​‌‌‌​‌​‌‌​‌‌‌‌‌‌‌‌​‌‌‌‌​‌​‌​​​‌​​​​‌‍163.515 join (2003); I do departs (2003); not that section § because it RI. Gen. Laws 11-6-1 Va. opinion's general object (2003); from the § focus on the Code Ann. 18.2-362 Wis. Stat. Ann. subjective (2003). of the laws at issue to consider the 944.05

$29 argued any alleging properly raised or claims (citing Reynolds, 98 2217 at 113 S.Ct. omitted). Indeed, 145) (other rights to free violation of constitutional citations U.S. instances, Congress or state many the It is a speech, privacy, or free association. "liln general welfare conclude that legislatures that an amicus brief cannot "well-settled rule any religious wholly apart from society, enlarge appeal," extend or issues considerations," "regulation of con demands only portions "those we will consider merely happens reason or effect duct whose pursued bear on the issues аmicus brief that with the tenets or harmonize to coincide parties appeal." Madsen v. [the] Mary religions." McGowan some or all (Utah 1983). Borthick, P.2d 629 658 land, 6 81 S.Ct. 366 U.S. present adequately 1 failed to 36 Green L.Ed.2d 393 rely. example, For on which amici issues legislature has determined T33 The Utah bigamy statute vio- claim that Utah's Green's bigamy this state's prohibiting serves speech right his of free consists lates bigamy stat Because Utah's interests. best nothing allegation, than a with no more bare applicability, the general and of ute is neutral right his supporting articulation of how inter required that the is not to show State Similarly, speech infringed. has been free or that compelling it serves ests only any case or mention of narrowly pursuit tailored statute is relating privacy or free associa- to a Hialeah, 508 U.S. at interests. those reply tion is found in Green's brief. We Smith, 2217; 494 at also U.S. see S.Ct. appeal does not therefore find Green's Instead, 884-86, S.Ct. situation, rights we present hybrid a rationally only that the statute is need show height- inquire further into whether need not government end. See legitimate a related to serutiny appropriate. ened would be Johnson, 356 F.3d Axson-Flynn Cir.2004) ("In (10th effect, cre Smith Having concluded that the State need law is 'a valid and harbor'-if ates 'safe relationship only show a rational betwеen then it general applicability, neutral law of in- legitimate government law and legiti rationally to a simply be related must terest, whether the State has met we assess (citation quota government end." mate regard. conclude that its burden this Ass'n, omitted)); Inc. v. Tenafly Eruv tion rationally related to statute is (3d Tenafly, F.3d Borough First, legitimate government ends. several Cir.2002). regulating mar- an interest this state has argue Amici that Utah's may Reynolds, marriage riage. As stated in strictly seruti- nonetheless be statute should type of "civil contract": viewed as a be compelling interest because the for a nized built, and society may be said to be "Upon it free exercise statute violates Green's spring social relations of its fruits out also constitutional religion, Green's duties, gov- with which obligations and social association, thus rights privacy and free necessarily required to deal." 98 ernment "hybrid "[When situation." presenting Moreover, at 165. U.S. coupled some oth exercise claim is free subject always [mjarriage ... has been (such a free claim [as] er constitutional body legislature. That the control of the claim), may heightened serutiny be speech parties prescribes age at which Axson-Flynn, 356 F.3d appropriate." - marry, procedure or form contract (cit hybrid rights exeeptiоn) (explaining marriage, the duties essential to constitute ing 494 U.S. at creates, upon its effects obligations it 1595). unclear, briefing Although his both, present and property rights of ap apparently agrees that we should ireen may consti- and the acts which prospective, scrutiny, arguing that ply heightened grounds for its dissolution. tute right of also violates his constitutional speech. free Redhail, Zablocki v. J., (1978)(Powell, 673, L.Ed.2d 618 argu cannot address amici's

135 We concurring judgment). preserved nor Green neither ments because regu- communities, of in gamous T38 The State Utah's interest prosecution may well lating in marriage has resulted a network of prove impossible. This wall of silence laws, many premised upon of which are present justification compelling for erimi- Potter, concept monogamy. of 760 F.2d at nalizing polygamy, the act of prosecuting of laws). (citing 1070 n. several such fenders, Pot- effectively breaking down the ter, the Tenth Cireuit found this network provides wall that a favorable in environment "compelling" itself to evidence a state inter- physical which crimes of and sexual abuse in prohibiting bigamous est associations. thrive."). can ("[The beyond State of Utah [[41 All of foregoing legit- interests are policy public declaration of im- interest imate, if compelling, interеsts plicit prohibition in polygamy State, bigamy rationally and Utah's statute is sanction, criminal has established a vast and furthering related to the of those interests. clearly convoluted network of other laws es- We therefore bigamy hold that Utah's stat- tablishing compelling its state interest in and ute does not violate the Free Exercise Clause system commitment to a of domestic rela- of the First Amendment of the United States exclusively upon tions based practice determined, Constitution. Having so we - monogamy opposed plural as marriage."). turn our attention to Green's assertion that Beyond 1 39 regulat- the State's interest in unconstitutionally Utah's statute is ing marriage unit, an important as social or vague. maintaining laws, its network of Utah's legitimate statute serves additional III. VAGUENESS CLAIMS government Specifically, ends. prohibiting argues Green biga bigamy implicates the in pre- State's interest my statute unconstitutionally vague, both venting perpetration fraud, applied to his cireumstances and on its as well preventing as its interest the mis- face. challenges "Constitutional to statutes government use of benefits associated with present questions law, which we review for marital status. City Corp. correctness." Provo Thomp - " 40 importantly, Most stat son, 14, ¶ 5, (citations 2004 UT 86 P.3d 735 ute serves the State's in prоtecting interest omitted). Additionally, "legislative enact vulnerable exploitation individuals from presumed constitutional," ments are to be practice abuse. The polygamy, particu and "those challenge who a statute or ordi lar, often targeting coincides with crimes nance as unconstitutional bear the burden of women and unusually children. Crimes not demonstrating unconstitutionality." - - practice attendant polygamy include Lake, City Greenwood v. N. Salt incest, assault, sexual statutory rape, and (Utah 1991); see also State v. pay failure support. child A. See Richard MacGuire, 4, ¶ 8, 2004 UT 84 P.3d 1171. Note, Vazquez, The Polygamy: Practice of Legitimate Religion Free Exercise or Le "[Vlagueness questions gitimate Public Revisiting Reyn Menace? essentially procedural issues, i.e., process due olds Light Modern Constitutional Ju whether adequately notices the risprudence, 5 Legis. NY.U. J. & Pub. proscribed Morrison, conduct." State v. - 13, 31 (citation Pol'y (2001).14 Moreover, 2001 UT 289-45 P.3d 547 ¶ closed polygamous omitted). nature of quotation stated, communities generally "As obtaining makes evidence prosecuting of and void-for-vagueness requires doctrine that a these challenging. crimes penal See id. at 248 statute define the eriminal offense with ("Given highly private nature of sexual sufficient ordinary peоple definiteness abuse self-imposed and the poly isolation of can understand what prohibited conduct point. Green's circumstances consanguinity illustrate this polygamous associations is il- being bigamy, addition to convicted of lustrated relationships. Among Green's - nonsupport also convicted of criminal Green's "wives" are three sets of sisters and child, Kunz, rape of a Linda who was stepdaughters. thirteen three of his own For another years old at the time example, of her first sexual Kingston, associa- App see State v. potential tion with Green. The for conflicts of 46 P.3d 761.

831 must show that the statute is encourage ... he hot that does in a manner and case."); vague applied this discriminatory as enforcement." arbitrary and cf. ¶ 12, MacGuire, 1171. 4 at 84 P.3d 2004 UT 352, 357, Lawson, 103 461 U.S. v. Kolender (1983); also 903 see 75 L.Ed.2d S.Ct. have held We ¶4, Honie, 57 P.3d 2002 UT State right to free does not violate Green's statute greater degree of a constitution tolerates The above, religion, and as discussed exercise of in eriminal than in civil statutes vagueness constitution we do not address the additional The Estates v. statutes. Vill. Hoffman solely by amici or inade al claims raised Estates, Inc., 455 U.S. Flipside, Hoffman Supra 1134-86. quately briefed Green. 489, 498-99, 71 L.Ed.2d 362 102 S.Ct. vague the statute's therefore evaluate We however, (1982). requiremеnt," scienter "[A] conduct and not light ness in of Green's at vagueness." "may mitigate a law's hypothetical not be according to situations . 499, 1186 court.15 fore the [ 46 first examine whether the statute "as raises both Although Green adequately sufficiently definite to have challenges, vagueness applied" and "facial" pro- that his conduct was warned Green challenge because applied focus on his as we "cohab- argues that the word scribed. Green to convince us has failed Green meaning vague in its it" inthe statute is so First Amend infringes his bigamy statute not aware that his that he could have been constitutionally pro or other ment freedoms purview fall conduct would within the Supreme The United States conduct. tected 76-7-101(1) $ Ann. See Utah Code statute. " [vagueness] chal explained that Green, Accordingto because "cohab- not involve First which do lenges to statutes within the stat- specifically it" is not defined examined freedoms must be Amendment ute, over quandary" him "in a the statute left " case at hand." light the facts of the could reside with how often he 7,n. 102 S.Ct. 1186 Hoffman, 455 U.S. at 495 contact with the women. We have sexual (alteration (quoting States original) United "cohabit" is disagree hold that the word Mazurie, 95 S.Ct. conjugal-type applied to vague not as Green's (1975)). Additionally,a court L.Ed.2d associations. complainant's conduct should "examine in- is clear that Green 147 The record hypothetical applica analyzing other before spousal-type maintain to create and challenged statute tended tions of the law" when Shirley Beagley, LeeAnn relationships with con constitutionally protected "implicates no Bjork- "A Bjorkman, and Hannah at 102 S.Ct. Beagley, duct." Id. Cari women to each of these man. He referred that is engages in some conduct plaintiff who wife, a licensed regardless of whether cannot as clearly proscribed [by statute] such con- likewise The women law as existed. vagueness of the complain of the wives themselves Green's Id. at sidered of others." applied to the conduct spent surname. Green 1186; adopted the Green States v. see also United Cir.2002) (10th Graham, rotating on a sched- nights 305 F.3d each woman these impregnating and succeeded ("Moreover, vagueness ule [appellant's] because times, collectively. eighteen four women Amend implicate a First challenge does also of these associations The children born any, constitutional other ment interest constitutionally protected implicate be does not and state courts have that federal 15. We nоte made, havior, challenge can still be a facial challenges approached somewhat differ facial statute is challenge if the will succeed Appeals ently. for the Tenth Circuit The Court of applications, vague in all of its to be challenges a statute shown unless does not allow facial application to the facts beginning constitutionally protected behavior. implicates ¶ 12, 4 at MacGuire, hand. See States v. 1105; F.3d at United Graham, See Cir.2001); (10th LaHue, this P.2d at 819-20. 261 F.3d 1004-05 Greenwood, 1171; case, Gaudreau, yield result approach the same would either 860 F.2d United States review, require applied an as because both (10th Cir.1988). cases, a is limited In such party vague contrast, is not that section 76-7-101 challenge. we we find applied have to an as applied Green. interpreted to hold that if federal law Together, use the Green surname. proscribed to an area of conduct shall take spousal pa- and the women undertook the risk that he cross the line." obligations. Although rental Green and the Jordan, (Utah State v. house, women they did not reside one 1983) (quoting Boyce Motor Lines v. United homes, group shared a of mobile "Green States, 337, 340, 72 S.Ct. Haven," possessed that common areas (1952)). L.Ed. 367 family's the entire use. With these facts in Hаving concluded that the statute is mind, it is difficult to see how Green could sufficiently definite to have notified Green might be unsure whether "cohabiting" he be that his prohibited, conduct was we next meaning within of Utah's stat- examine whether sufficiently the statute is Indeed, produced pre- ute. conduct Green's discourage definite so as to arbitrary and cisely the situation that aim statutes discriminatory Kolender, enforcement. prevent-all to the indicia of re- 1855; Honie, atU.S. 103 S.Ct. peated light more than onee. of Green's ¶ 31, 4 at 57 P.3d 977. The United States conduct, we do not find the word "cohabit" Supreme Court has stated that to avoid un impermissibly to vague. be vagueness, constitutional a statute must "es [ addition, 48 In Green could find con- his guidelines tablish govern minimal to law en dictionary duct described in definitions of the forcement" such that entrusting avoids word "cohabit." Heritage See The American "lawmaking to the judg moment-to-moment (Ath Dictionary English Language policeman ment of the on his beat." Kolen ed.2000) (defining "cohabit" as to "live to- der, 461 U.S. at 103 S.Ct. 1855. gether in a relationship, especially sexual §51 Green and argue amici that Utah's married"); when not Webster's New bigamy statute affords enforcement officials Dictionary, Concise (defining Edition prosecutorial too much discretion because it as, if, togethеr "cohabit" as to "dwell or as specifically does not indicate which of the wife"). husband or similarly This court has "myriad of modern living arrangements" defined the word "cohabit" within the context prosecuted. should be applied In an as chal of interpreting a cohabitation clause however, lenge, we must partic foeus on the Haddow, divorce decree. Haddow v. ular conduct at possible hand and not on the (Utah 1985). P.2d hypothetical conduct parties. See United Haddow, LaHue, 149 In (10th this court assessed States v. 261 F.3d Cir.2001) ("[It whether cohabitation had occurred look- application ing for residency "common [challenged and sexual con- statutes] defendants law tact evidencing a conjugal review; association." enforcement officials we in an 'as conduct, Green's applied examination, as testified to him and defendants not generalize beyond "wives," the conduct with which his squarely fits within these defini- they charged."). addition, tions. we note that biga- my statute contains a requirement, scienter 1 52 We find that law enforcement officials mitigates any existing vagueness. encountering Green's cireumstances would Hoffman, 1186; 455 U.S. at pursue be left their personal own 76-7-101(1) (1999). § Utah Code Ann. predilections determining applicability thus of Utah's already statute. As wе do not accede to discussed, [Green's] have Green's conduct fell unmis precisely word is not defined so as takably within the purview, statute's leaving apprise proscribed [him] conduct. no room for law enforcement officials to de symbols Words are cide, of communication and discretion, their the statute's as such are not quality invested with the provisions apply. should not We therefore a scientific enough formula. It hold that vagueness Green's challenge fails. can be construed with reasonable certain- In so holding, express we opinion no as to ty. Beyond that it suffices to add that whether someone factual cireumstances "one deliberately goes who perilously distinguishable close from Green's could success conclude, regardless, we that both of challenge to because vagueness fully mount regarding unsolemnized Green's claims bigamy statute.16 marriage statute lack merit. INVOLVING UTAH CLAIMS

IV. argues 156 Green first he had 30-1-4.5 CODE SECTION him no notice that the State would consider legally married under section 80-1-4.5. He claims in- finally address Green's 1 53 We no notice that reasons that he therefore had marriage stat- volving Utah's unsolemnized allowed him to alter his conduct would have To ute, Ann. 30-1-4.5 Code Utah bigamy. prosecution Green's avoid successfully prosecute Green under Utah's by period the fact that the argument is belied statute, of had the burden bigamy the State charged for he was and convicted of which legally was married establishing that Green 2000) (November to bigamy 1995 November marry purported to or cohabited then and following and a half months included four § Ann. 76- Code with another woman. Utah was district court's declaration Green 7-101(1) (1999). attempt In an to bind Green legally pursuant married to Linda Kunz to there- bigamy charges, over on the marriage During the unsolemnized statute. by the dis- a requested fore determination time, considered this Green knew State legally to whether Green trict court as married, legally him but Green did not take pursuant to section Linda Kunz married to opportunity to his advantage of the alter Kunz to inter- allowingLinda 30-1-4.5. After addition, In the record establishes behavior. vene, and court found that Green the district was aware that section 30-1-4.5 Green a valid unsolemnized Linda Kunz shared might against bigamy pros him in a be used marriage. charged he was the State.17 ecution before (54 argument is not Although Green's is that 157 Green's second clear, objects to the State's apparently he improperly marriage statute unsolemnized predicate to as a reliance on section 30-1-4.5 intermingled proceedings. civil and eriminаl (1) convictions on the basis that his regard, we note that this is not the this that he could be found Green had no notice first time a claim under section 30-1-4.5 legally married under section 30-1-4.5 adjudicated in of a court the context been bigamy; subsequently prosecuted for Seq, involving a related claim. proceeding inter- improperly section 30-1-4.5 reliance on ¶¶ 1-3, Clark, e.g., 2001 UT Clark a criminal mingled proceeding a civil sought a (involving petitioner a who P.3d 538 proceeding. marriage 30-1- under section declaration 1] provides single a divorceeand divide a citation to the 4.5 order to obtain 55 Green Gonzalez, allegedly that he raised and assets); record to show Marriage marital In re ¶¶ 1-2, (involving 1 P.3d 1074 regarding claims the use of preserved these marriage That ci- adjudication statute. the unsolemnized for an petitioner who filed in which is to a memorandum Green in order to marriage tation under section 30-1-4.5 "novelty" using briefly comments on whether she could claim benefits determine poli a criminal insurance section 30-1-4.5 to further a former cohabitant's Johnson, 1064, 1068-69 argues cy); that this ref- 856 P.2d prosecution. The State State v. (Utah 1998) (addressing appeal of a erim- novelty was insufficient to raise erence to sought specific ap- who a declaration preserve Green's claims inal defendant in order to marriage 30-1-4.5 whether such a under section peal. We need not resolve statute, probation under another qualify for preserve to the issue reference was sufficient filed, referencing section wrote a letter Green Indeed, we can envision situations pro- raising possibility he could application the word "cohabit" could be 30-1-4.5 and legally might married to the mothers be considered therefore deserve blematic, and the statute legislative addition, consideration. Kunz testified Linda his children. and had of section 30-1-4.5 that she was aware record, According spoke Green to the Green was Green before discussed it with attorneys concerning two section 30-1-4.5 bigamy. charged with being Ap- prior any charges filed. months to charges proximately year were one before the noting trial court that "the could have thus with majority opinion. the result of the separately I requisite express my deep write to made the factual determinations mis- givings process about the due implications establishing and entered an order the rela (not case) using raised or briefed in this tionship marriage as a valid when it decided designed Hability to civil create whether pro [the defendant] was entitled to fаmily support predicate to establish the bation"); Blair, Whyte see also criminal behavior. Green took calculated (Utah 1994); Kelley Kelley, steps and deliberate to avoid violation of the ¶¶ App UT Nothing 9 P.3d 171. attempted statute. He never to en- plain language prior of the statute or ter into more than one civil at a involving cases the statute indicates that time, dissolve, going great lengths improper rely would be on the statute in divorce, legal marriage one entering before any proceeding in which the existence or regard, into another. ‍‌​​‌​​​​​​​​​‌‌‌​‌​‌‌​‌‌‌‌‌‌‌‌​‌‌‌‌​‌​‌​​​‌​​​​‌‍In that his behavior validity of a marital association is a material differs little from many that of citizens who issue. (for reasons) non-religious up set households Finally, T alleges that the combi- with partners new while still married nation proceeding civil followed others, divorce, remarry after if at all. proceeding criminal allowed the State to en- only State, It was the action of the undertak- joy evidentiary a relaxed burden at trial. pursuant adjudicated en marriage to the stat- jury Green claims that the legally found him ute, rendered his behavior criminal. married to Linda Kunz based on a prepon- application Absent party of a for an derance of the evidence standard because the adjudication marriage pursuant of to the applied district court in finding statute, standard exists, legal no marriage and Green marriage the existence of a under section 30- could not prosecuted. have been The analo- gy 1-4.5. Green's is without in to the doctrine of entrapment, basis where a the record. defendant agents is caused of the state to commit acts he would not otherwise have trial, 1 59 In jury Green's criminal committed, seems very strong. to me to be that, instructed in order to find Green Here, only prosecutors' it was application 80-1-4.5, married under section it had to find adjudication for an marriage of that created that each element of the statute was satisfied necessary predicate bigamy, for criminal "beyond a reasonable doubt." The State one that probably, given Green most his enjoy, thus did not and Green was not con- conduct, course did not intend to create under, victed proof. a lesser standard of himself, may not have even known was possible. as, Such result strikes me CONCLUSION best, unfair. 1 60 We affirm the district court and hold IT 63 also note myself generally that I find (1) Utah's statute does not vio- agreement with the views on free exercise late Green's federal constitutional expressed by Justice concurring Durrant's (2) free religion; exercise of opinion, they may and observe that have statute unconstitutionally is not vague ap- significant relevance should this court be plied conduct; (8) to Green's the State's develop asked to jurisprudence its own use of Utah's unsolemnized religion clauses of the Utah Constitution. legal marriage establish a between Green generally Durham, See Christine M. What and Linda Kunz inappropriate. was not Goes Around Comes Around: The New Rele- vancy State Religion Constitution Claus- 1 61 Associate Chief Justice WILKINS es, 88 Val. U.L.Rev. 353 (discussing and Justice DURRANT concur in Justice ways in which state religion constitutional opinion. PARRISH's clauses, given history language, their hospitable afford more venues to liti- DURHAM, Justice, Chief concurring: cases). gants religious liberty T 62 I am constrained to concur with Jus- "[ analysis tice Parrish's application here 64 Justice NEHRING concurs in Chief "adjudicated marriage" statute and Justice concurring opinion. DURHAM's 10 L.Ed.2d S.Ct. Justice, DURRANT, concurring: however, Smith, all but abandoned reaching conclusion T 65 serutiny in the context of the strict standard the Free not violate does bigamy statute claims, gener concluding that a free exercise Clause, majority applies the Exercise law need ally applicable and neutral by the articulated standard rational basis id. at 878- satisfy rational basis review. See Employ Supreme Court United States 80, 110S.Ct. 1595. Division, Re Department Human ment abrupt departure T67 The Smith Court's S.Ct. U.S. sources un (1990), analyzing religious exercise issues from standard 108 L.Ed.2d 876 serutiny has been wide applica der a strict standard generally a neutral under which by compelling ly criticized justified need not be and commentators ble law courts alike, majori that the interest, primarily on the basis if the law has even governmental history ty opinion unsupported either burdening particular the incidental effect See, City precedent. e.g., Boerne acknowledge Although I practice. religious Flores, 507, 546-48, today to in our decision that we are bound (1997) (O'Connor, J., joined concur 138 L.Ed.2d authority, and therefore follow this J., view, dissenting) (arguing that by Breyer, my majority opinion, Smith's "adopted improper an standard afforded the Smith protections evisceration claims"); at 565- deciding free exercise id. contrary to the religion free exercise ("I (Souter, J., dissenting) purpose of the Free language and the explicit precedential sep have serious doubts about Consequently, I write Exercise Clause. entitlement value of the Smith rule and its I to be the arately clarify what believe Am., adherence."); Corp. govern Combs v. Corr. scrutiny applicable to levеl of proper ("In (W.D.La.1997) 799, F.Supp. n. 1 977 802 constitutionally with the interference mental to the First Amendment that Smith reduces freely one's to exercise protected freedom history long paper tiger repudiates a a religious beliefs. jurispru- carefully crafted free exercise of prior to long In a line of cases I 66 dence, [City agree Boerne] we with the of "respected both the First Supreme Court the III, dissenters."); Free James D. Gordon mandate and express textual Amendment's Mountaintop, L.Rev. T9 Cal. Exercise on the of regulation interest in governmental McConnell, (1991); Free Ex- 91 Michael W. govern by requiring the [religious] conduct Decision, the Smith ercise Revisionism and justify any burden ment substantial (1990). I Although 1109 57 U. Chi. L.Rev. by compelling a conduct religiously motivated criticisms, and agree with these generally narrowly tai means state interest and calling of those my voice to the chorus add Id. at 894- achieve that interest." lored to Smith, I do not re- of re-examination J., (O'Connor, joined by 95, 110 S.Ct. 1595 Rather, I highlight I what peat them here. Blackmun, JJ., Brennan, Marshall, con- in the Smith an additional flaw to be believe Comm'r, 490 v. curring) (citing Hernandes fallacy decision; namely, logical inherent 2136, 680, 699, 104 L.Ed.2d 109 S.Ct. U.S. explic- an review to applying of rational basis (1989); Unemployment Ap v. 766 Hobbie subjecting protection while constitutional Comm'n, 136, 141, 107 S.Ct. peals 480 U.S. other with certain governmental interference (1987); 1046, v. 190 UnmitedStates 94 L.Ed.2d exacting rights more seruti- unenumerated 257-58, 1051, Lee, 252, 71 102 S.Ct. 455 U.S. ny. Bd., (1982); Thomas v. Review L.Ed.2d 127 1425, cases, 707, 718, 67 L.Ed.2d line of 101 S.Ct. extensive 450 U.S. 168 an the Due Pro- 618, interpreted Supreme (1981); Paty, 485 McDaniel v. U.S. (1978) 1322, heightened protec- providing 55 L.Ed.2d 593 98 S.Ct. cess Clause Yoder, interference against governmental tion opinion); v. (plurality Wisconsin 1526, 205, 215, expressly 15 right 32 L.Ed.2d right privacy, 92 S.Ct. U.S. My pur- States, provided for the Constitution. (1972); 401 U.S. Gillette United (1971); 828, 437, 462, Supreme challenge the L.Ed.2d 168 91 S.Ct. not to pose here is (al- jurisprudence Verner, 398, 408, right privacy 83 Court's 374 U.S. Sherbert though questionable I do find it to be is a right, fundamental the interference with many respects), logical but to appropriately subject note the and which is height inconsistency affording Redhail, theoretical serutiny. more ened Zablocki v. 434 U.S. 374, 383, 673, (1978); 98 S.Ct. 54 L.Ed.2d 618 protection implicit "penumbral" an right explicitly protected by than to one the Con- Loving Virginia, 1, 12, 388 U.S. 87 S.Ct. view, 1817, my stitution's framers. Smith is 18 L.Ed.2d 1010 Skinner v. made all the more indefensible fact Oklahoma, 1110, 316 U.S. 62 S.Ct. expelled that it has right (1942); Nebraska, to free exercise 86 L.Ed. 1655 Meyer v. 390, 399, 625, liberties, 43 S.Ct. 67 L.Ed. 1042 from the table of civil while the implicit right privacy However, has been afforded a the marital relationship merely private itself is "not seat of honor. romantic decla- religious right." ration or Maggie Gallagher, irony T 69 The juxtaposition created Marriage What is For? Purposes The Public differing of these readily appar- standards is Law, Marriage 62 La. L.Rev. ent from the facts this case. As the (2002). Rather, contract, it is a civil An majority correctly notes, had Green ade- Andrews, 14,30, drewsv. 188U.S. quately respect briefed his (1903); Moore, 47 L.Ed. 866 Meister v. right privacy, pro- he would have been 76, 78-79, (1878), U.S. 24 L.Ed. 826 greater vided a degree protection under " relationship 'a in which vitally the state is an implicit right privacy than he was " interested.' Macfarlane, Norton v. 818 P.2d explicit right to free exercise. (Utah 1991) (Howe, J., concurring and short, I 70 In essentially Smith has rewrit dissenting) (quoting Littlejohn, Fennell v. ten the Free Exercise Clause into the Free (1962)). 240 S.C. 125 S.E.2d Clause, a result that I believe to be Belief "Indeed, 'marriage is a legal state-conferred inherently implicit right flawed. Because an status, gives existence of which rise to privacy should greater not be afforded rights exclusively benefits reserved protection explicit than an to the free " particular to that relationship. Universal religion-a concept exercise of upon which State, Church v. 189 F.Supp.2d Life country our was founded protection and a (D.Utah 2002) Lewin, (quoting Baehr v. deeply ingrained in the hearts and minds of (1993)). 74 Haw. It is American citizens-a state should not be al precisely because is a state-created lowed to religiously burden motivated con institution that states compelling have a in duct unless the state's compelling interest defining terest parameters the of marital and the narrowly burden is tailored to relationships, in regulating and proce the achievethat interest.1 dures, duties, rights and stem from said, T 71 being That I biga- ("It believe Utah's relationships. those See id. is clear my supported law is compelling state right states have an pre absolute to interest briefly several of the reasons upon scribe the condition which marriage touched on in majority opinion. the created."); First shall be Bond v. Trustees the of foremost, and compelling Fund, State has a STA-ILA 650, Pension F.Supp. 902 interest in regulating preserving (D.Md.1995) ("[TThe and the in- 655 regu definition and marriage stitution of as that institution has marriage lation of is a traditional area of been defined Supreme the State. The authority."); List, state Salisbury v. 501 Court has made clear right marry 105, (D.Nev.1980) ("The that the F.Supp. 107 state apply I scrutiny would strict bigamous to free polygamous into relationships or exercise claims under the United States Constitu- would, under a state constitutional be analysis, tion, to claims under the Utah Constitution subject to a different standard of review. I, (''The as well. See Utah Const. 4 art. State For discussing an excellent article the use of respecting shall make no law an establishment of state protec- constitutions to fill the free religion exercise prohibiting or the free exercise there- of...."). note, however, tional void created I see plu- do Christine M. that because Durham, marriages ral expressly prohibited by What Goes Around Comes Around: The Relevancy New Religion State Constitution Utah Constitution, see Viah Const. III, art. any of Clauses, asserting free exercise claim to enter 38 Val. U.L.Rev. 353

837 Potter v. marital institution. See of tioned qualifications may control legislatures 1065, (10th 1070 Cir. Murray City, 760 F.2d parties, the forms contracting [marital] 1985) of Utah necessary (noting solemnize because procedures obligations it ere- net and a vast and convoluted marriage, the duties "has established rights, and the ates, upon property exclusively upon ... its effect ... laws based work of dissolution."); De- Estate monogamy opposed plu grounds practice of 92, Cal.Rptr.2d Passe, 118 Cal.App 4th justified by compelling 97 marriage," it "is ral ("The state has vital 143, (Ct.App.2002) 148 enforcing upholding its ban interest marriage and monogamous marriage protect in the institution plural interest omitted)). fix conditions power to relationship" (quotations plenary marriage may be creat marital status in compelling which Accordingly, the State has Frаnks, ed...."); Marriage re conduct, such as the prohibiting terest (1975) ("The 845, 499, Colo. threatens practice polygamy, always pecu marriage has been institution institution. state, subject to of the liarly a creature legislature."); Hendrick by its regulation WILKINS T73 Associate Chief Justice 15, ¶ 9, Hendrick, APP CIV 1999 OK concurring in Justice DURRANT's concurs ("Marriage creature[ ] ... [is ~ P.2d 1071 al opinion. having con exclusive with the State establishment, maintenance trol over the relationship."); see marital

termination 417, Minnesota, 497 U.S. Hodgson v. also 111 L.Ed.2d

("State marriage ... is obvious regulation of ...").

ly permissible. 2004 UT 77 Moreover, concept T72 OF In the Matter of the DISCIPLINE value." In re "undisputed social possesses DONCOUSE, # 6718. Russell T. Dargan, & 118 Cal. Marriage Mehren (Ct. 1167, Cal.Rptr.3d App.4th Bar, Appellant, Plaintiff State Utah omitted). (internal Mar quotation App.2004) has been defined riage, as that institution centuries, very is the "foun country for our Doncouse, Defendant Russell T. May family society." and of dation of the Appellee. Hill, nard v. Norton, No. 20020916. (1888); see also

31 L.Ed. 654 (Howe, J., concurring and dissent P.2d at 18 Supreme Court Utah. Brusseau, ‍‌​​‌​​​​​​​​​‌‌‌​‌​‌‌​‌‌‌‌‌‌‌‌​‌‌‌‌​‌​‌​​​‌​​​​‌‍App .4th 12 Cal. ing); Borelli (Ct.App.1998) Cal.Rptr.2d Sept. ("[The (Poche, J., dissenting) structure upon the large part society depends itself marriage."). Powell Justice

institution State, representing that "[tJhe

onee observed aspirations, of moral expression

the collective ensuring an undeniable interest

has relations reflect rules of domestic Zablocki, people."

widely of its held values (Powell, J.,

concurring judgment). Because marriage, with all of its has defined Utah obligations, to legal attendant benefits relationships, monogamous

encompass only preserving compelling interest and state-sance-

integrity of that state-created

Case Details

Case Name: State v. Green

Court Name: Utah Supreme Court

Date Published: Sep 3, 2004

Citation: 99 P.3d 820

Docket Number: 20010788

Court Abbreviation: Utah