State v. Holm

UT 31 alleged waiv that, the time indicate consequences "the er, appreciated Pedockie Appellee, Utah, Plaintiff STATE himself, including represent the decision [(he com to] need would expectation v. recognition and the rules technical ply HOLM, Rodney Defendant Hans matter just a is not a defense presenting Appellant. story." telling one's No. evi- contain the record Although T51 case to wanted Pedockie dence of Utah. Supreme Court "noth- he knew attorney because by an tried not familiar was law" and ing about May knowl- court, general of the rules an under- necessarily evidence edge does not inher- requirements technical

standing of the Pedockie While case. one's presenting

ent understanding some obtained arguably during the requirements technical

these is de- the record proceedings,

course understood that Pedockie

void of evidence time prior requirements

these instance, was Pedockie For

alleged waiver. the court rules of of the technical informed standby counsel appointed judge

when could standby counsel explained that eross-ex- jury instructions

help prepare for trial but subpoena witnesses

amine By this motions. argue Pedockie's already had however, judge the trial point, ap- entitled was not

ruled that Pedockie Therefore, primary counsel. pointment may have had Pedockie knowledge that disadvantages of dangers and

regarding little, late. too too

self-representation

CONCLUSION appeals court of agree with 152 We trial, We a new is entitled

that Pedockie and conclude record reviewed the knowingly, or voluntarily, did

Pedockie to the assistance right

intelligently waive his

of counsel. DURHAM, Associate

1 53 Chief Justice WILKINS, Justice Justice

Chief concur

DURRANT, NEHRING and Justice opinion. PARRISH's

in Justice 1998). (Utah Heaton, 958 P.2d

54. State we Specifically, minor. awith ual conduct Holm's be- whether determine are asked statute Utah's violated bavior We constitutional. statute whether trial whether to decide asked also ju- adequately established court conduct sexual the unlawful over risdiction sexual unlawful whether charges and equal is unconstitutional conclude We grounds. protection within squarely falls behavior Holm's by our State's criminalized of behavior realm en- protections bigamy statute constitution, as well federal shrined free constitution, guaranteeing conscience, pro- due religion and exercise shield do cess, of association freedom from state practices conclude further We prosecution. jurisdic- exercised appropriately court trial conduct sexual unlawful Holm's tion over conduct unlawful sexual and that charges af- Accordingly, we constitutional. statute under Utah conviction defendant's firm the under bigamy and for 76-7-101 section Code unlawful for 76-5-401.2 section Utah Code minor. awith sexual

BACKGROUND to Suzie married legally was T2 Holm mar Subsequent Stubbs the Fundamental Holim, a member riage, Latter-day Christ of Jesus Church ist Church"),1 (the participated "FLDS Saints Wendy ceremony with marriage religious Gen., F. Shurtleff, Paul Att'y L. Mark thirty- was Then, Rodney Holm when Holm. Dupaix, Knowlton, B. Laura Graf, Kristine religious mar in another two, participated he City, plain- for Gen., Lake Att'ys Salt Asst. then-sixteen-year-old ceremony with riage tiff. After Stubbs, sister. Stubbs's Suzie Ruth Parker, Salt Wheeler, Rodney R. D.Max into moved ceremony, Ruth City, for defendant. Stubbs, Wendy Lake house, Suzie her sister where By resided. also Holm, children and their DURRANT, Justice: had con she eighteen, turned Ruth the time Holm, second children two ceived { case, to determine are asked we 1 In this months three approximately born was which appropri- was Rodney Hans whether birthday. eighteenth her after sex- unlawful bigamy ately convicted polygamy. marriage," or "plural practice of of small of a number is one Church FLDS 1. The as "fundamentalist Though often referred that continue communities groups no connection these the Church Mormons," early interpret doctrine Church, practice renounced which (the the LDS "LDS Latter-day Saints Jesus Christ polygamy in Church") supporting "Mormon Church" T3 Holm subsequently arrested in church members and members of Holm's charged Utah and with three counts of un family attended the ceremony; and pho- lawful sexual conduct with a sixteen- or seve tographs Holm, were Stubbs, taken of nteen-year-old,2 in violation of Utah Code guests their who attended ceremony. (2008),3 section 76-5-401.2 and one count of 1 5 Stubbs also testified about her relation- bigamy, in violation of Utah Code section 76- ship with Holm after the ceremony. She 7-101 (2003)4-all degree third felonies. testified that she had Holm; moved The trial court denied both pretrial Hoim's that Holm provided, had at part, least in motion for a continuance prepare a de children; Stubbs and their and that she and fense Texas, based on Lawrence v. 539 U.S. Holim had "regularly" engaged in sexual in- 123 S.Ct. (2008), 156 L.Ed.2d 508 tercourse at Hilldale, the house in Utah. Evi- which was issued a little over a month before dence was also introduced at trial that Holm trial, and Holm's motion to dismiss based on "regarded Stubbs each other as husband statutory grounds and the constitutional in and wife." validity of bigamy and unlawful sexual 1 6 At the close of the chief, State's case in conduct statutes. Holm moved for reconsideration of his mo- trial, T4 At Ruth Stubbs testified that dismiss, tion to arguing that jury should although she knew that the marriage was not not be allowed to consider whether he violat- a legal civil law, she ed statute purporting to mar- believed that she was married. Stubbs's tes- ry Stubbs. Specifically, argued he timony included a description of the ceremo- "purporting marry" prong of the bigamy ny she had participated in with Holm. Stubbs applied that, testified ceremony, she had an- marriages. again The court rejected his mo- swered "I do" to the following question: tion. you, Do [Stubbs], Sister take Brother During T7 the trial, course of the the court hand, right [Holm] the give your- denied request present to rebuttal self to him to be his lawful and wedded evidence in the form expert testimony

wife for time and all eternity, with a cove- concerning practice FLDS and beliefs. nant This promise your on part, you evidence would have included will fulfil Kenneth D. laws, all the rites and ordinances Driggs's testimony about deeply the pertaining to held holy this bond of matrimony religious belief among FLDS the new adherents that covenant, and everlasting doing type this of marriage is "necessary this in God, the to their presence of angels, and personal salvation," witnesses, history these your polygamy, own free will and and the social health of polygamous choice? commu- nities. Stubbs testified that she had worn a white dress, which she dress; considered a wedding jury T8 The guilty returned a verdiet on that she and Holm exchanged vows; each of charges, indicating on a special Jeffs,

Warren religious leaderin the FLDS verdict form that guilty Holm was bigamy religion, conducted ceremony; that other both "purported because he marry to Ruth 2. The three unlawful sexual conduct with a person mi- A commits unlawful sexual conduct charges nor if, were based on the fact that with a Ruth minor under circumstances Stubbs had conceived two amounting children with Holm to [other, more serious sexual of- eighteen before she turned allegation on the fenses], actor who is ten or more years older than the sexual minor at the conduct time of the occurred sexual between Ruth ... has sexual Stubbs and intercourse night Holm with mi- religious after the nor.... marriage ceremony. preliminary hearing, At a magistrate dismissed the third unlawful sexu- 4. Utah Code provides, section perti- 76-7-101 charge al conduct because there was insufficient part, nent as follows: evidence any to find that sexual conduct oc- person when, guilty A bigamy knowing he night curred the after ceremony. has a husband or knowing wife or the other person wife, has a person husband pur- or 3. Utah Code provides, section per- 76-5-401.2 ports marry person to another or cohabits with part, tinent as follows: person. another wife, the husband has a person other had "cohabited he and because

Stubbs" person marry another to purports person court sentenced trial Ruth Stubbs." Utah Code person." with another cohabits on prison in state years up to five to Holm (2008). weighing jury § 76-7-101 Ann. concurrently, conviction, served to be each special aon indicated Holm the case prison $3,000 Both fine. imposed a Holim had its conclusion form verdict in ex- suspended were fine and the time person" marry another "purported both one probation, years on three change for know- person" another and "cohabited release, and work jail with county year in the a wife. already had he ing that community service. hours hundred two ver- special the nature Due to all on conviction his appealed Holm T9 this convinee form, Holm must appeal dict Appeals, sua Court The Utah charges. bigamy of Utah's prongs that both court for transfer appeal certified sponte, applied inappropriately have been of the Utah to rule 43 pursuant court argu- essentially four raises Holim his case. This court Procedure. Appellate Rules that neither his contention support ments to see- Code to Utah pursuant jurisdiction First, argues that Holm (2002). 78-2-2(8)(b) applies. prong tion marry" "purports conviction improper was bigamy statute prong of REVIEW OF STANDARD Specifi- interpretation. statutory a matter raises several Holm appeal, 110 On "purport he did argues that cally, Holm statutory engage in requiring us issues Stubbs, phrase is as that marry" Ruth to examine interpretation, constitutional statute, word because used jurisdiction, and had trial court whether 76-7-101(1) refers "marry" in subsection properly trial court whether to determine nor Holm neither marriage and testimony. Except for expert excluded cere- that the contemplated Stubbs issue, these each of of evidence exclusion relationship would solemnizing their mony law, we which questions involves issues legal benefits them to entitle Green, State v. See for correctness. review matrimony. to state-sanctioned attendant (constitutional ¶ 42, P.3d 820 UT un- his conviction Second, argues MacGuire, statutes); challenges unconstitutional bigamy statute der ¶ (statutory inter 4, 8, P.3d 1171 UT unduly case because in this applied P.2d Payne, 892 v. State pretation); his reli- practice to right infringes upon his 1995) (trial jurisdiction). (Utah court constitution. by our state guaranteed gion, issue, a trial review we the evidence As to Third, that his conviction argues Holm testimony expert to exclude decision court's un- unconstitutional was bigamy statute Hollen, v. State an of discretion. for abuse Fourth, Holm constitution. the federal der ¶ 66, 44 P.3d 794. UT exelud- improperly court the trial argues that to rebut testimony was offered expert ed ANALYSIS polygamous of characterization the State's arguments {11 raises Holm appeal On culture. and bigamy for his conviction both arguments. of these reject each T14 We sexual unlawful conviction contained marry" language to "purports arguments Holm's discuss minor. We

with a to not confined is bigamy statute sepa- his convictions reversing each enough to fact, is, broad marriage and rately below. en- religious solemnization type cover further We by Holm and Stubbs. gaged CONVICTION HOLM'S AFFIRM I. WE polyga- engage in ability to conclude BIGAMY FOR from excepted expressly is behavior mous by our afforded religious protections to pursuant convicted Holm was unpersuaded are also We constitution. statute, provides which bigamy Utah's mandates constitution federal when, know- bigamy guilty person is "[a] union tolerate this the states knowing the or wife a husband ing he has behavior in the name of tools such legislative pro- substantive due history. See Adams cess freedom of association. Additionally, Swensen, 8, ¶ 8, 2005 UT 108 P.3d 725. in the face of controlling United States Su- 17 The "purports marry" provision of preme authority, Court we are constrained to bigamy Utah's statute declares that per- "[a] conclude that the federal constitution does son guilty bigamy when, knowing he has protect bigamy prosecution a husband or wife or knowing the other grounds. freedom Finally, we person has a wife, husband or person conclude that the trial court did not abuse its purports to marry person." another by discretion excluding proffered Holm's ex- 76-7-101(1). § Code Ann. parties Both pert testimony testimony because the appeal agree that "purport" means "Itlo directly related to questions before profess or claim falsely; to seem to be." jury have confused or distracted (Tth Black's Law Dictionary ed.1999). jury. T18 The definition of "marry," how 1 15 We will first address whether Holm's ever, disputed. argues behavior is within the reach of our State's "marry" should not be construed as limited bigamy statute. We will then address legally recognized marriages. Holm ar arguments attacking validity gues that the "marry" word in subsection one bigamy statute on both state and federal refers legally to a recognized marriage grounds. constitutional Finally, we will ad- that, therefore, there is no violation of arguments dress Holm's regarding the trial the "purports marry" provision unless court's proffered exclusionof his expert testi- purports individual to enter into legally mony. valid marriage. We hold that the term "mar ry," as used in bigamy statute, includes A. The "Purports to Marry" Provision both marriages and those Bigamy Utah's Applicable Statute Is that are not state-sanctioned because such a FHoim'sSolemmization His Relation- definition supported plain meaning ship with Stubbs term, language bigamy statute and Code, the Utah legisla 116 To determine whether the tive history purpose stat "purports marry" provision of biga Utah's ute. my properly statute is applicable Holm, we must interpret provision within its First, con the common usage of "mar text in the Utah Code. primary goal "[OJur in riage" supports a broader definition of that interpreting give statutes is to effect to the term than that asserted Holm. The dictio legislative intent, as evidenced plain nary "marry" defines join as "to in marriage language, in light purpose the statute according custom," to law or or "to unite in was meant to achieve." Foutz v. City S. close [usually] permanent relation." Jordan, 75, ¶ 11, 2004 UT 100 P.3d 1171 Collegiate Merriam-Webster's Dictionary (internal quotation omitted). (lith marks ed.20083) "We added). (emphasis presume that legislature the used each argues word that such a definition of "marriage" is advisedly give and effect to each term ac unsupportable and asks us to read the term meaning." cording to its ordinary accepted and "legally" into bigamy sup statute. To Johnson, T. 85, ¶ 9, 1999 UT port argument C. that "marry" should be (internal P.2d 479 quotation omitted). marks narrowly construed fashion, in this Holm re Furthermore, read plain "[wle language lies on Black's Dictionary, Law which de of the whole, statute as a interpret and its "marriage" fines as legal "[tlhe union of a provisions in harmony with other statutes in man and woman as husband and wife." the same chapter and chapters." related Black's Low Dictionary 986. While Black's Weaver, Miller v. 12, ¶ 17, 2008 UT 66 P.3d Law Dictionary does offer this as one defini Only when we find that a statute is tion marriage, a review of dictionary's ambiguous do we look to interpretive other various entries and editions5 makes clear 5. We note discrepancies that there are between provided the definitions "marriage" "po- and agreement merely on rests that confine not dictionary itself that the a se- into in "marriage entered or parties" recog- legally "marriage" to term use of unautho- by an way, as one solemnized cret Black's Indeed, definitions unions. nized formali- required all without person or rized as terms such provides for Dictionary

Low "marriage that marriage" is ties"; "void and "polygamy" and "bigamy," marriage," "plural cannot be inception, that from its is invalid "marry" the term a construction support terminated valid, can be that and made by the sanctioned marriage not includes that or obtaining a divorce without party either For parlance. in common state, true as is add- (emphases Id. at 986-87 "(al annulment." as defined marriage" is "plural example, ed). already spouse is one in which marriage else; or bigamous Dictio- Moreover, Low Black's to someone married (emphasis add- union," "marriage," una at 987 id. term nary definition "(allthough act of modifiers, "[the as that defined ed); states "bigamy" dorned marriage married a civil legally as while person regarded law one marrying common added); and civil status (emphasis another," contract, properly more at it is id. being man and simulta- existing state of between relationship "[the "polygamy" as spouse; together one live than to and do agree to more who neously married woman Thus, plain mean- (emphasis id. at at 986. marriages," Id. spouses." multiple in the con- used "marry," as it is adopt added). the term ing we were If conclusion statute, supports these definitions "marry," struction legal- are "marry" marriages that not both nonsensical, encompasses one could as it are not. those that ly recognized married. legally while another ( must, look, at we Second, as Dictionary when we Furthermore, {20 Law Black's biga context "marry" in the term types of different definitions contains several same in the statute, statutes well as as definition, my legal- not are, by marriage that the Utah chapters of and related chapter mar- example, "putative For recognized. ly intend Legislature Code, it is clear husband which "marriage riage" is mar to include construed "marry" to be ed they are mar- faith that good believe wife Most state-sanctioned. are not riages reason technical ried, some but bigamy statute text of significantly, (as ceremonial when formally married "big expansive definition more supports a mar- perform authorized was official by Holm.6 Specifi- asserted amy" than "marriage marriage" is riage)"; "clandestine Dictionary are io Law to Black's references eighth editions of seventh lygamy" in the noted. unless otherwise edition edition Dictionary. the seventh seventh Law Black's a union "[the as "marriage" defined wife," whereas as husband and woman implies man "bigamy" dictionary definition of "[the as it is defined eighth edition marriage recognized legally least one Com- and wife." couple husband as of a union (7th Dictionary 154 Black's Law See exists. ed.1999), (7th Dictionary 986 Law pare Black's act of mar- ed.1999) (defining "bigamy" "[t]he ed.2004). (8th Dictionary Law Black's legally to anoth- married person while rying one "mar- the definition within Also, included above, however, defini- er"). As discussed is the edition the seventh riage" contained conception general illustrates tion itself re- "(allthough the common statement legally "marriage" confined is not the term contract, is more it a civil garded dictionary defini- marriage. Beyond existing relationship civil status properly the when the Territory is evident tions, agree who a woman a man and polygamy, the criminalizing a law Tiah enacted a statement spouses." Such together as do live recog- "marry" not confined term eighth See Black's edition. from is absent VI, Laws, ch. marriage. Utah See 1892 nized ed.2004). (8th "Polygamy" Dictionary 992 Law or husband ("Every person who has a § at 5-6 state "[the edition as the seventh defined in is ... is another living, marries who, hereafter wife than one simultaneously to more married being added)). As with (emphasis guilty polygamy." eighth marriages" multiple spouse; Law bigamy in Black's found definition having more practice "[the edition po- criminalizing Dictionary, the territorial simultaneously, multiple mar- spouse than one "mar- the term if be nonsensical lygamy would Dictionary 1180 Law Compare Black's riages." recognized legally ry" limited is considered Dictionary ed.1999) Law (7th with Black's marriage. opinion, ed.2004). all of this (8th purposes For cally, bigamy statute require does not "marry" term must be legally limited to rec- party (how- to enter into a second ognized marriages because, if a broader defi- defined) ever to run statute; afoul of the nition is applied here, we would have to cohabitation alone would bigamy constitute construe "marry" to encompass informal so- pursuant to the statute's terms. See Utah lemnizations in other sections of the bigamy 76-7-101(1)("A § Code Ann. person guilty is statute specifically and the Utah gener- Code when, bigamy knowing he has a ally. husband Holm bases argument on subsec- or wife or knowing the person other has a tion three of bigamy statute, which es- wife, husband or person ... sentially cohabits creates a mistake-of-fact defense for person."). another a bigamy defendant. Subsection pro- three vides that shall be a defense to bigamy Also, "Tift looking at related statutes reasonably accused believed he Code, Utah it is clear that Legislature person the other were legally eligible to re- did not intend to limit "marriage," as it is marry." Utah 76-7-101(8). Code § Ann. throughout used Code, the Utah to legally argues the term "remarry" recognized marriages. By expressly recogniz- subsection three clearly refers to a legal ing unsolemnized marriages allowing marriage and that the "marry" term judicial sub- determination to establish section one carry should the same meaning. marriage at point some prior request Spring See Canyon Coal Co. v. Indus. judicial for a decree, Legislature Utah, Comm'n 74 Utah 277 P. acknowledged that the attainment of a mar- (1929) ("The 206-11 same meaning will be riage license from the State is not determi- given to a word phrase native of whether a marriage exists. See used in different parts statute."). of a Utah § Code Ann. (Supp.2004); 30-1-4.5 Whyte Blair, (Utah 885 P.2d 1125 We persuaded are not the term 1994) ("[The judicial merely decree] recog- "remarry," as used in three, subsection is so nizes that a woman and a man by their clearly limited legally recognized mar- prior consent and conduct entered riage. into a Consequently, we are not convinced marital relationship, although it was not that a broader interpretation of "marry" as formally theretofore solemnized or otherwise used in subsection one is inconsistent with legally recognized."). words, In other other uses of that term in bigamy stat- Utah contemplates Code there will Rather, ute. in the absence language "marital relationships" or "marriages" limiting the term, definition of the it appro- are not legally recognized inception, priate give the term by chosen the Legis- but which the State has the ability legally force, lature its full applying it to marriages recognize, even if parties to that relation- by both law custom. Con- ship do not desire recognition. See fashion, ceived in this defense offered Green, State v. 8-59, 2004 UT 99 P.3d subsection merely three bigamous excuses 820 (rejecting a polygamist's convicted argu- marriages commenced with a reasonable be- ment the State was foreclosed from lief that initiating the marital relationship establishing recognized marriage would not run afoul of this bigamy State's pursuant to the unsolemnized marriage stat- law. support ute to bigamy prosecution). Third, although we need not look Utah Code recognizes also that a marriage interpretive other tools when the meaning may be though solemnized even the mar- plain, statute is our construction of riage illegal. § Code Ann. 80-1-15 "marry" supported by the legislative histo (1998) (penalizing anyone who "knowingly ry purpose bigamy statute. As ... solemnizes a marriage prohibited ... will be discussed fully below, more see infra (emphasis added)). law" 40-48, 1T legislative well-documented his $124 Holm contends that term tory of this attempts State's prevent "marry" given should be the same breadth of formation of supports unions meaning wherever appears in the Utah conclusion in Code. Accordingly, Holm argues that tended to criminalize attempts both gain to sum, con are not we In rela- marital duplicative recognition

legal statute, of the language plain that the vinced duplicative to form attempts and tionships "marry" with term to adorn fails which legally rec- not are relationships that marital modifiers, inference justifies the any limiting recog- previously has court This ognized. to dissent, we decline and by the drawn biga- purpose legislative that the nized lan into the term a substantive import the indicia "all prevent towas my statute v. Avis Arredondo See of the statute. guage (Green, than onee." more marriage repeated ¶ 12, Inc., 2001 UT Sys., A Rent Car Green, we In 99 P.3d 2004 UT not court will this (stating that P.3d serve marriage to an unsolemnized allowed [statutory] into terms "infer substantive aof purposes marriage for predicate as a (internal already there" not are text that unli- If an id. 18. See prosecution. bigamy omitted)). Accordingly,we marks quotation as can serve union censed, unsolemnized stat bigamy of our language plain read prosecution, bigamy a marriage for predicate claiming from an individual prohibiting ute as an unli- that conclude to constrained arewe already married to person when marry a to aas marriage can serve censed, solemnized the term Further, that we conclude another. biga- marriage that violates subsequent recognized legally to confined "marry" is not my statute. words, need one marriages. In other to entitled marriage is a second purport adopts nevertheless dissent "pur of the run afoul to recognition marry" to "purports position statute. bigamy of the marry" prong to ports to marry," "claims legally to "purports means "mar word is the one in subsection Nowhere marriage," recognized legally a enter and exclusively state-sanctioned to ry" tied upon based the State "claims benefits marriage. "legal" recognized reasons to the addition status." married sup- to "mar Holm, seeks the dissent definition Applying the proffered referring presented to the facts reading ry" of the above outlined port its Holm case, used the no doubt can be law, at times there which our case mar- undisputed to a marriage" to refer marry Stubbs. "purported purported term stood before and legally valid establish as facts presented riage that Church, Jeffs Warren the FLDS marriage en- reality the official recognized, when Jeffs), Rulon prophet (son then-FLDS n. recognition. See joys no infro responded affir side and at his not, with Stubbs cases). howev- do These cases (citing following ques asking the vow "purports matively to a term er, seope delineate tion: bigamy in the is used marry" the term [Holm], take Sister you Brother Do involve situations statute, instead but hand, her receive and right [Stubbs] various resolutions proper which and wedded your lawful to be yourself unto on the fashion in some dependent claims wedded lawful and wife, her you to be and recognized absence, existence, legally aof eternity, with all husband, and for time that, assessing such true marriage. It is your part promise, covenant the claim claims, have referred we laws, ordi- rites and all the you fulfil will marriage exists valid, recognized of ma- holy bond to this pertaining nances It does marriage." "purported of a claim everlasting cove- trimony in the new however, necessarily follow not, God, presence nant, in the doing this used marry," as "purports phrase witnesses, your own angels, and these similarly confined statute, choice? free will legally valid claims a white Simply ceremony, be- wore Stubbs performed. T 30 At marriage has been wedding dress. into dress, considered purport to enter which she also cause one court, trial testimony at the fore- her Throughout legally recognized a mar- ceremony as referred may purport Stubbs that one possibility close ceremony offi- mentioned, As riage. recognition any legal claiming marry without involved religious leader by a ciated relationship. marital typical vows of a traditional marriage cere- desire for such benefits should be determina- mony. 80-1-6(1) § See Utah Code Ann. bigamy tive of whether has been committed. (Supp.2004) (stating religious officials Holm, by responding in the affirmative to the who eighteen are older than question placed to him by "in regular religious lead- communion any religious society" are er, committed himself to undertake all the empowered to solemnize a marriage). obligations of a marital relationship. short, ceremony in which Holm and fact that the State of Utah was not invited to participated Stubbs appeared, every mate- register or record that commitment does not rial respect, indistinguishable from a mar- change reality that Holm and Stubbs riage ceremony to which this grants formed a marital bond and commenced a legal recognition daily on a basis. marital relationship. presence or ab- sence of a trial,

1 31 license does At not alter Stubbs following testified that gravity bond or the ceremony she considered commitments herself mar- made Holm ried. The facts Stubbs. show that Stubbs lived Holm, house with that Holm and Stubbs 1 Accordingly, we hold that Holm's be wife, considered themselves husband and havior is within the ambit of bigamy that Holm and Stubbs regularly engaged in "purports statute's to marry" prong.7 Hav sexual intercourse. Although no one of these ing concluded, so we now turn to Holm's factors is itself marriage, indicative of look- arguments attacking the legiti constitutional ing at the cumulative effect of the factors macy bigamy of his conviction. Because this present in this case it is clear that the rela- court has endorsed primacy approach to tionship formed Holm and Stubbs was a constitutional challenges, whereby we first marriage, as that term is bigamy used attempt to resolve challenges constitutional statute. by appealing to our state constitution before 132 In rejecting the notion that Holm turning to constitution, the federal we first "purports violated the marry" provision of analyze whether Holm's conduct protected statute, bigamy the dissent assigns cen- pursuant to the Utah Constitution. See West importance, tral in fact almost exclusive im- v. Thomson Newspapers, 872 P.2d portance, to the lack of a license (Utah 1994) (outlining the rationale recognizing the marital commitments made model). adopting primacy After address by Holm and Stubbs. But a marriage while ing claims, Holm's state constitutional we will represents license a contract between the turn to Holm's contention that bigamy State and the individuals entering into matri- statute offends the federal constitution. mony, the license itself is typically of second- ary importance to the participants in a wed- B. The Utah Constitution Does Not Shield ding ceremony. The crux of marriage in our Polygamous FHoim's Behavior from society, perhaps especially mar- State Prosecution riage, is not so much the license as the solemnization, viewed in its broadest terms 1134 It is ironic indeed that Holm comes steps, as the not, whether ritualistic or before this arguing court that the Utah Con- which two individuals commit stitution, themselves to despite express prohibition of undertake a marital relationship. Certainly polygamous marriage, actually provides Holm, as a result of his ceremony with greater protection behavior Stubbs, would not be any legal entitled to than constitution, the federal which contains benefits attendant to a state-sanctioned mar- express no such prohibition. In making this riage, but there is no language in bigamy argument, Holm relies on provisions various implies statute that presence of or of our state constitution protect 7. Because we conclude, conclude that Holm's behavior vio- we properly pur- was convicted "purports lates the marry" prong biga- of the "purports suant marry" prong statute, my we need arguments not reach Holm's statute, bigamy consequence it is of no whether relating validity prong. of the cohabitation prong properly applied cohabitation As jury indicated above, convicted Holm un- him. prongs statute, if, der both pro- The therewith. I inconsistent Article of the exercise conscience of

freedom guarantee it does the following as liberty hibition securing provisions as well religion, any conclu- prevents toleration religious of While of this State. people interests Constitution of our framers that the sion provide may well constitution state our limitation specified put of to exercise intend free not for the did protection greater in Section contained language on the the federal than respects in some religion Constitution. I of the State Article so as it does that constitution,8 disagree we or polygamous polygamy. against to prohibition The guarantee following the marriages plural determined $35 has "never This court emphasis is double tolerance religious I, of article clause free exercise whether Constitution our that Utah of the clauses] framers related 4 [and section was polygamy that make clear to wished over protection provide[ ] Constitution mode approved within included not First Amendment by provided that above worship. religious Constitution." States the United to Jeffs 1998). (Utah 1234, 1249 Stubbs, P.2d 970 added). (emphasis 905 Id. at Black as In re ad dismisses not The dissent Jeffs, need T 37 we As dicta, and incorrect. opinion, Utah plurality because here question Infra that dress re In that not believe do polyga n. 12. We T151 protection no offers Constitution appears It easily dismissed. fact, antipathy so and, can be shows Black behavior mous partici- justices four of the be three that at least prohibiting by expressly towards analysis agreed with III, case in that pating section article Specifically, havior. that confirm III. We for of article toleration-Polygamy effect "Religious entitled today. analysis "First-Perfect bidden," follows: states guaran is sentiment religious toleration irrevocable that arguing In ever shall of this inhabitant No teed. a constitutional provide ordinance on ac property person molested mar polygamous criminalizing basis wor her mode his or count the term argues again riages, Holim marriages plural polygamous ship; but recognized legally "marriage" is confined art. Const. Utah prohibited." are forever effect analyzing the In marriages. commonly as known language, III, § This again ordinance, Holm once irrevocable ordinance," unambiguously "irrevocable its in colors leap that an inferential makes pro the realm from polygamy removes argues as Holm terpretation. Just fact, we religion. free exercise tected marry" prong of "purports Black, 2d 8 Utah re in In as much concluded purported to a operation its limits case, (1955). In that P.2d argues marriage, so Holm children remove attempting to was the State merely an is ordinance irrevocable polygamous care of custody and from of Utah the State acknowledgment argued parents at 888. Id. parents. recogni formal giving foreclosed children removing their judgment marriages. polygamous tion con guarantees constitutional violated at 900. Id. Constitution. agrees in the Utah tained The dissent irre- that the argument supports responded further We prohibit intended ordinance a com vocable our Constitution III of Article mar- recognition only legal contention. parents'] to [the answer plete I, section contending that article riages polyga prohibition specific statutory and its Constitution the Utah contained therein plural mous or 30-1- section Code counterpart, Utah any in impliedly annulled may not be marriage to 4.1(1)(a), limit the definition 15 of 4 and of Sections terpretation compel- furthers burden State unless ex- court justices on this least two 8. At narrowly tailored ling interest that, guarantees pursuant pressed the view 76, 170 constitution, UT religiously Green, 2004 See interest. serve in our state contained J., concurring). (Durrant, P.3d & n. be burdened should motivated "legal I, unions." Article section 29 of the gentlemen, you if want our go Constitution to provides Constitution that this State basket, just waste tamper with the "recognize[s] as marriage only un- requirements the Enabling lays Act down for ion of a man and a By woman." plain the compact. Do not tamper with it. That is language, this section of the Utah Constitu- advice."). my tion is not a definition of marriage, in- but 141 Given the express stead is a framers' types limit to the intent to marriages that and, comply, indeed, can be recognized in Utah. their assessment of the necessity of complying with the terms of the $40 A review of history the of the Act, Utah Enabling their discussion at Utah's irrevocable ordinance makes clear that constitutional convention centered on Con- drafters did not intend so sphere narrow a gress's intent in requiring Utah to include operation (merely prohibiting legal recogni such an ordinance in its constitution. Fur- tion of polygamous marriages) as that ad ther, the ensuing plainly debate illustrates vanced Holm and the dissent. In the recognition framers' that such require- the Congress United States passed the Utah ment was aimed at accomplishing more than Act, Enabling granting the Territory of Utah simply preventing the possibility of a ability the to convene a constitutional conven theoc- ratic state and that Utah obligated was tion and to steps take toward obtaining state comply spirit, with the letter, as well as the Act, hood. Utah Enabling ch. 28 Stat. of the (1894). Enabling Act. See 2 Proceedings at Included within the Enabling (comment Varian) ("I Act of Mr. requirement was a want that the Utah Consti you remind ultimately tution all that in law, contain the an construction irrevocable ordi nance civil providing, law as perfect God, "First: That well as the law of tolera religious law, tion of religious secured, sentiment shall be that it is killeth, the letter that and that no inhabitant life."). of said spirit giveth State shall the ever be person molested in or property on 142 We concede that puts forward account of his or her mode of wor plausible one interpretation of the irrevoca- Provided, ship; That plural ordinance; ble namely, the ordinance marriages are prohibited." forever § Id. prohibits government Utah's state from le- added).9 (emphasis A review of the constitu gally sanctioning or recognizing polygamous tional surrounding debates adoption the marriages. We further concede that such an the language contained the irrevocable interpretation comports with the reality that ordinance reveals delegates pri were the government federal harbored serious marily fully concerned with complying with concerns possibility about the requirements the that the State contained in the Utah En of See, could be abling ruled de eg., Act. facto the LDS Report Official Church. Proceedings generally See Sarah Barringer and Debates of the Gor- Convention don, Question (2002) Assembled at City Salt Lake Mormon 206-08 the Fourth Day March, 1895, (describing to Adopt a a federal attempt Constitution to disrupt the for the State of Utah 806 [hereinafter influence of Pro the LDS Territory Church the (comment ceedings Eichnor) ("This Utah). ] of Mr. Though interpretation such an compliance Act, and, the Enabling plausible when one looks to the text of the argues 9. Holm Congress, by requiring incorporate the provisions in its Constitution inclusion of the irrevocable and its laws remained. ordinance, violated If there was an unlaw- "equal doctrine," footing the essentially which Act, ful Enabling coercion in Supreme the mandates that all states be admitted into the Court of Utah observed ago some time equal Union on terms with other states. See there attempt has been change no Smith, generally Coyle 559, 565, " 221 U.S. laws, attempt State's likely.' 'nor is such (1911); S.Ct. 55 L.Ed. 853 Murray Potter v. (quoting Id. State v. Barlow, 107 Utah 292, 153 City, (10th Cir.1985). 760 F.2d (1944)). P.2d We find no fault in the Potter, the Tenth rejected Circuit heard and an reasoning of the Potter decision, and Holm has identical claim. Specifically, 760 F.2d at 1068. attempt made no to attack its rationale. There- the Tenth Circuit concluded that fore, we conclude equal footing that Holm's original polygamy plural ban on "Hf claim is without merit. invalid, power the State's TAQ matter."). about concerns Given subject the ordi- alone, notion ordinance ex- act, delegates validity polyga- recognition only limits nance course the wisest opinion pressed language collapses when marriages

mous to reanimate action constitution- the context at in looked continuing effective- declaring its expressly conjunction al convention See id. constitution. the state ness text beyond the look delegates' decision that, to com- opinion (expressing 1736-37 At the Enabling Act. the Utah spirit of Act, constitu- the state Enabling ply with affirmative took delegates convention, to criminal of law" "the force give must tion like that interpretation prevent steps to polygamy). prohibitions trac- gaining by the dissent advanced our state concern, proposal framers Specifically, to the second tion. T 45 As they understood territo- it clear made constitution constitution declare merely not did in Enabling Act remained criminalizing polygamy that the Utah law rial but polygamy recognition necessary to com- as prevent viewed was also effect Enabling Act. prohibition. its the Utah required spirit of ply with explained proposal sponsor of The by expressly {43 did framers manner: following in the intention itself Constitution the Utah in pronouncing strictly in accord ordinance] [the [While law vitality of a territorial continuing Act], Enabling of the [Utah letter punish "An Act to 1892, entitled passed spirit fully in accord not it is offenses," inso- kindred and other polygamy the intention act, .. . it was that because polyga- punished act defined as that far assembled the United States people XXIV, § 2. The art. my. Const. Utah fact, as prohibition that a Congress status thereby raised framers by words, be evidenced should as well of a constitutional that law to territorial this State. organic law of reveal debates The constitutional provision. (comment of Mr. Var- declaring the Proceedings at 1736 expressly proponents that support for declaring his ian). to be criminalizing polygamy delegate, One act territorial eriminalizing po- primarily law were retaining the territorial after statehood operational (1) territo- by retaining the that revivifi- argued that lygamy, concerns: two motivated fully comply with criminalizing po- law, could law territorial rial cation that the notion it was void refute necessary Act and Enabling because lygamy was than nothing fact more to due passage its amounted time of ordinance at the already "occupied had Congress that the State promise empty the criminalization sance- otherwise recognition to or in relation field" grant According (2) with the compliance polygamous behavior. tion polygamy required Act Enabling delegate, the Utah spirit of willingness its its to evidence

the State of the whole effect The moral Convention, declaring behavior. ability to curtail representatives pro- forever thing shall be a certain concern, delegates the first 44 As to weight, but great hibited, of course mention specifically necessary to thought that, may be taken is a view there in order polygamy criminalizing the law merely an this, it is at most which questions about law should revivify that ever sanc- Legislature upon the inhibition the law's Questions about raised. validity kind, but of that establishment tioning an federal on issues focused validity were penalties. it with not a law it is Proceedings at See preemption. words, effect. it is without other ("There Varian) passed of Mr. {comment Thurman). (comment of Mr. 1742-48 Territory Id. Legislature by the in 1892 might be the ordinance possibility provides defines act [that] [an] preventing limitation only as a Now, interpreted polygamy.... ... penalties recog- sanctioning or to- the State in Utah in force is not apprehend I law marriages prompted nizing polygamous entered Congress is that day, reason and the ap- more affirmative support a delegate the whole ... and covered upon that field proach appeal prohibiting polygamy. See to that id. at pursu- document-whether ("For suggested, the reason by way provisions ant to the pertaining to the free- of showing a more disposition determined conscience, dom of individual liberty, or free upon part comply, protect exercise-to behavior that the consti- letter, spirit, but with the demands of tution is specifically aimed at preventing. Act, it."). the Enabling support shall Having concluded, so we next up take

146 The framers of our state constitution contention that his polygamy conviction vio- viewed the reaffirmation of the 1892 territori- lates the federal constitution.

al law criminalizing bigamy directly relat- ed to the irrevocable ordinance. The relation C. Hoim's Conviction Does Not Offend provisions the two is acknowledged the Federal Constitution throughout issue, the debates on perhaps saliently never as as in the following state- 1 49 Holm claims his conviction runs afoul ment: of the federal constitution in ways. several you If faith, in good you say you (1) Specifically, argues he that his conviction are, asked, it will be why you object do to was obtained in violation of the federal con- placing upon book, this statute organic guarantee stitution's of the free exercise of your commonwealth, you the fact do (2) religion; that his conviction violates his prevent intend to the crime of polygamy? liberty protected interest by the Due Process What "prohibit" mean? Does it not Clause of (3) Amendment; Fourteenth prevent? mean my I ask friend from Salt that his conviction equal raises protection Lake, and colleague, more in philo- learned concerns because the targets only State reli- logical myself, lore than whether it is one giously polygamists motivated prosecu- synonyms prevent, if (4) tion; that bigamy facially statute is interpretation put must not upon be overbroad unduly because it infringes upon use of that language in the act of Con- (5) right association; that the term gress, that prevent it means to practice "marry," as used in bigamy statute and of polygamy plural marriage? How the unlawful sexual conduct with a minor you going it, prevent you put unless statute, is unconstitutionally vague. We ad- penal some enactment into force that dress each of Holm's contentions in turn. courts and executive your officers under government State may be able to adminis- 1. The Bigamy Statute your

ter Impermis- law well in that behalf? Does Not sibly Infringe Holm's Federal Free Ex- (comment Id. at Varian). 1747-48 of Mr. Right ercise The inclusion of provision passed by a margin seventy-two to sixteen. Id. at Although the United States Su preme Court, Reynolds in States, v. United 47 Although the definition of polygamy (1879), U.S. 25 L.Ed. 244 upheld the in contained the 1892 territorial act varies prosecution criminal religiously of a motivat slightly from that by articulated "pur- polygamist ed as nonviolative of the Free ports marry" prong of our contemporary Clause, Exercise Holm appeal contends on statute, is clear that our state that his federal right free exercise unduly is constitution is not by offended the criminal comyiction infringed upon by his in this case. punishment of Holm's behavior. To the con- argues Holm Reyna]; s is "nothing more trary, the framers of our state constitution than a hollow bygone fear, relic of days of understood the irrevocable ordinance to man- prejudice, and morality," Victorian and that prevention date the of polygamy and not to modern free juris’prudence exercise dictates merely prohibit government recognition of penalty no criminal can imposed be polygamy. engaging in religiously polygamy. motivated above, €48 Given the we conclude that This recently rejected court an identical 'ar Holm is foreclosed the language gument Green, ¶¶ in State v. 2004 UT 18- state constitution making any 99 P.3d 820. from attempt enjoy the court does trolling, and Green, Reynolds, [ out pointed weAs modify pro- tamper with freedom overruled been has never age, despite its light of and, by that Court. Court nouncements Supreme States United own case and our ap pronouncements those by the Court cited

fact, has been motivat- cases, religiously the notion rejecting exercise modern free in several proval Green, Free federal by the vitality. protected See is continuing polygamy ed signaling can- (refusing to Holm Clause, conclude 76, ¶ 19, P.3d 820 we Exercise 2004 UT citing attempt holding and in his clause Reynolds of that himself from the avail depart concluded, vitality of continuing Having so indicating the conviction. escape cases Moreover, if even his conviction precedent). claim Holm's Reynolds turn to we antiquated is Reynolds pro- liberty interest assertion his individual violates accurate, opinion in is usefulness Clause beyond Process by the Due tected using analysis, thorough conducted Green Amendment. Fourteenth by the announced standards recent most Court, the claim Supreme States United Does Not Offend 2. Holm's Conviction im polygamy motivated religiously the Fourteenth Clause Process Due 20-41. Id. % sanction. from mune Amendment Green, States the United noted weAs $53 that the argues Divi Employment held Court Supreme criminalizing polyga foreclosed Resources Human sion, Department to en the freedom because 1595, 108 mous behavior 872, 110 S.Ct. Smith, 494 U.S. liber a fundamental behavior gage (1990), superseded partially L.Ed.2d 876 only for infringed that can ty interest Act Restoration statute, Religious Freedom the State and that reasons compelling recognized in 1998, 107 Stat. sufficiently compelling identify a failed to Espirita Centro v. O Gonzales Beneficente - polyga --, 126 S.Ct. its criminalization justification U.S. Vegetal, Do Uniao there is (2006), Religious my. We conclude disagree and 168 L.Ed.2d engage in liberty interest Act Persons no fundamental Institutionalized Land Use at issue behavior 804, polygamous in Cut type of 2000, 114 Stat. of 709, Wilkinson, 125 S.Ct. 544 U.S. this case. v. ter (2005), a state 2118, 1020 L.Ed.2d 161 is consti his behavior arguing that In54 compelling furthering a may, even without liberty fundamental as a tutionally protected right to interest, an individual's burden on the United interest, primarily relies Holm im is burden long as the so free exercise in Lawrence decision Supreme Court's States applicabili general of by a neutral posed 2472, 558, 156 Texas, 123 S.Ct. U.S. 539 v. The Court 878-80, 1595. 110 S.Ct. at ty. Id. case, (2008). United In that 508 L.Ed.2d if not neutral law is that a clarified since has a Texas down struck Supreme Court States upon or infringe law "is of that intent sodomy, homosexual criminalizing statute their of because practices restrict sexual consensual private, concluding that Babalu the Lulkumi Church motivation." Process by Due protected is behavior 520, Hialeah, 508 U.S. City Aye, Inc. See Amendment. Fourteenth Clause (1998). 2217, 472 124 L.Ed.2d 583, S.Ct. 113 argues that 578, 2472. 128 S.Ct. id. Green, that Utah's concluded In we in Lawrence discussed liberty interest applicabili general law of is a neutral type of behav sufficiently to shield broad free upon the infringement ty and that intruding in from engages that he ior by that law's religion occasioned exercise Holm misconstrues of the state. hand constitutionally permissible. application opinion. the Lawrence breadth 99 P.3d T 2004UT sweeping seemingly use of Despite its I 55 [ the Unit- the wisdom Regardless of 52 actually holding in Lawrence language, the federal current Supreme Court's ed States takes the Court Specifically, quite narrow.10 analysis is con- analysis, exercise free con- protected the federal sphere of behavior upon fact, litigants relied In numerous of that quite nature limited Given stitution. expand the attempt decision to Lawrence

743 pains opinion's to limit the reach to Joseph Bozzuti, Note, decrimi- The Constitutionality nalizing private and engaged intimate acts Polygamy Prohibitions Lawrence v. After by consenting gays adult Texas: Is lesbians. Scalia a Punchline or Prophet?, fact, (Fall 2004). Court went 48 Catholic way out of its Law. exclude protection conduct that "injury causes very T58 The "concept pos person to a or abuse of an institution the law sesses "undisputed Green, social value.'" protects." ¶ Id. at 128 S.Ct. 2472. Fur- 76, 72, UT (Durrant, J., P.3d 820 concur ther, announcing after holding, its ring) Court (quoting In re Marriage Mehren & noted the following: present Dargam, "The case Cal.App.4th 1167, 13 Cal. not Rptr.3d 522, (2004)). involve minors. It does per- involve Utah's own consti might injured sons who tution enshrines a coerced or who commitment prevent are situated in behavior. relationships See where Utah Const. consent art. might III, 1;§ easily XXIV, be refused. id. art. It does not § 2. That commit ment undergirded public this involve State's conduct...." establish Id. at ment of "a vast and convoluted network 8.0t. 2472. laws ... based exclusively upon the 156 In marked contrast to the situation practice of monogamy opposed plural presented to Lawrence, the Court this marriage." Potter v. Murray City, 760 F.2d implicates case public institution of mar- (10th Cir.1985). Our State's com riage, an institution protects, the law and mitment to monogamous unions is a recogni also involves a words, minor. In other tion that decisions made individuals as to presents case the exact conduct identified how to structure even personal the most Supreme Court in Lawrence as outside relationships capable of dramatically af seope fecting public life. holding. 159 The dissent quite states First, cat the behavior at issue in this egorically that the State of Utah has no case is not personal confined to decisions interest in the commencement 'of an intimate made activity, about sexual but rather raises personal relationship long so partici as the important questions about the ability State's pants present do not their relationship as regulate marital relationships prevent being state-sanctioned. contrary, On the the formation and propagation of marital formation of relationships that are marital in forms that the citizens of the State deem great nature is of State, interest to this no harmfal. matter what participants in or the ob Sexual ... intercourse is the most intimate servers of that relationship venture to name behavior in which citizenry engages. the union. agree We with the dissent's spoke discreet, [Lawrence] to this person- statement people may two make al activity. Marriage, hand, on the other private pledges to each other and that these includes public both private and conduct. relationships do not legal recognition receive Within the privacy home, marriage a legal adjudication unless marriage of is essentially means sought.11 See whatever the married not, 1145. That does infre individuals wish it Nonetheless, to mean. however, prevent legislature from having marriage beyond extends the confines of a substantial interest in criminalizing such the home to our society. behavior when there existing is an marriage. however, holding, case's it should come as no taking pornographic sanction for photos of a surprise opinion that the Lawrence sixteen-year-old). has been dis- tinguished forty more than times since it was eg., See, issued. Muth v. Frank, 412 F.3d 11. Utah Code (Supp.2005) section 30-1-4.5 al- (7th Cir.2005) ("Lawrence 817 ... did not an- lows a court to order that an unsolemnized mar- nounce [constitutionally ... a protected] funda- riage legal is a marriage and valid long so as the right mental engage ... in all manner of relationship is a between man and a woman who conduct, consensual specifically sexual in this capable giving marrying, consent and have case, incest."); Bach, United States v. 400 F.3d cohabitated, have assumed marital mutually (8th Cir.2005) 628-29 (holding that Law- rights, obligations, duties, and and have held protect rence did not an adult from criminal themselves out as husband and wife. relationship." marriage monogamous a recognizes, dissent As (internal marks quotation at 1070 F.2d the bond alters significantly marriage license ¶ 72, Green, 2004 UT omitted); see also be the State because people two between J., concurring) (Durrant, contract. marital 99 P.3d party third comes prohib interest third-party ("[Utah] compelling has precisely It is Infra polyga practice of conduct, the State as gives such relationship iting contractual mar [monogamous unli prohibiting threatens my, which interest a substantial existing riage]."). is an there marriages when censed relation this contractual Without marriage. another features Further, case T62 to enforce unable would be the State ship, namely, from distinction critical Lawrence obligations. rights and marital important a minor. Stubbs involvement there where In situations See infra betrothal, of her the time years old sixteen has Legislature marriage, existing no indicated at trial adduced evidence and legally determin mechanism developed a in sexual engaged regularly she exist, even fact marriage did ing that a Further, unreasonable it is not activity. recogni not seek couple did where involves behavior case that this conclude the State marriage, so tion of existence possible inquiry into warrants spousal obligations marital enforce Seq validity of consent. injury and Utah See abuse. welfare prevent support ¶ 40, 99 P.3d Green, UT eg., There (Supp.2005).12 § 30-1-4.5 Ann. Code co ... often ("The polygamy practice protecting mechanism no such targeting women crimes incides there where in situations interest State's unusually attendant Crimes children. any in because, under existing an incest, sexu include polygamy practice statute, party terpretation pay rape, and failure assault, statutory al second of a adjudication seek cannot Vazquez, A. (citing Richard support.") child a substantial Thus, the State marriage. Legitimate Polygamy: Note, Practice The unlicensed criminalizing such interest Pub- Legitimate Religion or Exercise Free marriage. second Light Reynolds in Revisiting Menace? lie Moreover, relation marital Jurisprudence, Constitutional Modern of our building blocks ships serve Pol'y 289-45 Pub. Legis. & N.Y.U.J. assert able must be society. The State (2001). relationships those over control level some above, we conclude Given T63 laws operation the smooth ensure Legislature prevent Lawrence unions our of social proliferation further behavior. prohibiting discouraging while society deems beneficial sexual intimate private, between distinction of this people harmful. those deemed consenting adults monogamy a beneficial declared have to ext- attempts polygamists' nature of public polyga also declared marital form parameters acceptable ralegally redefine the Tenth As relationships harmful. mous mar- like institution social a fundamental Potter, justified, "is stated Circuit The contrast plain. riage is en interest, and upholding compelling more is even Lawrence case and present protect marriage to plural forcing its ban Rees) (statement Stephen 75) Sen. of ing tape no. 27 P.3d 44, UT Clark, 2001 eg., v. See, Clark 12. purpose the unsolemnized of (stating marriage adjudication of (seeking 538 loopholes in "close some marriage is to statute assets); the marital division of to divorce receive (statement abuse"); An- Norman (seek- id. 1994) (Utah welfare Blair, P.2d 791 Whyte 885 v. Adminis- Social Services au- gus, to receive Director adjudication ing legal may ... tration) ("[A] ... with children woman Kelley, benefits); Kelley v. insurance tomobile in all who could living with an individual 317, (extending alimo- App P.3d 428 79 UT amount provide a substantial probability mar- of unsolemnized ny rights include time we cannot still household support to that (Utah 812 P.2d Walters, riage); Walters resources or the any the income consider adjudication of mar- (seeking legal Ct.App.1991) wom- therefore the available that individual portion property distribution riage to receive public {act assistance qualify for full Debate, can in Leg., benefits); 47th Floor retirement ..."). grant. (Senate 17, 1987) record- (Utah Feb. Gen. Sess. dramatic when the minority status of Stubbs for other than religious reasons." Id. " 28 n. is considered. Given the critical differences 10 (quoting Geer, State v. (Utah 765 P.2d cases, between the two and the fact that the Ct.App.1988)). Although Holm asserts that United Supreme States Court has not ex- discriminatory prosecution of bigamy occurs, tended jurisprudence degree such a the record before us is devoid mean- protect the formation of polygamous mari- ingful evidence supporting that assertion. In tal arrangements, we conclude that the erimi- light of our holding in Green that bigamy nalization of the behavior engaged statute is facially neutral and that its enact- Holm does not run afoul personal ment was not provide intended to a vehicle liberty protected interests by the Fourteenth for discriminatory actions, and in the absence Amendment. Having concluded, so we now of evidence giving credence to Holm's asser- address Holm's contention that our State's tion of unequal treatment, we decline to find bigamy statute equal violates protection Holm's conviction violative of equal protec- guarantees. tion guarantees. Equal No T 67 Having so concluded, Protection Concerns Are we Im- now turn to plicated by Utah's Bigamy Holm's Statute assertion the bigamy unconstitutional because it unduly infringes {64 Holm claims that his conviction upon right his of association.

for bigamy is unconstitutional because the bigamy statute unfairly discriminates individuals who are religiously compelled Criminalization of Polygamy Does Not

practice polygamy. disagree. We Unduly Infringe upon Right of Asso- ciation

165 Generally speaking, Equal Protection Clause of the Fourteenth Amend $68 Holm claims that the State of ment mandates that similarly situated indi Utah, by criminalizing polygamous behavior, viduals be treated in the same manner. See has unjustifiably restricted ability his City Cleburne v. Ctr., Cleburne Living teach his family principle plural mar Inc., U.S. 105 S.Ct. 87 riage by way of example. According to (1985). L.Ed.2d 313 Green, we held that Holm, such a restriction violates right Utah's bigamy statute is facially neutral as to protected association by the First Amend religion; words, other it delineates no ment of the United States Constitution. We distinction between classes of individuals. conclude that right of association is 76, 125, 2004 UT 99 P.3d 820. "The statute not so broad as to render him immune from does not ... mention polygamists or their criminal sanction for polygamous behavior. religion." Id. One could engage in polygamy 69 As an matter, initial point we out out of animus for religion and still be consid the freedom of association protected by ered in violation of the Quite statute. sim federal constitution has been ply, conceived of statute is designed punish behav covering two separate but ior regardless rights. related of the motivations giving rise As the United Supreme States Court acknowl- to that behavior. edged in Roberts v. United Jaycees, States T 66 Furthermore, Green, we concluded 617-18, U.S. 104 S.Ct. the facially neutral text of L.Ed.2d (1984), there are "two distinct statute is merely a smokesereen meant to senses" of the association, freedom of com- disguise a discriminatory prosecute intent monly referred to as intrinsic and instrumen- only religiously motivated polygamy. Id. tal association. 128. As we Green, noted in the last report- ed decision concerning a bigamy prosecution T70 Holm argues that Utah's criminaliza- prior to Green involved a man engaging in tion of polygamous behavior infringes upon non-religiously motivated polygamy. Id. right his of association in both senses. We Ironically, the defendant in that argued case disagree and conclude that rights Holm's to that the State of Utah selectively prosecutes intrinsic and instrumental association have "'only bigamists those practice who bigamy not been unduly restricted. correlative unless the State ference intrinsic concept of First, the T71 toward effort group engage to freedom as intimate certain encompasses association Id. guaranteed." also not were ends those of associa type this Id. Under sociations. 8244. 104S.Ct. at has Court Supreme States

tion, United the certain form to freedom the that recognized associa- instrumental right to Holm's T74 constitutionally pro have al- infringed. We is not associations has been tion intimate into to enter prohibition "choices stating that that Utah's tected, ready concluded relation afoul human run not intimate does certain behavior polygamous maintain intru undue against free secured the be protecting must ships guarantees constitutional role the nothing Further, because State see by the we religion. sion exercise individual the safeguarding relationships the language of within contained constitutional to our associating central is that from Holm freedom prevents sense, "freedom spiri- Id. advocating social scheme." group awith funda as a protection lifestyle. receives polygamous association desirability of tual Id. at liberty." personal bigamy statute element mental that the true it is Although considering When 3244. 104 S.Ct. opinions his expressing from Holm prevents action polyga- governmental engaging certain polygamy claims regarding association, the intimate right to behavior, violates not convinced arewe mous essentially has Court Supreme States United constitutional- tolerate to is constrained analysis to liberty fundamental indi- to allow conducted in order behavior ly prohibited al type of behavior with whether determine dissatisfaction their express to viduals id. See protected. upon is infringed legedly behavior. of that status the eriminal fundamental (citing 618-19, 104 S.Ct. at that Utah's conclude Accordingly, we 75T characteris identifying the cases when rights behavior polygamous prohibition to asso- entitled possibly relationships tics of right to Amendment First Holm's not violate protection}. clational to now turn We association.13 freedom association intrinsic right to argument, Holm's T72 constitutional final federal because, upon infringed unduly unconstitutionally not been "marry" is term 53-68, right above, TY supra as discussed vague. is behavior engage to the individ- ambit Unconstitu- "Marry" Is Not within encompassed Term 5. feder- in our contained liberty protections Vague tionally ual cannot Holm Consequently, constitution. al "marry," term if the argues that Holm T 76 prevent rights associational his argue to Code, confined is in the Utah as used ability to his interfering from the State therefore marriage, and recognized legally behavior, as criminalized properly engage behavior, his encompass to enough broad protects association of intimate right prong of marry" to "purports then or otherwise further associations those as im- down be struck must bigamy statute liberty interests. fundamental support language of vague because permissibly type define adequately to fails the statute associ Second, instrumental Fur- being criminalized. activity that "indispens associations those include ations "marry" that, if the term argues ther, Holm indi other [of] "preserv[ation] to able" mar- confined is not activities including "those liberties" vidual prosecuted cannot he Id. then riages, Amendment." First by the protected because a minor free sexual unlawful "An individual's S.Ct. people "married" immunizes Code the Utah petition worship, speak, dom pursuant prosecution subject being from grievances redress government lan- conclude We statute. inter- protected vigorously not be could does not conviction that Holm's implicated and facially bigamy statute that the claims rights, we infringe upon constitutional unduly im- overbroad it is because unconstitutional claim. overbreadth Be- address concerns. decline association plicates freedom are not concerns that such we conclude cause

747 guage of statute sufficiently put T79 Holm argues that he put was not Holm on notice plural that his marriage to notice that his marriage to Stubbs would Stubbs would run afoul of this State's erimi- violate the "purports to marry" prong of the nal law and that Holm cannot rely on the bigamy statute because an ordinary person marriage defense in combating the charges would consider that prong to criminalize of unlawful sexual conduct with a minor. attempts to enter into a second legally recog- nized marriage or assertions that a second 177 To survive a void-for-vague legally recognized marriage has occurred. ness challenge, a (1) criminal statute must disagree. We "define the criminal offense with sufficient definiteness that ordinary people can under 1 80 Holm again onee relies on the Black's

stand what prohibited conduct and in a Law Dictionary definition of "marriage" to manner that does not encourage arbitrary argue that the terms "marry," "husband," and discriminatory enforcement," (2) "es and "wife" refer to situations in which an tablish guidelines" minimal that sufficiently intimate union has been legally recognized. instruct law enforcement as to avoid arbi See Black's (7th Law Dictionary ed.1999) 986 trary and discriminatory enforcement. Ko (defining "marriage" as "[the union of Lawson, lender v. 352, 461 857-58, U.S. a man and woman as wife"); husband and id. 1855, S.Ct. (1983) (internal L.Ed.2d 903 at 746 (defining "husband" as "a man who quotation omitted). marks Holm has raised has a lawful wife living"). As discussed ex- both facial and as-applied vagueness chal tensively above, however, Black's Law Dic- lenges to the bigamy statute. As we con tionary itself bears out the broader implica- Green, cluded in however, "a court should tions of term, supra 1119-21, and the 'examine the complainant's conduct before term "marry" or "marriage" cannot be so analyzing hypothetical other applications of neatly cabined to refer only to legally recog- the law' when a challenged "implicates statute nized relationships. no constitutionally protected conduct."" 2004 81 Looking only to 76, plain UT language 99 P.3d 820 (quoting Vill of our bigamy statute, we are at a loss to Estates v. The Flipside, Hoffman Hoffman comprehend how Holm can plausibly Estates, argue Inc., 494-95, U.S. 102 S.Ct. that he did not purport to marry Stubbs (1982)); L.Ed.2d 362 see also Vill. of when he participated in a marriage ceremony Estates, 455 U.S. at Hoffman S.Ct. with her and subsequently ("A engaged in a rela- plaintiff who engages in some con tionship that mirrored that of a traditional duct is clearly proscribed [by statute] marriage. By terms, the bigamy cannot complain of vagueness of the law is designed prevent individuals from applied en- others."). the conduct of As we gaging in two marital relationships simulta- have concluded that no constitutionally pro neously. Green, See UT tected conduct has been restricted ("Indeed, P.3d 820 Green's produced conviction, is inappropriate to consider precisely the situation that bigamy statutes Holm's facial vagueness challenge. As a re aim prevent-all the indicia of sult, we now whether, consider repeated once."). more than We two-part conclude presented test above, the bigamy that Holm provided adequate notice statute is unconstitutionally vague applied the "purports marry" prong of our bigamy to Holm. statute that his marriage to Stubbs would be considered criminal behavior. Bigamy See id. 149 Statute Adequately Noti- ("Words symbols fied Holm That His Conduct Was Ille- communication as such are not gal invested with quality of a scientific formula. It enough they can T78 We first consider whether the lan- be construed with reasonable certainty."). guage of our bigamy statute is vague so as to provided inadequate notice to Holm T82 Holm argues, however, that if the that his marriage to Stubbs would violate our "purports to marry" prong of the bigamy State's bigamy statute. statute is not unconstitutionally vague, then 748 unlawful pursuant prosecution from 76-5- in section "married," used as term

the statute. conduct that sexual Code, provides which 407(1) Utah the if unlawful not is a minor with conduct sexual En- Not Was Bigamy "married Statute are conduct b. in the participants Arbitrary § 76-5- in an Ann. Holm Against Code other," Utah forced to each Discriminatory Manner prose- from him (2008), protect 407(1) must with conduct sexual unlawful for cution "the whether consider next 185 We he that argues Essentially, Holm minor.14 ... as sufficiently definite is statute] [bigamy purported his that notice inadequate received discriminatory arbitrary and discourage to him immunize not would to Stubbs marriage ¶ 50, 76, 99 Green, UT 2004 enforcement." conduct sexual for unlawful prosecution from States by the United stated As P.3d activity sexual engaging for minor awith "es must Court, statutes criminal Supreme that conclude disagree and We Stubbs. with law en govern to guidelines minimal tablish marriage to his that notice on was Holm leaving risk of avoid to forcement" to a aas defense not serve would Stubbs moment-to-mo "lawmaking to task sexual unlawful for prosecution subsequent beat." on his policeman judgment ment minor. awith conduct 360, 358, Lawson, 461 U.S. v. Kolender (inter (1983) 908 1855, L.Ed.2d 75 103 S.Ct. understanding of section {83 Holm's If omitted). con When marks quotation nal not be correct, would statute is 76-5-407 challenge to as-applied fronted un- occurring in conduct to sexual applicable statute, "it is a criminal constitutionality of words, the other unions. marital licensed to statute] [challenged application sexual in the engaging parties intent we officials enforcement by law defendant[ ] input determine, without could conduct LaHue, F.3d v. States United review." conduct sexual their control, whether Cir.2001). (10th 993,1007 criminal A offense. criminal to a amounts un- by the "that in Green [ that established like we determined 86 Just prohibition encountering so cannot officials conduct sexual enforcement lawful Utah to that the left Considering not be would easily subverted. cireumstances Green's existence predilections personal criminalizes prohibits their own pursue Code already biga- marriage of Utah's one marriage applicability when determining the aof exis- that P.3d conclude exists, statute," absurd UT it is my in- second, law enforce- prohibited no reasonable that tence conclude we Holm's behav- prosecution acquainted Holm official sulates ment Quite sim- had Holim that statute. than conduct other sexual conclude unlawful could for above, su- intelligence ordinary discussed As person law. Utah ply, violated much that clearly sense establish 1129-31, of common notice, matter facts as a pro crimi- al- language, while statutory marry Stubbs matter purported as a Holm defense provide having cannot a wife. ready conduct nal conduct. prose- Holm's Having concluded con- federal afoul run not does cution assertion Holm's reject therefore T 84 We contention to Holm's stitution, turn now we illegal his notice had insufficient he allowing by not erred court trial him not insulate marriage to Stubbs 76-5-401.2, apply consensual "do not heading section and the of contents table In both each other." persons married conduct brief, section asserted opening of his 76-5-407(1) (2003) (emphasis §Ann. Code dis- But the vagueness." is "void 76-5-401.2 argu- Holm's added). Accordingly, we construe regarding the body brief of his cussion notice insufficient had that he claim as a ment refer "marry" not does the term vagueness of be- 76-5-401.2 section violated 76-5-401.2, "mar- word indeed section 76-5-407(1) in section term "married" cause It 76-5-401.2. appear in section ry" UT Green, 2004 vague. See State vagueness discussion evident ques- "[vlagueness (recognizing that P.3d but 76-5-401.2 apply to section meant process is- due essentially procedural tions provi- 76-5-407, that the indicates which section omitted)). (internal quotation marks 76, including sues" chapter 5 of Title part 4 of sions expert testimony addressing the social histo- and social health polygamous communities, ry and health of polygamous which spans communities. nearly thirty pages of transcript, would not have aided jury in determining

D. The Trial Court Properly Excluded questions before it and would more likely Hoim's Expert have distracted and Proffered confused the jury. As a Testimony result, we conclude that the trial court did not abuse its by discretion excluding the 188 Holm contends that the trial court expert testimony. by erred not allowing him to put into evi- expert dence testimony addressing the social II. WE AFFIRM HOLM'S CONVICTION history and health of polygamous communi- FOR UNLAWFUL SEXUAL CONDUCT ties. Specifically, Holm argues such WITH A MINOR testimony was necessary to rebut the notion 91 Holm was convicted on two counts of communities are rife with unlawful sexual conduct abuse with a minor victimize under children. We conclude Utah Code section (2003), 76-5-401.2 the trial court which did not abuse its discre- makes it unlawful for tion individuals to engage not admitting the testimony ques- conduct, sexual defined tion. that statute, partners who are at years least ten their 189 Rule 702 of the Utah Rules of junior and who are sixteen or seventeen Evidence allows expert testify to "sci years old. Holm argues that his conviction entific, technical, or specialized other knowl this statute must be overturned be- edge," if that testimony "will assist the trier (1) cause the trial court jurisdiction had no of fact to understand the evidence or to over (2) these charges and the statute as determine a fact in issue." A decision to applied to Holm violates Equal Protec- admit or expert exclude testimony is left to tion Clause. We address each of these the discretion of the court, trial and that claims below. decision will not be reversed unless it consti tutes an abuse of discretion. Hollen, A. The Trial Court Had Criminal Juris State v. ¶85, 66, 2002 UT 44 P.3d 794. diction over Hoim's Sexual Unlawful Conduct with a Minor Charge case, 190 In this the trial court con 192 Holm asserts cluded expert trial testimony relating to the court jurisdiction lacked over history the charges of polygamy in Utah and the social unlawful sexual conduct levied health of polygamous him communities would not under section 76-5-401.2 because aid State trier of fact in determining the factual prove failed to by a preponderance questions before it. Historical context evidence that the sexual question conduct in evidence as to the social health of polyga occurred in reject Utah. We this claim for mous communities have no bearing on the the reasons discussed below. factual predicate for a bigamy or unlawful sexual prosecution. questions 'The 193 The Utah Criminal pro Code put to jury were, fact, only tangentially that, vides in the absence of facts establish related to the broader concerns of history ing attempt, solicitation, or conspiracy, a and social health jury The charged Utah trial court has jurisdiction over with the task of determining whether Holm an prosecution individual's "for an offense purported marry or cohabited with Stubbs which he commits ... his own conduct" while knowing already he wife, had a wheth only if "the offense [itself] is committed ei er Holm engaged in sexual activity with - ther wholly partly within the state." Stubbs when she was sixteen seventeen, § Code 76-1-201(1)(a) Ann. (2008) (amended and whether Holm years is ten her 2004).15 senior. jurisdiction determination is a proffered Holm's testimony as to history matter court, the trial jury, 15. We note that Utah Code section pretrial 76-1-201 was motion in order challenge jurisdiction. amended in 2004. The current version of the See Utah Code 76-1-201(5)(b) § Ann. (Supp. appears require defendant to file a 2004). Unless otherwise indicated, refer- argu evidence sufficiency of the aas issue any associated resolve must itself court argument. jurisdictional than rather ment preponderance by a disputes factual these on dismiss motion -501(8); It denied 76-1-201(5), State §§ Id. evidence. "that 1995). conclude (Utah it could 1032, 1033 because grounds P.2d Payne, defendant find jury could no reasonable magistrate asserts Holm

While presented." prob evidence finding at guilty made should clarify that failed argues clarify that again hearing, we cause able to determine court the trial asking determi he was this make to obligation court's trial waived therefore Holm and that is is jurisdiction order the bindover after arises nation assuming Even claim. to jurisdictional any is transferred information the and sued issue, jurisdictional the raise 823 Humphrey, failed v. Holm State See court. trial the 1991) (Utah waived. it 2, consider not however, 5 nn. 464, & we 465-67 P.2d subject of form is a magistrate jurisdiction role Criminal the that (explaining Amoroso, that v. hearing differs See State jurisdiction. cause matter probable the 505; ¶¶ see 16-18, 975 P.2d 60, App 1999UT individual the where judge even trial aof 260, P.2d 888 judicial Hawai'i Alagao, holds 77 magistrate State also role the playing charges (referring to "[JJurisdic order 682, (App.1994) office). court 688 trial The "subject mat as charged" offense or the initiative its own tion on "either dismissed Thus, or it deter trial court if a party" jurisdiction"). either application ter upon criminal a jurisdiction." may dismiss "is without court court appellate that the mines any Payne, 892 at 25(b)(4); jurisdiction see P. for lack charge R.Crim. Utah defendant the of whether time, regardless at 1088. P.2d See during trial. before issue the raised for trial over {94 bound Here, was Holm ¶ 16, 31, 94 P.3d State, UT 2004 Myers v. conduct sexual unlawful counts on two at 1033. P.2d 211; Payne, 892 Holm seventeen-year-old. a sixteen- with the "only on case, over clarification given bound he was that this argues In T97 conception" it leading issue, think we at charges instances specific two above Stubbs. Ruth jurisdic- with children did have two court first trial that clear court's trial lived that she that asserts at trial He therefore testified Stubbs tion. proving the State on depended resi- jurisdiction Hildale their at Holm with together that evidence that periods preponderance charged during the dence inter- of sexual instances" inter- specific sexual "two to have these [her] for "common was in Utah. Hildale, occurred course the house him] [with course testimony-together undisputed This spec- Utah." however, information fact, T 95 Holm facts undisputed sexual unlawful counts two ified union, into had entered Stubbs to conduct respectively referred conduct married, themselves they considered December between "[slometime had occurred dur- children two conceived 1999," conduct that Stubbs and to April, 13, leads January periods-readily charged ing "[slometime occurred had jurisdiction court's Washington trial 2000, 1, conclusion June preponderance information Neither established ... Utah." was County, and Stubbs Holm concep- fact evidence. included order bindover nor the peri- these part during as of state children out two traveled also tions month," not Thus, State as twice often ods, crime. charged "sometimes oc- conceptions as- change our Holm, prove where obligated according to task, trial impossible nearly curred-a sessment. likely more it was only that noted-but court Sexual Conviction in some engaged B. Hoim's had Unlawful than His Constitu- Not Violate Does Stubbs Conduct conduct of sexual instance Protection Equal periods. Right to charged during the tional regard argument final Holm's appears court trial €96 convictions sexual unlawful ing his objection understood trial. of Holm's time at the effect 76-1-201 of section version opinion are in this ences that section 74-5-401.2 violates his federal different); were Moore, State v. 782 P.2d right equal protection (Utah under the 1989) be- (holdingthat all individ cause it impermissibly distinguishes between uals who drugs deal 1,000 within feet of a married and unmarried individuals. We dis- school similarly were situated with regard to agree for the reasons set forth below. a statute providing penalties enhanced those engaged in conduct); State v. 199 The federal Equal Protec Shondel, 22 Utah 2d 453 P.2d tion prohibits Clause a state from "deny[ing] (1969) (indicating that those posses found in person jurisdiction within its equal sion of LSD were similarly situated with protection of the laws." U.S. Const. amend. regard to two statutes providing different XIV, "Thus, § 1. state laws must treat simi penalties conduct). for the same Utah Code larly people situated alike unless a reason section 76-5-401.2 defines the crime of un able basis exists for treating them different lawful sexual conduct with a sixteen- or ly." sev ¶ v. Lofferty, UT enteen-year-old. Section (internal 76-5-407 exempts P.3d 342 quotation omitted). marks a married individual operation from Where no suspect classificationor violation of of the unlawful sexual conduct statute a where the right fundamental involved, a difference individual engages in proscribed the in treatment conduct "need only rationally related with his or spouse. her § 76-5-407(1). Id. to public a valid purpose" to withstand equal Thus, a distinction based on protection marital relation serutiny. Id. Here, Holm ship is made among those who argue engage does not in that we the apply should anything proscribed conduct by section 76-5-401.2.16 other than such rational basis serutiny. See We proceed therefore to Baird, question the Eisenstadt v. of U.S. whether this distinction S.Ct. (1972) is rationally L.Ed.2d 349 (applying related to the purpose of section rational 76-5-401.2. basis serutiny to a statute that treat ed individuals differently based on their mar argues Holm that the State has no status). ital justification rational for endorsing consensual 1 100 accept We Holm's claim that individ sexual conduct between a sixteen- or seven- uals who engage in sexual conduct part with teen-year-old girl and a man years ten her ners who are at years least ten junior their elder where the two have entered a legal and who are sixteen or years seventeen old marriage with the consent of one of girl's are "similarly situated" for purposes equal parents, under Utah Code section 30-1-9 protection analysis regardless of the marital (Supp.2005), while criminalizing such conduct relationship between those involved. In the where the two are not legally married. He context of a defendant convicted under a points out that if the distinction is based law, we have determined whether solely on the inability minor's give to valid individuals are "similarly situated" consent, refer such a concern would apply not in ring to the conduct for which the defendant this case because Stubbs's father consented was convicted. Honie, See State v. 2002 UT to her union with Holm. Contrary to 4, ¶ 21, 57 P.3d 977 (holding that those con suggestion, Holm's agree we with the State victed of felony murder were not similarly that its interest in the goes distinction be- situated to those convicted of aggravated youd any concern with obtaining parental murder because the elements of the crimes consent. The state-determined framework 16. We note equal that protection analysis McLaughlin See v. Florida, 379 U.S. 184, 191, 85 would be no different, in practical terms, if we S.Ct. (1964) ('The 13 L.Ed.2d 222 courts construed section 76-5-401.2 in combination rust reach and question determine the whether 76-5-407(1) with section including the lack the classifications drawn in a statute are reason a relationship marital parties between the as an light able in purpose...."); of its Laurence H. element of the crime rather viewing than section Tribe, 16-2, American Constitutional § Law 76-5-407(1) exempting those within a marital (2d ed.1988) 1439-40 (noting analysis that an relationship operation of section 76-5- "persons which or activities differently by treated 401.2; we would required still be to assess government very could for that reason be whether resulting class, definition of the in deemed not 'the same'" would "afford[ ] virtual cluding the lack of a marital relationship, was ly scope review"). no rationally purpose related to the of the statute. legitimate a acts"). the State believe We legal status which

within at issue conduct criminalizing the interest protec- certain minor a provides exists crimi- to decision Legislature's and where absent are law under tions parties only where conduct nalize thus marriage and not union other each married are involved framework. outside falls equal invalid the statute not render persons afforded {102 protections uphold therefore We principles. protection eyes of married who convictions Holm's constitutionality sup- spouses, their vis-a-vis rights, include 76-5-401.2. under section § 30- Ann. maintenance, Code port proce- certain (1998), fulfillment 4-1 CONCLUSION can be union before requirements dural properly [ distribution 380-3-1, a fair conclude $ dissolved, 104 We id. sexual event unlawful bigamy obligations of both debt convicted property bigamy occurs, § 80-8-5 As to id. minor. a dissolution portion behavior all inherit conviction, conclude we (Supp.2005), "pur- their the terms the event within squarely estates falls spouses' statute, (Supp.2005). 75-2-102, -202 §§ prong death, marry" id. ports did prong few pursuant represent conviction examples These constitu- federal status marital afoul which not run instances did court trial distribution right, true It is tional relevant. testi- may expert excluding following a its discretion or abuse within assets health history and premari- by a social relating to the determined mony be extent a certain § 30- id. parties, the communities. between agreement tal may partners unmarried (1998), and 8-4 the sexual-conduct-with-a-mi- toAs distribution property arrangements make conviction, conclude we nor be- not doWe will contract by private court trial because convicted properly arrange- private however, such lieve, such because him and over jurisdiction had case, alter, former in the significantly ments constitutional his violate not did conviction to, equivalent any sense are Accordingly, we protection. equal right by the provided case, protection latter court. trial of the judgment affirm legal insti- surrounding the laws network unique be- Marriage is marriage. tution WILKINS [106 Justice Chief Associate network by this is buttressed cause in Justice concur PARRISH Justice and overrides many instances laws, which opinion. DURRANT's to cireum- individual married by a attempt Justice, concurring: NEHRING, Having provided requirements. their vent may the State support, a framework such judgment {107 in the I concur who minors distinguish between rationally sev- address separately I write majority. who those and protection its majori- are within of the criticisms important eral I not. Justice by the Chief analysis made ty's fully confront. not majority interfere power believe {103 the State's While deserve the dissent raised matters consenting These relationships of private because, the considerable despite answer limited, established it is well is adults majority opinion, force persuasive individ- one of true where not the same may the State today that reached conclusion minor. is a relationship involved uals consensual to declare power (Utah use 7274, Elton, P.2d v. See State adults of commitment expressions young "that 1984) proposition (accepting Mr. overwhelms means by no one ex- sexual protected should people counterarguments-specifically, per- older, experienced more ploitation power lacks argument consent age of they reach until sons States the United constitutions ap- and comprehend maturely more can of Utah. the State sexual their consequences preciate My misgivings over whether the majority opinion in any way shaped by power of the State be constitutionally fears of public backlash sanctioning exercised to polygamy. If I private criminalize relationships otherwise, believed I would among join adults led me to in Chief join Justice not in it. I add, hasten however, Durham's concurring opinion in Sate it is not altogether clear to me that we would Green, 2004 UT 99 P.3d one of our betray our oath were we to take into account recent examinations of polygamy. My un- potential effects of the outcome of a case easiness process over the due implications of on the reputation institutional of this court state intrusion private, into public consensual rela- confidence in the integrity of the tionships voiced the Chief Justice's con- rule of law. No part small responsibil- (Green, currence in together with person- ity that the members of this agree court al and institutional considerations that I will assume is to stand resolutely against majori- shortly disclose, compels satisfy me to myself ty will when constitutional principles require that the outcome of this case be anchored to it. We shoulder duty despite willingly a particularly solid knowing that can, foundation. the decisions we make will therefore, be at ease with joining majori- inevitably vex, frustrate, and enrage many ty in Part I of its only by overcoming people, including persons opinion power and influ- my satisfaction several of the Chief Jus- Still, ence. an outcome that is wholly defen- important tice's points of disagreement with product sible as a rigor intellectual opinion. the lead principled application of could, the law at the time, same be so much at odds with widely course, 1109 Of this case is unique deeply held cultural values that it would presents because it questions. close Close undermine the legitimacy of the cases are a staple of this court's docket. ruling but call question into the institutional This case apart stands from other cases that legitimacy of the court. put us to the test of wrestling uncertainty into submission probes because it particu- T111 I will not use this concurrence to larly sensitive area of our identity. state's embark on a lengthy exploration of ques- this No matter widely how known the natural judicial tion of philosophy and ethics. Rath- wonders of may become, Utah no er, matter the I raise it only explain to my reasons for extent that our citizens earn acclaim for their writing separately. My awareness of the achievements, in public mind Utah will cultural political volatility that polygamy forever be shackled practice to the polyga- of brings to this court leaves me with a need to my. This fact present has been my in con- my redouble conviction that the flaws that sciousness, and I suspect has been a brood- perceives the dissent in majority's analy- ing presence in one form or another in sis are confronted. I also write to distance my minds of colleagues, from the myself moment we from assertions made majority opened parties' briefs. I suspect also that, my view, may be interpreted to in- I have not been alone in vite, speculating in the name of protecting marriage, what the consequences might be were the governmental unconstitutional intrusions into highest court in the State of Utah the first in private consensual relationships. the nation proclaim to that polygamy enjoys T 112 The organizing theme of the dissent protection. musings These constitutional is that when the Utah bigamy statute, section have left me with little doubt that the pre- (2008), uses the word "marry," the dominant reaction to holding a in keeping meaning of that term is limited to legal with the Chief Justice's dissent be would union. With the definition of "marry" con- highly charged and unflattering. fined in way, "purport one can marry" to 1 110 It would be a violation my of oath of and thereby bigamist become a eyes in the of permit office my to apprehensions about the only by the law professing participation in public reaction to ruling of this court to multiple legal unions. According to the dis- participate my decision-making sent, effort or to if marriage were to include extralegal influence in any way my vote on a case. spiritual unions as the majority insists, Moreover, I do not suggest intend to that the one expect could to find some evidence of a neces- is woman-knowledge another of provisions in other definition

this broader aon founded bigamy-was ap- of "marriage" sary element "marry" or law where Utah into a had entered he determination judicial context, including every other inBut pears. I do not marriage. unsolemnized legal amend- constitutional recently enacted however, view share, the dissent's (directed at head- I, ment, section article "ree- policy to public of statutory expression marriages same-sex recognition of ing off of legal union only the marriage ognize[ ] marriage equate state), our statutes in our the use forecloses woman" man and legal status. its with entitled unions "marry" to describe term is however, there conclude, T113 recognition. legal to comparisons disregard to justification ample to consider- gone has legislature Our marry" use of "purport to be eligible iswho lengths to define able with bigamy statute in the "marry" term Const. See Utah is not. who married "marry," in which statutory provisions other (article I, provides section I, § 29 policy art. variations, to describe used is its because, a constitutional insight legislative they relate which, although considerations legislature); amendment, traversed polygamy. nothing to do with have marriage, (1998). -17.2 §§ Ann. 30-1-1 Code through- Utah any term definition A consistent using this task approached It might be Code the Utah expanse out objective overall its consistent a manner sometimes that is one objective, and laudable mar- who discriminating between however, often, shift Definitions achieved. little in There may not. who ried and intent purpose keeping by the dis- law relied provisions deployed. a term in which bor- we should its view support sent used extrapolation" grammatical "simple "marry" understanding "pur- culpability row restrict dissent "legal" definition bigamy from context laying claim persons marry" to porting eligible to who is to define in Title 30 as used as the Chief simple not as union this. reason for good is a marry. There it be. Justice those who characteristics Describing the array of proposition, general As a fundamentally differ- marry ais may legally marriage speak address statutes pro- defining and that of ent exercise enjoy cannot and who can who question identify the Rules polygamy. scribing married aof the status eligible to deemed those characteristics or, the case by choice either person marriage need acquire the status by operation marriages, unsolemnized valid symmet- to or complementary necessarily be (Supp. § 30-1-4.5 Ann. Code law. Utah unions to describe used with definitions rical some rel- clearly have 2005). statutes These the Both criminal. as proscribes the law that marriage, a plural question the evance legal mar- regulate that define statutes First, ways. in two appears relevance bigamy proscribes the statute riages and may and who who that define statutes those objec- differing the marriage, but concern unequivo- lawfully married may not become interchange of risky the make of each tives group polygamists place cally the statuto- between and definitions concepts additional for legitimacy legal claim cannot to each. relate ry provisions one of formed, while created unions, however finding con- difficulty inherent I 116 The recog- marriage in a spouse is a parties the coherently both applies language that addition, sistent unso- the In law. under Utah nized pro- marriages and to legal formulating 30-1-4.5, statute, section marriage lemnized the is evident unions scribing polygamous plural one of legal status may assign in con- taken legislature approach relationships participant's marriage chapter. structing the Utah "husband" polygamist thereby expose upon seized public policy expression Thus, in we Green bigamy. for prosecution the defi- conclusion justify its a defen- conviction dissent affirmed synonymous marriage is had a wife he nition knowledge that dant whose cast a different marriage takes union spiritual he formed time when it is considered in the context of the plural marriages. opinion lead ably conceptual approach taken to marriage makes the case that the framers of the Utah throughout chapter 1 of Title 80. If the Constitution thought otherwise and intended legislature had structured the marriage pro- to perpetuate sanctions against visions of chapter this in a manner consistent practitioners plural marriage. The Chief with its declaration of public policy, one Justice advances a argument historical expect to find relationships quali- the Enabling represented Act the last in a fied as marriage on one side of the statutory series of congressional measures commenc- ledger and those that were not marriage on ing with the Morrill Act of 1862 that sought Instead, the other. legislature chose to prohibit legal recognition of polyga- assign the term "marriage" to every form of mous unions. This hypothesis does prop- intimate relationship, incestuous, be it poly- erly account, my view, for the incredulity gamous, involving minor, per- that would have met such an interpretation sons of sex, the same only then, after Congress that enacted the Enabling bestowing upon all of these relationships the Act. I believe that the historical record con- label of "marriage," assigned to each the if, firms fact, the drafters of Utah's legal lawful, status void, prohibited, or proposed constitution had intended to inter- Thus, valid. when section 30-1-2 pro- pret the irrevocable ordinance to ban nounces that following "[the marriages are recognition of polygamist unions, prohibited void," declared and then Utah's territorial status would have endured heads the prohibited roster of and void mar- well into the twentieth century.

riages with the circumstance "when there is 1118 For part, Congress had shown a husband or wife living, from whom the little reservation imposing criminal person marrying has divorced," not been penalties on polygamists. See, eg., Ed- limitations of the grammatical dissent's ex- Act, munds-FTucker ch. 24 Stat. 685 trapolation quite become clear. The statute (1887); Act, Edmunds ch. 22 Stat. 30 expressly labels the polygamous union a (1882); Act, Morrill ch. 12 Stat. 501 "marriage" and then describes the act of the (1862). In the Utah Territory, statehood partner joins who in that union proponents were certainly conscious of "marrying." This use of the terms "mar- when in they proposed submitted a riage" "marry" could not conceivably constitution containing provisions declaring have been intended to confer status on polygamy to misdemeanor, be a setting out unions enumerated in section 30-1-2. penalties violators, fact, and removing intention quite opposite. power pardon for polygamy Nevertheless, offenses from the statute unmistakably con- Sears, officials. L. Rex Punishing siders the rejected unions that it prohibit- Saints Their "Peculiar ed and void Institution": as "marriages" created Congress on the act Dilemmas, Constitutional "marrying." I therefore conclude that 2001 Utah L.Rev. 626 n. This structure of our statutory treatment of provision met with "marriage" demands rather than forecloses resistance from at least one senator expansive who believed that definition restriction marriage. on power the pardon to equal- violated the T117 I am unpersuaded also by the dis- footing doctrine. Id. at 626n. 316.1 sent's attempt to bring prohibition the of polygamy imposed by our constitution into By the time the Enabling passed Act harmony with its statutory interpretation of Congress LDS Church President "marry" by asserting that the "irrevocable Wilford Woodruff had issued the 1890 "Mani- ordinance," III, as article section 1 of the festo" renouncing Church sanction polyga- of Utah Constitution is commonly known, my, was and a majority of the House Committee only intended to block recognition of on the Territories persuaded was that the comprehensive 1. A and able account of the con- gain to statehood, can be found in L. Sears, Rex stitutional issues associated gov- with the federal Punishing the Saints Their "Peculiar Institu- for attempt ernment's extirpate to polygamy in the Congress tion": on the Constitutional Dilemmas, Territory Utah and those related to Utah's efforts 2001 Utah L.Rev. 581. had polygamy that Id. assurances those port overcome. had been "problem"

polygamy House Committee the When banished. been demise polygamy's about Skepticism at 627. report majority its issued Territories the on introduc- resulting in the however, endured, its Act, it reflected Enabling endorsing the to amendments anti-polygamy of several tion plu- of the renunciation for expectations high ultimate- that objections Among the Act. the "without proclaimed it marriage when ral the Utah that require to proposals ly doomed of institution the that hesitation doubt polygamy criminalize expressly Constitution Church, by the Mormon taught as polygamy imposi- congressional that the concern was now absolute- is practice, faith of whether a criminal to amounted of what tion Id. exterminated." and stamped out ly intrude uniquely would polygamy forbidding suggest does statement This n. 308. thereby unconsti- sovereignty Utah's on merely concerned was the Committee that the State tutionally discriminate that threat the of extermination the Id. doctrine. equal-footing the of violation polyga- to status extend would Utah ir- the language of compromise Moreover, time Con- by the unions. mous arti- as appears now that ordinance revocable the institution on assault an undertook gress does constitution III, 1 of our section cle the Ed- enacting LDS Church of crime, it nor aas polygamy denominate which, among an inAct munds-Tucker enact legislature a mandate include bring polyga- to designed array of measures for its penalties imposing Church, statutes LDS heel, disincorporated my to there- ordinance irrevocable practice. to le- claims had abandoned leaders Church es- interpretation susceptible to fore unions polygamous legitimacy gal forbids it the dissent: poused of ground more defensible to retreated not, It polygamy. of endorsement state while for them mandate spiritual asserting a by his- up backed however, interpretation an them. blessing on any disavowing secular satisfactorily es- to sufficient evidence torical Id. at overcome had been Congress tablish per- it was noting that By expressly toleration unknown theretofore assur- sincerity LDS Church of of the suaded the Mani- though Even polygamy. form polygamy had renounced that it ances by state- made assurances allied festo state, Commit- as as well church realm elimination about advocates hood intended that it signaled clearly majority tee in Utah polygamy practice doctrine the abolition on statehood condition to suspicions congressional mollify much to did not mere- forms of its in all polygamy mar- plural enduring presence about government the state promise ly on congressional a clear remained there riage, poly- on legal status not confer it would legislature that Utah's expectation notes, Justice the Chief As unions. gamous irrevocable duty under view govern- federal evidence there merely to than more requiring ordinance poly- prosecuting its stance softened ment legal validation extend any impulse check issued Manifesto after gamists marriage. plural however, mistake, abe It would policy rela- law enforcement {121 evaluate a shift interpret one However polygamy tolerance nascent rationales of a various evidence importance tive most, remained polygamy text of 'To adoption generally. contributed Rather, any relaxation accept eradicated. ordinance, unable to be I am evil irrevocable prosecute zeal to government's Justice the Chief the federal interpretation willing- by a explained is best polygamists surrender congressional constituted pre-Manifesto tolerate preserve ness LDS Church authority no assurance for the return while ban- unions form in its sacramental polygamy counte- would unions by polygamous marriages new plural recognition ning Philander by Senator explained As nanced. little doubt left Congress authorities. civil not man- did ordinance Knox, the irrevocable Territory that the expectation its about existing fami- of their destruction "[the date with- the Union into be welcomed n. at 654 Id. lies." sup- evidence adequate assurances out 1123 The Chief suggests Justice Smoot, further (Univ. Apostle Mormon N.C. Press 2004). the drafters of the Utah Constitution read into the prohibition absence of a 1126 Although Smoot ultimately took his cohabitation in the irrevocable ordinance a seat Senate, the clear lesson to be belief that Congress acquired had a new- drawn from the travail he endured before found acceptance of the living arrangements taking the oath of office was that congres- attendant religiously plural sanctioned un- sional animus toward polygamy extended ions. While there is evidence that Utah offi- beyond well the realm legal recognition for cials were sensitive to a distinction between plural marriages in Utah. polygamy cohabitation, T127 Finally, my convictionthat the State there is no evidence in the debate over the may, must, and in fact criminalize polygamy content of the irrevocable ordinance that leads me to conclude that the Chief Justice's Congress give intended to approval its invocation of Texas, Lawrence v. 539 U.S. polygamous cohabitation. On point, it is 123 S.Ct. (2003), L.Ed.2d 508 telling that when Congress became aware misplaced. I agree generally with the that some in this state had taken the view majority opinion's discussion of inapplica that the government federal did not intend to bility of Lawrence to polygamy and to legis proscribe polygamous cohabitation, it saw to lative attempts to criminalize practice. it that the irrevocable ordinances included While I believe that the result in Lawrence within the enabling acts for New Mexico and can be reached principled legal reasoning, Arizona expressly prohibited polygamous co- that reasoning largely resides in equal habitation. Id. at 654 n. 491. protection approach advanced Justice T 124 The effort deny Smoot, Reed cho- O'Connor in her concurrence. Id. at sen represent Utah in the United States S.Ct. By reaching the conclusion that Senate in his seat in that body lends sexual relations between consenting homo support further to the view Congress sexual enjoy adults protection constitutional intended the Emabling Act and irrevocable as a liberty substantive interest, the Law ordinance to reach religious marriages majority rence exposed itself to Justice Sca- well as legally sanctioned unions. Mr. Smoot lia's apocalyptic rhetoric (although fair, to be a monogamist but served as a member of Justice Sealia does spare Justice O'Con- Quorum Apostles Twelve nor a ration rhetoric) of the same predicting LDS Church. Mr. opponents Smoot's based the inevitable extension of pro constitutional objections their to his eligibility to serve as a tection to a multitude of taboos, cultural in senator more on Smoot's LDS Church affilia- cluding polygamy, that have targeted been tion than qualifications for office. The for criminal sanction. Id. at 123 S.Ct. Quorum, together with the president Church 2472. The Chief Justice's reliance on Law president's and the counselors, two compris- rence appears to validate what would appear es the central ruling authority of the Church. to most as Justice Scalia's far-fetched con cerns. By 1904when Church President Jo- seph F. Smith testified before the United 1128 I believe Reynolds v. United States Senate in support of Mr. States, Smoot's ef- 98 U.S. (1879), L.Ed. 244 fort to secure seat, his senate much of the any blocks ambitions that might Lawrence congressional goodwill generated by hope have to polygamy seize and draw practice represented Manifesto a sincere plural marriage within protection commitment the LDS Church to sever all the Constitution. I am simply unable to ties with the faith practice of polygamy extract from either the text or the context of had dissipated in the face of strong Reynolds evidence support evidence to the Chief that Church officials continued to solemnize Justice's contention that we sidestep its polygamous unions and protestations evasive holding because it appears to us that polyga- of the Church to the contrary. Kathleen my longer no presents a social danger or that Flake, The Politics American Religious expression Court's of belief posed that it Identity: Seating Senator Reed such a danger in 1879 was merely an ill- presumably marriage," "existing there the against bias mean-spirited and informed of by operation created marriage including a Church. LDS Because marriage statute. unsolemnized the standing Reynolds {129 of precedent marriage a solemnized of existence the bigamy Utah's insulate to is sufficient alone to entirely in order here, it is undisputed States United the attack from statute however, suspect, I question. this straddle additional the on I comment Constitution. to upon called we will point some that at majority opin- in advanced

justifications on feet put both and question this confront only to constitutionality statute's for the ion the other. one side to read not be they should that my view note authori- sweeping has the State suggest that Justice, concurring in DURHAM, Chief relation- personal intimate regulate ty to part: dissenting and part relationships personal Intimate ships. upholding majority in join I T131 of building blocks as the "serve indeed conduct sexual unlawful for conviction Holm's however, mistake, to a would be society." It its of the remainder As to minor. a to any intention observation into this read inter- As dissent. respectfully analysis, engineer as social act the State enable section Code majority, Utah by the preted societal outlaw architect, empowered acts under- "marriage" as defines 76-7-101 to its not conform do that building blocks meet do not that purposes religious for taken re- this assembly. In design or preferred marriage-acts for legal standard any other of adoption and, since polygamy spect, unlicensed, unsolemnized are that constitutional 29, the Utah I, section article entirely indeed authority, acts that civil per- unions between legal prohibition as unrecognized law, and the civil outside apart as stand gender, the same of sons by the purpose any other marriage sufficient may have the State in which realms "biga- as acts those criminalizes state-and relation- intimate regulate justification the statute doing so that my." I believe instances, howev- these In neither ships. free exercise protecting lines oversteps derive justification er, that intimate, personal privacy of religion a that demonstrate ability the State consenting adults. relationships between by its is served interest state compelling crimi- {132 relationships. majority upholds intimate into intervention solely on his based to erimi- conviction bigamy authority the State nal Rather, ceremony private legal status deny participation and to polygamy nalize ceremony-though directly to consti- the form tied because unions gender same think of we what and, case intent-resembled authority grants tutional to solemnize that serves ritual Supreme wedding, Court States United polygamy, parties in which marriages lawful precedent. rights, obli- legal formally undertake by the troubled to be I continue that state- belong to and duties gations, Dur- Justice Chief animated concern conclu- resting its In institution. approved over in Green concurring opinion ham's view, my majority, basis, the on that sion mar- unsolemnized of Utah's use potential con- intent legislature's ignores 30-1-4.5, to create statute, section riage to a confined law be marriage in Utah cept of per- prosecution bigamy predicate I also believe union. union aof validation no seek sons who distinguish reasoning fails to majority's Justice pledge. private solely on a based aof import public conduct by, the one on issue straddles Durrant regulate may legitimately state sort state- Justice's the Chief hand, agreeing nature. private the most private may make people any two ment that broadly majority particular, €133 recognition not receive do pledges marry" prong "purports interprets hand, noting while, the other marriage Ann. statute, Code Utah's unsolemnized the existence purported (2003), include § 76-7-101 a substantial the existence lawby recognized both "marriages entry into when criminalizing unions interest by Supra custom." 125. majority analysis address its of Holm's constitutional implicitly then concludes that the term "mar- challenges to the bigamy statute and offer an riage" III, in article section 1 of the Utah alternative reading of our state constitution's Constitution, which declares "polyga- that polygamy religious provisions freedom plural mous and marriages are pro- forever and of Texas, Lawrence v. 539 U.S. hibited," has the and, same broad meaning S.Ct. (2003). 156L.Ed.2d 508 thus, that the Utah Constitution excludes private even polygamous relationships I. INTERPRETATION OF "PURPORTS seope protections of its religious free- TO MARRY" IN SECTION 76-7-101 dom and liberty. individual Supra majority further holds that the United €135 The majority concludes that Holm States protection Constitution's of individual may be guilty found of "purport[ing] to mar liberty under the Fourteenth Amendment's ry person" another already while having a Due Process Clause does not extend to "the wife because he entered a religious union type behavior at issue in this with Ruth Stubbs that the two of them re case," supra not only because that be- ferred to as a "marriage," even though nei havior involves a minor but also because it believed, ther represented, or intended that "implicates public institution of mar- the union would have status of a riage," supra R state-sanctioned marriage.1 so, In doing " 134 On all points, three I believe that the majority deems irrelevant the distinction be majority's expansive conception of marriage tween the word "marry" when used in legal a in Utah law is the result of a analysis flawed context and the same idiosyneratic word's problematic implications. I Because do meaning when used as a label for a relation agree not the state can constitutionally ship recognized significant by particular private criminalize religiously motivated con- individual or group, but not the state. sensual relationships adults, I be- [136 lieve Holm's conviction under section This 76-T- view is first evident in the ma- 101-which rely jority's preference on the fact for the definition of "mar- ry" partner Holm's appears alleged in Merriam-Webster's Col- his was a overturned, minor-must legiate and I Dictionary therefore rather than the definition respectfully dissent from I major- Part appears in Black's Law Dictionary. ity's opinion. explain my disagreement The former work acknowledges reality with the majority's reasoning below, first individuals use the term "marry" to addressing its interpretation of the "purports refer to a union formed "according to law or marry" prong of section 76-7-101. I then custom." Collegiate Merriam-Webster's 1. The evidence at trial undisputed And, Q. on the people community you knew point. cross-examination, latter On Ruth had Stubbs been religious married in a ceremony. Is engaged in following exchange right? attorney: Right. A. Q. you Did people ever you tell legal- were [Holm's Did, marriage did attorney]. ly married to Rod? your a, civil, mind was it civil mar- A. No. riage the, under the government? laws of Q. you Did yourself ever hold anyone, out to [Ruth]. No. even outside of community, being legally Q. a, You knew that it was marriage married to Rod? would be Right? the law. A. No. Right. A. affirmed, Ruth upon further questioning, that she Q. Nevertheless, a, did believe you that you was familiar with the scripture basis in for "the were married? plural idea of marriage," and that both she and A. Yes. plural believed "that was a com- Q. you You believed were religious married in a mandment of God." sense? During deposition, parts of which were A. Yes. read into the trial prosecutor, record the State Holm testified that he had never submitted forms Q. You were married in a ceremony. any governmental agency representing that he Correct? was married to Ruth Stubbs. Holm further testi- A. Correct. fied that he was not married to Ruth. as denot marriage ed.2003) traditionally viewed add (emphasis (11th

Dictionary 761 bond.3 private aas as well status ing legal a as it latter, concerned contrast, the ed). In they are when mean words what legisla the that is with not believe also do I 138 "marriage" defines import, legal vested the vari carefully structured ture, having so husband couple as aof legal union law, as "[the as in state marriage prerequisites ous (8th Dictionary 992 Law Black's and wife." that duties, obligations and rights, the as well added).2 ed.2004) (emphasis use would persons, married accords law state 767-101, alone in section "marry" term to the appropriate it is not believe I do T 137 not to mean statutory provisions, among all appears it "marry" when term interpret the marriage recognized legally entry into a only is essen- what providing as in a state relationship that any entry into also hu- but description of anthropological tially an custom in whatever marriage accepted as ignore the so is To do relationships. man applicable.4 consider parties the tradition nation and our state law of the that fact upon con the contracting parties relations Dictio- Law argues Black's majority The 2. Snetsinger v. marriage."); the the term summation definition cf. confine nary not union," 325 out that ¶¶ 23, 27, pointing 390, "legal 2004 MT "marriage" ato Univ. Mont. Sys., (concluding that the 148, 445 P.3d "biga- 104 marriage," Mont. "plural defines also Black's "marriage." policy allowed "un types university as benefits "polygamy" that a my," and fact that if the sign affida majority couples" concludes an opposite-sex Supra The married only to legal referred purposes context "marry" ain they were "married" word vit that definitions marriages, "these recognized university's legally claim the defeated receiving benefits could not 'marry' as one be nonsensical, status on maarital based be were benefits It Supra legally married." while compliance another depends on status" "marital cause as Black's to understand however, affidavit). mistake, rules, is a legal not quo. Theo- legal status particular a presuming recog- a state to possible for be retically, would it questions con- the separate concurrence 4. The valid, plu- thus legally and as plural unions nize "[dlescribing Code's Utah the between nection Indeed, as legal sense. "marriages" in ral legally may mar- who of those the characteristics below, Utah territory became the discussed 1, "defining 30, and Chapter and ry" in Title legal- marriages as plural time at one Supra 76-7-10. bigamy in section proscribing" Furthermore, "mar- term I believe ly valid. language of contends It also T115. marriage," "putative definitions riage" relationships recognizes certain 30-1-2 section marriage," marriage," and "void "clandestine "mar- declares "marriages" even as it 120, accu- supra could majority, by quoted Supra void. prohibited and riages" "legal phrase union." by the replaced rately be is to view, 76-7-10 purpose section my S.Ct. purport 211, 8 U.S. who 125 penalties on those Hill, v. impose criminal 3. See Maynard ("When contracting (1888) 31 L.Ed. void is in fact legal union enter state, they married into the parties entered 30-1-2(1). declaration understand I section as into contract into a entered so much have not "marriages" that certain 30-1-2, in section obligations and rights, duties, relation, void, any attempt a new to mean prohibited and upon agreement, but upon their rest of which legal in fact union into to enter described those or com State, statutory general marriage. con- purported only ain results rights, prescribes those mon, and defines which sim- suggested the concurrence reading trary law, They duties, are of obligations. what question, perplexing ply leads omitted)); Pennoy (internal quotation contract." prohibit de- legislature can the sense 734-35, 24 L.Ed. Neff, U.S. er v. claim relationship does not void clare pos every State (''The which (1878) jurisdiction attempts to bolster majority legal status? capacities status the civil to determine sesses by pointing to definitions position logic of its the] absolute [includes ... inhabitants of all its person "marrying" one bigamy that refer upon which conditions prescribe the right to Supra to another. being legally married while shall citizens its own marriage relation such defi- {22 majority concludes n. 6. The be which causes and the created, 'marry' term if the are "nonsensical nitions v. Church dissolved."); Universal accord Life recognized mar- limited considered 2002) (D.Utah Utah, F.Supp.2d view, majority my Supra n. 6. In riage." "marriage a state-conferred (recognizing that defi- possibility that such easily discounts too omitied)); Rid (internal quotation legal status" suspect inartfully drafted. simply were nitions Riddle, 72 P. 26 Utah dle recognized that such legislature in fact that our solely marriage (''The rests (1903) legal status sense, why this is logical no made definitions contract, which the a civil upon the basis "purport[ing] criminalizes 76-7-101 section agree mutually consent contracting parties person "marrying," one marry," than rather obligations and liabil by the 'various to be bound Significantly, another. legally married while arise operation of law which ities' Beyond Merriam-Webster's, only trary author in another Utah provision, Code section ities cited majority are Utah's unso- 30-1-4.1 (Supp.2005). provision That ex marriage statute, lemnized plains Code Ann. that Utah "recognize[s] (1998 § 80-1-4.5 & Supp.2005), and only the "co union of a man and a woman as prong habits" provided of Utah Code section chapter." 76-7-101. Utah Code Ann. However, Utah 30-1-4.5, Code section § which 30-1-4.1(1)(a); see also Utah I, Const. art. provides an adjudicatory § alternative to statu 29 ("Marriage consists tory licensing and solemnization require union woman."). between a man and a As a ments, itself demonstrates only that legally matter of simple grammatical extrapolation, recognized, marriages licensed marriages if a "legal union of a man and a woman" law; under Utah so-called "common law mar is "marriage," then "purporting marry," riages" have not recognized been in Utah must be purporting to enter into such legal a since statehood.5 union.6 1189 As for the prong "cohabits" of see- 1 140 majority The also refers to "the well- 76-7-101, tion majority explain fails to documented history of this attempts State's why the breadth provision of that prevent should the formation of polygamous un- conclusively interpretation determine our ions" as evidence that section 76-7-101 was parallel "purports marry" prong. I intended to criminalize "attempts to form perceive justification no duplicative marital relationships that are not judicial specula- tion that legislature legally recognized." Supra 126. This invo- uniquely intended a "expansive definition" "marry" in section legislative cation of history seems somewhat 767-101, supra 22, see « especially given the ironic in light of this court's recent refusal to legislature's express statement to the con- consider same history in analyzing this court commonly phrase used "pur- Dist, Judicial Court, 81 Utah 236, 17 261, P.2d ported marriage" to marriage mean a (1932) that was 262-63 (describing "purported as a mar- represented legally as valid party, least one riage" a marriage that was void under the law as but that See, in fact was void under state law. it then existed party because one suffered from Kent, eg., 34, Kent 652, v. 28 Utah 2d 497 P.2d epilepsy syphilis). (1972) 653 (describing "purported as a mar- riage" plaintiff's union with a man who was law, 5. Under Utah it is legally the intent to mar- "unable to marriage" contract a valid because he not ry, intent to enter into a rela- personal else); was married to someone Buck v. Buck, 19 tionship, significant that is purposes of sec- 161, 954, (1967) Utah 2d (describ- 427 P.2d 955 (1997 tion 2005). 30-1-4.5 Supp. & See In re ing "purported as a marriage" a "union" that Gonzalez, Marriage 28, 125, 2000 UT 1 P.3d "legally was invalid" because the man's divorce (recognizing 1074 one-year statute of yet final); was not Thomas v. Children's Aid limitations in section "pro- 30-1-4.5 is meant to Soc'y, 235, 1029, 12 Utah 2d 364 P.2d 1031 parties tect who never meant statutorily to be (1961) (describing "purported as a marriage" a adjudications married from marriage] many [of marriage that was "void ab initio" because one years relationship after their (empha- has ended" parties married); already was Cecil v. added)); sis Co., Beck v. Sugar Utah-Idaho 59 Cecil, 155, 279, 11 Utah 2d 356 P.2d 280-81 314, 647, (1921) Utah 203 P. 650 (distinguishing (1960) (describing "purported as a marriage" a an individual's intent "plural that women be his marriage legally that was invalid because one wives" under LDS Church doctrine from an in- party judged incompetent); Roth, was Popp v. 9 tent that wife"); Riddle, "legal of them be his 96, 123, Utah 2d (1959) 338 P.2d 124 (stating 72 P. at (holding 1085 legal that "the status of that a man "purportedly who married" a woman marriage cannot arise" agree- without a mutual already when he was married did not "enter into ment "to assume and legal observe the obli- a marriage"); Estate, valid In re Vetas' 110 Utah gations relation"). of that (1946) 187, 170 P.2d 183, 184 (describing as a "purported marriage" marriage a that was not required statutes," "solemnized as majority argument refutes by suggest- this void); Jenkins, was 239, ing thus Jenkins v. language merely 107 Utah imposes "a limit (1944) 153 P.2d (describing "pur- as a [on] marriages types can be ported marriage" marriage Utah," recognized a that was void un- providing rather than "a der the law party's because one marriage." divorce was Supra definition of major- 139. The marriage occurred); final when the ity perceives In re Waters' a prior distinction here based on its Estate, (1941) 113 P.2d conclusion "marriage" in Utah law can in- (describing "purported as a marriage" a mar- clude relationships "marriage" as riage that was void party's prior because one distilled, under Utah logic law. When this valid); divorce had not Sharp been v. Seventh seems to me rather circular. (8th Dictionary Law 2005); Black's tar impermissibly 76-7-101 ef section

whether "[the ed.2004) (defining solemnization See practices. motivated religiously geted (such aas ceremony ¶¶ 24-25, a formal P.3d performance Green, UT v. State witnesses"). The ceremony)before aware, am Moreover, far as obli- these to assume ma intent parties' which history" to "well-documented ceremony distinguishes what gations when long before ended jority refers a "solemnization" considered properly enacted. originally 76-7-101 section ritual. 1986) (Utah merely private Tuttle, one P.2d "re legislature 1978 our (recognizing intended Ruth Stubbs € 143 Had substantive prior all wholesale pealed assume and to law marry under sweeping enacted ... and statutes sealing cere- obligations, concomitant sharply from departed code penal new they participated in which type mony of the majori concepts"). old common re- solemnization satisfy the state's history could how explain fails to ty require- all other assuming that quirement, 76- of section interpretation our relevant licensure, met. See were ments, as such 7-101. (Supp.2004); § 80-1-6 Ann. Code Utah cf. 660, 129, P. 69 25 Utah Roylance, v. Hilton that position adopts the majority 141 The " ceremony sealing (1902) that a (holding can 670 marriage unlicensed, solemnized "an in 1872 official LDS Church by an performed violates that marriage subsequent aas serve at common cognizable marriage a ma- effected The Supra bigamy statute." law). an accommodation indicates fact This Holm entered that concludes jority then preferences personal law of by state Ruth Stubbs marriage" with "solemnized a in which context regarding individuals ceremony in FLDS in an by participating Members occurs. (2) marriage solemnization officiated, (1) religious leader a which solemniza- may religion combine particular a cere- marriage a traditional typical of "vows traditionally union the ritual with tion (8) the woman exchanged, and mony" were Thus, faith. their within practiced posi- This Supra 130. dress. a white wore section, marriages Code Utah relevant partic- with "solemnization" conflates tion rabbis, "ministers, or by solemnized be to one's specific of union ritual in a ipation are who religious denomination any priests religious beliefs. customs any religious () regular communion "solemnization" majority defines T 142 The older," (i) age or years of 18 society; and not, by ritualistic steps, whether "the as 80-1-6(1)(a), well as §Ann. Code Utah themselves commit two individuals which Id. advisors." spiritual American "Native Supra relationship." marital a undertake 30-1-6(1)(b). § conception of accurate more A however, follow, not It does T144 however, "solemnization" recognizes term, these by one of ceremony performed witnesses, every undertaking, before the formal officials, that individuals, public not are who May marriage. See obligations in some individuals 210-11, two to unite designed 8 S.Ct. is Hill, 125 U.S. v. nord religion particular a ... (1888) ("[MJarriage meaningful within way L.Ed. is whenever "solemnization" ceremony constitutes for religious require not [typical] a "indistinguishable contract [Wlhen its solemnization.... in- majority's Supra 130. ceremony." marriage's [solem by the marry is executed leaders religious subject will terpretation is parties nization], a relation religious performing sanction criminal change. Other they cannot which created by anyone intended restricted, ceremonies modified, or en may be contracts com- beyond the significance to have involved consent upon the entirely released larged, or Code See Utah they occur. munity in which marriage. soNot parties. penalties (imposing § 30-1-15 Ann. in and steps formed, once relation prohibited marriages solemanization on the obligations various parties holds offici- law). a minister example, For Robles, by state liabilities."); Hernandes accord involving a ceremony (Sup.Ct. a commitment ating in 459, 794 N.Y.S.2d Misc.3d couple may same-sex now be held in despite violation majority's assertion, a state li 80-1-15(2) of section (though perhaps only if cense does indeed alter the bond between partner least one wearing a people, white two gravity of their commit dress). a ments, Such result purpose turns the by making the state a third party to Utah Code section 30-1-6 on its head. relationship. Palmer, See Palmer v. Cf. In re Estate Litzky, 206 So.2d (1903) P. 7-8 (recognizing (Fla.Dist.Ct.App.1974) (recognizing "[mJarriage differs from ordinary contracts" union of couple State, whom an "the Orthodox to every marriage contract Jewish performed rabbi had religious cere entered into jurisdiction, within its makes mony (internal equivalent party" to a itself a common quotation omitted)). law mar riage, which solemnization, involves no When a marriage occurs, separate where no con no marriage obtained). license had been tract needed in order for rights marital and duties to enforceable; rather, 1 145 The majority claims that "[the crux parties' private commitments are overlaid of marriage in society, perhaps especially comprehensive forth, framework set marriage, is not so much the part, in a state's statutory law.7 solemnization," license as the and that "[the [ 146 The majority points presence or absence the fact of a state license does Holm and Stubbs referred to alter thle] themselves as [marital] bond or gravity "married" in a religious sense as further commitments made Holm and evidence they Stubbs." Supra 182. "purport[ed] It apparent marry" within the meaning of section majority 76-7-101. emphasize wishes to impor However, the law has no monopoly partic- on tance of private commitment between ular language. my view, partners those two who who pledge to each other life choose, for religious or personal other love, long rea- companionship, support. and The sons, to refer to "married," themselves as majority also alludes to the sanctification though even they know the law does not so such a commitment receives part when the regard them, are free to do so within their ners participate religious in a ceremony in private sphere and cannot accord with their faith. Undoubtedly, a cou that act alone subject fall to penalties. criminal Imposing ple may feel it is their commitment before penalties on such a equiva- basis is gives God that their relationship legitima its lent to disciplining an goes individual who cy permanence. However, beyond it is W," the name of not, "Doctor but who is dispute private that such alone, commitments fact, a physician, licensed for violation of even when God, made before do not consti state licensing requirements though even he tute "marriage" in our state or in legal professed never be a system. licensed Any two people private can make doctor or to have the pledges expertise medical other, to each which with or without the that status designed to ensure. assistance of a religious official, but these private commitments equivalent are not 1 147 I interpret therefore the "purports to marriage absent a adjudication license or an marry" prong of section 76-7-101 as refer- of marriage. Likewise, such ring commitments to an individual's claim entry into a are not enforceable under state law unless legal union recognized by the state as mar- steps additional are taken to set forth mutual riage. phrase The does not encompass an obligations in a Rather, written contract. entry individual's into a union 7. The Accounting General Office estimates that (1997), available .gao.gov. http://www Areas 1,138 there are statutory provisions federal "in of state law in which marital status is a factor benefits, rights, which privileges are contin- include, example, coverage, insurance Utah gent on marital status" including in areas taxa- 31A-22-305, (2005), §§ Code Ann. employ- -307 tion, security, social housing stamp and food benefits, (2005), ment §§ id. 34A-2-403 49-13- programs, immigration, employment bene- (2002 Supp.2005), & convey- real estate Office, fits. U.S. Accounting Gen. Report No. ances, (2000 § id. Supp.2005), 57-1-5 & inheri- GAO-04-353R, Marriage Defense of Update Act: (1993 § tance, id. Supp.2005), 75-2-102 & Report (2004), to Prior http:// available at wrongful recovery, 78-11-6.5, death §§ id. -7 www.gao.gov; Office, U.S. Accounting Gen. Re- (2002 Supp.2005). & No. port OGC-97-16, Marriage Defense of Act 1- "legal refer "marriage" term attempt to elicit no has been there

where 291) I, § art. See, eg., Const. Utah union." or to marital status recognition state's legal union only of ("Marriage consists this status benefits attendant procure woman."). Understood man and party to neither law, where under 1, by plain III, section way, article this import. it to union believed individual private prohibit language, does district for the it was error believe therefore state Utah's prevents instead but behavior question jury the to submit court ad- ordinance to whom government, 76- of section prong guilt Holm's form particular recognizing a dressed, from 7-101. "marriage." as a of union majority's treat I next address constitu and federal state of Holm's ment article {150 majority concludes The I consider why explain claims tional individual on III, 1 is a restriction section private engaging conviction It government. Holm's than on rather rights unconstitutiona motivated religiously refer primarily conclusion justifies l.8 1895 con of Utah's proceedings ence convention, reflect which stitutional federal following the concern CLAIMS drafters' CONSTITUTIONAL IL STATE Enabling in the Utah forth set requirements III, Section Article Interpretation A. (1894). Specifically, Act, 28 Stat. ch. con delegates' emphasizes some majority private majority's conflation intended, government federal cern proble- also unions is relationships with pre Act, only to Emabling through the claim analysis of Holm's in its matic un recognizing vent Utah guarantees violates bigamy conviction require also marriages, but as valid ions I of the by article protected rights individual penalties impose criminal the state majority dismisses Constitution. own However, majority's polygamy. the Utah basis on the claim did drafters it clear analysis makes polyga- protection no "offers Constitution revising article by this concern not address antipathy fact, and, shows behavior mous rather, simply reaffirmed 1; they III, section be- prohibiting by expressly it towards Utah See statute. a territorial validity of the 136 III, Supra 1. section article havior" an (declaring in force XXIV, § 2 art. added). However, Const. provision (emphasis and same defines as the "in so far law 1892 mar- plural "polygamous declares More polygamy"). penalties imposes Const. Utah prohibited." riages are forever only polyga over, criminalized added). Here, that statute III, (emphasis § 1 art. behavior.9 polygamous marriage, mous the law, I understand in Utah elsewhere religious cere- in a participation defendant's having the con- opinion, writing the court's Were I 8. 129, P. 69 "pur- Roylance, 25 Utah mony); the under Hilton conviction that Holin's cluded as a matter prong marry" was incorrect in a (1902) (holding ports to participation 670 660, analysis my interpretation, further statutory establish ceremony to was sufficient constitutionality of the to the law). be limited There cognizable at common marriage However, unless prong. "cohabits" alternative defendant Reynolds that the argument no was indicated, analysis ad- below is the specifically to have polygamous union intend did not the under conviction equally to Holm's dressed poly- effect; contrary, argued that he legal the to marry" "purports to prong and "eohabits'" legal under effect to were entitled gamous unions by the interpreted been latter has prong, as the Clause. Exercise Free Amendment's the First religiously motivated private apply majority Barring- Sarah 161-62; U.S. at 98 See Reynolds, conduct. Polygamy Gordon, Question: Mormon The er time, that, there acknowledge at that Century in Nineteenth Constitutional Conflict Be- two. little distinction been Gordon, (2002) The [hereinafter 119-45 America recognized in marriage was law cause common Reynolds). (discussing Question] Mormon 1, 1898, § 1189 Stat. ch. Rev. 29 Utah Utah until was below, it Moreover, as discussed union could (1898), polygamous entry into recogni- legal receiving backdrop unions of such legal entry purported into as the taken be the LDS control of territory under tion in Reynolds v. United marriage. See status of polyga- Act criminalized Morrill that the Church (1878) 145, 161, States, 244 L.Ed. 25 98 U.S. upon marriage. bigamy based mous (affirming a conviction

765 VII, 1,§ Handley, 49, 1892 Utah Laws ch. (1890) (defining 24 P. 5-6 674-75 "polygamy" as "ha[ving] a husband or Act). wife (citing Morrill Among the "acts" to living" another," and "marr[ying] or as which the Morrill Act referred was undoubt "marr[ying] more than one woman" on the edly the law incorporating Church, the LDS day). same majority reasons that be- passed in the Provisional State Gov cause the thought drafters necessary ernment of proposed State of Deseret. affirm the criminalization of polygamous This law granted had the LDS Church full marriage XXIV, in article they must there- authority to conduct marriages of its mem fore have intended the polyga- reference to bers in accord with Church doctrine.11 marriage III, mous in article section 1 to When petition Deseret's 1850 for statehood place private all polygamous relationships was denied and a government territorial was outside protection. constitutional instead, established legislature territorial revalidated the laws My enacted provi review of history of Utah's sional government. Dale L. Morgan, statehood leads me otherwise, to conclude (1987) Deseret 88 my further (citing bolsters understanding 1852 Utah Laws term "marriage" III, joint October article section 1. I resolution legislature). read both territorial Enabling Thus, Act and the ordi after provisions, nance when the Church publicly extent the latter can former,10 identified with doctrine of plural marriage, as carrying ceremonies plural forward a performed restriction union Congress according had placed on practice Utah's Church government territorial were be marriages valid ginning Act, with the Morrill Stat. territorial until the Morrill Act (1862). provided That statute declared that "'all ... otherwise. history This demon parts acts and of acts passed heretofore strates that polygamous status of legislative said assembly of unions Territory was a matter of concern. According Utah, establish, which support, maintain, ly, the language prohibiting plural polyga shield or mous "marriage" polygamy, be, in the Enabling Act and countenance are, hereby same disapproved provisions and an Ordinance likely intended to nulled." Cope v. Cope, 682, 686, preclude U.S. the reenactment of laws granting (1891) S.Ct. 34 L.Ed. 832 (quoting Mor unions recognition once Act, rill 2,§ 501); ch. see In re Utah achievedstatehood.12 12 Stat. majority Both the Christ," and the concurrence as- granted sus power the church "the sume that the framers of our constitution had an authority" relating make laws intent Congress identical to that regard long as these laws were based on doctrines purpose the meaning and provi- virtue, the ordinance "support that and morality, increase intent, Congress's however, sion. may be beside are not repugnant with, inconsistent or to, the point. the majority As the acknowledges, the States, State, Constitution of the United or of this intent of the complying framers in with this and are founded in the revelations of the Lord." gain mandate was to Taking Ordinance, statehood. that fact An Incorporating the Church of Jesus into account leads me to view the framers' inclu- Christ of (passed § Saints Latter-day Feb. polygamy sion of provision the in our constitu- 1851), Morgan, in Dale L. reprinted The State of tion, and their self-consciously pre- discussion (1987); Deseret 186 Morgan, see also at 61 supra, served Proceedings, (concluding as to some concept that "the polygamy, extent not performance, command Congress with and the avowed yet church, [in seems this law to country rest of the as the intended audience. considered"). have been] Proceedings excerpts quoted by majority must be understood with that immediate concern I am plurality aware that a of this court in In mind, they and what reveal about how the re Interest Black, 3 Utah 2d 283 P.2d 887 framers provision believed operate (1955) (plurality opinion), the Ordi- interpreted after Utah became a state deserves more provision careful differently. nance Id. (stating at 905 consideration. through provision, that this "the framers of our Constitution wished polygamy to make clear that 11. The law was not that, "as said church approved included within an provided holds mode of religious original right, constitutional worship" and that restrictions on the in common communities, religious with civil all practice 'to wor- polygamy implicate could not article ship according God religious dictates of con- I's guarantees). However, freedom science;' ... [the may] LDS Church solemnize observation, made plurality's dicta, does not marriage compatible with the revelations of Je- precedent court, constitute binding on this conceding that drafters, while that that ble illustrates [152 discussion above legal receive never could unions polygamous in the Ordinance "marriage" term

when polygamous private recognition, believed must understood, it Ias believe is provision with former including cohabitation meaning of status, practice, legal be, denoting a children, might continue.13 and their "wives" accord plain and provision argued then be history. It could territorial ar- neither conclude 154 I therefore that, mat- as a establishes provision XXIV, section III, 1 nor article section ticle law, refusal the state's constitutional ter of polygamous private excludes categorically mar- unions as recognize protection any possibility from conduct as discriminato- construed may not be riages the court disagree I. I thus under article in such engage who of those ry treatment chal- the constitutional easily avoid can so practice. religious matter of aas unions discussion My further raises. Holm lenges present not However, does case this limit- claims constitutional state of Holm's above, Holm since, as discussed issue view, convie- whether, my his toed recognition. no claim made free- religious constitution's our violates tion from demon- history, far that it I conclude 153 Additional Because guarantees. dom partic- intent to exelude state strating the drafters' additional does, consider not I need to constitu- from access behavior private arguments. ular constitutional possibility raises protections, tional gov- relief some anticipated Claim Religious the drafters Freedom B. those relation- interference ernmental argues {155 essentially In addition already in existence. ships criminal him to a subject may not marriage, criminalizing polygamous provision applicable generally penalty sepa- above, Act contained the 1892 quoted practice religiously motivated for his cohabi- criminalizing unlawful provision rate penalty imposing that because polygamy "any person male tation, it defined which protec- constitution's inconsistent one woman." more than cohabit[ing] with ... The State religious freedom. tion Yet, unlaw- at 6. Laws § Utah Id. sincerity of Holm's dispute the not polyga- unlike provision, ful cohabitation established motivation, given Holm's mentioned specifically not was my provision, community, there FLDS membership in the co- XXIV, The unlawful section in article as- to doubt no reason to be appears subject to therefore provision habitation tenet of is a central polygamy sertion XXIV, see- in article statement general there- this issue Resolution religion. Territory "(alll laws 2 that tion reli- interpretation on the turns fore force, repugnant now Utah in the Utah found guarantees gious freedom they until Constitution, in force remain shall Constitution. limitations, are al- own their expire matter, accept initial As an T156 Legislature." by the repealed tered guaran- constitution's added). that our premise XXIV, (emphasis § 2 art. Const. reli- encompasses religious freedom tee of val- would remain provision Accordingly, that as belief. as well motivated giously deem courts did only if the state id I, (recognizing § 1 See, art. Const. e.g., Utah leg- unconstitutional, only long as as I, (guaran- § 4 worship"); id. art. right "to not inconceiva- It is kept it in effect. islature once, under history individuals two of the mention marry opinion makes no ported 76-7-101(1) guilty person of section on convinced, based I am just described. have issue, plurality's while married with one individual study this if he cohabits my own 76-7-101(1). §Ann. incorrect. Code interpretation See Utah to another. 2 were inter- XXIV, section if article Thus, even criminal prong the current "cohabits" The requirement imposing a constitutional preted as 76-7-101(1), section Code bigamy statute, Utah Act, be in the 1892 defined polygamy, as beyond that polygamy the definition extends no criminalized, would have a conclusion by incorporating, Act the 1892 contained constitutionality "cohabits" bearing extent, co- concept unlawful the 1892 certain bigamy statute. prong the current per- Act a 1892 Whereas under habitation. pur- only if he guilty polygamy be son

767 teeing religion); "free exercise" of see also Reynolds originated in the territory, McConnell, Michael W. Origins The and it would disingenuous to assert Historical Understanding Free Exercise interpretation Court's of free exercise in Religion, 1409, 108 Harv. L.Rev. Reynolds 1459-60 did not inform the of (1990) understanding McConnell, [hereinafter Origins] they framers when inserted an identi- {concluding that the terms cally phrased "exercise" and I, clause in article section 4 of "worship" in eighteenth late century state the Utah Constitution. The Court has sub- conduct, constitutions both denoted though sequently interpreted Reymolds "re- the term "worship" usually limited to ritual ject[ing] the claim that against criminal laws acts). Thus, or ceremonial Holm's conduct- polygamy could not be constitutionally ap- cohabiting with Ruth participat- Stubbs after plied to those religion whose commanded the ing in practice." religious ceremony with Employment Smith, her while Div. v. 494 legally married to 872, 879, U.S. 1595, woman-qualifies another 110 S.Ct. 108 L.Ed.2d religious "exercise" (1990). within the meaning of However, 876 I disagree Reyn- I, article section 4. olds' reasoning entirely religion- foreclosed based exemptions from eriminal laws.

1157 question whether, remains cireumstances, what Reynolds our constitution Court framed the is- requires exemption sue under consideration as follows: "whether generally appli cable criminal laws. This court held in religious belief accepted can be justifica- as a Green, v. ¶ 37, UT 99 P.3d tion of an overt act made eriminal the law no such exemption of the land." 98 U.S. at 162. In analyzing required was under the federal constitution's Free Exercise Clause. issue, the Court relied on Thomas Jeffer- However, states, as the majority "We have son's formulations "almost as an authorita- never determined whether the free exercise tive declaration of the scope and effect" of I, clause of article section [and the other the Free Exercise Clause. Id. at 164. The related clauses] pro Utah Constitution quoted Court first Virginia the 1786 Bill for protection vide[ ] over and provid above that Establishing Religious Freedom, drafted Jefferson, ed the First Amendment indicating to the United freedom States Stubbs, Constitution." v. extends until "principles break out into Jeffs (Utah 1998). P.2d I believe that overt acts peace good order." governmental burdens on religiously (internal motivat omitted). Id. at quotation It ed conduct subject should be heightened quoted then Jefferson's 1802 letter scrutiny, a proposition that a my number of Danbury Baptist Association, in which he colleagues, past present, previ also stated that man "has no right natural ously Green, endorsed. See opposition UT to his social duties." Id. at 164 ¶ 70, (Durrant, J., (internal P.3d 820 concurring); omitted). quotation Summarizing see also Cir., Wood v. Univ. statements, Utah Med. these the Court concluded that ¶ 2002 UT (Durham, 48 n. 67 P.3d 486 Congress free, was consistent with the Free C.J., dissenting) (recognizing that this court Clause, Exercise "to reach actions which employed heightened serutiny when conduct were in violation of social duties or subver- ing I, an article analysis section 4 in Soc'y good sive of order." Id. Separationists Whitehead, 870 P.2d 916 "[160The analyzed Court then whether the (Utah 1998)). practice polygamy mar- 1158 In reaching the conclusion that riage violation of social duties or framers of our state constitution intended good subversive of order. It determined analysis, such an I look first to the United that polygamy was indeed an "offence Supreme States Reynolds Court's decision in against society," punishing and that polyga- States, v. 145, United 98 U.S. my L.Ed. 244 was Congress's therefore within legisla- (1879). light In of Reynolds the fact that power. tive Id. at Finally, 165-66. reaching 1879, was issued in years seventeen question before of religion-based exemption, the the 1896 constitution, ratification of our state Court practice concluded that the polyga- of and the fact that underlying controversy my punished could be even practice when the

768% peace public at with Id. consistent was religious belief. cise motivated was Reyn Indeed, discussing its when order.14 allowing observed The Court 166-67. Beason, 133 U.S. conduct, it in Davis which decision such olds exeuse to individuals (1890),the 299, L.Ed. 333, S.Ct. self-immola- or sacrifice to human compared would consti motivation state religious to such tion, referred explicitly of because Court to become every 348, citizen S.Ct. effectively "permit at Id. provisions. tutional Id. himself." law unto constitutions several state (noting that Note [religious] expressly "have Reynolds declared of the feature The essential € 161 acts to excuse construed shall not be freedom its conclusion analysis was Court's incon category licentiousness, justify practices or to within fell polygamy of of practice safety of peace or duties with of social sistent "in violation conduct of pro State"). these have studied at 184. who Id. Those good order." of subversive draft their whether over view, are divided was an polygamy visions Reynolds Court's examination case-by-case to infect contemplated ers threatened practice "odious" pa- of being notions society with surrounding conduct particular courts of in the demo- undermining the any despotism, of criminalized, triarchal the violation or whether governmental our on which principles cratic of a breach considered per se law was 164, 166. McConnell, supra Id. Origins, founded. was structure Compare peace. criminalizing polyga- of purpose Clearly, the to clauses (construing these T156, at 1462 protect to Reynolds, was according to my, from conduct religiously motivated "exempt Al- harm. from such the state society and point up to laws applicable] [generally for polygamy in engage to lowing individuals or peace public breached conduct that such permitted thus would reasons religious Hamburger, A Con Philip A. safety"), with very harm the inflict them to Exemption: Religious Right stitutional in the is true The same prevent. designed Wash. Perspective, 60 Geo. Historical An (1) Reynolds: examples given other two (1992) (indicating that 915, 918 L.Rev. religiously engaged exempting someone breach pacem," or "contra phrase criminal from a sacrifice human motivated eighteenth cen was understood peace, person allow that would murder against law law). any violation criminal tury to mean (2) exempting someone another; and kill there view, it seems clear either Under on her husband's herself wishing to burn may refuse to that a state is some law a criminal from pyre funeral motivation. of its regardless permit, kill her- person to allow suicide at 165-66. Id. self. religious freedom agree that not were constitution provisions way, Reynolds in this Understood T 162 practitioners exempt religious intended early state constitutions those consistent cause for acts that punishment terms, free guaranteed express that, by their large or to other society at injury or harm exer- religion to the extent exercise I, 1784, (guaranteeing freedom pt. V art. (guar- LVI art. eg., Const. Ga. See, worship dis- "doth not long "provided worship as such religion anteeing exercise of free others"); safety N.Y. peace peace, or disturb public to the repugnant turb (providing State"); art. II (providing Const. of that its Mass. art. XXXVIII Const. of molested, or re- so hurt, protection subject not be shall be "shall liberty of conscience "no licentiousness, estate, or or excuse acts of his as to strained, liberty, construed person, most and season in the manner worshiping God peace or justify practices inconsistent conscience his own dictates of to the agreeable State"); (pro- of 1663 RI. Charter safety public ..., not disturb he doth provided may enjoy freedom of persons viding all religious wor- their others in peace or obstruct conscience, behaving "they themselves religious Rights art. ship"); Declaration Md. useing this liber- quietlie, peacebliec and ought by person that "no (proclaiming XXXIII profaneness, nor lycentiousnesse tie person ... or estate in his be molested any of oth- injurye disturbeance or outward civill unless, colour of practice; religious VIII, (con- § 1 ers"); art. Const. S.C. order, good disturb the religion, man shall York Constitution language as New taining same State, infringe the or shall safety peace or Origins, 1777), McConnell, supra all quoted natu- in their injure others, laws of morality, & n. at 1456-57 civil, Const. ral, rights'"); NH. Moreover, individuals. I recognize by constitutional interest involved and the unde defining criminal, conduct legislature niable burden that penalties criminal impose, signaled has judgment heightened scrutiny this conduct is warranted. Galli Cf. generally Walker, society does harm van v. 89, 140, or individuals to 2002 UT 54 P.3d degree (recognizing a punishment. warrants "heightened criminal a degree serutiny" Torcia, required See 1 Charles E. is Wharton's a uniform-opera Criminal (15th ed.1998) § Law crime, (distinguishing analysis tion-of-laws where a fundamental right implicated). is which public is "a wrong since it implies injury state," tort, from which is a Moreover, T 165 I cognizant am of the fact "private wrong since it injury involves to an body that the of criminal expanded law has individual"); Tribe, Laurence H. American over time as the state generally has expand 14-13, (2d § Constitutional Low at 1270 ed its reach many into areas that before went ed.1988) Tribe, [hereinafter unregulated. American Con Criminal today statutes punish only conduct not targeted that, where the stitutional Law (predicting "[bleyond ] conduct paternalistic laws, . [free exercise] itself, is harmful in such as laws criminalizing exemptions rare"). murder, criminal laws will be but also targeted where the closely tied In "our to other resort, activity. role as the harmful state's court of last Giv fact, en may this there upon called identify cireumstances the boundaries of the religiously where constitution, motivated conduct will not givie) [we appropriate must] implicate the same state interests that are deference to policy choices of the citizens' legitimately served prosecuting those representatives." elected Judd ex rel. Mont whose conduct was without similar motiva ¶ gomery Drezga, 91, 22, 2004 UT 103 P.3d tion, simply because of the nature of the religious practice at issue. example, For [ 164 That this is generally not, true does religiously motivated use of drugs defined as however, foreclose scrutiny close of the cir may controlled substances in some cases be particular cumstances of a case order to so far removed from the context within which determine prosecution whether a for conduct illegal drug typically use applying occurs that statutorily defined as criminal truly direct the controlled substances law to the reli ed the harm the statute was intended giously motivated simply use does not serve prevent, where the conduct particu government's legitimate interest in erimi- lar religiously case is "right motivated. The nalizing drug use-which involves not to the free religion exercise of concept [is] protecting people from the physical harmful upon which our country was founded and a substances, effects of such but also eliminat protection deeply ingrained in the hearts and trafficking ing the harms that accompany drug minds of Green, American citizens." try.15 Thus, the few instances in indus ¶76, 70, UT (Durrant, J., 99 P.3d 820 concur which courts have indicated generally that a ring). This court that this is applicable law apply to a particularly true for citizens of our state. religiously motivated actor have done so on Soc'y Separationists, 870 P.2d at 935. basis that religiously motivated con believe our expresses constitution this funda duct at issue genuine did not create a risk of mental in protecting harm.16 Applying interest religious free principle, I conclude dom. Given the fundamental nature of the in some rare cireumstances an individual Epps, 15. See Garrett What We Talk About When Espirita v. O Centro Gonzales Un Beneficente Exercise, WeTalkAboutFree 30 Ariz. St. LJ. -- Vegetal, tiao Do U.S. --, --, 126 S.Ct. (1998) ("Oregon's categorical 1211, 1224, prohibition (2006) (recogniz 163 L.Ed.2d 1017 peyote inspired use ... by finding was not ing preliminary injunction in a analysis of an peyote, killing, like intentional statutory evil in and of RFRA government claim that had itself, judgment but permit- instead failed to show protecting pub that its interest in ting abuse, its ritual encourage drug use would safety lic health and applying was served intoxication, effects, negative illegal health hoasca, criminalizing use hallucinogenic trafficking drugs. legislative These determina- controlled drug substance, to those who use the unreasonable; necessarily tions are not ceremonies); State, absurd or religious Frank v. 604 P.2d they subject empirical but (Alaska 1979) refutation in a 1073-74 (exempting the de way killing not."). 'intentional is bad' fendant under federal and state freedom 770 expressive may applied law be general a a operation of the from exempted be

must Speech the Free with consistent conduct motivated religiously the where criminal provides suggested Clause), which some technically the issue, within while at conduct free exercise framework suitable a more not prohibition, eriminal of the purview test, the burden either analysis.18 Under intended law was that the harm threaten neces must be at issue religious conduct prevent. interest strong governmental a sary to serve serutiny, I con heightened Applying T 166 religious of suppression to the unrelated penalties on eriminal imposing clude any of the I do not believe freedom. entry into a re motivated religiously by the normally served interests strong state uncon is an Ruth Stubbs with union ligious apply the law require that bigamy law constitution's under our burden stitutional issue religiously motivated so This is protections. freedom religious with more religious union here-entering a serutiny applied,17 typical strict whether woman.19 one than v. States United set forth the standard that the State the outset 1673, I note at 1167 381-82, 367, O'Brien, 88 S.Ct. U.S. 391 fur- 767-101 that section suggested (1968) (determining whether 672 L.Ed.2d 20 that more as-yet rule unidentified test "or unlaw prosecution for criminal guarantees from history language of hunting precisely reflects outside transportation a moose of ful own understand and our no evidence that Constitution was California there because season Portland, City import"); Rupert use in funeral v. ing for ritual taking moose population moose potlatches would harm (Me.1992) (denying 3 63, 65-66 & n. A.2d 605 among citi Alaskan "general lawlessness" thus not compelling test and cause zens); interest claim under 27, Ariz.App. 504 Whittingham, 19 v. State required); deciding state constitution what (1973) (holding 950, the state 952-53 P.2d 843, 853 A.2d 423, Vt. 648 Hunt, v. 162 Hunt Exercise the Free "pro not, consistent (1994) (holding constitution could that its state religious Clause, engaged in the prosecute those liberty [as] extent religious to the same tects cause "a did not such use peyote where use which re Act," Religious Restoration Freedom safety, public order or threat substantial compelling interest quires application of 716, Woody, 40 Cal.2d People 61 peace""); v. test). (1964) (explain 818 813, 69, 394 P.2d Cal.Rptr. Clause ex Exercise granting a Free ing, when Gedicks, The Mark Normalized Frederick 18. See Native prosecution to emption from Abnormalities, 75 Three Clause: Free Exercise "(tlhe peyote, religious use of Americans' (2000); Ged Mark Frederick 77, 84-93 LJ. Ind. chronicle support the state's ... does not record icks, Regrettable In- An Foundation: Unfirm peyote"); consequences the use of harmful Exemptions, U. Ark. Religious 20 defensibility Miller, N.W.2d 202 Wis.2d v. (1998); W. Michael LJ. 572-73 Rock Little McConnell, Amish, (1996) the reli (exempting under and the Exercise Revisionism Free constitution, guarantee its state gious freedom 1109, 1138-39 Chi. L.Rev. requir Decision, 57 U. pursuant a traffic law Smith from forfeiture Religion (1990); and Lib Sullivan, there M. slow-moving emblem because Kathleen ing vehicle buggies 195, Chi. LRev. horse-drawn 59 U. that Amish no evidence eral Democracy, collisions). (1992); P.3d caused emblem had also Larson without the see Cooper, compel 2004) (Alaska (recognizing previously that have sister states of our 17. Most exactly "explain{] what ling test fails interest generally appli exemptions [governmen- required degree between of fit is required under their may at times laws cable it" used to achieve and the means interest tall provisions have followed religious freedom adopting effect similar a test that is in «and compelling inter pre-Smith Supreme Court's test). O'Brien Miller, See, at 241 eg., 549 N.W.2d analysis. est "compelling (" state interest" the terms '[WJhile religious beliefs not claim that Holm does are creatures alternative" "least restrictive unions into require that he enter therein embodied doctrine, of federal concepts age eighteen. As discussed girls under to strike guidance as we seek provide can below, that section the notion troubled I am Constitution [state] under balance 76-7-101, explicitly at con- aimed is not which public safe and the state's of conscience freedom minors, legitimately defend- affecting can be duct (second original) alteration ty interest'" conduct. necessary tool to combat ed as Hershberger, 462 NW.2d (quoting State v. have been age Stubbs of Ruth While the (Minn.1990)}; Charities also Catholic see bring decision in the State's factor relevant 32 Cal.4th Court, Inc. v. Sacramento, Superior Holm, a relevant fac- it was not charges (2004) 67, 91 283, 85 P.3d Cal.Rptr.3d the elements whether in the determination tor (holding petitioner's claim 76-7-101 section crime of de compelling test without interest survive required were satisfied. ciding constitution its state whether governmental thers a preserving interest exclusively tions upon based practice " society. agree democratic that no such monogamy opposed as plural marriage. implicated interest here. As discussed (quoting Id. 188 Murray Potter v. City, 760 above, government's (10th the federal Cir.1985)). nineteenth F.2d Here, the century polygamy criminalization of emphasized State has "protect interest in Territory, Utah as Reyn construed ing" monogamous marriage as a social insti Court, olds was intended to address I agree tution. that the state impor has an harm society to democratic that LDS Church tant interest in regulating marriage, but polygamy thought embody. Soc'y See marriage insofar as legal understood as a Separationists, 870 P.2d at 924 (recogniz Green, 76, 171, status. See 2004 UT 99 P.3d ing that the Morrill Act of 1862 was aimed (Durrant, J., concurring) (asserting that specifically practice at the LDS Church's "the State has a compelling regu interest in polygamy Utah); Gordon, in The Mormon lating preserving and the institution of mar Question, supra n. at 30-115 (describing riage as that institution has been defined century nineteenth development of the added)). (emphasis State" my view, idea that the LDS practice po Church's bigamy the criminal protects mar lygamy threatened American democracy). riage, union, legal as a by criminalizing the However, I presume do not that our modern purporting act of legal enter second statute, criminal bigamy enacted in ad union. Such an act defrauds the state and dresses the same fears-which have since perhaps spouse an innocent purported been by many discounted grounded more partner. It also completely disregards in bias than in fact 20-propelledCon network of regulate into, laws that entry gress' legislation century earlier. of, dissolution status of mar Indeed, previously this court set riage, and that limit to one the number of forth, Green, in a list of state interests partners with which may an individual enjoy served the modern statute that omits this status. The same targeted by harm is There, reference to such a concern. we first criminalizing the act of cohabiting with a explained that the modern statute serves the partner purportedly after entering a second state's "regulating interest in marriage" and legal marriage partner.21 with that in maintaining the "network of laws" that surrounds However, institution of 1 169 marriage. do not believe the state's Green, 76, 1137-38, UT P.3d 820. interest extends to those who enter a reli- gious We cited a Tenth Circuit union person case that with a described second but who do " this network of 'clearly laws as not claim establishing to be married. For one compelling [Utah's] state thing, interest the cohabitation of couples, unmarried system commitment to a of domestic rela- together who live they "as if" are married Gordon, Question, 20. See supra Mormon sovereignty n. significant state over areas of the (stating at 142 "prejudice against West"). Mor- I note that anti-Catholic bias was also mons and played their alternative faith a role in prevalent during period, this and an 1880s best- decision"); Tribe, [Reynolds ] American Con- seller listed "Catholicism" ahead of "Mormon- stitutional Law, § 14-13, at 1271 supra perils facing ism" as one of the "seven the na- (stating Reynolds that the decision "ilustrate[s] Jeffries, tion." Ryan, See John C. Jr. & James E. amorphous goals may how serve to mask reli- History Clause, A Political the Establishment gious persecution"); David R. Down & Jose I. (2001) 100 Mich. L.Rev. (explaining 279, 302-03 Maldonado, Jr., How Does Many Spouses that Catholicism was considered "inimical de- Have?, Constitution Allow One to 20 Const. mocracy" because of its "authoritarian" church (2003-04) (reviewing 571, 576 Commentary Gor- (internal omitted)). structure quotation don, The (observing Question Mormon Reynolds opinion hostility "teems with to- bigamous I note that prongs cohabitation Mormonism")); ward Strassberg, see also Maura appear target most state laws Polygamy, Temp. The Crime Pol. & Civ. Rts. particular (2003) that, Bigamy conduct. See 11 L.Rev. Am.Jur.2d (stating while the (1997) (indicating § 2 "perceived "bigamous danger justified social unlawful "(in polygamy jurisdictions during criminalization cohabitation" occurs where nine- centuries, early teenth and following biga- twentieth ... cohabitation within the funda- polygyny today pose mentalist does not (emphasis the same mous is made a crime" add- ed)). large-scale kind of threat to federal and now con The state's legal institution. social or household they share a sense marriage, I under regulating cern with common relationship, sexually intimate determining iswho it, See, to do eg., stand society. contemporary place status, what bene enter that Marriage & entitled Comm'n Governor's Utah accorded, obligations and what Extension, fits are Marriage Univ. Utah thereby. This has imposed (2008), restrictions available Study 35-86 com surprising emerged as issue lately (indicating that http://www.utahmarriage.org attempt commentators various plexity, with residents 42% of Utah couple's a nexus between unmarried, ing to define 30% who were and 64 ages of 18 laws network of relationship and the private currently cohabiting outside were to 46% recognized community of marriage legally a surrounding as outside marriage). Even may of laws network state's Our status.23 religious polygamy practice who those struc particular a domestic presume indeed where may occur reasons, cohabitation a man will live ture-whether someone married to person one living together woman, couple only one he or she with whom person than the other union, house that each relationships will enter to such parties cohabiting. Yet family. single nuclear will contain biga hold criminal under the prosecuted are in main the state has statute, However, any interest statute, fornication criminal my logical laws does not (2008), or, taining this network as far §Ann. 767-104 Code penalties of eriminal justify imposition ly adultery statut aware, criminal I am domestic (2008), their from that where deviate e,22 § even those who 76-7-108 id. they do so structure, when particularly Seq, e.g., Berg v. laws. violates these view, 15, my such criminal 337, 261 1 100 P.3d reasons. State, App religious 2004 UT unnecessary to further simply are penalties are not consenting adults (indicating that marriage.24 protecting interest the state's or sod fornication under Utah's prosecuted laws). omy {171 common abandonment The state's gov- proliferation marriage, and no need perceives the state T170 That marriage, contributes ernmentally regulated cohabita- motivated nonreligiously prosecute above, the As mentioned my conclusion. to the cohab- tion, parties one of whether legal status of entry into the not, conditions else to someone is married itation steps of certain performance marriage on the any that, in the absence demonstrates per- marriage-like entering a simply beyond participation legal marriage, neither claim time, the same relationship. At can sonal ceremony nor cohabitation in a has increased of this status legal significance marriage aas threaten said to plausibly be (1928); anyone Note, argument whether 261, P. 262 331, 266 at oral 71 Utah 22. When asked cf. and Criminal Re- to Civil Barriers prosecuted the criminal Constitutional recently been had Sex, 104 Harv. Extramarital on Pre- and strictions statute, uncertainty, expressed adultery some (1991) (indicating have been suggested there but 1660, 1672 L.Rev. adultery. adultery I found en- "attempts'' prosecute many statutes criminal states adultery in which di- "selectively," district cases two federal often in the context forced See Oliverson claimed to be relevant. statute was proceedings). vorce F.Supp. City, 1469 Valley 875 West v. 1995) (D.Utah (considering of a West the claim Rites, Gallagher, Rights, and So- Maggie 23. See supervi- alleged his City police who Valley officer Why Should the Law and How Institutions: cial having part on his disciplined him based sor & Marriage?, Dame J.L. Ethics 18 Notre Support violate section that would engaged in conduct McClain, (2004); Inti- C. Pol'y Linda 225 Pub. 767-103); v. F.Supp. Roe Rampton, Democracy: Beyond Mar- mate Affiliation D.J., (Ritter, dissenting) (sug- (D.Utah 1975) (2003). riage?, Hofstra L.Rev. plaintiff wife were forced gesting that if the disclose an requirement that she comply with the below, also believe detail discuss in 24. As I husband, able to would be he to her abortion at least of such 76-7- penalties, the imposition section bring charges her under relationships at issue involve the domestic where 103). to discover been unable However, I have adults, due consenting violates individual provision. The most any prosecution under this Supreme rights, process adultery prosecution reached to have recent U.S. Texas, v. under a Court in Lawrence appears occurred to have court (2003). 156 L.Ed.2d Lewellyn, S.Ct. provision. Stafe previous criminal governments There, as federal and state have ven Supreme United States Court held that a state law eriminalizingthe exhibi- tured ever further regulating into various aspects of individuals' lives.25 The inevitable flag tion of the national extrancous corollary to these two governmental facets of material attached to it violated the defen- involvement marriage with the institution of dant's First right symbolical- Amendment consciously is that some will choose to form ly message communicate his through such a relationships outside state-delineated practice. Id. at 94 S.Ct. 2727. In ana- boundaries of that institution. At common lyzing the test, issue under the O'Brien men- law, entering the choice of a marriage-like above, tioned the Court assumed without de- personal relationship entering without ciding that the state had valid "in interests status of was less available preserving the national flag unalloyed as an because a man appeared and woman who symbol country" of our and "prevent[ing] the simply be married were considered married appropriation of a symbol revered national eyes above, of the law. As discussed by an individual ... where there was a risk longer this is no the case. In an important symbol association of the particu- with a sense, then, there has significant been a so product lar or viewpoint might be taken erro- legal cial and divergence between the choice neously as governmental evidence of en- personal enter a relationship and the 412-18, dorsement." Id. at 94 S.Ct. 2727. legal choice to enter the marriage. status of The Court nevertheless held that this inter- 1172 Those who together choose to live justify est did not the defendant's conviction without getting personal married enter a re- because "[tlhere was no risk that [the defen- lationship that marriage resembles a in its acts dant]'s would mislead viewers into as- intimacy but legal claims no They sanction. suming that the Government endorsed his thereby intentionally place themselves out- viewpoint." Id. at 94 S.Ct. 2727. In side the rights framework of obligations words, other the defendant was ap- free to surrounds marriage institution. propriate a symbol revered national for his society may While some in feel purposes own long communicative so as he institution marriage is diminished when thereby did not purport speak for the consciously it, individuals choose to avoid it is I similarly state. conclude here that an indi- generally understood that the state is not vidual is appropriate free to terminology criminally punish entitled to its citizens for marriage, a revered legal social and insti- choice, making such a they even if do so with tution, for religious his own purposes if he multiple partners partners or with thereby does not purport actually to have same sex. The distinction in this case is acquired legal status of marriage. consciously when Holm chose to enter personal into a relationship that he knew 1 174 The second state interest served would not be recognized marriage, as law, bigamy Green, inis he religious used terminology to describe this fraud," preventing "marriage whereby an al- relationship. terminology The he ready-married fraudulently pur- individual used-"marriage" and "husband and wife"- ports legal to enter with someone happens to coincide with terminology else, attempts "or procure government used the state to legal describe the status benefits associated with marital status." persons. fact, of married however, That 76, 1137-89, 2004 UT 99 P.3d 820. This not sufficient for me to conclude that erimi- interest focuses on preventing the harm nalizing this conduct is essential in order to state, caused to society, and to de- protect the institution marriage. frauded purports individuals when someone In regard, this case before us to have marriage, entered the status of Spence resembles v. Washington, eligible 418 U.S. but in fact validly is not enter that (1974). 94 S.Ct. 41 L.Ed.2d 842 status prior legal because of a union. This See, eg., statistics). supra (providing note 7 regulation family ernment matriage, time, regulation At Teitelbaum, the same extensively content of described in Lee E. Fam- family Law, ily relations be said to History Family have decreased. 1985 Wis. L.Rev. law, complex gov- evolution of domestic T74 light here, reviewing this assessment where implicated simply interest for is called serutiny I believe heightened marriage has status of claim to no restriction here, conclude I cannot made. been places on the bigamy law Green, "protecting cited the court T 175 who, religious rea for those of all freedom exploitation individuals

vulnerable is nee- sons, than one woman with more live served state interest third as the abuse" in this interest the state's essary to further 2004 UT bigamy statute. review, student closer Upon regard. this was court concluded P.3d 820. pro unconvincing.26 The State Note is the erimi- to which interest state legitimate relationship or a causal evidence of vided no rationally related was bigamy nal prac strong correlation even Ex- Free Amendment First of our purposes moti religiously polygamy, whether tice of T41. The court analysis. Id. Clause ercise "incest, not, offenses of and the vated perpe- on the idea conclusion rested assault, failure to statutory rape, and sexual unusually at- "not crimes of other Green, id. 1 40.27 trators support," cited pay child polygamy"-such practice of tendant Moreover, assuming a correlation even assault, statutory rape, and "incest, sexual exist, the recent the record nor neither did pros- support"-could pay child failure to polygam alleged prosecutions of history of suffi- absence of bigamy in the ecuted 76- that section conclusion ists warrants support a conviction evidence at necessary cient for the state's tool 7-101 is thing, I am one harms.28 For ©40. Because charges. on such Id. tacks these other analysis required where the single First Amendment of a instance federal unaware scrutiny, charge the court bring a only rational basis forced to was charges, law in a student narrower rely on assertions of other place content a mi with frequently sexual conduct or unlawful polygamy that incest piece review gather suffi conduct, nor, together it was unable because criminal to other related these other prosecute cases, case of cient evidence including the two local with suggested that its has The State crimes.29 However, 14. 140 & n. Id. himself. Green accounts, Andrea anecdotal "modern testimonials collection of asserts that written 26. The Note (2004). Moore-Emmet, Brothel phys- God's suggest investigations that government poly- frequently in occur abuse ical and sexual the structure as a result of gamist communities concluded scholar has Indeed, one Vazquez, A. Richard symbol- communities."" largely of such a polygamy "criminalization Note, Legitimate Polygamy: Free provide The Practice unlikely sub- to either that seems ic tool Religion Legitimate Public Menace? Exercise teen- adult and protection to victimized stantial Light Reynolds Modern Constitu- Revising in oversight and age to enhance state women or Legis. & Pub. regulation communities." N.Y.U. J. fundamentalist 5 tional Jurisprudence, 225, (2001). 20, no factual Pol'y Yet it reveals (suggesting Strassberg supra n. at (1) arrange- the Utah other than this assertion "targeting basis for structures the economic 103, App Kingston, 2002 UT polygamous v. com- of State case make these insular ments that effective). likely would be more did not viable" below, munities which, as I indicate P.3d (2) York bigamy prosecution; a New involve 344, 588 Ezeonu, 155 Misc.2d case, People the defendant noted that The court in Green (1992), Nigerian involving na- NY.S.2d nonsupport and criminal had been convicted married that he had tive's assertion bigamy. 2004 UT rape a child in addition to (3) girl Nigeria; infor- thirteen-year-old here, P.3d 820. Similarly 140 n. broad- an A & E television contained in mation sexual con- of unlawful convicted Holm has been concerning newspaper articles various cast and seventeen-year-old in ad- duct with a sixteen- woman, up grew in a who claim of one polygamist defendant bigamy. The dition ritually family, sexu- father that her bigamy charged but was Kingston was not their sixteenth ally and her sisters on abused her conduct unlawful sexual incest and convicted of supra, Note birthdays. Vazquez, at 240-43. The seventeen-year-old. 2002 UT with a sixteen-or unlikely a flat-out predicts that "it 103, 11, itself appears from these App 761. It 46 P.3d 'least restric- polygamy would meet the ability using ban on may its be that the State three cases strict requirement a traditional of" tive means' 76-7-101 prosecute under section offenders analysis. scrutiny Id. at 253. punishment for imposing additional a means as a already-charged than offense rather is otherwise prosecution conduct proxy for supra Vazquez, n. than 27. Other true, such this is unchargeable. the extent To journalist is a the State offered "evidence" regard, the latter reports of forcible unions ability bigamy initial charges to file allows gather required prosecute the evidence between underage girls and older men within engaged in specific those more crimes. Even community the FLDS recently ap peared Yet, in the media.32 if support there were for claim in the state does record, I inappropriate to would consider it membership, criminalize cult simply let stand a criminal because it good reason. To do impose so would be to enables the state to fishing expedi conduct a penalty based on status rather than Further, tion for evidence of other crimes. conduct-long considered antithetical to our the State itself has indicated that it does not justice. notion of criminal See Powell v. in religiously moti Texas, prosecute engaged those 514, 533, 392 U.S. 88 S.Ct. polygamy vated under the criminal (1968); L.Ed.2d 1254 California, Robinson v. person unless the has entered a reli 660, 666-67, 370 U.S. 82 S.Ct. gious union girl eighteen years with a (1962). Moreover, L.Ed.2d 758 such a erimi- policy old. prosecution Such a of selective nal law require the state make my reinforces conclusion that a blanket crim judgments normative distinguishing between prohibition inal on religious polygamous un communities that actually are "cults" and necessary ions is not to further the state's those that voluntary associations based interests, suggests that a narrowly more common ideological or other be just tailored law would be as effective.30 system liefs. Our government long type eschewed this of state interference. 1 176 I do not reach lightly. this conclusion Rather, acknowledge despite possibility difficulties that are al other ways may criminal conduct associated accompany gathering act evidence in bigamy. societies, even, Such closed as was state is held bur suggested (Green, proving den of with the engaged individualshave correlated practice polygamy community in a conduct that is criminal because it is asso- world, has isolated itself from the outside clated with actual harm. The State of Utah partially least prosecution fear of criminal incest, has criminal punishing laws rape, un Indeed, religious practice. minor, lawful FLDS sexual conduct with a and do community in its current form has been lik mestic and Any child abuse. restrictions cult, ened to a with allegations focusing on place practice these laws on religious power by single wielded polygamy leader who certainly justified. are almost high exerts a degree However, of control over follow the broad criminalization of the ers, ranging from ownership proper religious practice their itself as a means of attack ty to the persons determination ing other criminal behavior is not. CL they may whom religious enter unions.31 In Aye, Church Lukumi City Babalu Inc. v. prosecutions may jeopardy well raise double con- Pull Roots, Associated Press, 5, Mar. May up Vitale, 410, 415, cerns. See Illinois v. 447 U.S. 2005, available at Rick A. Ross Institute, Poly- 2260, (1980) 100 S.Ct. (recogniz- gamist 65 L.Ed.2d 228 Groups, httpy//www.rick- ing Jeopardy "protects the Double Clause .html [hereinafter against multiple punishments for the same of- Ross Institute site}; Lawsuits and Governmental (internal quotation omitted)). fense" marks Polygamist Increase Pressure Sect, Scrutiny Press, Associated 17, 2004, available at Sept. site, statute, recently bigamy supra; 30. The Ross enacted child Institute Authorities Probe Ari- (2003), § Utah Code Ann. 76-7-101.5 Polygamist limits its Town, Times, 23, 2004, N.Y. Jan. zona site, supra. criminalization to the available at conduct of those married Ross Institute purport marry individuals who or cohabit with persons legal spouse other than their who are E.g., Runaways Speak FLDS Out on Dr. Phil age eighteen. bigamy Show, under the Trib., 4, 2005, As the child May S.L. available at Reli- statute was not prose- enacted until after Holm's gionNewsBlog.com, http://www .religionnewsb- cution, charged bigamy. Holm was not with child log.com/11129; Polygamists on Utah-Arizona express opinion constitutionality I no on the Considered, of a Scrutiny, Things Border Under All conviction 3, 2005, under that statute. May http://www.npr.org available at (search "polygamy"'); Allegations term Abound: reports suggest 31. Media City's that this Polygamous situation has Community Colorado Comes Jeffs, worsened since Warren son of Rulon Increasing Under Havasu News-Herald, Scrutiny, Jeffs, assumed 25, leadership 2004, available at Ross position site, Institute Sept. following Polygamous his supra father's death. Church n. 31. 2217, statute, Hialeah, rights 118 S.Ct. Utah Code parental 508 U.S. nation of ("The (1998) (current gov Ann. (1986) legitimate § version 78-8a-48 124 L.Ed.2d (Supp.2005))). § Ann. 78-38a-407 Code public protecting interests ernmental the existence eruelty developments, to animals these preventing Given health stopping by restrictions addressed the inter- protecting could be mechanisms apart neglected children abused or ests of of all Santeria prohibition flat of a

far short parents for criminally prosecuting their practice."). from sacrificial criminalization not bigamy, I do believe argument has not been Although the T 177 conduct polygamous motivated religiously I reasons could raised, for similar I note that interests. necessary to further these on the bigamy conviction uphold Holm's not $179 Thus, this religiously motivated the State nor neither basis to children who inherently harmful has identified prior decision Green at issue court's homes, by are interest served grow up important polygamy "culture" of thereby exposed requires applica- rulings legislative previous Our unions with religious those who enter tion to .33 example, For I there- support legitimacy. conclusion. policy claim of state no held that those on the previously bigamy conviction this court has reverse Holm's fore polygamy religious freedom practice his engaged ground violates petitioning automatically disqualified Constitution. guaranteed the Utah Adoption In re a child. adoption 1991) AMENDMENT (Utah III FOURTEENTH (plu W.A.T., 808 P.2d CLAIM DUE PROCESS ("'The constitution re rality) fact that our polygamy does prohibit state to quires the biga I that Holm's ' Because conclude must the state necessarily mean the Utah Constitu my conviction violates rights privileges deny or all civil my dis guarantees, tion's freedom Rather, must a trial court polygamists."). majority's is not based on the senting vote evidentiary hearing to consider on hold an constitutional analysis of Holm's federal case-by-case the best interests basis whether my do, however, register wish to claims. adop promoted by an of the child would majority's treatment disagreement with the prospective parents. Id. at tion violates claim that his conviction of Holm's right under Fourteenth Amendment parent's that a also held 1178 We have liberty, as to individual solely Due Process Clause not be denied custody petition could Supreme the United States polygamy. Sanderson practiced she because Texas, 1987). (Utah 539 U.S. in Lawrence v. Our Court Tryon, 789 P.2d (2008). As 156 L.Ed.2d 123 S.Ct. our rec holding in was based on Sanderson acknowledges, in majority the Court regard the legislature's policy ognition that the principle that "absent stated the rights termi Lawrence custody parental ing child of an institution injury person to a or abuse past in half- shifted the nation issues has free to choose protects," adults are the law focus century, requires that courts and now relationships "in the con of their rather the nature of the child" on the "best interests private their own their homes and morality of its fines of judgment on the passing than 567, ma 2472. The lives." Id. at 128 S.Ct. (recognizing that the parents. Id. at 627 private consensual jority in In re concludes plurality opinion of this court 1955 887, Black, 815, uphold behavior of P.2d not claim 2d two who did individuals relationship some legal recognition of their parental rights ruling terminating the ing a of the institution good how constitutes abuse longer was no polygamist parents, inappli rendering Lawrence marriage, in thus legislature's light in deletion basis,34 majority sum- cable. On from the termi- 1965 of moral references advantaged or emotional from an economic Maldonado, Jr., n. 33. See also Down & supra reliable, standpoint"). (asserting are no that "there at polyga- suggesting reported that children of data rejection majority its could have limited 34. The significantly uniquely dis- mous families liberty fact that Holm's claim to the of Holm's marily rejects process Holm's due claim "gives protection persons substantial to adult beyond seope holding. deciding Lawrence's Su- in how to conduct private their lives pra disagree I analysis. with this in matters pertaining to sex." 589 at U.S. 572, 128 S.Ct. 2472. As described in Law- I 1181 As extensively discussed rence, protection this encompasses not mere- above, I do not believe that the conduct at ly the consensual act of sex itself but issue threatens the institution marriage, "autonomy person" in making choices agree and therefore cannot that it consti- "relating ... family to relationships." Id. at tutes an "abuse" of that institution. 574, 128S.Ct. 2472. sodomy statute was majority persuasive justifica- fails to offer a thus held unconstitutional sought because it tion contrary. for its view to the It asserts "to personal that, control a relationship that "the behavior at in issue this case" whether or not recognition entitled to formal implicates ability "the state's regulate to law, within liberty persons relationships." Supra marital 157. Accord- being punished choose without as criminals." ing majority, regulation includes Id. 128S.Ct. 2472. ability impose legal state's on an individual his or her will in agree 1183 I majority with the that mar order to spousal support enforce obligations riage, union, when understood as a prevent welfare In regard qualifies abuse. protects." "an institution the law spousal support, unpersuaded I am However, See id. at 128 S.Ct. 2472. potential interests of consenting adults who Court's statement Lawrence that a state voluntarily legally enter unrecognized rela- interfere when such an institution is tionships despite "abuse[d]," id., they financial risks together with holding might justify face the future imposition sodomy unconstitutional, statute was penalties of criminal parties on the that, view, those leads me to infer in the Court's relationships. majority's Under ratio- sexual acts consenting adults and nale, justified the state would be in imposing private personal relationships within penalties criminal persons occur, unmarried who which these acts do not "abuse" the enter relationships simply same-sex because marriage simply institution of they because state, applicable under the constitutional place take outside its confines. See id. at statutory provisions, (O'Connor, J., unable to hold concurring S.Ct. them regard married. In judgment) welfare (indicating that Texas's abuse, I find it difficult to understand how sodomy implicate law did not state's interest in "preserving the traditional those in relationships that are ineligible to receive sanction are com- marriage" institution of expressed but "mere mitting welfare they abuse when seek bene- moral disapproval of an group"). exeluded fits persons. Lawrence, available to unmarried In the wake of Virginia Su preme Court has come the same conclu majority 1182 The also offers the view sion, striking criminalizing down its state law that "[the state must be able ... further Ziherl, fornication. Martin v. 269 Va. proliferation society social unions our (2005). my opinion, s.E.2d deems discouraging beneficial while those holdings correctly these recognize that indi Supre deemed harmful." T61. The Su- today's society may viduals make varied preme Lawrence, however, rejected Court regarding organization choices of their very notion that a state can criminalize family personal relationships without merely behavior majority because the of its fearing punishment. criminal prefers citizens a personal different form of relationship. Striking down majority Texas's criminal adequately 1184 The does not sodomy unconstitutional, statute as explain the Court how the institution of in Lawrence that the Fourteenth support abused or monogamy liberty Amendment's individual guarantee simply by threatened an individual's choice to alone, behavior involved a minor. liberty That fact individual under the Due Process Clause view, my justifies the conclusion that Holm's of the Fourteenth Amendment to the United right conviction does not violate his States Constitution. 1029, 438, 453, 31 L.Ed.2d 92 S.Ct. U.S. more ritual with in a participate concern (1972), "choices right to make a the confines outside person one than in Moore as living arrangements," family ex- offering such an ing than Rather marriage. 494, 499, Cleveland, U.S. City East v. merely proclaims majority planation, (1977)(plurali 1982, 52 L.Ed.2d 97 S.Ct. attempts polygamists' nature of public "the of one's the nature right to choose ty), or a pa- acceptable redefine extralegally Lawrence, 539 relationships, as personal institution social fundamental of a rameters 2472, 574, this individual 128 S.Ct. U.S. at far T It is Supra 68. plain." marriage is like a line essentially draws liberty guarantee to me. plain from family and home and an individual's around majority's concerned €185 I am interference governmental prevents impression that may give the reasoning inside, long as it does as happens what any all forms criminalize free to state is form some other injury coercion or involve outside relationships that occur personal society.35 As the toor harm to individuals marriage. While legal union recognized: in Lawrence Court acts of criminalizing isolated laws Lawrence [Fjor powerful have been there centuries sug- void, majority seems to sodomy are conduct private] [certain condemn voices to which these relationships within gest that the has been The condemnation as immoral. criminal sanction. may receive still acts occur beliefs, conceptions of by religious shaped cohabitation logic, nonmarital Following such behavior, respect acceptable right and fall outside the considered might also be many per- family. For for the traditional protection. constitutional scope of federal but concerns trivial these are sons unmarried Indeed, living alone and act of accepted as deep convictions profound threatening so- viewed as easily be could as they to which principles and moral ethical cial norms. thus determine aspire and which These considerations their lives. view, course of any conclusions my T 186 In us, how- question before answer the Essentially, do not under Lawrence. foreclosed majority is whether The issue ever. simply refor in Lawrence decision Court's to enforce power of use the that, longstanding principle mulates society through the whole views on these liberty, ... cer individual to "secure order law. operation of the relationships" highly personal kinds of tain 571, measure The Court deter- given "a substantial must be at 128 S.Ct. Id. full and ... with unjustified interference "adults sanctuary from mined that when into other" enter Jaycees, 468 U.S. from each v. mutual consent Roberts U.S. the State." 3244, L.Ed.2d 462 609, 618, relationships with no 104 S.Ct. personal particular coercion, may not a state Tribe, injury or Low (1984); H. threat Lawrence see also relationships themselves criminalize Right" "Fundamental Texas: The rence v. Name, that occurs conduct 117 Harv. intimate Speak Its the consensual Dare Not That 578, 128 S.Ct. Id. at them. (2004) ("[T}he within claim Law L.Rev. intimate relations conclusion, {187 ... is that ma- accepted agree with the rence I micromanaged or overtaken in this may not be jority that because state."). right minor, prevail referred unable Whether he is case involved association, the Due liberty claim under "intrinsic" "intimate" or on his individual However, disagree with the Roberts, 104 S.Ct. Process Clause. 468 U.S. v. Connect result "privacy," as Griswold the same right to majority's implication 14 icut, S.Ct. an individual enters apply where 381 U.S. Baird, relationship another adult. private (1965), and Eisenstadt L.Ed.2d 510 relationships threaten private somehow of intrin- sion majority Holm's freedom treats 35. The marriage, fall and therefore institution sense, in a distinct as, claim sic association protection, process scope due Lawrence, outside claim under individual liberty that, denying association recognition at the same time while in Roberts with the Court's liberty in- that no individual pro- claim on the basis relationships contrary, can be private Supra In so established. terest had been Roberts, S.Ct. 3244. 468 U.S. tected. conclu- majority reconcile its doing, fails to

CONCLUSION majority's analysis

1188 The of Holm's

challenges bigamy to his conviction under large

Utah Code section 767-101 relies to

extent distinguish on its failure to between

an individual's false claim to have entered the status of and an individual's

private, religiously motivated choice to enter

a relationship person. with another Because disagree

I premise, with this unper I am

suaded that the flowing conclusions from the

majority's understanding my are correct.

view, properly subject Holm was not pros

ecution "purports marry" under the prong

of section 76-7-101 because he never claimed

to have entered a marriage. valid

Moreover, I would hold Holm's conviction

under prong the "cohabits" of section 76-T- invalid under the pro freedom

visions of the Utah Constitution. In addi

tion, I majority believe the erred

suggesting Supreme that the Court's decision Texas,

in Lawrence v. 539 U.S. 123 S.Ct. (2008), 156 L.Ed.2d 508 recog does not private relationships

nize consenting protection

adults as entitled to

Fourteenth Amendment's Due Process

Clause. I therefore majori dissent from the

ty's conclusion upholding con join

viction. majority upholding

Holm's conviction for unlawful sexual conduct

with a minor under section 76-5-401.2.

2006 UT 30

Joseph MACHOCK, Plaintiff Respondent,

v. FINK,

Carl William Defendant Petitioner, Harmer, Third-Party

John Defendant.

No. 20041014.

Supreme Court of Utah.

May

Case Details

Case Name: State v. Holm

Court Name: Utah Supreme Court

Date Published: May 16, 2006

Citation: 137 P.3d 726

Docket Number: 20030847

Court Abbreviation: Utah