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Utah’s Bigamy Statute and the Right to Privacy and Religious Freedom
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The First Amendment of the United States Constitution guarantees all Americans the right to associate, express opinions, and practice religion free from unnecessary government intrusion. Additionally, the United States Supreme Court recognizes that the Due Process Clause of the Fourteenth Amendment promises individuals that, “there is a realm of personal liberty which the government may not enter.” Planned Parenthood v. Casey, 505 U.S. 833, 847 (1992). Together, these freedoms allow individuals to define the contours of their personal relationships and freely express their religious beliefs, as long as they do not harm the state or other persons. The ACLU of Utah believes that Utah’s bigamy statute, which criminalizes the practice of spiritual plural marriage between consenting adults, violates these constitutional guarantees.
According to Utah’s bigamy statute, “A person is guilty of bigamy when, knowing he has a husband or wife, the person purports to marry another person or cohabits with another person.” Utah Code Ann. § 76-7-101(1) (2003). The law, therefore, applies not just to individuals who have obtained multiple marriage licenses, but also to those who are legally married to only one person, while also engaging in other marriage-like relationships that are not recognized by the state.
Since 2004, the Utah Supreme Court has issued three opinions regarding the application of the state bigamy statute to criminalize the religiously motivated practice of plural marriage. In all three cases, the court has upheld the law’s constitutionality.
State v. Green was the first of these recent cases to directly address the constitutionality of the statute. See 99 P.3d 820 (Utah 2004). Green, an avowed polygamist who participated in simultaneous spiritual unions with multiple women but who never maintained more than one civil marriage at a time, argued that his conviction under the bigamy statute violated his federal constitutional right to freely exercise his religion. The Utah Supreme Court, however, upheld Green’s conviction and the constitutionality of the statute. Although the court acknowledged that “Utah’s bigamy statute has an adverse impact on those wishing to practice polygamy,” it held that the law is rationally related to furthering Utah’s legitimate interests in regulating marriage and in protecting vulnerable individuals from crimes targeting women and children, which the court found “not unusually attendant to the practice of polygamy.”
Subsequently, in February 2006, the Utah Supreme Court held that Hildale Justice Court Judge Walter Steed’s violation of the bigamy statute warranted his removal from the bench. In re Steed, 131 P.3d 231 (Utah 2006). When the town council of Hildale, Utah appointed Judge Steed to the bench in 1980, he had one wife to whom he was legally married and one “spiritual wife,” with whom he had a private, unlicensed relationship. At the time of his removal from the bench, Steed had one civil wife and two spiritual wives. Unlike the situation in Green, all three of the women cohabitating with Steed were adults when they entered into their private unions with him. Notwithstanding the fact that Steed’s case involved only private, consensual relationships between adults, the Utah Supreme Court summarily dismissed Steed’s constitutional challenge to the bigamy statute, stating, “In the case of a sitting judge, it is of little or no consequence that the judge may believe a criminal
statute is constitutionally defective. A judge ignores the clearly stated criminal prohibitions of the law at his or her peril.”
In May 2006, a majority of the Utah Supreme Court again upheld the constitutionality of Utah’s bigamy statute. State v. Holm, 137 P.3d 726 (Utah 2006). The State of Utah convicted polygamist Rodney Holm under the bigamy statute for his participation in a 1998 “spiritual marriage” to Ruth Stubbs. At the time, Holm was legally married to Stubbs’s sister. Holm challenged the constitutionality of the “purports to marry” prong of the bigamy statute, and alternatively argued that engaging in private unions with multiple “spiritual wives” is a constitutionally protected expression of his religious beliefs as a member of the Fundamentalist Church of Jesus Christ of Latter Day Saints.
Holm invoked the landmark civil rights case, Lawrence v. Texas, to support his defense that the state could not constitutionally interfere with his choice to consummate his intimate relationship with Stubbs. See, 539 U.S. 558 (2003). In Lawrence, a majority of the United States Supreme Court held that a Texas statute criminalizing sodomy violated the Due Process Clause of the Fourteenth Amendment, and, absent injury to a person or abuse of an institution the law protects, consenting adults enjoy the freedom to define their private intimate relationships within “the confines of their homes and their own private lives.” Although the Lawrence majority intentionally avoided interpreting the Fourteenth Amendment to protect same-sex or plural marriages, it notably left open the issue of whether couples enjoy the constitutional freedom to consummate their relationships with commitment ceremonies that do not confer state recognition of their unions.
Four of the Utah Supreme Court’s five justices rejected Holm’s constitutional defenses, holding that his behavior fell “squarely within the realm of behavior criminalized by [Utah’s] bigamy statute.” Writing for the majority, Justice Matthew Durrant argued that the framers of the Utah State Constitution intended the bigamy statute to criminalize not only attempts to gain legal recognition of duplicative marital relationships, but also attempts to form duplicative marital relationships that are not legally recognized. Durrant cited Reynolds v. United States, an 1879 United States Supreme Court ruling that upheld the prosecution of a religiously motivated Utah polygamist, and asserted that a state statute may restrict an individual’s free exercise of religion as long as the statute does not impact people of different religious faiths differently. See, 98 U.S. 145 (1878). Durrant also dismissed Holm’s defense based on Lawrence, claiming that the ruling was limited to private, intimate homosexual acts, and that unlike private intimate conduct, “marriage has always been recognized as an institution the state has an interest in defining.”
In contrast, Chief Justice Christine Durham issued a substantial dissent from the majority’s analysis of the constitutionality of the bigamy statute. In her dissent, Durham contended that the majority’s expansive definition of marriage includes even private relationships not sanctioned by the state. “As interpreted by the majority,” she wrote, the bigamy statute “defines ‘marriage’ as acts undertaken for religious purposes that do not meet any other legal standard for marriage—acts that are unlicensed, unsolemnized by any civil authority, acts that are indeed entirely outside the civil law, and unrecognized as marriage for any other purpose by the state—and criminalizes those acts as ‘bigamy.’” The statute therefore “oversteps lines protecting the free exercise of religion and the privacy of intimate, personal relationships between consenting adults.” Durham further argued that, “Any two people can make private pledges to each other, with or without the assistance of a religious official, but these private commitments are not equivalent to marriage absent a license or an adjudication of marriage.”
Proponents of laws prohibiting plural marriage often maintain they are needed because the practice necessarily involves criminal behavior, such as statutory rape, incest, and welfare fraud. Indeed, in addition to the bigamy charges, Green was convicted of criminal non-support and child rape, and Holm was convicted of sexual conduct with a minor. These are crimes that can and should be prosecuted under other statutes. However, by criminalizing private, consensual, adult relationships that are motivated by sincerely held religious beliefs, we fail to live up to the constitutional promise that consenting adults be free to maintain and define their personal relationships without fear of government interference.