State v. Holm

2006 UT 31
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
State of Utah, No. 20030847
Plaintiff and Appellee,
v.
F I L E D
Rodney Hans Holm,
Defendant and Appellant. May 16, 2006
---
Fifth District, St. George
The Honorable G. Rand Beacham
No. 021501054
Attorneys: Mark L. Shurtleff, Att’y Gen., Paul F. Graf, Kristine
Knowlton, Laura B. Dupaix, Asst. Att’ys Gen., Salt
Lake City, for plaintiff
Max D. Wheeler, Rodney R. Parker, Salt Lake City, for
defendant
---
DURRANT, Justice:
¶1 In this case, we are asked to determine whether Rodney
Hans Holm was appropriately convicted for bigamy and unlawful
sexual conduct with a minor. Specifically, we are asked to
determine whether Holm’s behavior violated Utah’s bigamy statute
and whether that statute is constitutional. We are also asked to
decide whether the trial court adequately established its
criminal jurisdiction over the unlawful sexual conduct charges
and whether the unlawful sexual conduct statute is
unconstitutional on equal protection grounds. We conclude that
Holm’s behavior falls squarely within the realm of behavior
criminalized by our State’s bigamy statute and that the
protections enshrined in the federal constitution, as well as our
state constitution, guaranteeing the free exercise of religion
and conscience, due process, and freedom of association do not
shield Holm’s polygamous practices from state prosecution. We
further conclude that the trial court appropriately exercised
jurisdiction over Holm’s unlawful sexual conduct charges and that
the unlawful sexual conduct statute is constitutional.

1 The FLDS Church is one of a number of small religious
communities in Utah that continue to interpret the early doctrine
of the Church of Jesus Christ of Latter-day Saints (the “LDS
Church” or “Mormon Church”) as supporting the practice of “plural
marriage,” or polygamy. Though often referred to as
“fundamentalist Mormons,” these groups have no connection to the
LDS Church, which renounced the practice of polygamy in 1890.
2 The three unlawful sexual conduct with a minor charges
were based on the fact that Ruth Stubbs had conceived two
children with Holm before she turned eighteen and on the
allegation that sexual conduct occurred between Ruth Stubbs and
Holm the night after the religious marriage ceremony. At a
preliminary hearing, the magistrate dismissed the third unlawful
sexual conduct charge because there was insufficient evidence to
find that any sexual conduct occurred the night after the
marriage ceremony.
3 Utah Code section 76-5-401.2 provides, in pertinent part,
as follows:
A person commits unlawful sexual conduct with
a minor if, under circumstances not amounting
to [other, more serious sexual offenses], the
actor who is ten or more years older than the
(continued...)
No. 20030847 2
Accordingly, we affirm the defendant’s conviction under Utah Code
section 76-7-101 for bigamy and under Utah Code section 76-5-
401.2 for unlawful sexual conduct with a minor.
BACKGROUND
¶2 Holm was legally married to Suzie Stubbs in 1986.
Subsequent to this marriage, Holm, a member of the Fundamentalist
Church of Jesus Christ of Latter-day Saints (the “FLDS Church”),1
participated in a religious marriage ceremony with Wendy Holm.
Then, when Rodney Holm was thirty-two, he participated in another
religious marriage ceremony with then-sixteen-year-old Ruth
Stubbs, Suzie Stubbs’s sister. After the ceremony, Ruth moved
into Holm’s house, where her sister Suzie Stubbs, Wendy Holm, and
their children also resided. By the time Ruth turned eighteen,
she had conceived two children with Holm, the second of which was
born approximately three months after her eighteenth birthday.
¶3 Holm was subsequently arrested in Utah and charged with
three counts of unlawful sexual conduct with a sixteen- or
seventeen-year-old,2 in violation of Utah Code section 76-5-401.2
(2003),3 and one count of bigamy, in violation of Utah Code

3 (...continued)
minor at the time of the sexual conduct . . .
has sexual intercourse with a minor . . . .
4 Utah Code section 76-7-101 provides, in pertinent part,
as follows:
A person is guilty of bigamy when, knowing he
has a husband or wife or knowing the other
person has a husband or wife, the person
purports to marry another person or cohabits
with another person.
3 No. 20030847
section 76-7-101 (2003)4—-all third degree felonies. The trial
court denied both Holm’s pretrial motion for a continuance to
prepare a defense based on Lawrence v. Texas, 539 U.S. 558
(2003), which was issued a little over a month before trial, and
Holm’s motion to dismiss based on statutory grounds and the
constitutional invalidity of the bigamy and unlawful sexual
conduct statutes.
¶4 At trial, Ruth Stubbs testified that although she knew
that the marriage was not a legal civil marriage under the law,
she believed that she was married. Stubbs’s testimony included a
description of the ceremony she had participated in with Holm.
Stubbs testified that, at the ceremony, she had answered “I do”
to the following question:
Do you, Sister [Stubbs], take Brother [Holm]
by the right hand, and give yourself to him
to be his lawful and wedded wife for time and
all eternity, with a covenant and promise on
your part, that you will fulfil all the laws,
rites and ordinances pertaining to this holy
bond of matrimony in the new and everlasting
covenant, doing this in the presence of God,
angels, and these witnesses, of your own free
will and choice?
Stubbs testified that she had worn a white dress, which she
considered a wedding dress; that she and Holm exchanged vows;
that Warren Jeffs, a religious leader in the FLDS religion,
conducted the ceremony; that other church members and members of
Holm’s family attended the ceremony; and that photographs were
taken of Holm, Stubbs, and their guests who attended the
ceremony.
¶5 Stubbs also testified about her relationship with Holm
after the ceremony. She testified that she had moved in with

No. 20030847 4
Holm; that Holm had provided, at least in part, for Stubbs and
their children; and that she and Holm had “regularly” engaged in
sexual intercourse at the house in Hildale, Utah. Evidence was
also introduced at trial that Holm and Stubbs “regarded each
other as husband and wife.”
¶6 At the close of the State’s case in chief, Holm moved
for reconsideration of his motion to dismiss, arguing that the
jury should not be allowed to consider whether he violated the
bigamy statute by purporting to marry Stubbs. Specifically, he
argued that the “purporting to marry” prong of the bigamy statute
applied only to legally recognized marriages. The court again
rejected his motion.
¶7 During the course of the trial, the court denied Holm’s
request to present rebuttal evidence in the form of expert
testimony concerning FLDS practice and beliefs. This evidence
would have included Kenneth D. Driggs’s testimony about the
deeply held religious belief among FLDS adherents that this type
of marriage is “necessary to their personal salvation,” the
history of polygamy, and the social health of polygamous
communities.
¶8 The jury returned a guilty verdict on each of the
charges, indicating on a special verdict form that Holm was
guilty of bigamy both because he “purported to marry Ruth Stubbs”
and because he had “cohabited with Ruth Stubbs.” The trial court
sentenced Holm to up to five years in state prison on each
conviction, to be served concurrently, and imposed a $3,000 fine.
Both the prison time and the fine were suspended in exchange for
three years on probation, one year in the county jail with work
release, and two hundred hours of community service.
¶9 Holm appealed his conviction on all charges. The Utah
Court of Appeals, sua sponte, certified the appeal for transfer
to this court pursuant to rule 43 of the Utah Rules of Appellate
Procedure. This court has jurisdiction pursuant to Utah Code
section 78-2-2(3)(b) (2002).
STANDARD OF REVIEW
¶10 On appeal, Holm raises several issues requiring us to
engage in statutory and constitutional interpretation, to examine
whether the trial court had jurisdiction, and to determine
whether the trial court properly excluded expert testimony.
Except for the exclusion of evidence issue, each of these issues
involves questions of law, which we review for correctness. See
State v. Green, 2004 UT 76, ¶ 42, 99 P.3d 820 (constitutional
challenges to statutes); State v. MacGuire, 2004 UT 4, ¶ 8, 84

5 No. 20030847
P.3d 1171 (statutory interpretation); State v. Payne, 892 P.2d
1032, 1033 (Utah 1995) (trial court jurisdiction). As to the
evidence issue, we review a trial court’s decision to exclude
expert testimony for an abuse of discretion. State v. Hollen,
2002 UT 35, ¶ 66, 44 P.3d 794.
ANALYSIS
¶11 On appeal Holm raises arguments against both his
conviction for bigamy and his conviction for unlawful sexual
conduct with a minor. We discuss Holm’s arguments for reversing
each of his convictions separately below.
I. WE AFFIRM HOLM’S CONVICTION FOR BIGAMY
¶12 Holm was convicted pursuant to Utah’s bigamy statute,
which provides that “[a] person is guilty of bigamy when, knowing
he has a husband or wife or knowing the other person has a
husband or wife, the person purports to marry another person or
cohabits with another person.” Utah Code Ann. § 76-7-101 (2003).
The jury weighing the case against Holm indicated on a special
verdict form its conclusion that Holm had both “purported to
marry another person” and “cohabited with another person” knowing
that he already had a wife.
¶13 Due to the nature of the special verdict form, on
appeal Holm must convince this court that both prongs of Utah’s
bigamy statute have been inappropriately applied in his case.
Holm raises essentially four arguments to support his contention
that neither prong applies. First, Holm argues that his
conviction under the “purports to marry” prong of the bigamy
statute was improper as a matter of statutory interpretation.
Specifically, Holm argues that he did not “purport to marry” Ruth
Stubbs, as that phrase is used in the bigamy statute, because the
word “marry” in subsection 76-7-101(1) refers only to legal
marriage and neither Holm nor Stubbs contemplated that the
religious ceremony solemnizing their relationship would entitle
them to any of the legal benefits attendant to state-sanctioned
matrimony. Second, Holm argues that his conviction under the
bigamy statute was unconstitutional as applied in this case
because it unduly infringes upon his right to practice his
religion, as guaranteed by our state constitution. Third, Holm
argues that his conviction under the bigamy statute was
unconstitutional under the federal constitution. Fourth, Holm
argues that the trial court improperly excluded expert testimony
that was offered to rebut the State’s characterization of
polygamous culture.

No. 20030847 6
¶14 We reject each of these arguments. The “purports to
marry” language contained in the bigamy statute is not confined
to legal marriage and is, in fact, broad enough to cover the type
of religious solemnization engaged in by Holm and Stubbs. We
further conclude that the ability to engage in polygamous
behavior is expressly excepted from the religious protections
afforded by our state constitution. We are also unpersuaded that
the federal constitution mandates that the states of this union
tolerate polygamous behavior in the name of substantive due
process or freedom of association. Additionally, in the face of
controlling United States Supreme Court authority, we are
constrained to conclude that the federal constitution does not
protect Holm from bigamy prosecution on religious freedom
grounds. Finally, we conclude that the trial court did not abuse
its discretion by excluding Holm’s proffered expert testimony
because the testimony was not directly related to the questions
before the jury and may have confused or distracted the jury.
¶15 We will first address whether Holm’s behavior is within
the reach of our State’s bigamy statute. We will then address
Holm’s arguments attacking the validity of the bigamy statute on
both state and federal constitutional grounds. Finally, we will
address Holm’s arguments regarding the trial court’s exclusion of
his proffered expert testimony.
A. The “Purports to Marry” Provision of Utah’s Bigamy Statute Is
Applicable to Holm’s Solemnization of His Relationship with
Stubbs
¶16 To determine whether the “purports to marry” provision
of Utah’s bigamy statute is properly applicable to Holm, we must
interpret that provision within its context in the Utah Code.
“[O]ur primary goal in interpreting statutes is to give effect to
the legislative intent, as evidenced by the plain language, in
light of the purpose the statute was meant to achieve.” Foutz v.
City of S. Jordan, 2004 UT 75, ¶ 11, 100 P.3d 1171 (internal
quotation marks omitted). “We presume that the legislature used
each word advisedly and give effect to each term according to its
ordinary and accepted meaning.” C.T. v. Johnson, 1999 UT 35,
¶ 9, 977 P.2d 479 (internal quotation marks omitted).
Furthermore, “[w]e read the plain language of the statute as a
whole, and interpret its provisions in harmony with other
statutes in the same chapter and related chapters.” Miller v.
Weaver, 2003 UT 12, ¶ 17, 66 P.3d 592. Only when we find that a
statute is ambiguous do we look to other interpretive tools such
as legislative history. See Adams v. Swensen, 2005 UT 8, ¶ 8,
108 P.3d 725.

5 We note that there are discrepancies between the
definitions provided for “marriage” and “polygamy” in the seventh
and eighth editions of Black’s Law Dictionary. In the seventh
edition “marriage” is defined as “[t]he legal union of a man and
woman as husband and wife,” whereas in the eighth edition it is
defined as “[t]he legal union of a couple as husband and wife.”
Compare Black’s Law Dictionary 986 (7th ed. 1999), with Black’s
Law Dictionary 986 (8th ed. 2004). Also, included within the
definition of “marriage” contained in the seventh edition is the
statement that “[a]lthough the common law regarded marriage as a
civil contract, it is more properly the civil status or
(continued...)
7 No. 20030847
¶17 The “purports to marry” provision of Utah’s bigamy
statute declares that “[a] person is guilty of bigamy when,
knowing he has a husband or wife or knowing the other person has
a husband or wife, the person purports to marry another person.”
Utah Code Ann. § 76-7-101(1). Both parties to this appeal agree
that “purport” means “[t]o profess or claim falsely; to seem to
be.” Black’s Law Dictionary 1250 (7th ed. 1999).
¶18 The definition of “marry,” however, is disputed. The
State argues that “marry” should not be construed as limited to
legally recognized marriages. Holm argues that the word “marry”
in subsection one refers only to a legally recognized marriage
and that, therefore, there is no violation of the “purports to
marry” provision unless an individual purports to enter into a
legally valid marriage. We hold that the term “marry,” as used
in the bigamy statute, includes both legally recognized marriages
and those that are not state-sanctioned because such a definition
is supported by the plain meaning of the term, the language of
the bigamy statute and the Utah Code, and the legislative history
and purpose of the bigamy statute.
¶19 First, the common usage of “marriage” supports a
broader definition of that term than that asserted by Holm. The
dictionary defines “marry” as “to join in marriage according to
law or custom,” or “to unite in close and [usually] permanent
relation.” Merriam-Webster’s Collegiate Dictionary 761 (11th ed.
2003) (emphasis added). Holm argues that such a definition of
“marriage” is unsupportable and asks us to read the term
“legally” into the bigamy statute. To support his argument that
“marry” should be construed narrowly in this fashion, Holm relies
on Black’s Law Dictionary, which defines “marriage” as “[t]he
legal union of a man and woman as husband and wife.” Black’s Law
Dictionary 986. While Black's Law Dictionary does offer this as
one definition of marriage, a review of the dictionary's various
entries and editions5 makes clear that the dictionary itself does

5 (...continued)
relationship existing between a man and a woman who agree to and
do live together as spouses.” Such a statement is absent from
the eighth edition. See Black’s Law Dictionary 992 (8th ed.
2004). “Polygamy” is defined in the seventh edition as “[t]he
state of being simultaneously married to more than one spouse;
multiple marriages” and in the eighth edition as “[t]he state or
practice of having more than one spouse simultaneously, multiple
marriages.” Compare Black’s Law Dictionary 1180 (7th ed. 1999)
with Black’s Law Dictionary 1197 (8th ed. 2004). For purposes of
this opinion, all references to Black’s Law Dictionary are to the
seventh edition unless otherwise noted.
No. 20030847 8
not confine its use of the term “marriage” to legally recognized
unions. Indeed, the definitions Black's Law Dictionary provides
for terms such as “plural marriage,” “bigamy,” and “polygamy”
support a construction of the term “marry” that includes marriage
not sanctioned by the state, as is true in common parlance. For
example, “plural marriage” is defined as “[a] marriage in which
one spouse is already married to someone else; a bigamous or
polygamous union,” id. at 987 (emphasis added); “bigamy” is
defined as “[t]he act of marrying one person while legally
married to another,” id. at 154 (emphasis added); and “polygamy”
is “[t]he state of being simultaneously married to more than one
spouse; multiple marriages,” id. at 1180 (emphasis added). If we
were to adopt Holm’s construction of “marry,” these definitions
would be nonsensical, as one could not “marry” another while
legally married.
¶20 Furthermore, Black’s Law Dictionary contains several
definitions of different types of marriage that are, by
definition, not legally recognized. For example, “putative
marriage” is “marriage in which husband and wife believe in good
faith that they are married, but for some technical reason are
not formally married (as when the ceremonial official was not
authorized to perform a marriage)”; “clandestine marriage” is
“marriage that rests merely on the agreement of the parties” or
“marriage entered into in a secret way, as one solemnized by an
unauthorized person or without all required formalities”; and
“void marriage” is “marriage that is invalid from its inception,
that cannot be made valid, and that can be terminated by either
party without obtaining a divorce or annulment.” Id. at 986-87
(emphases added).
¶21 Moreover, the Black’s Law Dictionary definition of the
term “marriage,” unadorned by modifiers, states that “[a]lthough
the common law regarded marriage as a civil contract, it is more
properly the civil status or relationship existing between a man

6 The dictionary definition of “bigamy” implies that at
least one legally recognized marriage exists. See Black’s Law
Dictionary 154 (7th ed. 1999) (defining “bigamy” as “[t]he act of
marrying one person while legally married to another”). As
discussed above, however, this definition itself illustrates that
the general conception of the term “marriage” is not confined to
legally recognized marriage. Beyond dictionary definitions, it
is evident that when the Territory of Utah enacted a law
criminalizing polygamy, the term “marry” was not confined to
legally recognized marriage. See 1892 Utah Laws, ch. VII, § 1,
at 5-6 (“Every person who has a husband or wife living, who,
hereafter marries another . . . is guilty of polygamy.” (emphasis
added)). As with the definition of bigamy found in Black’s Law
Dictionary, the territorial law criminalizing polygamy would be
nonsensical if the term “marry” is considered limited to legally
recognized marriage.
9 No. 20030847
and a woman who agree to and do live together as spouses.” Id.
at 986. Thus, the plain meaning of the term “marry,” as it is
used in the bigamy statute, supports our conclusion that it
encompasses both marriages that are legally recognized and those
that are not.
¶22 Second, when we look, as we must, at the term “marry”
in the context of the bigamy statute, as well as statutes in the
same chapter and related chapters of the Utah Code, it is clear
that the Legislature intended “marry” to be construed to include
marriages that are not state-sanctioned. Most significantly, the
text of the bigamy statute supports a more expansive definition
of “bigamy” than that asserted by Holm.6 Specifically, the
bigamy statute does not require a party to enter into a second
marriage (however defined) to run afoul of the statute;
cohabitation alone would constitute bigamy pursuant to the
statute’s terms. See Utah Code Ann. § 76-7-101(1) (“A person is
guilty of bigamy when, knowing he has a husband or wife or
knowing the other person has a husband or wife, the person . . .
cohabits with another person.”).
¶23 Also, looking at related statutes in the Utah Code, it
is clear that the Legislature did not intend to limit “marriage,”
as it is used throughout the Utah Code, to legally recognized
marriages. By expressly recognizing unsolemnized marriages and
allowing for a judicial determination to establish a legal
marriage at some point prior to the request for a judicial
decree, the Legislature has acknowledged that the attainment of a
marriage license from the State is not determinative of whether a
marriage exists. See Utah Code Ann. § 30-1-4.5 (Supp. 2004);
Whyte v. Blair, 885 P.2d 791, 793 (Utah 1994) (“[The judicial

No. 20030847 10
decree] merely recognizes that a woman and a man have by their
prior consent and conduct entered into a marital relationship,
although it was not theretofore formally solemnized or otherwise
legally recognized.”). In other words, the Utah Code
contemplates that there will be “marital relationships” or
“marriages” that are not legally recognized from inception, but
which the State has the ability to legally recognize, even if the
parties to that relationship do not desire such recognition. See
State v. Green, 2004 UT 76, ¶¶ 3-59, 99 P.3d 820 (rejecting a
convicted polygamist’s argument that the State was foreclosed
from establishing a legally recognized marriage pursuant to the
unsolemnized marriage statute to support its bigamy prosecution).
The Utah Code also recognizes that a marriage may be solemnized
even though the marriage is illegal. Utah Code Ann. § 30-1-15
(1998) (penalizing anyone who “knowingly . . . solemnizes a
marriage . . . prohibited by law” (emphasis added)).
¶24 Holm contends that the term “marry” should be given the
same breadth of meaning wherever it appears in the Utah Code.
Accordingly, Holm argues that the term “marry” must be limited to
legally recognized marriages because, if a broader definition is
applied here, we would have to construe “marry” to encompass
informal solemnizations in other sections of the bigamy statute
specifically and the Utah Code generally. Holm bases this
argument on subsection three of the bigamy statute, which
essentially creates a mistake-of-fact defense for a bigamy
defendant. Subsection three provides that “[i]t shall be a
defense to bigamy that the accused reasonably believed he and the
other person were legally eligible to remarry.” Utah Code Ann.
§ 76-7-101(3). Holm argues that the term “remarry” in subsection
three clearly refers to a legal marriage and that the term
“marry” in subsection one should carry the same meaning. See
Spring Canyon Coal Co. v. Indus. Comm’n of Utah, 277 P. 206, 206-
11 (Utah 1929) (“The same meaning will be given to a word or
phrase used in different parts of a statute.”).
¶25 We are not persuaded that the term “remarry,” as used
in subsection three, is so clearly limited to legally recognized
marriage. Consequently, we are not convinced that a broader
interpretation of “marry” as used in subsection one is
inconsistent with other uses of that term in the bigamy statute.
Rather, in the absence of language limiting the definition of the
term, it is appropriate to give the term chosen by the
Legislature its full force, applying it to marriages recognized
both by law and by custom. Conceived in this fashion, the
defense offered by subsection three merely excuses bigamous
marriages commenced with a reasonable belief that initiating the
marital relationship would not run afoul of this State’s bigamy
law.

11 No. 20030847
¶26 Third, although we need not look at other interpretive
tools when the meaning of the statute is plain, our construction
of “marry” is supported by the legislative history and purpose of
the bigamy statute. As will be discussed more fully below, see
infra ¶¶ 40-48, the well-documented legislative history of this
State’s attempts to prevent the formation of polygamous unions
supports our conclusion that the bigamy statute was intended to
criminalize both attempts to gain legal recognition of
duplicative marital relationships and attempts to form
duplicative marital relationships that are not legally
recognized. This court has previously recognized that the
legislative purpose of the bigamy statute was to prevent “all the
indicia of marriage repeated more than once.” Green, 2004 UT 76,
¶ 47. In Green, we allowed an unsolemnized marriage to serve as
a predicate marriage for purposes of a bigamy prosecution. See
id. ¶ 8. If an unlicensed, unsolemnized union can serve as the
predicate marriage for a bigamy prosecution, we are constrained
to conclude that an unlicensed, solemnized marriage can serve as
a subsequent marriage that violates the bigamy statute.
¶27 The dissent nevertheless adopts Holm’s position that
“purports to marry” means “purports to legally marry,” “claims to
enter a legally recognized marriage,” or “claims benefits from
the State based upon married status.” In addition to the reasons
proffered by Holm, the dissent seeks to support its reading of
the statute by referring to our case law, which at times has used
the term “purported marriage” to refer to a marriage that is
presented as legally valid and recognized, when in reality the
marriage enjoys no legal recognition. See infra ¶ 138 n.4
(citing cases). These cases do not, however, delineate the scope
of the term “purports to marry” as the term is used in the bigamy
statute, but instead involve situations in which the proper
resolutions of various claims are dependent in some fashion on
the existence, or absence, of a legally recognized marriage. It
is true that, in assessing such claims, we have referred to the
claim that a valid, legally recognized marriage exists as a claim
of a “purported marriage.” It does not, however, necessarily
follow that the phrase “purports to marry,” as used in the bigamy
statute, is similarly confined to claims that a legally valid and
recognized marriage has been performed. Simply because one may
also purport to enter into a legally recognized marriage does not
foreclose the possibility that one may purport to marry without
claiming any legal recognition of the marital relationship.
¶28 In sum, we are not convinced that the plain language of
the statute, which fails to adorn the term “marry” with any
limiting modifiers, justifies the inference drawn by the dissent,
and we decline to import such a substantive term into the

No. 20030847 12
language of the statute. See Arredondo v. Avis Rent A Car Sys.,
Inc., 2001 UT 29, ¶ 12, 24 P.3d 928 (stating that this court will
not “infer substantive terms into the [statutory] text that are
not already there” (internal quotation marks omitted)).
Accordingly, we read the plain language of our bigamy statute as
prohibiting an individual from claiming to marry a person when
already married to another. Further, we conclude that the term
“marry” is not confined to legally recognized marriages. In
other words, one need not purport that a second marriage is
entitled to legal recognition to run afoul of the “purports to
marry” prong of the bigamy statute. Nowhere in subsection one is
the word “marry” tied exclusively to state-sanctioned and
recognized “legal” marriage.
¶29 Applying the definition of “marry” outlined above to
the facts presented in this case, there can be no doubt that Holm
purported to marry Stubbs. The undisputed facts establish that
Holm stood before an official of the FLDS Church, Warren Jeffs
(son of then-FLDS prophet Rulon Jeffs), with Stubbs at his side
and responded affirmatively to a vow asking the following
question:
Do you Brother [Holm], take Sister [Stubbs]
by the right hand, and receive her unto
yourself to be your lawful and wedded wife,
and you to be her lawful and wedded husband,
for time and all eternity, with a covenant
and promise, on your part that you will
fulfil all the laws, rites and ordinances
pertaining to this holy bond of matrimony in
the new and everlasting covenant, doing this
in the presence of God, angels, and these
witnesses, of your own free will and choice?
¶30 At the ceremony, Stubbs wore a white dress, which she
considered a wedding dress. Throughout her testimony at the
trial court, Stubbs referred to the ceremony as a marriage. As
mentioned, the ceremony was officiated by a religious leader and
involved vows typical of a traditional marriage ceremony. See
Utah Code Ann. § 30-1-6(1) (Supp. 2004) (stating that religious
officials who are older than eighteen and “in regular communion
with any religious society” are empowered to solemnize a
marriage). In short, the ceremony in which Holm and Stubbs
participated appeared, in every material respect,
indistinguishable from a marriage ceremony to which this State
grants legal recognition on a daily basis.
¶31 At trial, Stubbs testified that following the ceremony
she considered herself married. The facts show that Stubbs lived

7 Because we conclude that Holm’s behavior violates the
“purports to marry” prong of the bigamy statute, we need not
reach Holm’s arguments relating to the validity of the
cohabitation prong. As indicated above, the jury convicted Holm
under both prongs of the bigamy statute, and if, as we conclude,
Holm was properly convicted pursuant to the “purports to marry”
prong of the bigamy statute, it is of no consequence whether the
cohabitation prong was properly applied to him.
13 No. 20030847
in a house with Holm, that Holm and Stubbs considered themselves
husband and wife, and that Holm and Stubbs regularly engaged in
sexual intercourse. Although no one of these factors is itself
indicative of marriage, looking at the cumulative effect of the
factors present in this case it is clear that the relationship
formed by Holm and Stubbs was a marriage, as that term is used in
the bigamy statute.
¶32 In rejecting the notion that Holm violated the
“purports to marry” provision of the bigamy statute, the dissent
assigns central importance, in fact almost exclusive importance,
to the lack of a marriage license recognizing the marital
commitments made by Holm and Stubbs. But while a marriage
license represents a contract between the State and the
individuals entering into matrimony, the license itself is
typically of secondary importance to the participants in a
wedding ceremony. The crux of marriage in our society, perhaps
especially a religious marriage, is not so much the license as
the solemnization, viewed in its broadest terms as the steps,
whether ritualistic or not, by which two individuals commit
themselves to undertake a marital relationship. Certainly Holm,
as a result of his ceremony with Stubbs, would not be entitled to
any legal benefits attendant to a state-sanctioned marriage, but
there is no language in the bigamy statute that implies that the
presence of or desire for such benefits should be determinative
of whether bigamy has been committed. Holm, by responding in the
affirmative to the question placed to him by his religious
leader, committed himself to undertake all the obligations of a
marital relationship. The fact that the State of Utah was not
invited to register or record that commitment does not change the
reality that Holm and Stubbs formed a marital bond and commenced
a marital relationship. The presence or absence of a state
license does not alter that bond or the gravity of the
commitments made by Holm and Stubbs.
¶33 Accordingly, we hold that Holm’s behavior is within the
ambit of our bigamy statute’s “purports to marry” prong.7 Having
so concluded, we now turn to Holm’s arguments attacking the
constitutional legitimacy of his bigamy conviction. Because this

8 At least two justices on this court have expressed the
view that, pursuant to the guarantees contained in our state
constitution, religiously motivated conduct should not be
burdened by the State unless that burden furthers a compelling
state interest and is narrowly tailored to serve that interest.
See Green, 2004 UT 76, ¶ 70 & n.1. (Durrant, J., concurring).
No. 20030847 14
court has endorsed the primacy approach to constitutional
challenges, whereby we first attempt to resolve constitutional
challenges by appealing to our state constitution before turning
to the federal constitution, we first analyze whether Holm’s
conduct is protected pursuant to the Utah Constitution. See West
v. Thomson Newspapers, 872 P.2d 999, 1006 (Utah 1994) (outlining
the rationale for adopting the primacy model). After addressing
Holm’s state constitutional claims, we will turn to Holm’s
contention that the bigamy statute offends the federal
constitution.
B. The Utah Constitution Does Not Shield Holm’s Polygamous
Behavior from State Prosecution
¶34 It is ironic indeed that Holm comes before this court
arguing that the Utah Constitution, despite its express
prohibition of polygamous marriage, actually provides greater
protection to polygamous behavior than the federal constitution,
which contains no such express prohibition. In making this
argument, Holm relies on various provisions of our state
constitution that protect the freedom of conscience and the
exercise of religion, as well as provisions securing liberty
interests for the people of this State. While our state
constitution may well provide greater protection for the free
exercise of religion in some respects than the federal
constitution,8 we disagree that it does so as to polygamy.
¶35 This court has “never determined whether the free
exercise clause of article I, section 4 [and related clauses] of
the Utah Constitution provide[] protection over and above that
provided by the First Amendment to the United States
Constitution.” Jeffs v. Stubbs, 970 P.2d 1234, 1249 (Utah 1998).
¶36 As in Jeffs, we need not address that question here
because the Utah Constitution offers no protection to polygamous
behavior and, in fact, shows antipathy towards it by expressly
prohibiting such behavior. Specifically, article III, section 1,
entitled “Religious toleration -- Polygamy forbidden,” states as
follows: “First: -- Perfect toleration of religious sentiment is
guaranteed. No inhabitant of this State shall ever be molested
in person or property on account of his or her mode of religious

15 No. 20030847
worship; but polygamous or plural marriages are forever
prohibited.” Utah Const. art. III, § 1. This language, known
commonly as the “irrevocable ordinance,” unambiguously removes
polygamy from the realm of protected free exercise of religion.
In fact, we concluded as much in In re Black, 283 P.2d 887, 905
(Utah 1955). In that case, the State was attempting to remove
children from the custody and care of polygamous parents. Id. at
888. The parents argued that the judgment removing their
children violated the constitutional guarantees contained in the
Utah Constitution. Id. at 900. We responded that
Article III of our Constitution is a complete
answer to [the parents’] contention. The
specific prohibition against polygamous or
plural marriage therein contained may not be
impliedly annulled by any interpretation of
Sections 1, 4 and 15 of Article I
inconsistent therewith. The prohibition
following as it does the guarantee of
religious toleration prevents any conclusion
that the framers of our Constitution did not
intend to put a specified limitation on the
language contained in Section 4, Article I of
the State Constitution.
The prohibition against polygamous or
plural marriages following the guarantee of
religious tolerance is double emphasis that
the framers of our Constitution wished to
make clear that polygamy was not included
within an approved mode of religious worship.
Id. at 905 (emphasis added).
¶37 The dissent dismisses In re Black as a plurality
opinion, dicta, and incorrect. Infra ¶ 151 n.12. We do not
believe that In re Black can be so easily dismissed. It appears
that at least three of the four justices participating in that
case agreed with the analysis of the effect of article III. We
confirm that analysis today.
¶38 In arguing that the irrevocable ordinance does not
provide a constitutional basis for criminalizing polygamous
marriages, Holm again argues that the term “marriage” is confined
to legally recognized marriages. In analyzing the effect of the
irrevocable ordinance, Holm once again makes an inferential leap
that colors its interpretation. Just as Holm argues that the
“purports to marry” prong of our bigamy statute limits its
operation to a purported legally recognized marriage, so Holm

9 Holm argues that Congress, by requiring the inclusion of
the irrevocable ordinance, violated the “equal footing doctrine,”
which essentially mandates that all states be admitted into the
Union on equal terms with other states. See generally Coyle v.
Smith, 221 U.S. 559, 565 (1911); Potter v. Murray City, 760 F.2d
1065, 1067 (10th Cir. 1985). In Potter, the Tenth Circuit heard
and rejected an identical claim. 760 F.2d at 1068.
Specifically, the Tenth Circuit concluded that
“[i]f the original ban on polygamy and plural
marriage was invalid, the State’s power to
incorporate such provisions in its
Constitution and its laws remained. If there
was an unlawful coercion in the Enabling Act,
the Supreme Court of Utah observed some time
ago that there has been no attempt to change
(continued...)
No. 20030847 16
argues that the irrevocable ordinance is merely an acknowledgment
that the State of Utah is foreclosed from giving formal legal
recognition to polygamous marriages.
¶39 The dissent agrees with Holm and further supports the
argument that the irrevocable ordinance was intended to prohibit
only legal recognition of polygamous marriages by contending that
article I, section 29 of the Utah Constitution and its statutory
counterpart, Utah Code section 30-1-4.1(1)(a), limit the
definition of marriage to “legal unions.” Article I, section 29
of the Utah Constitution provides that this State “recognize[s]
as marriage only the legal union of a man and a woman.” By its
plain language, this section of the Utah Constitution is not a
definition of marriage, but instead is a limit to the types of
marriages that can be legally recognized in Utah.
¶40 A review of the history of the irrevocable ordinance
makes clear that its drafters did not intend so narrow a sphere
of operation (merely prohibiting legal recognition of polygamous
marriages) as that advanced by Holm and the dissent. In 1894,
the United States Congress passed the Utah Enabling Act, granting
the Territory of Utah the ability to convene a constitutional
convention and to take steps toward obtaining statehood. Utah
Enabling Act, ch. 138, 28 Stat. 107 (1894). Included within the
Enabling Act was a requirement that the Utah Constitution
ultimately contain an irrevocable ordinance providing, “First:
That perfect toleration of religious sentiment shall be secured,
and that no inhabitant of said State shall ever be molested in
person or property on account of his or her mode of religious
worship; Provided, That polygamous or plural marriages are
forever prohibited.” Id. § 3 (emphasis added).9 A review of the

9 (...continued)
the State’s laws, ‘nor is such attempt
likely.’”
Id. (quoting State v. Barlow, 153 P.2d 647, 654 (Utah 1944)). We
find no fault in the reasoning of the Potter decision, and Holm
has made no attempt to attack its rationale. Therefore, we
conclude that Holm’s equal footing claim is without merit.
17 No. 20030847
constitutional debates surrounding the adoption of the language
contained in the irrevocable ordinance reveals that delegates
were primarily concerned with fully complying with the
requirements contained in the Utah Enabling Act. See, e.g., 1
Official Report of the Proceedings and Debates of the Convention
Assembled at Salt Lake City on the Fourth Day of March, 1895, to
Adopt a Constitution for the State of Utah 806 [hereinafter
Proceedings] (comment of Mr. Eichnor) (“This is compliance with
the Enabling Act, and, gentlemen, if you want our Constitution to
go in the waste basket, just tamper with the requirements the
Enabling Act lays down for the compact. Do not tamper with it.
That is my advice.”).
¶41 Given the framers’ express intent to comply, and,
indeed, their assessment of the necessity of complying with the
terms of the Utah Enabling Act, their discussion at Utah’s
constitutional convention centered on Congress’s intent in
requiring Utah to include such an ordinance in its constitution.
Further, the ensuing debate plainly illustrates the framers’
recognition that such a requirement was aimed at accomplishing
more than simply preventing the possibility of a theocratic state
and that Utah was obligated to comply with the spirit, as well as
the letter, of the Enabling Act. See 2 Proceedings at 1748
(comment of Mr. Varian) (“I want to remind you all that in the
construction of law, civil law as well as the law of God, and
religious law, that it is the letter that killeth, and the spirit
giveth life.”).
¶42 We concede that Holm puts forward one plausible
interpretation of the irrevocable ordinance; namely, that the
ordinance prohibits Utah’s state government from legally
sanctioning or recognizing polygamous marriages. We further
concede that such an interpretation comports with the reality
that the federal government harbored serious concerns about the
possibility that the State of Utah could be ruled de facto by the
LDS Church. See generally Sarah Barringer Gordon, The Mormon
Question 206-08 (2002) (describing a federal attempt to disrupt
the influence of the LDS Church in the Territory of Utah).
Though such an interpretation is plausible when one looks to the
text of the ordinance alone, the notion that the ordinance only

No. 20030847 18
limits legal recognition of polygamous marriages collapses when
the language is looked at in the context of the constitutional
convention and in conjunction with the delegates’ decision to
look beyond the text to the spirit of the Utah Enabling Act. At
the convention, the delegates took affirmative steps to prevent
an interpretation like that advanced by the dissent from gaining
traction. Specifically, the framers of our state constitution
made it clear they understood that the Utah Enabling Act did not
merely prevent legal recognition of polygamy but required its
prohibition.
¶43 The framers did this by expressly pronouncing in the
Utah Constitution itself the continuing vitality of a territorial
law passed in 1892, entitled “An Act to punish polygamy and other
kindred offenses,” insofar as that act defined and punished
polygamy. Utah Const. art. XXIV, § 2. The framers thereby
raised the status of the territorial law to that of a
constitutional provision. The constitutional debates reveal that
proponents of expressly declaring the territorial act
criminalizing polygamy to be operational after statehood were
primarily motivated by two concerns: (1) that revivification of
the territorial law criminalizing polygamy was necessary because
it was void at the time of its passage due to the fact that
Congress had already “occupied the field” in relation to the
criminalization of polygamy and (2) that compliance with the
spirit of the Utah Enabling Act required the State to evidence
its willingness and ability to curtail polygamous behavior.
¶44 As to the first concern, the delegates thought it
necessary to specifically mention the law criminalizing polygamy
in order to revivify that law should questions about its validity
be raised. Questions about the law’s validity were focused on
issues of federal preemption. See 2 Proceedings at 1736 (comment
of Mr. Varian) (“There was passed in 1892 by the Legislature of
the Territory . . . . [an] act [that] defines and provides
penalties for . . . polygamy . . . . Now, that law I apprehend
is not in force in Utah to-day, and the reason is that Congress
entered upon that field . . . and covered the whole subject
matter.”). Given concerns about the validity of the 1892 act,
the delegates expressed the opinion that the wisest course of
action would be to reanimate the law by expressly declaring its
continuing effectiveness in the state constitution. See id. at
1736-37 (expressing the opinion that, to comply with the Enabling
Act, the state constitution must give “the force of law” to
criminal prohibitions against polygamy).
¶45 As to the second concern, the proposal to declare in
the constitution that the territorial law criminalizing polygamy
remained in effect was also viewed as necessary to comply with

19 No. 20030847
the spirit of the Utah Enabling Act. The sponsor of the proposal
explained his intention in the following manner:
[W]hile [the ordinance] is strictly in accord
with the letter of the [Utah Enabling Act],
it is not in accord fully with the spirit of
that act, because . . . it was the intention
of the people of the United States assembled
in Congress that a prohibition in fact, as
well as by words, should be evidenced by the
organic law of this State.
2 Proceedings at 1736 (comment of Mr. Varian). One delegate,
declaring his support for retaining the territorial law
criminalizing polygamy, argued that by retaining the territorial
law, Utah could fully comply with the Enabling Act and refute the
notion that the ordinance amounted to nothing more than an empty
promise that the State would not grant legal recognition to or
otherwise sanction polygamous behavior. According to that
delegate,
The moral effect of the whole State by its
representatives in Convention, declaring that
a certain thing shall be forever prohibited,
of course has great weight, but there is a
view that may be taken of that, which is
this, that at most it is merely an inhibition
upon the Legislature ever sanctioning an
establishment of that kind, but it is not a
law against it with penalties. In other
words, it is without effect.
Id. at 1742-43 (comment of Mr. Thurman). The possibility that
the ordinance might be interpreted only as a limitation
preventing the State from sanctioning or legally recognizing
polygamous marriages prompted the delegate to support a more
affirmative approach to prohibiting polygamy. See id. at 1743
(“For the reason suggested, and by way of showing a more
determined disposition upon our part to comply, not only in the
letter, but in the spirit, with the demands of the Enabling Act,
I shall support it.”).
¶46 The framers of our state constitution viewed the
reaffirmation of the 1892 territorial law criminalizing bigamy as
directly related to the irrevocable ordinance. The relation
between the two provisions is acknowledged throughout the debates
on the issue, perhaps never as saliently as in the following
statement:

No. 20030847 20
If you are in good faith, as you say you are,
it will be asked, why do you object to
placing upon this statute book, the organic
law of your commonwealth, the fact you do
intend to prevent the crime of polygamy?
What does “prohibit” mean? Does it not mean
prevent? I ask my friend from Salt Lake, and
colleague, more learned in philological lore
than myself, whether it is one of the
synonyms of prevent, and if the
interpretation must not be put upon the use
of that language in the act of Congress, that
it means to prevent the practice of polygamy
and plural marriage? How are you going to
prevent it, unless you put some penal
enactment into force that the courts and
executive officers under your State
government may be able to administer your law
well in that behalf?
Id. at 1747-48 (comment of Mr. Varian). The inclusion of the
provision passed by a margin of seventy-two to sixteen. Id. at
1749.
¶47 Although the definition of polygamy contained in the
1892 territorial act varies slightly from that articulated by the
“purports to marry” prong of our contemporary bigamy statute, it
is clear that our state constitution is not offended by the
criminal punishment of Holm’s behavior. To the contrary, the
framers of our state constitution understood the irrevocable
ordinance to mandate the prevention of polygamy and not to merely
prohibit government recognition of polygamy.
¶48 Given the above, we conclude that Holm is foreclosed by
the language of the state constitution from making any attempt to
appeal to that document—-whether pursuant to the provisions
pertaining to the freedom of conscience, individual liberty, or
free exercise—-to protect behavior that the constitution is
specifically aimed at preventing. Having so concluded, we next
take up Holm’s contention that his polygamy conviction violates
the federal constitution.
C. Holm’s Conviction Does Not Offend the Federal Constitution
¶49 Holm claims his conviction runs afoul of the federal
constitution in several ways. Specifically, he argues (1) that
his conviction was obtained in violation of the federal
constitution’s guarantee of the free exercise of religion; (2)
that his conviction violates his liberty interest protected by

21 No. 20030847
the Due Process Clause of the Fourteenth Amendment; (3) that his
conviction raises equal protection concerns because the State
targets only religiously motivated polygamists with prosecution;
(4) that the bigamy statute is facially overbroad because it
unduly infringes upon his right of association; and (5) that the
term “marry,” as used in the bigamy statute and the unlawful
sexual conduct with a minor statute, is unconstitutionally vague.
We address each of Holm’s contentions in turn.
1. The Bigamy Statute Does Not Impermissibly Infringe Holm’s
Federal Free Exercise Right
¶50 Although the United States Supreme Court, in Reynolds
v. United States, 98 U.S. 145 (1879), upheld the criminal
prosecution of a religiously motivated polygamist as nonviolative
of the Free Exercise Clause, Holm contends on appeal that his
federal free exercise right is unduly infringed upon by his
conviction in this case. Holm argues that Reynolds is “nothing
more than a hollow relic of bygone days of fear, prejudice, and
Victorian morality,” and that modern free exercise jurisprudence
dictates that no criminal penalty can be imposed for engaging in
religiously motivated polygamy. This court recently rejected an
identical argument in State v. Green, 2004 UT 76, ¶¶ 18-19, 99
P.3d 820.
¶51 As we pointed out in Green, Reynolds, despite its age,
has never been overruled by the United States Supreme Court and,
in fact, has been cited by the Court with approval in several
modern free exercise cases, signaling its continuing vitality.
See Green, 2004 UT 76, ¶ 19 (refusing to depart from the Reynolds
holding and citing cases indicating the continuing vitality of
Reynolds as precedent). Moreover, even if Holm’s assertion that
Reynolds is antiquated beyond usefulness is accurate, our opinion
in Green conducted a thorough analysis, using the most recent
standards announced by the United States Supreme Court, of the
claim that religiously motivated polygamy is immune from criminal
sanction. Id. ¶¶ 20-41. As we noted in Green, the United States
Supreme Court held in Employment Division, Department of Human
Resources v. Smith, 494 U.S. 872 (1990), partially superseded by
statute, Religious Freedom Restoration Act of 1993, 107 Stat.
1488, as recognized in Gonzales v. O Centro Espirita Beneficente
Uniao Do Vegetal, 126 S. Ct. 1211 (2006), and Religious Land Use
and Institutionalized Persons Act of 2000, 114 Stat. 804, as
recognized in Cutter v. Wilkinson, 544 U.S. 709 (2005), that a
state may, even without furthering a compelling state interest,
burden an individual’s right to free exercise so long as the
burden is imposed by a neutral law of general applicability. Id.
at 878-80. The Court has since clarified that a law is not
neutral if the intent of that law “is to infringe upon or

No. 20030847 22
restrict practices because of their religious motivation.”
Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508
U.S. 520, 533 (1993). In Green, we concluded that Utah’s bigamy
statute is a neutral law of general applicability and that any
infringement upon the free exercise of religion occasioned by
that law’s application is constitutionally permissible. 2004 UT
76, ¶ 33.
¶52 Regardless of the wisdom of the United States Supreme
Court’s current federal free exercise analysis, that analysis is
controlling, and this court does not enjoy the freedom to tamper
with or modify pronouncements by that Court. In light of those
pronouncements and our own case law rejecting the notion that
religiously motivated polygamy is protected by the federal Free
Exercise Clause, we conclude that Holm cannot avail himself of
that clause in his attempt to escape conviction. Having so
concluded, we turn to Holm’s claim that his conviction violates
his individual liberty interest protected by the Due Process
Clause of the Fourteenth Amendment.
2. Holm’s Conviction Does Not Offend the Due Process Clause of
the Fourteenth Amendment
¶53 Holm argues that the State of Utah is foreclosed from
criminalizing polygamous behavior because the freedom to engage
in such behavior is a fundamental liberty interest that can be
infringed only for compelling reasons and that the State has
failed to identify a sufficiently compelling justification for
its criminalization of polygamy. We disagree and conclude that
there is no fundamental liberty interest to engage in the type of
polygamous behavior at issue in this case.
¶54 In arguing that his behavior is constitutionally
protected as a fundamental liberty interest, Holm relies
primarily on the United States Supreme Court’s decision in
Lawrence v. Texas, 539 U.S. 558 (2003). In that case, the United
States Supreme Court struck down a Texas statute criminalizing
homosexual sodomy, concluding that private, consensual sexual
behavior is protected by the Due Process Clause of the Fourteenth
Amendment. See id. at 578. Holm argues that the liberty
interest discussed in Lawrence is sufficiently broad to shield
the type of behavior that he engages in from the intruding hand
of the state. Holm misconstrues the breadth of the Lawrence
opinion.

10 In fact, numerous litigants have relied upon the Lawrence
decision to attempt to expand the sphere of behavior protected by
the federal constitution. Given the quite limited nature of that
case’s holding, however, it should come as no surprise that the
Lawrence opinion has been distinguished more than forty times
since it was issued. See, e.g., Muth v. Frank, 412 F.3d 808, 817
(7th Cir. 2005) (“Lawrence . . . did not announce . . . a
[constitutionally protected] fundamental right . . . to engage in
all manner of consensual sexual conduct, specifically in this
case, incest.”); United States v. Bach, 400 F.3d 622, 628-29 (8th
Cir. 2005) (holding that Lawrence did not protect an adult from
criminal sanction for taking pornographic photos of a sixteen-
year-old).
23 No. 20030847
¶55 Despite its use of seemingly sweeping language, the
holding in Lawrence is actually quite narrow.10 Specifically,
the Court takes pains to limit the opinion’s reach to
decriminalizing private and intimate acts engaged in by
consenting adult gays and lesbians. In fact, the Court went out
of its way to exclude from protection conduct that causes “injury
to a person or abuse of an institution the law protects.” Id. at
567. Further, after announcing its holding, the Court noted the
following: “The present case does not involve minors. It does
not involve persons who might be injured or coerced or who are
situated in relationships where consent might not easily be
refused. It does not involve public conduct . . . .” Id. at
578.
¶56 In marked contrast to the situation presented to the
Court in Lawrence, this case implicates the public institution of
marriage, an institution the law protects, and also involves a
minor. In other words, this case presents the exact conduct
identified by the Supreme Court in Lawrence as outside the scope
of its holding.
¶57 First, the behavior at issue in this case is not
confined to personal decisions made about sexual activity, but
rather raises important questions about the State’s ability to
regulate marital relationships and prevent the formation and
propagation of marital forms that the citizens of the State deem
harmful.
Sexual intercourse . . . is the most intimate
behavior in which the citizenry engages.
[Lawrence] spoke to this discreet, personal
activity. Marriage, on the other hand,
includes both public and private conduct.
Within the privacy of the home, marriage

11 Utah Code section 30-1-4.5 (Supp. 2005) allows a court to
order that an unsolemnized marriage is a legal and valid marriage
so long as the relationship is between a man and a woman who are
capable of giving consent and marrying, have cohabitated, have
mutually assumed marital rights, duties, and obligations, and
have held themselves out as husband and wife.
No. 20030847 24
means essentially whatever the married
individuals wish it to mean. Nonetheless,
marriage extends beyond the confines of the
home to our society.
Joseph Bozzuti, Note, The Constitutionality of Polygamy
Prohibitions After Lawrence v. Texas: Is Scalia a Punchline or a
Prophet?, 43 Catholic Law. 409, 435 (Fall 2004).
¶58 The very “concept of marriage possesses ‘undisputed
social value.’” Green, 2004 UT 76, ¶ 72 (Durrant, J.,
concurring) (quoting In re Marriage of Mehren & Dargan, 13 Cal.
Rptr. 3d 522, 523 (Ct. App. 2004). Utah’s own constitution
enshrines a commitment to prevent polygamous behavior. See Utah
Const. art. III, § 1; id. art. XXIV, § 2. That commitment has
undergirded this State’s establishment of “a vast and convoluted
network of . . . laws . . . based exclusively upon the practice
of monogamy as opposed to plural marriage.” Potter v. Murray
City, 760 F.2d 1065, 1070 (10th Cir. 1985). Our State’s
commitment to monogamous unions is a recognition that decisions
made by individuals as to how to structure even the most personal
of relationships are capable of dramatically affecting public
life.
¶59 The dissent states quite categorically that the State
of Utah has no interest in the commencement of an intimate
personal relationship so long as the participants do not present
their relationship as being state-sanctioned. On the contrary,
the formation of relationships that are marital in nature is of
great interest to this State, no matter what the participants in
or the observers of that relationship venture to name the union.
We agree with the dissent’s statement that any two people may
make private pledges to each other and that these relationships
do not receive legal recognition unless a legal adjudication of
marriage is sought.11 See infra ¶ 145. That does not, however,
prevent the legislature from having a substantial interest in
criminalizing such behavior when there is an existing marriage.
¶60 As the dissent recognizes, a marriage license
significantly alters the bond between two people because the
State becomes a third party to the marital contract. Infra

12 See, e.g., Clark v. Clark, 2001 UT 44, 27 P.3d 538
(seeking legal adjudication of marriage and a divorce to receive
division of the marital assets); Whyte v. Blair, 885 P.2d 791
(Utah 1994) (seeking legal adjudication of marriage to receive
automobile insurance benefits); Kelley v. Kelley, 2003 UT App
317, 79 P.3d 428 (extending alimony rights to include time of
unsolemnized marriage); Walters v. Walters, 812 P.2d 64 (Utah Ct.
App. 1991) (seeking legal adjudication of marriage to receive
property distribution and portion of retirement benefits); Floor
Debate, 47th Leg., Gen. Sess. (Utah Feb. 17, 1987) (Senate
recording tape no. 75) (statement of Sen. Stephen Rees) (stating
that the purpose of the unsolemnized marriage statute is to
“close some loopholes in welfare abuse”); id. (statement of
Norman Angus, Director of State Social Services Administration)
(“[A] woman with children . . . may . . . be living with an
individual who could and in all probability does provide a
substantial amount of support to that household and still we
cannot consider any of the income or the resources of that
individual available and therefore the woman can in fact qualify
for a full public assistance grant . . . .”).
25 No. 20030847
¶ 145. It is precisely that third-party contractual relationship
that gives the State a substantial interest in prohibiting
unlicensed marriages when there is an existing marriage. Without
this contractual relationship, the State would be unable to
enforce important marital rights and obligations. See infra
¶ 102. In situations where there is no existing marriage, the
Legislature has developed a mechanism for legally determining
that a marriage did in fact exist, even where the couple did not
seek legal recognition of that marriage, so that the State may
enforce marital obligations such as spousal support or prevent
welfare abuse. See Utah Code Ann. § 30-1-4.5 (Supp. 2005).12
There is no such mechanism for protecting the State’s interest in
situations where there is an existing marriage because, under any
interpretation of the bigamy statute, a party cannot seek a legal
adjudication of a second marriage. Thus, the State has a
substantial interest in criminalizing such an unlicensed second
marriage.
¶61 Moreover, marital relationships serve as the building
blocks of our society. The State must be able to assert some
level of control over those relationships to ensure the smooth
operation of laws and further the proliferation of social unions
our society deems beneficial while discouraging those deemed
harmful. The people of this State have declared monogamy a
beneficial marital form and have also declared polygamous
relationships harmful. As the Tenth Circuit stated in Potter,
Utah “is justified, by a compelling interest, in upholding and

No. 20030847 26
enforcing its ban on plural marriage to protect the monogamous
marriage relationship.” 760 F.2d at 1070 (internal quotation
marks omitted); see also Green, 2004 UT 76, ¶ 72 (Durrant, J.,
concurring) (“[Utah] has a compelling interest in prohibiting
conduct, such as the practice of polygamy, which threatens
[monogamous marriage].”).
¶62 Further, this case features another critical
distinction from Lawrence; namely, the involvement of a minor.
Stubbs was sixteen years old at the time of her betrothal, and
evidence adduced at trial indicated that she and Holm regularly
engaged in sexual activity. Further, it is not unreasonable to
conclude that this case involves behavior that warrants inquiry
into the possible existence of injury and the validity of
consent. See, e.g., Green, 2004 UT 76, ¶ 40 (“The practice of
polygamy . . . often coincides with crimes targeting women and
children. Crimes not unusually attendant to the practice of
polygamy include incest, sexual assault, statutory rape, and
failure to pay child support.” (citing Richard A. Vazquez, Note,
The Practice of Polygamy: Legitimate Free Exercise of Religion or
Legitimate Public Menace? Revisiting Reynolds in Light of Modern
Constitutional Jurisprudence, 5 N.Y.U.J. Legis. & Pub. Pol’y 225,
239-45 (2001)).
¶63 Given the above, we conclude that Lawrence does not
prevent our Legislature from prohibiting polygamous behavior.
The distinction between private, intimate sexual conduct between
consenting adults and the public nature of polygamists’ attempts
to extralegally redefine the acceptable parameters of a
fundamental social institution like marriage is plain. The
contrast between the present case and Lawrence is even more
dramatic when the minority status of Stubbs is considered. Given
the critical differences between the two cases, and the fact that
the United States Supreme Court has not extended its
jurisprudence to such a degree as to protect the formation of
polygamous marital arrangements, we conclude that the
criminalization of the behavior engaged in by Holm does not run
afoul of the personal liberty interests protected by the
Fourteenth Amendment. Having so concluded, we now address Holm’s
contention that our State’s bigamy statute violates equal
protection guarantees.
3. No Equal Protection Concerns Are Implicated by Utah’s Bigamy
Statute
¶64 Holm claims that his conviction for bigamy is
unconstitutional because the bigamy statute unfairly
discriminates against individuals who are religiously compelled
to practice polygamy. We disagree.

27 No. 20030847
¶65 Generally speaking, the Equal Protection Clause of the
Fourteenth Amendment mandates that similarly situated individuals
be treated in the same manner. See City of Cleburne v. Cleburne
Living Ctr., Inc., 473 U.S. 432, 439 (1985). In Green, we held
that Utah’s bigamy statute is facially neutral as to religion; in
other words, it delineates no distinction between classes of
individuals. 2004 UT 76, ¶ 25. “The statute does not . . .
mention polygamists or their religion.” Id. One could engage in
polygamy out of animus for religion and still be considered in
violation of the statute. Quite simply, the statute is designed
to punish behavior regardless of the motivations giving rise to
that behavior.
¶66 Furthermore, in Green, we concluded that the facially
neutral text of the bigamy statute is not merely a smokescreen
meant to disguise a discriminatory intent to prosecute only
religiously motivated polygamy. Id. ¶ 28. As we noted in Green,
the last reported decision concerning a bigamy prosecution prior
to Green involved a man engaging in non-religiously motivated
polygamy. Id. Ironically, the defendant in that case argued
that the State of Utah selectively prosecutes “‘only those
bigamists who practice bigamy for other than religious reasons.’”
Id. ¶ 28 n.10 (quoting State v. Geer, 765 P.2d 1, 3 (Utah Ct.
App. 1988)). Although Holm asserts that discriminatory
prosecution of bigamy occurs, the record before us is devoid of
any meaningful evidence supporting that assertion. In light of
our holding in Green that the bigamy statute is facially neutral
and that its enactment was not intended to provide a vehicle for
discriminatory actions, and in the absence of evidence giving
credence to Holm’s assertion of unequal treatment, we decline to
find Holm’s conviction violative of equal protection guarantees.
¶67 Having so concluded, we now turn to Holm’s assertion
that the bigamy statute is unconstitutional because it unduly
infringes upon his right of association.
4. Criminalization of Polygamy Does Not Unduly Infringe upon the
Right of Association
¶68 Holm claims that the State of Utah, by criminalizing
polygamous behavior, has unjustifiably restricted his ability to
teach his family the principle of plural marriage by way of
example. According to Holm, such a restriction violates his
right of association protected by the First Amendment of the
United States Constitution. We conclude that Holm’s right of
association is not so broad as to render him immune from
criminal sanction for polygamous behavior.

No. 20030847 28
¶69 As an initial matter, we point out that the freedom of
association protected by the federal constitution has been
conceived of as covering two separate but related rights. As the
United States Supreme Court acknowledged in Roberts v. United
States Jaycees, 468 U.S. 609, 617-18 (1984), there are “two
distinct senses” of the freedom of association, commonly referred
to as intrinsic and instrumental association.
¶70 Holm argues that Utah’s criminalization of polygamous
behavior infringes upon his right of association in both senses.
We disagree and conclude that Holm’s rights to intrinsic and
instrumental association have not been unduly restricted.
¶71 First, the concept of intrinsic association encompasses
certain intimate associations. Id. Under this type of
association, the United States Supreme Court has recognized that
the freedom to form certain intimate associations is
constitutionally protected, stating that “choices to enter into
and maintain certain intimate human relationships must be secured
against undue intrusion by the State because of the role of such
relationships in safeguarding the individual freedom that is
central to our constitutional scheme.” Id. In this sense, the
“freedom of association receives protection as a fundamental
element of personal liberty.” Id. at 618. When considering
claims that a certain governmental action violates the right to
intimate association, the United States Supreme Court has
essentially conducted a fundamental liberty analysis to determine
whether the type of behavior allegedly infringed upon is
protected. See id. at 618-19 (citing fundamental rights cases
when identifying the characteristics of relationships possibly
entitled to associational protection).
¶72 Holm’s right to intrinsic association has not been
unduly infringed upon because, as discussed above, supra ¶¶ 53-
63, the right to engage in polygamous behavior is not encompassed
within the ambit of the individual liberty protections contained
in our federal constitution. Consequently, Holm cannot argue
that his associational rights prevent the State from interfering
with his ability to engage in properly criminalized behavior, as
the right of intimate association protects only those
associations that further or otherwise support fundamental
liberty interests.
¶73 Second, instrumental associations include those
associations “indispensable” to the “preserv[ation] [of] other
individual liberties” including “those activities protected by
the First Amendment.” Id. at 618. “An individual’s freedom to
speak, to worship, and to petition the government for the redress
of grievances could not be vigorously protected from interference

13 Holm claims that the bigamy statute is facially
unconstitutional because it is overbroad and implicates freedom
of association concerns. Because we conclude that such concerns
are not implicated and that Holm’s conviction does not unduly
infringe upon constitutional rights, we decline to address his
overbreadth claim.
29 No. 20030847
by the State unless a correlative freedom to engage in group
effort toward those ends were not also guaranteed.” Id. at 622.
¶74 Holm’s right to instrumental association has not been
infringed. We have already concluded that Utah’s prohibition on
polygamous behavior does not run afoul of constitutional
guarantees protecting the free exercise of religion. Further, we
see nothing contained within the language of the bigamy statute
that prevents Holm from associating with a group advocating the
social and spiritual desirability of a polygamous lifestyle.
Although it is true that the bigamy statute prevents Holm from
expressing his opinions regarding polygamy by engaging in
polygamous behavior, we are not convinced that the State is
constrained to tolerate constitutionally prohibited behavior in
order to allow individuals to express their dissatisfaction with
the criminal status of that behavior.
¶75 Accordingly, we conclude that Utah’s prohibition
against polygamous behavior does not violate Holm’s First
Amendment right to freedom of association.13 We now turn to
Holm’s final federal constitutional argument, that the term
“marry” is unconstitutionally vague.
5. The Term “Marry” Is Not Unconstitutionally Vague
¶76 Holm argues that if the term “marry,” as used in the
Utah Code, is not confined to legally recognized marriage, and
therefore is broad enough to encompass his behavior, then the
“purports to marry” prong of the bigamy statute must be struck
down as impermissibly vague because the language of the statute
fails to adequately define the type of activity that is being
criminalized. Further, Holm argues that, if the term “marry” is
not confined to legally recognized marriages, then he cannot be
prosecuted for unlawful sexual conduct with a minor because the
Utah Code immunizes “married” people from being subject to
prosecution pursuant to that statute. We conclude that the
language of the bigamy statute sufficiently put Holm on notice
that his plural marriage to Stubbs would run afoul of this
State’s criminal law and that Holm cannot rely on the marriage
defense in combating the charges of unlawful sexual conduct with
a minor.

No. 20030847 30
¶77 To survive a void-for-vagueness challenge, a criminal
statute must (1) “define the criminal offense with sufficient
definiteness that ordinary people can understand what conduct is
prohibited and in a manner that does not encourage arbitrary and
discriminatory enforcement,” and (2) “establish minimal
guidelines” that sufficiently instruct law enforcement as to
avoid arbitrary and discriminatory enforcement. Kolender v.
Lawson, 461 U.S. 352, 357-58 (1983) (internal quotation marks
omitted). Holm has raised both facial and as-applied vagueness
challenges to the bigamy statute. As we concluded in Green,
however, “a court should ‘examine the complainant’s conduct
before analyzing other hypothetical applications of the law’ when
a challenged statute ‘implicates no constitutionally protected
conduct.’” 2004 UT 76, ¶ 44 (quoting Vill. of Hoffman Estates v.
The Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494-95
(1982)); see also Vill. of Hoffman Estates, 455 U.S. at 495 (“A
plaintiff who engages in some conduct that is clearly proscribed
[by statute] cannot complain of the vagueness of the law as
applied to the conduct of others.”). As we have concluded that
no constitutionally protected conduct has been restricted by
Holm’s conviction, it is inappropriate to consider Holm’s facial
vagueness challenge. As a result, we now consider whether, under
the two-part test presented above, the bigamy statute is
unconstitutionally vague as applied to Holm.
a. The Bigamy Statute Adequately Notified Holm That His
Conduct Was Illegal
¶78 We first consider whether the language of our bigamy
statute is so vague as to have provided inadequate notice to Holm
that his marriage to Stubbs would violate our State’s bigamy
statute.
¶79 Holm argues that he was not put on notice that his
marriage to Stubbs would violate the “purports to marry” prong of
the bigamy statute because an ordinary person would consider that
prong to criminalize only attempts to enter into a second legally
recognized marriage or assertions that a second legally
recognized marriage has occurred. We disagree.
¶80 Holm once again relies on the Black’s Law Dictionary
definition of “marriage” to argue that the terms “marry,”
“husband,” and “wife” refer to situations in which an intimate
union has been legally recognized. See Black’s Law Dictionary
986 (7th ed. 1999) (defining “marriage” as “[t]he legal union of
a man and woman as husband and wife”); id. at 746 (defining
“husband” as “a man who has a lawful wife living”). As discussed
extensively above, however, Black’s Law Dictionary itself bears

14 In both the table of contents and the heading of his
opening brief, Holm asserted that section 76-5-401.2 is “void for
vagueness.” But the discussion in the body of his brief
regarding the vagueness of the term “marry” does not refer to
section 76-5-401.2, and indeed the word “marry” does not appear
in section 76-5-401.2. It is evident that Holm’s vagueness
discussion was meant to apply not to section 76-5-401.2 but to
section 76-5-407, which indicates that the provisions in part 4
of chapter 5 of Title 76, including section 76-5-401.2, “do not
apply to consensual conduct between persons married to each
other.” Utah Code Ann. § 76-5-407(1) (2003) (emphasis added).
Accordingly, we construe Holm’s argument as a claim that he had
insufficient notice that his conduct violated section 76-5-401.2
because the term “married” in section 76-5-407(1) is vague. See
State v. Green, 2004 UT 76, ¶ 43, 99 P.3d 820 (recognizing that
“[v]agueness questions are essentially procedural due process
issues” (internal quotation marks omitted)).
31 No. 20030847
out the broader implications of the term, supra ¶¶ 19-21, and the
term “marry” or “marriage” cannot be so neatly cabined to refer
only to legally recognized relationships.
¶81 Looking only to the plain language of our bigamy
statute, we are at a loss to comprehend how Holm can plausibly
argue that he did not purport to marry Stubbs when he
participated in a marriage ceremony with her and subsequently
engaged in a relationship that mirrored that of a traditional
marriage. By its terms, the bigamy statute is designed to
prevent individuals from engaging in two marital relationships
simultaneously. See Green, 2004 UT 76, ¶ 47 (“Indeed, Green’s
conduct produced precisely the situation that bigamy statutes aim
to prevent—-all the indicia of marriage repeated more than
once.”). We conclude that Holm was provided adequate notice by
the “purports to marry” prong of our bigamy statute that his
marriage to Stubbs would be considered criminal behavior. See
id. ¶ 49 (“Words are symbols of communication and as such are not
invested with the quality of a scientific formula. It is enough
that they can be construed with reasonable certainty.”).
¶82 Holm argues, however, that if the “purports to marry”
prong of the bigamy statute is not unconstitutionally vague, then
the term “married,” as used in section 76-5-407(1) of the Utah
Code, which provides that sexual conduct with a minor is not
unlawful if the participants in the conduct are “married to each
other,” Utah Code Ann. § 76-5-407(1) (2003), must protect him
from prosecution for unlawful sexual conduct with a minor.14
Essentially, Holm argues that he received inadequate notice that
his purported marriage to Stubbs would not immunize him from

No. 20030847 32
prosecution for unlawful sexual conduct with a minor for engaging
in sexual activity with Stubbs. We disagree and conclude that
Holm was on notice that his marriage to Stubbs would not serve as
a defense to a subsequent prosecution for unlawful sexual conduct
with a minor.
¶83 If Holm’s understanding of section 76-5-407 is correct,
the statute would not be applicable to sexual conduct occurring
in unlicensed marital unions. In other words, the intent of the
parties engaging in the sexual conduct could determine, without
state input or control, whether their sexual conduct amounts to a
criminal offense. A criminal prohibition like that established
by the unlawful sexual conduct statute cannot be so easily
subverted. Considering that the Utah Code prohibits and
criminalizes the existence of a marriage when one marriage
already exists, it is absurd to conclude that the existence of
the second, prohibited marriage insulates Holm from prosecution
under the unlawful sexual conduct statute. Quite simply, a
person of ordinary intelligence is on notice, as a matter of
common sense as much as a matter of statutory language, that
criminal conduct cannot provide a defense for criminal conduct.
¶84 We therefore reject Holm’s assertion that he had
insufficient notice that his illegal marriage to Stubbs would not
insulate him from prosecution pursuant to the unlawful sexual
conduct statute.
b. The Bigamy Statute Was Not Enforced Against Holm in an
Arbitrary or Discriminatory Manner
¶85 We next consider whether “the [bigamy statute] is
sufficiently definite . . . as to discourage arbitrary and
discriminatory enforcement.” Green, 2004 UT 76, ¶ 50. As stated
by the United States Supreme Court, criminal statutes must
“establish minimal guidelines to govern law enforcement” to avoid
the risk of leaving the task of “lawmaking to the moment-to-
moment judgment of the policeman on his beat.” Kolender v.
Lawson, 461 U.S. 352, 358, 360 (1983) (internal quotation marks
omitted). When confronted with an as-applied challenge to the
constitutionality of a criminal statute, “it is the application
of the [challenged statute] to defendant[] by law enforcement
officials we review.” United States v. LaHue, 261 F.3d 993, 1007
(10th Cir. 2001).
¶86 Just as we determined in Green “that law enforcement
officials encountering Green’s circumstances would not be left to
pursue their own personal predilections in determining the
applicability of Utah’s bigamy statute,” 2004 UT 76, ¶ 52, we
conclude that no reasonable law enforcement official acquainted

33 No. 20030847
with Holm’s behavior could conclude other than that Holm had
violated Utah law. As discussed above, supra ¶¶ 29-31, the facts
clearly establish that Holm purported to marry Stubbs while
already having a wife.
¶87 Having concluded that Holm’s prosecution does not run
afoul of the federal constitution, we now turn to Holm’s
contention that the trial court erred by not allowing expert
testimony addressing the social history and health of polygamous
communities.
D. The Trial Court Properly Excluded Holm’s Proffered Expert
Testimony
¶88 Holm contends that the trial court erred by not
allowing him to put into evidence expert testimony addressing the
social history and health of polygamous communities.
Specifically, Holm argues that such testimony was necessary to
rebut the notion that polygamous communities are rife with abuse
and victimize children. We conclude that the trial court did not
abuse its discretion by not admitting the testimony in question.
¶89 Rule 702 of the Utah Rules of Evidence allows an expert
to testify to “scientific, technical, or other specialized
knowledge,” if that testimony “will assist the trier of fact to
understand the evidence or to determine a fact in issue.” A
decision to admit or exclude expert testimony is left to the
discretion of the trial court, and that decision will not be
reversed unless it constitutes an abuse of discretion. State v.
Hollen, 2002 UT 35, ¶ 66, 44 P.3d 794.
¶90 In this case, the trial court concluded that expert
testimony relating to the history of polygamy in Utah and the
social health of polygamous communities would not aid the trier
of fact in determining the factual questions before it.
Historical context and evidence as to the social health of
polygamous communities have no bearing on the factual predicate
for a bigamy or unlawful sexual conduct prosecution. The
questions put to the jury were, in fact, only tangentially
related to the broader concerns of history and social health.
The jury was charged with the task of determining whether Holm
purported to marry or cohabited with Stubbs while knowing he
already had a wife, whether Holm engaged in sexual activity with
Stubbs when she was sixteen or seventeen, and whether Holm is ten
years her senior. Holm’s proffered testimony as to the history
and social health of polygamous communities, which spans nearly
thirty pages of transcript, would not have aided the jury in
determining the questions before it and would more likely have
distracted and confused the jury. As a result, we conclude that

15 We note that Utah Code section 76-1-201 was amended in
2004. The current version of the statute appears to require the
defendant to file a pretrial motion in order to challenge
jurisdiction. See Utah Code Ann. § 76-1-201(5)(b) (Supp. 2004).
Unless otherwise indicated, our references in this opinion are to
the version of section 76-1-201 in effect at the time of Holm’s
trial.
No. 20030847 34
the trial court did not abuse its discretion by excluding the
expert testimony.
II. WE AFFIRM HOLM’S CONVICTION FOR UNLAWFUL SEXUAL CONDUCT WITH
A MINOR
¶91 Holm was convicted on two counts of unlawful sexual
conduct with a minor under Utah Code section 76-5-401.2 (2003),
which makes it unlawful for individuals to engage in sexual
conduct, as defined by that statute, with partners who are at
least ten years their junior and who are sixteen or seventeen
years old. Holm argues that his conviction under this statute
must be overturned because (1) the trial court had no
jurisdiction over these charges and (2) the statute as applied to
Holm violates the Equal Protection Clause. We address each of
these claims below.
A. The Trial Court Had Criminal Jurisdiction over Holm’s
Unlawful Sexual Conduct with a Minor Charge
¶92 Holm asserts that the trial court lacked jurisdiction
over the charges of unlawful sexual conduct levied against him
under section 76-5-401.2 because the State failed to prove by a
preponderance of the evidence that the sexual conduct in question
occurred in Utah. We reject this claim for the reasons discussed
below.
¶93 The Utah Criminal Code provides that, in the absence of
facts establishing attempt, solicitation, or conspiracy, a Utah
trial court has criminal jurisdiction over an individual’s
prosecution “for an offense which he commits . . . by his own
conduct” only if “the offense [itself] is committed either wholly
or partly within the state.” Utah Code Ann. § 76-1-201(1)(a)
(2003) (amended 2004).15 The jurisdiction determination is a
matter for the trial court, not the jury, and the court itself
must resolve any associated factual disputes by a preponderance
of the evidence. Id. §§ 76-1-201(5), -501(3); State v. Payne,
892 P.2d 1032, 1033 (Utah 1995). While Holm asserts that the
magistrate should have made such a finding at the probable cause
hearing, we again clarify that the trial court’s obligation to

35 No. 20030847
make this determination arises after the bindover order is issued
and the information is transferred to the trial court. See State
v. Humphrey, 823 P.2d 464, 465-67 & nn.2, 5 (Utah 1991)
(explaining that the role of the magistrate in the probable cause
hearing differs from that of a trial judge even where the
individual playing the role of magistrate holds judicial office).
The trial court may order charges dismissed “either on its own
initiative or upon application of either party” if it determines
that the court “is without jurisdiction.” Utah R. Crim. P.
25(b)(4); see Payne, 892 P.2d at 1033.
¶94 Here, Holm was bound over for trial on two counts of
unlawful sexual conduct with a sixteen- or seventeen-year-old.
Holm argues that he was bound over “only on the two specific
instances leading to conception” of his first two children with
Ruth Stubbs. He therefore asserts that the trial court’s
jurisdiction depended on the State proving by a preponderance of
the evidence that these “two specific instances” of sexual
intercourse occurred in Utah.
¶95 In fact, however, the information specified that the
two counts of unlawful sexual conduct referred respectively to
conduct that had occurred “[s]ometime between December 13, 1998
and April, 1999,” and to conduct that had occurred “[s]ometime
between January 1, 2000 and June 1, 2000, in Washington County,
. . . Utah.” Neither the information nor the bindover order
included the conceptions of the two children as part of the
charged crime. Thus, the State was not obligated to prove where
the conceptions occurred--a nearly impossible task, as the trial
court noted--but only that it was more likely than not that Holm
had engaged in some instance of sexual conduct with Stubbs in
Utah during the charged periods.
¶96 The trial court appears to have understood Holm’s
objection on this issue as a sufficiency of the evidence argument
rather than a jurisdictional argument. It denied Holm’s motion
to dismiss on these grounds because it could not conclude “that
no reasonable jury could find the defendant guilty on the
evidence presented.” The State argues that Holm failed to
clarify that he was asking the trial court to determine
jurisdiction and that Holm therefore waived any jurisdictional
claim. Even assuming Holm failed to raise the jurisdictional
issue, however, we would not consider it waived. Criminal
jurisdiction is a form of subject matter jurisdiction. See State
v. Amoroso, 1999 UT App 60, ¶¶ 16-18, 975 P.2d 505; see also
State v. Alagao, 883 P.2d 682, 683 (Haw. Ct. App. 1994)
(referring to “[j]urisdiction of the offense charged” as “subject
matter jurisdiction”). Thus, a trial court or an appellate court
may dismiss a criminal charge for lack of criminal jurisdiction

No. 20030847 36
at any time, regardless of whether the defendant raised the issue
before or during trial. See Myers v. State, 2004 UT 31, ¶ 16, 94
P.3d 211; Payne, 892 P.2d at 1033.
¶97 In this case, given our clarification above of the
charges at issue, we think it clear that the trial court did have
jurisdiction. Stubbs testified at trial that she lived together
with Holm at their Hildale residence during the charged periods
and that it was “common for [her] to have sexual intercourse
[with him] at the house in Hildale, Utah.” This undisputed
testimony--together with the undisputed facts that Holm and
Stubbs had entered into a religious union, that they considered
themselves married, and that Stubbs conceived two children during
the charged periods--readily leads to the conclusion that the
trial court’s jurisdiction was established by a preponderance of
the evidence. The fact that Holm and Stubbs also traveled out of
state during these periods, “sometimes as often as twice a
month,” according to Holm, does not change our assessment.
B. Holm’s Conviction for Unlawful Sexual Conduct Does Not
Violate His Constitutional Right to Equal Protection
¶98 Holm’s final argument regarding his unlawful sexual
conduct convictions is that section 74-5-401.2 violates his
federal right to equal protection under the law because it
impermissibly distinguishes between married and unmarried
individuals. We disagree for the reasons set forth below.
¶99 The federal Equal Protection Clause prohibits a state
from “deny[ing] to any person within its jurisdiction the equal
protection of the laws.” U.S. Const. amend. XIV, § 1. “Thus,
state laws must treat similarly situated people alike unless a
reasonable basis exists for treating them differently.” State v.
Lafferty, 2001 UT 19, ¶ 70, 20 P.3d 342 (internal quotation marks
omitted). Where no suspect classification or violation of a
fundamental right is involved, a difference in treatment “need be
only rationally related to a valid public purpose” to withstand
equal protection scrutiny. Id. ¶ 71. Here, Holm does not argue
that we should apply anything other than such rational basis
scrutiny. See Eisenstadt v. Baird, 405 U.S. 438, 447 (1972)
(applying rational basis scrutiny to a statute that treated
individuals differently based on their marital status).
¶100 We accept Holm’s claim that individuals who engage in
sexual conduct with partners who are at least ten years their
junior and who are sixteen or seventeen years old are “similarly
situated” for purposes of equal protection analysis regardless of
the marital relationship between those involved. In the context
of a defendant convicted under a criminal law, we have determined

16 We note that our equal protection analysis would be no
different, in practical terms, if we construed section 76-5-401.2
in combination with section 76-5-407(1) as including the lack of
a marital relationship between the parties as an element of the
crime rather than viewing section 76-5-407(1) as exempting those
within a marital relationship from operation of section 76-5-
401.2; we would still be required to assess whether the resulting
definition of the class, including the lack of a marital
relationship, was rationally related to the purpose of the
statute. See McLaughlin v. Florida, 379 U.S. 184, 191 (1964)
(“The courts must reach and determine the question whether the
classifications drawn in a statute are reasonable in light of its
purpose . . . .”); Laurence H. Tribe, American Constitutional Law
§ 16-2, at 1439-40 (2d ed. 1988) (noting that an analysis in
which “persons or activities treated differently by government
could for that very reason be deemed not ‘the same’” would
“afford[] virtually no scope for review”).
37 No. 20030847
whether individuals are “similarly situated” by referring to the
conduct for which the defendant was convicted. See State v.
Honie, 2002 UT 4, ¶ 21, 57 P.3d 977 (holding that those convicted
of felony murder were not similarly situated to those convicted
of aggravated murder because the elements of the crimes were
different); State v. Moore, 782 P.2d 497, 503 (Utah 1989)
(holding that all individuals who deal drugs within 1,000 feet of
a school were similarly situated with regard to a statute
providing enhanced penalties for those engaged in such conduct);
State v. Shondel, 453 P.2d 146, 147 (Utah 1969) (indicating that
those found in possession of LSD were similarly situated with
regard to two statutes providing different penalties for the same
conduct). Utah Code section 76-5-401.2 defines the crime of
unlawful sexual conduct with a sixteen- or seventeen-year-old.
Section 76-5-407 exempts a married individual from operation of
the unlawful sexual conduct statute where the individual engages
in the proscribed conduct with his or her spouse. Id. § 76-5-
407(1). Thus, a distinction based on marital relationship is
made among those who engage in the conduct proscribed by section
76-5-401.2.16 We therefore proceed to the question of whether
this distinction is rationally related to the purpose of section
76-5-401.2.
¶101 Holm argues that the State has no rational
justification for endorsing consensual sexual conduct between a
sixteen- or seventeen-year-old girl and a man ten years her elder
where the two have entered a legal marriage with the consent of
one of the girl’s parents, under Utah Code section 30-1-9 (Supp.
2005), while criminalizing such conduct where the two are not
legally married. He points out that if the distinction is based

No. 20030847 38
solely on the minor’s inability to give valid consent, such a
concern would not apply in this case because Stubbs’s father
consented to her religious union with Holm. Contrary to Holm’s
suggestion, we agree with the State that its interest in the
distinction goes beyond any concern with obtaining parental
consent. The state-determined framework within which the legal
status of marriage exists provides a minor with certain
protections under the law that are absent where the union is not
a legal marriage and thus falls outside this framework.
¶102 The protections afforded persons who are married in the
eyes of the law include rights, vis-a-vis their spouses, to
support and maintenance, Utah Code Ann. § 30-4-1 (1998), to the
fulfillment of certain procedural requirements before the union
can be dissolved, id. § 30-3-1, to a fair distribution of
property and debt obligations in the event such a dissolution
occurs, id. § 30-3-5 (Supp. 2005), and to inherit all or a
portion of the spouses’ estates in the event of their death, id.
§§ 75-2-102, -202 (Supp. 2005). These examples represent only a
few of the instances in which marital status is legally relevant.
It is true that the distribution of assets within or following a
marriage may to a certain extent be determined by a premarital
agreement between the parties, id. § 30-8-4 (1998), and that
unmarried partners may make arrangements for property
distribution by private contract or will. We do not believe,
however, that such private arrangements significantly alter, in
the former case, or are in any sense equivalent to, in the latter
case, the protection provided by the network of laws surrounding
the legal institution of marriage. Marriage is unique because it
is buttressed by this network of laws, which in many instances
overrides any attempt by a married individual to circumvent their
requirements. Having provided such a framework of support, the
State may rationally distinguish between minors who are within
its protection and those who are not.
¶103 While the State’s power to interfere with the private
relationships of consenting adults is limited, it is well
established that the same is not true where one of the
individuals involved in the relationship is a minor. See State
v. Elton, 680 P.2d 727, 732 (Utah 1984) (accepting the
proposition “that young people should be protected from sexual
exploitation by older, more experienced persons until they reach
the legal age of consent and can more maturely comprehend and
appreciate the consequences of their sexual acts”). We believe
the State has a legitimate interest in criminalizing the conduct
at issue and that the Legislature’s decision to criminalize the
conduct only where the parties involved are not married to each
other does not render the statute invalid under equal protection

39 No. 20030847
principles. We therefore uphold the constitutionality of Holm’s
convictions under section 76-5-401.2.
CONCLUSION
¶104 We conclude that Holm was properly convicted of both
bigamy and unlawful sexual conduct with a minor. As to the
bigamy conviction, we conclude that Holm’s behavior falls
squarely within the terms of the “purports to marry” prong of the
bigamy statute, that his conviction pursuant to that prong did
not run afoul of any state or federal constitutional right, and
that the trial court did not abuse its discretion by excluding
expert testimony relating to the social history and health of
polygamous communities.
¶105 As to the sexual-conduct-with-a-minor conviction, we
conclude that Holm was properly convicted because the trial court
had jurisdiction over him and because such conviction did not
violate his constitutional right to equal protection.
Accordingly, we affirm the judgment of the trial court.
---
¶106 Associate Chief Justice Wilkins and Justice Parrish
concur in Justice Durrant’s opinion.
---
NEHRING, Justice, concurring:
¶107 I concur in the judgment of the majority. I write
separately to address several of the important criticisms of the
majority’s analysis made by the Chief Justice that I believe the
majority does not fully confront. These matters raised in the
dissent deserve an answer because, despite the considerable
persuasive force of the majority opinion, the conclusion reached
today that the State may use its power to declare criminal
consensual expressions of commitment between adults is one that
by no means overwhelms Mr. Holm’s counterarguments--specifically,
his argument that the State lacks such power under the
constitutions of the United States and the State of Utah.
¶108 My misgivings over whether the power of the State may
be constitutionally exercised to criminalize private
relationships among adults led me to join in Chief Justice
Durham’s concurring opinion in State v. Green, 2004 UT 76, 99
P.3d 820, one of our recent examinations of polygamy. My
uneasiness over the due process implications of state intrusion

No. 20030847 40
into private, consensual relationships voiced by the Chief
Justice’s concurrence in Green, together with the personal and
institutional considerations that I will shortly disclose,
compels me to satisfy myself that the outcome of this case be
anchored to a particularly solid legal foundation. I can,
therefore, be at ease with joining the majority in Part I of its
opinion only by overcoming to my satisfaction several of the
Chief Justice’s important points of disagreement with the lead
opinion.
¶109 Of course, this case is not unique because it presents
close questions. Close cases are a staple of this court’s
docket. This case stands apart from other cases that put us to
the test of wrestling uncertainty into submission because it
probes a particularly sensitive area of our state’s identity. No
matter how widely known the natural wonders of Utah may become,
no matter the extent that our citizens earn acclaim for their
achievements, in the public mind Utah will forever be shackled to
the practice of polygamy. This fact has been present in my
consciousness, and I suspect has been a brooding presence in one
form or another in the minds of my colleagues, from the moment we
opened the parties’ briefs. I also suspect that I have not been
alone in speculating what the consequences might be were the
highest court in the State of Utah the first in the nation to
proclaim that polygamy enjoys constitutional protection. These
musings have left me with little doubt that the predominant
reaction to a holding in keeping with the Chief Justice’s dissent
would be highly charged and unflattering.
¶110 It would be a violation of my oath of office to permit
my apprehensions about the public reaction to any ruling of this
court to participate in my decision-making effort or to influence
in any way my vote on a case. Moreover, I do not intend to
suggest that the majority opinion is in any way shaped by fears
of a public backlash against sanctioning polygamy. If I believed
otherwise, I would not join in it. I hasten to add, however,
that it is not altogether clear to me that we would betray our
oath were we to take into account the potential effects of the
outcome of a case on the institutional reputation of this court
and public confidence in the integrity of the rule of law. No
small part of the responsibility that the members of this court
agree to assume is to stand resolutely against majority will when
constitutional principles require it. We shoulder this duty
willingly despite knowing that the decisions we make will
inevitably vex, frustrate, and enrage many people, including
persons of power and influence. Still, an outcome that is wholly
defensible as a product of intellectual rigor and principled
application of the law could, at the same time, be so much at
odds with widely and deeply held cultural values that it would

41 No. 20030847
not only undermine the legitimacy of the ruling but call into
question the institutional legitimacy of the court.
¶111 I will not use this concurrence to embark on a lengthy
exploration of this question of judicial philosophy and ethics.
Rather, I raise it only to explain my reasons for writing
separately. My awareness of the cultural and political
volatility that polygamy brings to this court leaves me with a
need to redouble my conviction that the flaws that the dissent
perceives in the majority’s analysis are confronted. I also
write to distance myself from assertions made by the majority
that, in my view, may be interpreted to invite, in the name of
protecting marriage, unconstitutional governmental intrusions
into consensual private relationships.
¶112 The organizing theme of the dissent is that when the
Utah bigamy statute, section 76-7-101 (2003), uses the word
“marry,” the meaning of that term is limited to a legal union.
With the definition of “marry” confined in this way, one can
“purport to marry” and thereby become a bigamist in the eyes of
the law only by professing participation in multiple legal
unions. According to the dissent, if marriage were to include
extralegal or spiritual unions as the majority insists, one could
expect to find some evidence of this broader definition in other
provisions of Utah law where “marry” or “marriage” appears. But
in every other context, including the recently enacted
constitutional amendment, article I, section 29 (directed at
heading off the recognition of same-sex marriages in our state),
our statutes equate marriage with its legal status.
¶113 I conclude, however, that there is ample justification
to disregard comparisons between the “purport to marry” use of
the term “marry” in the bigamy statute with other statutory
provisions in which “marry,” or its variations, is used to
describe policy considerations which, although they relate to
marriage, have nothing to do with polygamy. A consistent
definition of any term throughout the expanse of the Utah Code
might be a laudable objective, and one that is sometimes
achieved. Definitions often, however, shift in keeping with the
purpose and intent of the statute in which a term is deployed.
The “simple grammatical extrapolation” used by the dissent to
restrict culpability for “purporting to marry” to persons laying
claim to a legal union is not as simple as the Chief Justice
would have it be.
¶114 As a general proposition, the array of statutes that
address marriage speak to the question of who can and who cannot
enjoy the status of a legally recognized married person either by
choice or, in the case of valid unsolemnized marriages, by

No. 20030847 42
operation of law. Utah Code Ann. § 30-1-4.5 (Supp. 2005). These
statutes clearly have some relevance to the question of plural
marriage, a relevance that appears in two ways. First, those
statutes that define who may and who may not become lawfully
married unequivocally place polygamists in the group that cannot
claim legal legitimacy for additional unions, however formed,
created while one of the parties is a spouse in a marriage
recognized under Utah law. In addition, the unsolemnized
marriage statute, section 30-1-4.5, may assign legal status to
one of a plural marriage participant’s relationships and thereby
expose the polygamist “husband” to prosecution for bigamy. Thus,
in Green we affirmed the bigamy conviction of a defendant whose
knowledge that he had a wife at the time he formed a spiritual
union with another woman--knowledge that is a necessary element
of bigamy--was founded on a judicial determination he had entered
into a legal unsolemnized marriage. I do not share, however, the
dissent’s view that the statutory expression of public policy to
“recognize[] as marriage only the legal union of a man and woman”
forecloses the use of the term “marry” to describe unions not
entitled to legal recognition.
¶115 Our legislature has gone to considerable lengths to
define who is eligible to be married and who is not. See Utah
Const. art. I, § 29 (article I, section 29 provides legislative
insight because, as a constitutional amendment, it traversed the
legislature); Utah Code Ann. §§ 30-1-1 to -17.2 (1998). It has
approached this task using marriage in a manner consistent with
its overall objective of discriminating between who may be
married and who may not. There is little in the provisions of
Utah law relied on by the dissent to support its view that we
should borrow our understanding of “marry” in the context of
bigamy from its “legal” definition as used in Title 30 to define
who is eligible to marry. There is a good reason for this.
Describing the characteristics of those who may legally marry is
a fundamentally different exercise from that of defining and
proscribing polygamy. Rules that identify the characteristics of
those deemed eligible to acquire the status of legal marriage
need not necessarily be complementary to or symmetrical with
definitions used to describe unions that the law proscribes as
criminal. Both the statutes that define and regulate legal
marriages and the statute that proscribes bigamy concern
marriage, but the differing objectives of each make risky the
interchange of concepts and definitions between the statutory
provisions that relate to each.
¶116 The difficulty inherent in finding consistent language
that applies coherently both to formulating legal marriages and
to proscribing polygamous unions is evident in the approach the
legislature has taken in constructing the Utah marriage chapter.

43 No. 20030847
The expression of public policy seized upon by the dissent to
justify its conclusion that the definition of marriage is
synonymous with legally recognized marriage takes on a different
cast when it is considered in the context of the conceptual
approach taken to marriage throughout chapter 1 of Title 30. If
the legislature had structured the marriage provisions of this
chapter in a manner consistent with its declaration of public
policy, one would expect to find relationships that qualified as
marriage on one side of the statutory ledger and those that were
not marriage on the other. Instead, the legislature chose to
assign the term “marriage” to every form of intimate
relationship, be it incestuous, polygamous, involving a minor, or
between persons of the same sex, and only then, after bestowing
upon all of these relationships the label of “marriage,” assigned
to each the legal status of lawful, void, prohibited, or valid.
Thus, when section 30-1-2 pronounces that “[t]he following
marriages are prohibited and declared void,” and then heads the
roster of prohibited and void marriages with the circumstance
“when there is a husband or wife living, from whom the person
marrying has not been divorced,” the limitations of the dissent’s
grammatical extrapolation become quite clear. The statute
expressly labels the polygamous union a “marriage” and then
describes the act of the polygamous partner who joins in that
union as “marrying.” This use of the terms “marriage” and
“marry” could not conceivably have been intended to confer legal
status on the unions enumerated in section 30-1-2. In fact, the
intention was quite the opposite. Nevertheless, the statute
unmistakably considers the unions that it rejected as prohibited
and void as “marriages” created by the act of “marrying.” I
therefore conclude that the structure of our statutory treatment
of “marriage” demands rather than forecloses an expansive
definition of marriage.
¶117 I am also unpersuaded by the dissent’s attempt to bring
the prohibition of polygamy imposed by our constitution into
harmony with its statutory interpretation of “marry” by asserting
that the “irrevocable ordinance,” as article III, section 1 of
the Utah Constitution is commonly known, was intended only to
block legal recognition of plural marriages. The lead opinion
ably makes the case that the framers of the Utah Constitution
thought otherwise and intended to perpetuate criminal sanctions
against practitioners of plural marriage. The Chief Justice
advances a historical argument that the Enabling Act represented
the last in a series of congressional measures commencing with
the Morrill Act of 1862 that sought to prohibit the legal
recognition of polygamous unions. This hypothesis does not
properly account, in my view, for the incredulity that would have
met such an interpretation in the Congress that enacted the
Enabling Act. I believe that the historical record confirms that

1 A comprehensive and able account of the constitutional
issues associated with the federal government’s attempt to
extirpate polygamy in the Utah Territory and those related to
Utah’s efforts to gain statehood, can be found in L. Rex Sears,
Punishing the Saints for Their “Peculiar Institution”: Congress
on the Constitutional Dilemmas, 2001 Utah L. Rev. 581.
No. 20030847 44
if, in fact, the drafters of Utah’s proposed constitution had
intended to interpret the irrevocable ordinance to ban only the
legal recognition of polygamist unions, Utah’s territorial status
would have endured well into the twentieth century.
¶118 For its part, Congress had shown little reservation
against imposing criminal penalties on polygamists. See, e.g.,
Edmunds-Tucker Act, ch. 397, 24 Stat. 635 (1887); Edmunds Act,
ch. 47, 22 Stat. 30 (1882); Morrill Act, ch. 126, 12 Stat. 501
(1862). In the Utah Territory, statehood proponents were
certainly conscious of this when in 1887 they submitted a
proposed constitution containing provisions declaring polygamy to
be a misdemeanor, setting out penalties for violators, and
removing the power of pardon for polygamy offenses from Utah
officials. L. Rex Sears, Punishing the Saints for Their
“Peculiar Institution”: Congress on the Constitutional Dilemmas,
2001 Utah L. Rev. 581, 626 n.314. This provision met with
resistance from at least one senator who believed that the
restriction on the power to pardon violated the equal-footing
doctrine. Id. at 626 n.316.1
¶119 By the time the Enabling Act passed Congress in 1894,
LDS Church President Wilford Woodruff had issued the 1890
“Manifesto” renouncing Church sanction of polygamy, and a
majority of the House Committee on the Territories was persuaded
that the polygamy “problem” had been overcome. Id. at 627.
Skepticism about polygamy’s demise endured, however, resulting in
the introduction of several anti-polygamy amendments to the Act.
Among the objections that ultimately doomed proposals to require
that the Utah Constitution expressly criminalize polygamy was the
concern that congressional imposition of what amounted to a
criminal statute forbidding polygamy would uniquely intrude on
Utah’s sovereignty and thereby unconstitutionally discriminate
against the State in violation of the equal-footing doctrine.
Id.
¶120 The compromise language of the irrevocable ordinance
that now appears as article III, section 1 of our constitution
does not denominate polygamy as a crime, nor does it include a
mandate that the legislature enact statutes imposing criminal
penalties for its practice. The irrevocable ordinance is

45 No. 20030847
therefore susceptible to the interpretation espoused in the
dissent: that it forbids only state endorsement of polygamy. It
is not, however, an interpretation backed up by historical
evidence sufficient to satisfactorily establish that Congress had
been overcome by a theretofore unknown toleration for any form of
polygamy. Even though the Manifesto and allied assurances made
by statehood advocates about the elimination of the doctrine and
practice of polygamy in Utah did much to mollify congressional
suspicions about the enduring presence of plural marriage, there
remained a clear congressional expectation that Utah’s state
legislature would view its duty under the irrevocable ordinance
as requiring more than merely to check any impulse to extend
legal validation to plural marriage.
¶121 However one may evaluate the relative importance of the
various rationales that contributed to the adoption of the text
of the irrevocable ordinance, I am unable to accept the
interpretation of the Chief Justice that it constituted
congressional surrender to the authority of the LDS Church to
preserve polygamy in its sacramental form while banning only
recognition of plural marriages by civil authorities. Congress
left little doubt about its expectation that the Utah Territory
would not be welcomed into the Union without adequate assurances
and evidence to support those assurances that polygamy had been
banished. When the House Committee on the Territories issued its
majority report endorsing the Enabling Act, it reflected its high
expectations for the renunciation of plural marriage when it
proclaimed “without doubt or hesitation that the institution of
polygamy as taught by the Mormon Church, whether of faith or
practice, is now absolutely stamped out and exterminated.” Id.
at 624 n.308. This statement does not suggest that the Committee
was merely concerned with the extermination of the threat that
Utah would extend legal status to polygamous unions. Moreover,
by the time Congress undertook an assault on the institution of
the LDS Church by enacting the Edmunds-Tucker Act in 1887, which,
among an array of measures designed to bring polygamy to heel,
disincorporated the Church, LDS Church leaders had abandoned
claims to legal legitimacy for polygamous unions and retreated to
the more defensible ground of asserting a spiritual mandate for
them while disavowing any secular blessing on them. Id. at 625.
¶122 By expressly noting that it was persuaded of the
sincerity of LDS Church assurances that it had renounced polygamy
in the realm of church as well as state, the Committee majority
clearly signaled that it intended to condition Utah statehood on
the abolition of polygamy in all of its forms and not merely on
the promise of the state government that it would not confer
legal status on polygamous unions. As the Chief Justice notes,
there is evidence that the federal government softened its stance

No. 20030847 46
on prosecuting polygamists after the Manifesto was issued in
1890. It would be a mistake, however, to interpret a shift in
law enforcement policy as evidence of a nascent tolerance of
polygamy generally. To most, polygamy remained an evil to be
eradicated. Rather, any relaxation of the federal government’s
zeal to prosecute polygamists is best explained by a willingness
to tolerate pre-Manifesto polygamous unions in return for the
assurance that no new polygamous unions would be countenanced.
As explained by Senator Philander Knox, the irrevocable ordinance
did not mandate “[t]he destruction of their existing families.”
Id. at 654 n.490.
¶123 The Chief Justice suggests further that the drafters of
the Utah Constitution read into the absence of a prohibition
against cohabitation in the irrevocable ordinance a belief that
Congress had acquired a newfound acceptance of the living
arrangements attendant to religiously sanctioned plural unions.
While there is evidence that Utah officials were sensitive to a
distinction between polygamy and polygamous cohabitation, there
is no evidence in the debate over the content of the irrevocable
ordinance that Congress intended to give its approval to
polygamous cohabitation. On this point, it is telling that when
Congress became aware that some in this state had taken the view
that the federal government did not intend to proscribe
polygamous cohabitation, it saw to it that the irrevocable
ordinances included within the enabling acts for New Mexico and
Arizona expressly prohibited polygamous cohabitation. Id. at 654
n.491.
¶124 The effort to deny Reed Smoot, chosen to represent Utah
in the United States Senate in 1902, his seat in that body lends
further support to the view that Congress intended the Enabling
Act and irrevocable ordinance to reach religious marriages as
well as legally sanctioned unions. Mr. Smoot was a monogamist
but served as a member of the Quorum of the Twelve Apostles of
the LDS Church. Mr. Smoot’s opponents based their objections to
his eligibility to serve as a senator more on Smoot’s LDS Church
affiliation than his qualifications for office. The Quorum,
together with the Church president and the president’s two
counselors, comprises the central ruling authority of the Church.
¶125 By 1904 when Church President Joseph F. Smith testified
before the United States Senate in support of Mr. Smoot’s effort
to secure his senate seat, much of the congressional goodwill
generated by hope that the Manifesto represented a sincere
commitment by the LDS Church to sever all ties with the faith and
practice of polygamy had dissipated in the face of strong
evidence that Church officials continued to solemnize polygamous
unions and evasive protestations of the Church to the contrary.

47 No. 20030847
Kathleen Flake, The Politics of American Religious Identity: The
Seating of Senator Reed Smoot, Mormon Apostle (Univ. N.C. Press
2004).
¶126 Although Smoot ultimately took his seat in the Senate,
the clear lesson to be drawn from the travail he endured before
taking the oath of office was that congressional animus toward
polygamy extended well beyond the realm of legal recognition for
plural marriages in Utah.
¶127 Finally, my conviction that the State may, and in fact
must, criminalize polygamy leads me to conclude that the Chief
Justice’s invocation of Lawrence v. Texas, 539 U.S. 558 (2003),
is misplaced. I agree generally with the majority opinion’s
discussion of the inapplicability of Lawrence to polygamy and to
legislative attempts to criminalize its practice. While I
believe that the result in Lawrence can be reached by principled
legal reasoning, that reasoning largely resides in the equal
protection approach advanced by Justice O’Connor in her
concurrence. Id. at 579. By reaching the conclusion that sexual
relations between consenting homosexual adults enjoy
constitutional protection as a substantive liberty interest, the
Lawrence majority exposed itself to Justice Scalia’s apocalyptic
rhetoric (although to be fair, Justice Scalia does not spare
Justice O’Connor a ration of the same rhetoric) predicting the
inevitable extension of constitutional protection to a multitude
of cultural taboos, including polygamy, that have been targeted
for criminal sanction. Id. at 586. The Chief Justice’s reliance
on Lawrence appears to validate what would appear to most as
Justice Scalia’s far-fetched concerns.
¶128 I believe that Reynolds v. United States, 98 U.S. 145
(1879), blocks any ambitions that Lawrence might have to seize
polygamy and draw the practice of plural marriage within the
protection of the Constitution. I am simply unable to extract
from either the text or the context of Reynolds any evidence to
support the Chief Justice’s contention that we may sidestep its
holding because it appears to us that polygamy no longer presents
a social danger or that the Court’s expression of belief that it
posed such a danger in 1879 was merely an ill-informed and mean-
spirited bias against the LDS Church.
¶129 The precedent of Reynolds standing alone is sufficient
to insulate Utah’s bigamy statute from attack under the United
States Constitution. I comment on the additional justifications
advanced in the majority opinion for the statute’s
constitutionality only to note my view that they should not be
read to suggest that the State has sweeping authority to regulate
intimate personal relationships. Intimate personal relationships

No. 20030847 48
may indeed “serve as the building blocks of our society.” It
would be a mistake, however, to read into this observation any
intention to enable the State to act as social engineer and
architect, empowered to outlaw societal building blocks that do
not conform to its preferred design or assembly. In this
respect, polygamy and, since the adoption of article I, section
29, the Utah constitutional prohibition against legal unions
between persons of the same gender, stand apart as realms in
which the State may have sufficient justification to regulate
intimate relationships. In neither of these instances, however,
does that justification derive from the ability of the State to
demonstrate that a compelling state interest is served by its
intervention into intimate relationships. Rather, the authority
of the State to criminalize polygamy and to deny legal status to
same gender unions is tied directly to constitutional grants of
authority and, in the case of polygamy, United States Supreme
Court precedent.
¶130 I continue to be troubled by the concern that animated
Chief Justice Durham’s concurring opinion in Green over the
potential use of Utah’s unsolemnized marriage statute, section
30-1-4.5, to create a predicate for the bigamy prosecution of
persons who seek no legal validation of a union based solely on a
private pledge. Justice Durrant straddles this issue by, on the
one hand, agreeing with the Chief Justice’s statement that any
two people may make private pledges that do not receive legal
recognition as marriage while, on the other hand, noting the
existence of the unsolemnized marriage statute and the existence
of a substantial state interest in criminalizing unions when
there is an “existing marriage,” presumably including a marriage
created by operation of the unsolemnized marriage statute.
Because the existence of a solemnized marriage is undisputed
here, it is entirely in order to straddle this question. I
suspect, however, that at some point we will be called upon to
confront this question and put both feet on one side or the
other.
---
DURHAM, Chief Justice, concurring in part and dissenting in part:
¶131 I join the majority in upholding Holm’s conviction for
unlawful sexual conduct with a minor. As to the remainder of its
analysis, I respectfully dissent. As interpreted by the
majority, Utah Code section 76-7-101 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

49 No. 20030847
any other purpose by the state--and criminalizes those acts as
“bigamy.” I believe that in doing so the statute oversteps lines
protecting the free exercise of religion and the privacy of
intimate, personal relationships between consenting adults.
¶132 The majority upholds Holm’s criminal bigamy conviction
based solely on his participation in a private religious ceremony
because the form of that ceremony--though not its intent--
resembled what we think of as a wedding, a ritual that serves to
solemnize lawful marriages and in which the parties formally
undertake the legal rights, obligations, and duties that belong
to that state-approved institution. In resting its conclusion on
that basis, the majority, in my view, ignores the legislature’s
intent that the concept of marriage in Utah law be confined to a
legally recognized union. I also believe that the majority’s
reasoning fails to distinguish between conduct that has public
import of a sort that the state may legitimately regulate and
conduct of the most private nature.
¶133 In particular, the majority broadly interprets the
“purports to marry” prong of Utah’s bigamy statute, Utah Code
Ann. § 76-7-101 (2003), to include the purported entry into
“marriages recognized both by law and by custom.” Supra ¶ 25.
The majority then implicitly concludes that the term “marriage”
in article III, section 1 of the Utah Constitution, which
declares that “polygamous and plural marriages are forever
prohibited,” has the same broad meaning and, thus, that the Utah
Constitution excludes even private polygamous relationships from
the scope of its protections of religious freedom and individual
liberty. Supra ¶ 47. The majority further holds that the United
States Constitution’s protection of individual liberty under the
Fourteenth Amendment’s Due Process Clause does not extend to “the
type of polygamous behavior at issue in this case,” supra ¶ 53,
not only because that behavior involves a minor but also because
it “implicates the public institution of marriage,” supra ¶ 56.
¶134 On all three points, I believe that the majority’s
expansive conception of marriage in Utah law is the result of a
flawed analysis with problematic implications. Because I do not
agree that the state can constitutionally criminalize private
religiously motivated consensual relationships between adults, I
believe Holm’s conviction under section 76-7-101--which does not
rely on the fact that Holm’s partner in his alleged bigamy was a
minor--must be overturned, and I therefore respectfully dissent
from Part I of the majority’s opinion. I explain my disagreement
with the majority’s reasoning below, first addressing its
interpretation of the “purports to marry” prong of section 76-7-
101. I then address its analysis of Holm’s constitutional
challenges to the bigamy statute and offer an alternative reading

1 The evidence at trial was undisputed on the latter point.
On cross-examination, Ruth Stubbs engaged in the following
exchange with Holm’s attorney:
[Holm’s attorney]. Did, did this marriage in
your mind was it a, a civil, a legal civil
marriage under the laws of the, of the
government?
[Ruth]. No.
Q. You knew that it was not a, a marriage
that would be recognized by the law.
Right?
A. Right.
Q. Nevertheless, a, did you believe that
you were married?
A. Yes.
Q. You believed you were married in a
religious sense?
A. Yes.
. . . .
Q. You were married in a religious
ceremony. Correct?
A. Correct.
Q. And, and people in the community knew
you had been married in a religious
ceremony. Is that right?
A. Right.
Q. Did you ever tell people that you were
legally married to Rod?
A. No.
Q. Did you ever hold yourself out to
anyone, even outside of the community,
as being legally married to Rod?
A. No.
Ruth further affirmed, upon questioning, that she was familiar
with the basis in scripture for “the idea of plural marriage,”
(continued...)
No. 20030847 50
of our state constitution’s polygamy and religious freedom
provisions and of Lawrence v. Texas, 539 U.S. 558 (2003).
I. INTERPRETATION OF “PURPORTS TO MARRY” IN SECTION 76-7-101
¶135 The majority concludes that Holm may be found guilty of
“purport[ing] to marry another person” while already having a
wife because he entered a religious union with Ruth Stubbs that
the two of them referred to as a “marriage,” even though neither
believed, represented, or intended that the union would have the
legal status of a state-sanctioned marriage.1 In doing so, the

1 (...continued)
and that both she and Holm believed “that plural marriage was a
commandment of God.”
During his deposition, parts of which were read into the
trial record by the State prosecutor, Holm testified that he had
never submitted forms to any governmental agency representing
that he was married to Ruth Stubbs. Holm further testified that
he was not legally married to Ruth.
2 The majority argues that Black’s Law Dictionary does not
confine its definition of the term “marriage” to a “legal union,”
pointing out that Black’s also defines “plural marriage,”
“bigamy,” and “polygamy” as types of “marriage.” Supra ¶ 19.
The majority concludes that if the word “marry” in a legal
context referred only to legally recognized marriages, “these
definitions would be nonsensical, as one could not ‘marry’
another while legally married.” Supra ¶ 19. It is a mistake,
however, to understand Black’s as presuming a particular legal
status quo. Theoretically, it would be possible for a state to
recognize plural unions as legally valid, and thus plural
“marriages” in a legal sense. Indeed, as discussed below, the
territory that became Utah at one time recognized plural
marriages as legally valid. Furthermore, I believe the term
“marriage” in the definitions of “putative marriage,”
“clandestine marriage,” and “void marriage,” quoted by the
majority, supra ¶ 20, could accurately be replaced by the phrase
“legal union.”
51 No. 20030847
majority deems irrelevant the distinction between the word
“marry” when used in a legal context and the same word’s
idiosyncratic meaning when used as a label for a relationship
recognized as significant by a particular individual or group,
but not by the state.
¶136 This view is first evident in the majority’s preference
for the definition of “marry” that appears in Merriam-Webster’s
Collegiate Dictionary rather than the definition that appears in
Black’s Law Dictionary. The former work acknowledges the reality
that individuals may use the term “marry” to refer to a union
formed “according to law or custom.” Merriam-Webster’s
Collegiate Dictionary 761 (11th ed. 2003) (emphasis added). In
contrast, the latter, concerned as it is with what words mean
when they are vested with legal import, defines “marriage” as
“[t]he legal union of a couple as husband and wife.” Black’s Law
Dictionary 992 (8th ed. 2004) (emphasis added).2
¶137 I do not believe it is appropriate to interpret the
term “marry” when it appears in a state statute as providing what

3 See Maynard v. Hill, 125 U.S. 190, 211 (1888) (“When the
contracting parties have entered into the married state, they
have not so much entered into a contract as into a new relation,
the rights, duties, and obligations of which rest not upon their
agreement, but upon the general law of the State, statutory or
common, which defines and prescribes those rights, duties, and
obligations. They are of law, not contract.” (internal quotation
omitted)); Pennoyer v. Neff, 95 U.S. 714, 734-35 (1878) (“The
jurisdiction which every State possesses to determine the civil
status and capacities of all its inhabitants . . . [includes the]
absolute right to prescribe the conditions upon which the
marriage relation between its own citizens shall be created, and
the causes for which it may be dissolved.”); accord Universal
Life Church v. Utah, 189 F. Supp. 2d 1302, 1315 (D. Utah 2002)
(recognizing that “marriage is a state-conferred legal status”
(internal quotation omitted)); Riddle v. Riddle, 72 P. 1081, 1084
(Utah 1903) (“The legal status of marriage rests solely upon the
basis of a civil contract, in which the contracting parties
mutually consent and agree to be bound by the ‘various
obligations and liabilities’ which by operation of law arise from
the relations of the contracting parties upon the consummation of
the marriage.”); cf. Snetsinger v. Mont. Univ. Sys., 2004 MT 390,
¶¶ 23, 27, 104 P.3d 445 (concluding that the fact that a
university benefits policy allowed “unmarried opposite-sex
couples” to sign an affidavit that they were “married” for
purposes of receiving benefits defeated the university’s claim
that benefits were based on marital status because “marital
status” depends on compliance with legal rules, not an
affidavit).
4 The separate concurrence questions the connection between
the Utah Code’s “[d]escribing the characteristics of those who
may legally marry” in Title 30, Chapter 1, and “defining and
(continued...)
No. 20030847 52
is essentially an anthropological description of human
relationships. To do so is to ignore the fact that the law of
our state and our nation has traditionally viewed marriage as
denoting a legal status as well as a private bond.3
¶138 I also do not believe that the legislature, having so
carefully structured the various prerequisites of marriage in
state law, as well as the rights, duties, and obligations that
state law accords married persons, would use the term “marry” in
section 76-7-101, alone among all statutory provisions, to mean
not only entry into a legally recognized marriage but also entry
into any relationship that is accepted as marriage in whatever
custom or tradition the parties consider applicable.4 Beyond

4 (...continued)
proscribing” bigamy in section 76-7-10. Supra ¶ 115. It also
contends that the language of section 30-1-2 recognizes certain
relationships as “marriages” even as it declares such “marriages”
prohibited and void. Supra ¶ 116. In my view, the purpose of
section 76-7-10 is to impose criminal penalties on those who
purport to enter a legal union that is in fact void under section
30-1-2(1). I understand the declaration in section 30-1-2, that
certain “marriages” are prohibited and void, to mean that any
attempt by those described to enter into a legal union in fact
results only in a purported marriage. The contrary reading
suggested in the concurrence simply leads to the perplexing
question, in what sense can the state legislature prohibit and
declare void a relationship that does not claim any legal status?
The majority attempts to bolster the logic of its position by
pointing to definitions of bigamy that refer to “marrying” one
person while being legally married to another. Supra ¶ 22 n.6.
The majority concludes that such definitions are “nonsensical if
the term ‘marry’ is considered limited to legally recognized
marriage.” Supra ¶ 22 n.6. In my view, the majority too easily
discounts the possibility that such definitions were simply
inartfully drafted. I suspect that our legislature in fact
recognized that such definitions made no logical sense, and this
is why section 76-7-101 criminalizes “purport[ing] to marry,”
rather than “marrying,” one person while legally married to
another. Significantly, this court has commonly used the phrase
“purported marriage” to mean a marriage that was represented as
legally valid by at least one party, but that in fact was void
under state law. See, e.g., Kent v. Kent, 497 P.2d 652, 653
(Utah 1972) (describing as a “purported marriage” the plaintiff’s
union with a man who was “unable to contract a valid marriage”
because he was married to someone else); Buck v. Buck, 427 P.2d
954, 955 (Utah 1967) (describing as a “purported marriage” a
“union” that was “legally invalid” because the man’s divorce was
not yet final); Thomas v. Children’s Aid Soc’y, 364 P.2d 1029,
1031 (Utah 1961) (describing as a “purported marriage” a marriage
that was “void ab initio” because one of the parties was already
married); Cecil v. Cecil, 356 P.2d 279, 280-81 (Utah 1960)
(describing as a “purported marriage” a marriage that was legally
invalid because one party was judged incompetent); Popp v. Roth,
338 P.2d 123, 124 (Utah 1959) (stating that a man who
“purportedly married” a woman when he was already married did not
“enter into a valid marriage”); In re Vetas’ Estate, 170 P.2d
183, 184 (Utah 1946) (describing as a “purported marriage” a
marriage that was not “solemnized as required by our statutes,”
and was thus void); Jenkins v. Jenkins, 153 P.2d 262, 263 (Utah
(continued...)
53 No. 20030847

4 (...continued)
1944) (describing as a “purported marriage” a marriage that was
void under the law because one party’s divorce was not final when
the marriage occurred); In re Waters’ Estate, 113 P.2d 1038, 1039
(Utah 1941) (describing as a “purported marriage” a marriage that
was void because one party’s prior divorce had not been valid);
Sharp v. Seventh Judicial Dist. Court, 17 P.2d 261, 262-63 (Utah
1932) (describing as a “purported marriage” a marriage that was
void under the law as it then existed because one party suffered
from epilepsy and syphilis).
5 Under Utah law, it is the intent to legally marry, not the
intent to enter into a personal relationship, that is significant
for purposes of section 30-1-4.5 (1997 & Supp. 2005). See In re
Marriage of Gonzalez, 2000 UT 28, ¶ 25, 1 P.3d 1074 (recognizing
that the one-year statute of limitations in section 30-1-4.5 is
meant to “protect parties who never meant to be statutorily
married from adjudications [of marriage] many years after their
relationship has ended” (emphasis added)); Beck v. Utah-Idaho
Sugar Co., 203 P. 647, 650 (Utah 1921) (distinguishing an
individual’s intent that women be his “plural wives” under LDS
Church doctrine from an intent that any of them be his “legal
wife”); Riddle, 72 P. at 1085 (holding that “the legal status of
marriage cannot arise” without a mutual agreement “to assume and
observe the legal obligations of that relation”).
No. 20030847 54
Merriam-Webster’s, the only authorities cited by the majority are
Utah’s unsolemnized marriage statute, Utah Code Ann. § 30-1-4.5
(1998 & Supp. 2005), and the “cohabits” prong of Utah Code
section 76-7-101. However, Utah Code section 30-1-4.5, which
provides an adjudicatory alternative to statutory licensing and
solemnization requirements, itself demonstrates that only legally
recognized, licensed marriages are marriages under Utah law; so-
called “common law marriages” have not been recognized in Utah
since statehood.5
¶139 As for the “cohabits” prong of section 76-7-101, the
majority fails to explain why the breadth of that provision
should conclusively determine our interpretation of the parallel
“purports to marry” prong. I perceive no justification for
judicial speculation that the legislature intended a uniquely
“expansive definition” of “marry” in section 76-7-101, see supra
¶ 22, especially given the legislature’s express statement to the
contrary in another Utah Code provision, section 30-1-4.1 (Supp.
2005). That provision explains that Utah “recognize[s] as
marriage only the legal union of a man and a woman as provided in
this chapter.” Utah Code Ann. § 30-1-4.1(1)(a); see also Utah
Const. art. I, § 29 (“Marriage consists only of the legal union

6 The majority refutes this argument by suggesting that this
language merely imposes “a limit [on] the types of marriages that
can be legally recognized in Utah,” rather than providing “a
definition of marriage.” Supra ¶ 39. The majority perceives a
distinction here based on its prior conclusion that “marriage” in
Utah law can include relationships not recognized as “marriage”
under Utah law. When this logic is distilled, it seems to me
rather circular.
55 No. 20030847
between a man and a woman.”). As a matter of simple grammatical
extrapolation, if only a “legal union of a man and a woman” is
“marriage,” then “purporting to marry,” must be purporting to
enter into such a legal union.6
¶140 The majority also refers to “the well-documented
history of this State’s attempts to prevent the formation of
polygamous unions” as evidence that section 76-7-101 was intended
to criminalize “attempts to form duplicative marital
relationships that are not legally recognized.” Supra ¶ 26.
This invocation of legislative history seems somewhat ironic in
light of this court’s recent refusal to consider the same history
in analyzing whether section 76-7-101 impermissibly targeted
religiously motivated practices. See State v. Green, 2004 UT 76,
¶¶ 24-25, 99 P.3d 820. Moreover, as far as I am aware, the
“well-documented history” to which the majority refers ended long
before 1973, when section 76-7-101 was originally enacted. State
v. Tuttle, 730 P.2d 630, 632 (Utah 1986) (recognizing that in
1973 our legislature “repealed wholesale all the prior
substantive criminal statutes . . . and enacted a sweeping new
penal code that departed sharply from the old common law
concepts”). The majority fails to explain how that history could
be relevant to our interpretation of section 76-7-101.
¶141 The majority adopts the position that “an unlicensed,
solemnized marriage can serve as a subsequent marriage that
violates the bigamy statute.” Supra ¶ 26. The majority then
concludes that Holm entered such a “solemnized marriage” with
Ruth Stubbs by participating in an FLDS ceremony in which (1) a
religious leader officiated, (2) “vows typical of a traditional
marriage ceremony” were exchanged, and (3) the woman wore a white
dress. Supra ¶ 30. This position conflates “solemnization” with
participation in a ritual of union specific to one’s customs or
religious beliefs.
¶142 The majority defines “solemnization” as “the steps,
whether ritualistic or not, by which two individuals commit
themselves to undertake a marital relationship.” Supra ¶ 32. A
more accurate conception of the term, however, recognizes

No. 20030847 56
“solemnization” as the formal undertaking, before witnesses, of
the legal obligations of marriage. See Maynard v. Hill, 125 U.S.
190, 210-11 (1888) (“[M]arriage . . . does not require any
religious ceremony for its solemnization . . . . [W]hen the
contract to marry is executed by the marriage’s [solemnization],
a relation between the parties is created which they cannot
change. Other contracts may be modified, restricted, or
enlarged, or entirely released upon the consent of the parties.
Not so with marriage. The relation once formed, the law steps in
and holds the parties to various obligations and liabilities.”);
accord Hernandez v. Robles, 794 N.Y.S.2d 579, 588 (Sup. Ct.
2005); cf. Black’s Law Dictionary (8th ed. 2004) (defining
solemnization as “[t]he performance of a formal ceremony (such as
a marriage ceremony) before witnesses”). The parties’ intent to
assume these legal obligations is what distinguishes a ceremony
properly considered a “solemnization” from one that is merely a
private religious ritual.
¶143 Had Holm and Ruth Stubbs intended to marry under state
law and to assume the concomitant legal obligations, a sealing
ceremony of the type in which they participated would satisfy the
state’s solemnization requirement, assuming that all other
requirements, such as licensure, were met. See Utah Code Ann.
§ 30-1-6 (Supp. 2004); cf. Hilton v. Roylance, 69 P. 660, 670
(Utah 1902) (holding that a sealing ceremony performed by an LDS
Church official in 1872 effected a marriage cognizable at common
law). This fact indicates an accommodation by state law of the
personal preferences of individuals regarding the context in
which marriage solemnization occurs. Members of a particular
religion may combine solemnization with the ritual of union
traditionally practiced within their faith. Thus, under the
relevant Utah Code section, marriages may be solemnized by
“ministers, rabbis, or priests of any religious denomination who
are (i) in regular communion with any religious society; and
(ii) 18 years of age or older,” Utah Code Ann. § 30-1-6(1)(a), as
well as by “Native American spiritual advisors.” Id. § 30-1-
6(1)(b).
¶144 It does not follow, however, that every ceremony
performed by one of these individuals, who are not public
officials, that is designed to unite two individuals in some way
meaningful within a particular religion constitutes
“solemnization” whenever it is “indistinguishable from a
[typical] marriage ceremony.” Supra ¶ 30. The majority’s
interpretation will subject religious leaders to criminal
sanction for performing religious ceremonies that are not
intended by anyone involved to have significance beyond the
community in which they occur. See Utah Code Ann. § 30-1-15
(imposing criminal penalties on the solemnization of marriages

7 The General Accounting Office estimates that there are
1,138 federal statutory provisions “in which benefits, rights,
(continued...)
57 No. 20030847
prohibited by state law). For example, a minister officiating in
a commitment ceremony involving a same-sex couple may now be held
in violation of section 30-1-15(2) (though perhaps only if at
least one partner is wearing a white dress). Such a result turns
the purpose of Utah Code section 30-1-6 on its head. Cf. In re
Estate of Litzky, 296 So. 2d 638, 639 (Fla. Dist. Ct. App. 1974)
(recognizing that the union of a couple for whom an Orthodox
Jewish rabbi had performed a religious ceremony was equivalent to
a common law marriage, which involves no solemnization, where no
marriage license had been obtained).
¶145 The majority claims that “[t]he crux of marriage in our
society, perhaps especially a religious marriage, is not so much
the license as the solemnization,” and that “[t]he presence or
absence of a state license does not alter th[e] [marital] bond or
the gravity of the commitments made by Holm and Stubbs.” Supra
¶ 32. It is apparent that the majority wishes to emphasize the
importance of the private commitment between two partners who
pledge to each other lifelong love, companionship, and support.
The majority also alludes to the sanctification such a commitment
receives when the partners participate in a religious ceremony in
accord with their faith. Undoubtedly, a couple may feel it is
their commitment before God that gives their relationship its
legitimacy or permanence. However, it is beyond dispute that
such private commitments alone, even when made before God, do not
constitute “marriage” in our state or in our legal system. 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. Likewise, such commitments are not
enforceable under state law unless additional steps are taken to
set forth mutual obligations in a written contract. Rather,
despite the majority’s assertion, a state license does indeed
alter the bond between two people, and the gravity of their
commitments, by making the state a third party to the
relationship. See Palmer v. Palmer, 72 P. 3, 7-8 (Utah 1903)
(recognizing that “[m]arriage differs from ordinary contracts” in
that “the State, to every marriage contract entered into within
its jurisdiction, makes itself a party” (internal quotation
omitted)). When a marriage occurs, no separate contract is
needed in order for marital rights and duties to be enforceable;
rather, the parties’ private commitments are overlaid by a
comprehensive legal framework set forth, in part, in a state’s
statutory law.7

7 (...continued)
and privileges are contingent on marital status” in areas
including taxation, social security, housing and food stamp
programs, immigration, and employment benefits. U.S. Gen.
Accounting Office, Report No. GAO-04-353R, Defense of Marriage
Act: Update to Prior Report 1 (2004), available at
http://www.gao.gov; U.S. Gen. Accounting Office, Report No. OGC-
97-16, Defense of Marriage Act 1-3 (1997), available at
http://www.gao.gov. Areas of state law in which marital status
is a factor include, for example, insurance coverage, Utah Code
Ann. §§ 31A-22-305, -307 (2005), employment benefits, id. §§ 34A-
2-403 (2005), 49-13-405 (2002 & Supp. 2005), real estate
conveyances, id. § 57-1-5 (2000 & Supp. 2005), inheritance, id.
§ 75-2-102 (1993 & Supp. 2005), and wrongful death recovery, id.
§§ 78-11-6.5, -7 (2002 & Supp. 2005).
No. 20030847 58
¶146 The majority points to the fact that Holm and Stubbs
referred to themselves as “married” in a religious sense as
further evidence that they “purport[ed] to marry” within the
meaning of section 76-7-101. However, the law has no monopoly on
particular language. In my view, those who choose, for religious
or other personal reasons, to refer to themselves as “married,”
even though they know the law does not so regard them, are free
to do so within their private sphere and cannot by that act alone
fall subject to criminal penalties. Imposing criminal penalties
on such a basis is equivalent to disciplining an individual who
goes by the name of “Doctor W,” but who is not, in fact, a
licensed physician, for violation of state licensing requirements
even though he has never professed to be a legally licensed
doctor or to have the medical expertise which that status is
designed to ensure.
¶147 I therefore interpret the “purports to marry” prong of
section 76-7-101 as referring to an individual’s claim of entry
into a legal union recognized by the state as marriage. The
phrase does not encompass an individual’s entry into a religious
union where there has been no attempt to elicit the state’s
recognition of marital status or to procure the attendant
benefits of this status under the law, and where neither party to
the union believed it to have legal import. I therefore believe
it was error for the district court to submit to the jury the
question of Holm’s guilt under that prong of section 76-7-101.
¶148 I next address the majority’s treatment of Holm’s state
and federal constitutional claims and explain why I consider
Holm’s conviction for engaging in private religiously motivated

8 Were I writing the court’s opinion, having concluded that
Holm’s conviction under the “purports to marry” prong was
incorrect as a matter of statutory interpretation, my further
analysis would be limited to the constitutionality of the
alternative “cohabits” prong. However, unless specifically
indicated, the analysis below is addressed equally to Holm’s
conviction under the “cohabits” prong and the “purports to marry”
prong, as the latter has been interpreted by the majority to
apply to private religiously motivated conduct.
59 No. 20030847
conduct unconstitutional.8
II. STATE CONSTITUTIONAL CLAIMS
A. Interpretation of Article III, Section 1
¶149 The majority’s conflation of private relationships with
legal unions is also problematic in its analysis of Holm’s claim
that his bigamy conviction violates the guarantees of individual
rights protected by article I of the Utah Constitution. The
majority dismisses Holm’s claim on the basis that the Utah
Constitution “offers no protection to polygamous behavior and, in
fact, shows antipathy towards it by expressly prohibiting such
behavior” in article III, section 1. Supra ¶ 36 (emphasis
added). However, that provision declares that “polygamous or
plural marriages are forever prohibited.” Utah Const. art. III,
§ 1 (emphasis added). Here, as elsewhere in Utah law, I
understand the term “marriage” to refer only to a “legal union.”
See, e.g., Utah Const. art. I, § 29(1) (“Marriage consists only
of a legal union between a man and a woman.”). Understood in
this way, article III, section 1, by its plain language, does not
prohibit private individual behavior but instead prevents Utah’s
state government, to whom the ordinance is addressed, from
recognizing a particular form of union as a “marriage.”
¶150 The majority concludes that article III, section 1 is a
restriction on individual rights rather than on state government.
It justifies this conclusion primarily by reference to the
proceedings of Utah’s 1895 constitutional convention, which
reflect the drafters’ concern with following the federal
requirements set forth in the Utah Enabling Act, ch. 138, 28
Stat. 107 (1894). Specifically, the majority emphasizes some
delegates’ concern that the federal government intended, through
the Enabling Act, not only to prevent Utah from recognizing
polygamous unions as valid marriages, but also to require that
the state impose criminal penalties on polygamy. However, the
majority’s own analysis makes it clear that the drafters did not
address this concern by revising article III, section 1; rather,

9 I acknowledge that, at that time, there may have been
little distinction between the two. Because common law marriage
was recognized in Utah until 1898, 29 Utah Rev. Stat. ch. 1,
§ 1189 (1898), the entry into a polygamous union could be taken
as the purported entry into the legal status of marriage. See
Reynolds v. United States, 98 U.S. 145, 161 (1878) (affirming a
conviction for bigamy based upon the defendant’s participation in
a religious ceremony); Hilton v. Roylance, 69 P. 660, 670 (Utah
1902) (holding that participation in a religious ceremony was
sufficient to establish a marriage cognizable at common law).
There was no argument in Reynolds that the defendant did not
intend his polygamous union to have legal effect; to the
contrary, he argued that polygamous unions were entitled to legal
effect under the First Amendment’s Free Exercise Clause. See
Reynolds, 98 U.S. at 161-62; Sarah Barringer Gordon, The Mormon
Question: Polygamy and Constitutional Conflict in Nineteenth
Century America 119-45 (2002) [hereinafter Gordon, The Mormon
Question] (discussing Reynolds). Moreover, as discussed below,
it was against the backdrop of such unions receiving legal
recognition in the territory under the control of the LDS Church
that the Morrill Act criminalized polygamous marriage.
10 Both the majority and the concurrence assume that the
framers of our constitution had an intent identical to that of
Congress in regard to the purpose and meaning of the ordinance
provision. Congress’s intent, however, may be beside the point.
As the majority acknowledges, the intent of the framers in
complying with this mandate was to gain statehood. Taking that
(continued...)
No. 20030847 60
they simply reaffirmed the validity of a territorial statute.
See Utah Const. art. XXIV, § 2 (declaring in force an 1892 law
“in so far as the same defines and imposes penalties for
polygamy”). Moreover, that statute criminalized only polygamous
marriage, not polygamous behavior.9 1892 Utah Laws ch. VII, § 1,
at 5-6 (defining “polygamy” as “ha[ving] a husband or wife
living” and “marr[ying] another,” or as “marr[ying] more than one
woman” on the same day). The majority reasons that because the
drafters thought it necessary to affirm the criminalization of
polygamous marriage in article XXIV, they must therefore have
intended the reference to polygamous marriage in article III,
section 1 to place all private polygamous relationships outside
constitutional protection.
¶151 My review of the history of Utah’s statehood leads me
to conclude otherwise, and further bolsters my understanding of
the term “marriage” in article III, section 1. I read both the
Enabling Act and the ordinance provisions, to the extent the
latter can be identified with the former,10 as carrying forward a

10 (...continued)
fact into account leads me to view the framers’ inclusion of the
polygamy provision in our constitution, and their discussion
self-consciously preserved in the Proceedings, as to some extent
a command performance, with Congress and the rest of the country
as the intended audience. The Proceedings excerpts quoted by the
majority must be understood with that immediate concern in mind,
and what they reveal about how the framers believed the provision
would operate after Utah became a state deserves more careful
consideration.
11 The law provided that, “as said church holds the
constitutional and original right, in common with all civil and
religious communities, ‘to worship God according to the dictates
of conscience;’ . . . [the LDS Church may] solemnize marriage
compatible with the revelations of Jesus Christ,” and granted the
church “the power and authority” to make laws relating to
marriage as long as these laws were based on doctrines that
“support virtue, and increase morality, and are not inconsistent
with, or repugnant to, the Constitution of the United States, or
of this State, and are founded in the revelations of the Lord.”
An Ordinance, Incorporating the Church of Jesus Christ of Latter-
day Saints § 3 (passed Feb. 4, 1851), reprinted in Dale L.
Morgan, The State of Deseret 186 (1987); see also Morgan, supra,
at 61 (concluding that “the concept of polygamy, not yet avowed
by the church, seems [in this law to have been] considered”).
61 No. 20030847
restriction that Congress had placed on Utah’s territorial
government beginning with the Morrill Act, 12 Stat. 501 (1862).
That statute provided that “‘all . . . acts and parts of acts
heretofore passed by the said legislative assembly of the
Territory of Utah, which establish, support, maintain, shield or
countenance polygamy, be, and the same hereby are, disapproved
and annulled.’” Cope v. Cope, 137 U.S. 682, 686 (1891) (quoting
Morrill Act, ch. 126, § 2, 12 Stat. 501); see In re Handley, 24
P. 673, 674-75 (Utah 1890) (citing Morrill Act). Among the
“acts” to which the Morrill Act referred was undoubtedly the law
incorporating the LDS Church, passed in 1851 by the Provisional
State Government of the proposed State of Deseret. This law had
granted the LDS Church full authority to conduct marriages of its
members in accord with Church doctrine.11 When Deseret’s 1850
petition for statehood was denied and a territorial government
was established instead, the territorial legislature revalidated
the laws enacted by the provisional government. Dale L. Morgan,
The State of Deseret 88 (1987) (citing 1852 Utah Laws 222, an
October 4, 1851 joint resolution of the territorial legislature).
Thus, after 1852, when the Church publicly recognized the
doctrine of plural marriage, ceremonies of plural union performed
according to Church practice were legally valid marriages under

12 I am aware that a plurality of this court in In re
Interest of Black, 283 P.2d 887 (Utah 1955) (plurality opinion),
interpreted the Ordinance provision differently. Id. at 905
(stating that through this provision, “the framers of our
Constitution wished to make clear that polygamy was not included
within an approved mode of religious worship” and that
restrictions on the practice of polygamy could not implicate
article I’s religious freedom guarantees). However, the
plurality’s observation, made in dicta, does not constitute
precedent binding on this court, and its opinion makes no mention
of the history I have just described. I am convinced, based on
my own study of this issue, that the plurality’s interpretation
is incorrect.
No. 20030847 62
territorial law until the Morrill Act declared otherwise. This
history demonstrates that the legal status of polygamous unions
was a matter of concern. Accordingly, the language prohibiting
plural or polygamous “marriage” in the Enabling Act and Ordinance
provisions was likely intended to preclude the reenactment of
laws granting polygamous unions legal recognition once Utah
achieved statehood.12
¶152 The above discussion illustrates that when the term
“marriage” in the Ordinance provision is understood, as I believe
it must be, as denoting a legal status, the meaning of the
provision is plain and in accord with territorial history. It
could then be argued that the provision establishes that, as a
matter of constitutional law, the state’s refusal to recognize
polygamous unions as legal marriages may not be construed as
discriminatory treatment of those who engage in such unions as a
matter of religious practice. However, this case does not
present that issue since, as discussed above, Holm has made no
claim to legal recognition.
¶153 Additional history, far from demonstrating the
drafters’ intent to exclude particular private behavior from
access to constitutional protections, raises the possibility that
the drafters anticipated some relief from governmental
interference for those relationships already in existence. In
addition to the provision criminalizing polygamous marriage,
quoted above, the 1892 Act contained a separate provision
criminalizing unlawful cohabitation, which it defined as “any
male person . . . cohabit[ing] with more than one woman.” Id.
§ 2, 1892 Utah Laws at 6. Yet, the unlawful cohabitation
provision, unlike the polygamy provision, was not specifically
mentioned in article XXIV, section 2. The unlawful cohabitation
provision was therefore subject to the general statement in
article XXIV, section 2 that “[a]ll laws of the Territory of Utah
now in force, not repugnant to this Constitution, shall remain in

13 The “cohabits” prong of the current criminal bigamy
statute, Utah Code section 76-7-101(1), extends the definition of
polygamy beyond that contained in the 1892 Act by incorporating,
to a certain extent, the 1892 concept of unlawful cohabitation.
Whereas under the 1892 Act a person would be guilty of polygamy
only if he purported to marry two individuals at once, under
section 76-7-101(1) a person is guilty of bigamy if he cohabits
with one individual while married to another. See Utah Code Ann.
§ 76-7-101(1). Thus, even if article XXIV, section 2 were
interpreted as imposing a constitutional requirement that
polygamy, as defined in the 1892 Act, be criminalized, such a
conclusion would have no bearing on the constitutionality of the
“cohabits” prong of the current criminal bigamy statute.
63 No. 20030847
force until they expire by their own limitations, or are altered
or repealed by the Legislature.” Utah Const. art. XXIV, § 2
(emphasis added). Accordingly, that provision would remain valid
only if the state courts did not deem it unconstitutional, and
only as long as the legislature kept it in effect. It is not
inconceivable that the drafters, while conceding that polygamous
unions could never receive legal recognition, believed that
private polygamous practice, including cohabitation with former
“wives” and their children, might continue.13
¶154 I therefore conclude that neither article III, section
1 nor article XXIV, section 2 categorically excludes private
polygamous conduct from any possibility of protection under
article I. I thus disagree that the court can so easily avoid
the constitutional challenges Holm raises. My further discussion
of Holm’s state constitutional claims is limited to whether, in
my view, his bigamy conviction violates our constitution’s
religious freedom guarantees. Because I conclude that it does, I
need not consider additional state constitutional arguments.
B. Religious Freedom Claim
¶155 Holm essentially argues that the State may not subject
him to a criminal penalty under a generally applicable criminal
law for his religiously motivated practice of polygamy because
imposing that penalty is inconsistent with our constitution’s
protection of religious freedom. The State does not dispute the
sincerity of Holm’s religious motivation, and given Holm’s
established membership in the FLDS community, there appears to be
no reason to doubt Holm’s assertion that polygamy is a central
tenet of his religion. Resolution of this issue therefore turns
on the interpretation of the religious freedom guarantees found
in the Utah Constitution.
¶156 As an initial matter, I accept the premise that our

No. 20030847 64
state constitution’s guarantee of religious freedom encompasses
religiously motivated conduct as well as belief. See, e.g., Utah
Const. art. I, § 1 (recognizing right “to worship”); id. art. I,
§ 4 (guaranteeing “free exercise” of religion); see also Michael
W. McConnell, The Origins and Historical Understanding of Free
Exercise of Religion, 103 Harv. L. Rev. 1409, 1459-60 (1990)
[hereinafter McConnell, Origins] (concluding that the terms
“exercise” and “worship” in late eighteenth century state
constitutions both denoted conduct, though the term “worship” is
usually limited to ritual or ceremonial acts). Thus, Holm’s
conduct--cohabiting with Ruth Stubbs after participating in a
religious ceremony with her while legally married to another
woman--qualifies as religious “exercise” within the meaning of
article I, section 4.
¶157 The question remains whether, and under what
circumstances, our constitution requires an exemption from
generally applicable criminal laws. This court held in State v.
Green, 2004 UT 76, ¶ 37, 99 P.3d 820,that no such exemption was
required under the federal constitution’s Free Exercise Clause.
However, as the majority states, “We have never determined
whether the free exercise clause of article I, section 4 [and the
other related clauses] of the Utah Constitution provide[]
protection over and above that provided by the First Amendment to
the United States Constitution.” Jeffs v. Stubbs, 970 P.2d 1234,
1249 (Utah 1998). I believe that governmental burdens on
religiously motivated conduct should be subject to heightened
scrutiny, a proposition that a number of my colleagues, past and
present, have also previously endorsed. See Green, 2004 UT 76,
¶ 70, (Durrant, J., concurring); see also Wood v. Univ. of Utah
Med. Ctr., 2002 UT 134, ¶ 43 n.1, 67 P.3d 436 (Durham, C.J.,
dissenting) (recognizing that this court employed heightened
scrutiny when conducting an article I, section 4 analysis in
Soc’y of Separationists v. Whitehead, 870 P.2d 916 (Utah 1993)).
¶158 In reaching the conclusion that the framers of our
state constitution intended such an analysis, I look first to the
United States Supreme Court’s decision in Reynolds v. United
States, 98 U.S. 145 (1879). In light of the fact that Reynolds
was issued in 1879, seventeen years before the 1896 ratification
of our state constitution, and the fact that the underlying
controversy in Reynolds originated in the Utah territory, it
would be disingenuous to assert that the Court’s interpretation
of free exercise in Reynolds did not inform the understanding of
the framers when they inserted an identically phrased clause in
article I, section 4 of the Utah Constitution. The Court has
subsequently interpreted Reynolds as “reject[ing] the claim that
criminal laws against polygamy could not be constitutionally
applied to those whose religion commanded the practice.”
Employment Div. v. Smith, 494 U.S. 872, 879 (1990). However, I

65 No. 20030847
disagree that Reynolds’ reasoning entirely foreclosed religion-
based exemptions from criminal laws.
¶159 The Reynolds Court framed the issue under consideration
as follows: “whether religious belief can be accepted as a
justification of an overt act made criminal by the law of the
land.” 98 U.S. at 162. In analyzing this issue, the Court
relied on Thomas Jefferson’s formulations “almost as an
authoritative declaration of the scope and effect” of the Free
Exercise Clause. Id. at 164. The Court first quoted the 1786
Virginia Bill for Establishing Religious Freedom, drafted by
Jefferson, indicating that religious freedom extends only until
“principles break out into overt acts against peace and good
order.” Id. at 163 (internal quotation omitted). It then quoted
Jefferson’s 1802 letter to the Danbury Baptist Association, in
which he stated that man “has no natural right in opposition to
his social duties.” Id. at 164 (internal quotation omitted).
Summarizing these statements, the Court concluded that Congress
was free, consistent with the Free Exercise Clause, “to reach
actions which were in violation of social duties or subversive of
good order.” Id.
¶160 The Court then analyzed whether the practice of
polygamy or polygamous marriage was in violation of social duties
or subversive of good order. It determined that polygamy was
indeed an “offence against society,” and that punishing polygamy
was therefore within Congress’s legislative power. Id. at 165-
66. Finally, reaching the question of religion-based exemption,
the Court concluded that the practice of polygamy could be
punished even when the practice was motivated by religious
belief. Id. at 166-67. The Court observed that allowing
individuals to excuse such conduct, which it compared to human
sacrifice or self-immolation, because of religious motivation
would effectively “permit every citizen to become a law unto
himself.” Id.
¶161 The essential feature of the Reynolds Court’s analysis
was its conclusion that the practice of polygamy fell within the
category of conduct “in violation of social duties or subversive
of good order.” Id. at 164. In the Reynolds Court’s view,
polygamy was an “odious” practice that threatened to infect the
surrounding society with notions of patriarchal despotism,
undermining the democratic principles on which our governmental
structure was founded. Id. at 164, 166. Clearly, the purpose of
criminalizing polygamy, according to Reynolds, was to protect
society and the state from such harm. Allowing individuals to
engage in polygamy for religious reasons would have thus
permitted them to inflict the very harm the statute was designed
to prevent. The same is true in the two other examples given in
Reynolds: (1) exempting someone engaged in religiously motivated

14 See, e.g., Ga. Const. of 1777, art. LVI (guaranteeing
free exercise of religion “provided it be not repugnant to the
peace and safety of the State”); Mass. Const. of 1780, art. II
(providing that “no subject shall be hurt, molested, or
restrained, in his person, liberty, or estate, for worshiping God
in the manner and season most agreeable to the dictates of his
own conscience . . . , provided he doth not disturb the public
peace or obstruct others in their religious worship”); Md.
Declaration of Rights of 1776, art. XXXIII (proclaiming that “no
person ought by any law to be molested in his person or estate
. . . for his religious practice; unless, under colour of
religion, any man shall disturb the good order, peace or safety
of the State, or shall infringe the laws of morality, or injure
others, in their natural, civil, or religious rights”); N.H.
Const. of 1784, pt. I, art. V (guaranteeing freedom to worship as
long as such worship “doth not disturb the public peace, or
disturb others”); N.Y. Const. of 1777, art. XXXVIII (providing
that its liberty of conscience protection “shall not be so
construed as to excuse acts of licentiousness, or justify
practices inconsistent with the peace or safety of this State”);
R.I. Charter of 1663 (providing that all persons may enjoy
freedom of religious conscience, “they behaving themselves
peaceblie and quietlie, and not useing this libertie to
lycentiousnesse and profaneness, nor to the civill injurye or
outward disturbeance of others”); S.C. Const. of 1790, art. VIII,
§ 1 (containing same language as New York Constitution of 1777),
all quoted in McConnell, Origins, supra ¶ 156, at 1456-57 &
n.242.
No. 20030847 66
human sacrifice from a criminal law against murder would allow
that person to kill another; and (2) exempting someone wishing to
burn herself on her husband’s funeral pyre from a criminal law
against suicide would allow that person to kill herself. Id. at
165-66.
¶162 Understood in this way, Reynolds is consistent with
those early state constitutions that, by their express terms,
guaranteed free exercise of religion to the extent such exercise
was consistent with public peace and order.14 Indeed, when
discussing its Reynolds decision in Davis v. Beason, 133 U.S. 333
(1890), the Court explicitly referred to such state
constitutional provisions. Id. at 348 Note (noting that several
state constitutions “have declared expressly that [religious]
freedom shall not be construed to excuse acts of licentiousness,
or to justify practices inconsistent with the peace and safety of
the State”). Those who have studied these provisions are divided
over whether their drafters contemplated a case-by-case
examination in the courts of the particular conduct being
criminalized, or whether the violation of any law was per se

67 No. 20030847
considered a breach of the peace. Compare McConnell, Origins,
supra ¶ 156, at 1462 (construing these clauses to “exempt
religiously motivated conduct from [generally applicable] laws up
to the point that such conduct breached public peace or safety”),
with Philip A. Hamburger, A Constitutional Right of Religious
Exemption: An Historical Perspective, 60 Geo. Wash. L. Rev.
915, 918 (1992) (indicating that the phrase “contra pacem,” or
breach of the peace, was understood in the eighteenth century to
mean any criminal violation of law). Under either view, it seems
clear that there is some conduct that a state may refuse to
permit, regardless of its motivation.
¶163 I agree that the religious freedom provisions in our
state constitution were not intended to exempt religious
practitioners from criminal punishment for acts that cause injury
or harm to society at large or to other individuals. Moreover, I
recognize that by defining conduct as criminal, our legislature
has signaled its judgment that this conduct generally does harm
society or individuals to a degree that warrants criminal
punishment. See 1 Charles E. Torcia, Wharton’s Criminal Law § 7
(15th ed. 1993) (distinguishing crime, which is “a public wrong
since it implies injury to the state,” from tort, which is a
“private wrong since it involves injury to an individual”);
Laurence H. Tribe, American Constitutional Law § 14-13, at 1270
(2d ed. 1988) [hereinafter Tribe, American Constitutional Law]
(predicting that, “[b]eyond . . . paternalistic laws, . . . [free
exercise] exemptions from criminal laws will be rare”). In “our
role as the state’s court of last resort, called upon to identify
the boundaries of the constitution, [we must] giv[e] appropriate
deference to the policy choices of the citizens’ elected
representatives.” Judd ex rel. Montgomery v. Drezga, 2004 UT 91,
¶ 22, 103 P.3d 135.
¶164 That this is generally true does not, however,
foreclose close scrutiny of the circumstances of a particular
case in order to determine whether a prosecution for conduct
statutorily defined as criminal is truly directed against the
harm the statute was intended to prevent, where the conduct in
the particular case is religiously motivated. The “right to the
free exercise of religion [is] a concept upon which our country
was founded and a protection deeply ingrained in the hearts and
minds of American citizens.” Green, 2004 UT 76, ¶ 70 (Durrant,
J., concurring). This court has recognized that this is
particularly true for citizens of our state. Soc’y of
Separationists, 870 P.2d at 935. I believe our constitution
expresses this fundamental interest in protecting religious
freedom. Given the fundamental nature of the constitutional
interest involved and the undeniable burden that criminal
penalties impose, heightened scrutiny is warranted. Cf. Gallivan
v. Walker, 2002 UT 89, ¶ 40, 54 P.3d 1069 (recognizing that a

15 See Garrett Epps, What We Talk About When We Talk About
Free Exercise, 30 Ariz. St. L.J. 563, 600 (1998) (“Oregon’s
categorical prohibition on peyote use . . . was not inspired by a
finding that peyote, like intentional killing, was evil in and of
itself, but instead by the judgment that permitting its ritual
use would encourage drug abuse, intoxication, negative health
effects, and illegal trafficking in drugs. These legislative
determinations are not necessarily absurd or unreasonable; but
they are subject to empirical refutation in a way that
‘intentional killing is bad’ is not.”).
16 __ U.S. __, Gonzales v. O Centro Espirita Beneficiente
Uniao Do Vegetal, 126 S. Ct. 1211, 1224 (2006) (recognizing in a
preliminary injunction analysis of an RFRA statutory claim that
the government had failed to show that its interest in protecting
public health and safety was served by applying a law
criminalizing use of hoasca, a hallucinogenic controlled
substance, to those who use the drug in religious ceremonies);
Frank v. State, 604 P.2d 1068, 1073-74 (Alaska 1979) (exempting
(continued...)
No. 20030847 68
“heightened degree of scrutiny” is required in a uniform-
operation-of-laws analysis where a fundamental right is
implicated).
¶165 Moreover, I am cognizant of the fact that the body of
criminal law has expanded over time as the state has generally
expanded its reach into many areas that before went unregulated.
Criminal statutes today punish conduct not only where the
targeted conduct is harmful in itself, such as laws criminalizing
murder, but also where the targeted conduct is closely tied to
other harmful activity. Given this fact, there may be
circumstances where religiously motivated conduct will not
implicate the same state interests that are legitimately served
by prosecuting those whose conduct was without similar
motivation, simply because of the nature of the religious
practice at issue. For example, the religiously motivated use of
drugs defined as controlled substances may in some cases be so
far removed from the context within which illegal drug use
typically occurs that applying the controlled substances law to
the religiously motivated use simply does not serve the
government’s legitimate interest in criminalizing drug use--which
involves not only protecting people from the harmful physical
effects of such substances, but also eliminating the harms that
accompany the drug trafficking industry.15 Thus, the few
instances in which courts have indicated that a generally
applicable criminal law may not apply to a religiously motivated
actor have done so on the basis that the religiously motivated
conduct at issue did not create a genuine risk of harm.16

16 (...continued)
the defendant under federal and state religious freedom
guarantees from criminal prosecution for unlawful transportation
of a moose outside hunting season because there was no evidence
that the taking of the moose for ritual use in funeral potlatches
would harm the moose population or cause “general lawlessness”
among Alaskan citizens); State v. Whittingham, 504 P.2d 950, 952-
53 (Ariz. Ct. App. 1973) (holding that the state could not,
consistent with the Free Exercise Clause, prosecute those engaged
in the religious use of peyote where such use did not cause “a
substantial threat to public safety, order or peace”); People v.
Woody, 394 P.2d 813, 818 (Cal. 1964) (explaining, when granting a
Free Exercise Clause exemption from criminal prosecution to
Native Americans’ religious use of peyote, that “[t]he record
. . . does not support the state’s chronicle of harmful
consequences of the use of peyote”); State v. Miller, 549 N.W.2d
235, 242 (Wis. 1996) (exempting Amish, under the religious
freedom guarantee of its state constitution, from forfeiture
pursuant to a traffic law requiring a slow-moving vehicle emblem
because there was no evidence that Amish horse-drawn buggies
without the emblem had caused any collisions).
17 Most of our sister states that have previously recognized
that exemptions from generally applicable laws may at times be
required under their state religious freedom provisions have
followed the Supreme Court’s pre-Smith compelling interest
analysis. See, e.g., Miller, 549 N.W.2d at 241 (“‘[W]hile the
terms “compelling state interest” and “least restrictive
alternative” are creatures of federal doctrine, concepts embodied
therein can provide guidance as we seek to strike a balance under
the [state] Constitution between freedom of conscience and the
state’s public safety interest.’” (second alteration in original)
(quoting State v. Hershberger, 462 N.W.2d 393, 398 (Minn. 1990));
see also Catholic Charities of Sacramento, Inc. v. Superior
Court, 85 P.3d 67, 91 (Cal. 2004) (holding that the petitioner’s
(continued...)
69 No. 20030847
Applying this principle, I conclude that in some rare
circumstances an individual must be exempted from the operation
of a criminal law where the religiously motivated conduct at
issue, while technically within the purview of the criminal
prohibition, does not threaten the harm that the law was intended
to prevent.
¶166 Applying heightened scrutiny, I conclude that imposing
criminal penalties on Holm’s religiously motivated entry into a
religious union with Ruth Stubbs is an unconstitutional burden
under our constitution’s religious freedom protections. This is
so whether typical strict scrutiny is applied,17 or the standard

17 (...continued)
claim would not survive the compelling interest test without
deciding whether its state constitution required that test “or an
as-yet unidentified rule that more precisely reflects the
language and history of the California Constitution and our own
understanding of its import”); Rupert v. City of Portland, 605
A.2d 63, 65-66 & n.3 (Me. 1992) (denying claim under compelling
interest test and thus not deciding what the state constitution
required); Hunt v. Hunt, 648 A.2d 843, 853 (Vt. 1994) (holding
that its state constitution “protects religious liberty to the
same extent [as] the Religious Freedom Restoration Act,” which
requires application of the compelling interest test).
18 See Frederick Mark Gedicks, The Normalized Free Exercise
Clause: Three Abnormalities, 75 Ind. L.J. 77, 84-93 (2000);
Frederick Mark Gedicks, An Unfirm Foundation: The Regrettable
Indefensibility of Religious Exemptions, 20 U. Ark. Little Rock
L.J. 555, 572-73 (1998); Michael W. McConnell, Free Exercise
Revisionism and the Smith Decision, 57 U. Chi. L. Rev. 1109,
1138-39 (1990); Kathleen M. Sullivan, Religion and Liberal
Democracy, 59 U. Chi. L. Rev. 195, 214 (1992); see also Larson v.
Cooper, 90 P.3d 125, 132 (Alaska 2004) (recognizing that the
compelling interest test fails to “explain[] exactly what degree
of fit is required between the [governmental] interest and the
means used to achieve it” and adopting a test that is in effect
similar to the O’Brien test).
19 Holm does not claim that his religious beliefs require
that he enter into religious unions with girls under the age of
eighteen. As discussed below, I am troubled by the notion that
section 76-7-101, which is not explicitly aimed at conduct
affecting minors, can be legitimately defended as a necessary
tool to combat such conduct. While the age of Ruth Stubbs may
have been a relevant factor in the State’s decision to bring
charges against Holm, it was not a relevant factor in the
determination of whether the elements of the crime of bigamy
(continued...)
No. 20030847 70
set forth in United States v. O’Brien, 391 U.S. 367, 381-82
(1968) (determining whether a general law may be applied to
expressive conduct consistent with the Free Speech Clause), which
some have suggested provides a more suitable framework for free
exercise analysis.18 Under either test, the burden on the
religious conduct at issue must be necessary to serve a strong
governmental interest unrelated to the suppression of religious
freedom. I do not believe that any of the strong state interests
normally served by the Utah bigamy law require that the law apply
to the religiously motivated conduct at issue here--entering a
religious union with more than one woman.19

19 (...continued)
under section 76-7-101 were satisfied.
20 See Gordon, The Mormon Question, supra n.9, at 142
(stating that “prejudice against Mormons and their alternative
faith played a role in the [Reynolds] decision”); Tribe, American
Constitutional Law, supra ¶ 163, § 14-13, at 1271 (stating that
the Reynolds decision “illustrate[s] how amorphous goals may
serve to mask religious persecution”); David R. Down & Jose I.
Maldonado, Jr., How Many Spouses Does the Constitution Allow One
to Have?, 20 Const. Commentary 571, 576 (2003-04) (reviewing
Gordon, The Mormon Question and (observing that the Reynolds
opinion “teems with hostility toward Mormonism”); see also Maura
Strassberg, The Crime of Polygamy, 12 Temp. Pol. & Civ. Rts. L.
Rev. 353, 406 (2003) (stating that, while the “perceived social
danger may have justified the criminalization of polygamy during
the nineteenth and early twentieth centuries, . . .
fundamentalist polygyny does not today pose the same kind of
large-scale threat to federal and now state sovereignty over
significant areas of the West”). I note that anti-Catholic bias
was also prevalent during this period, and an 1880s best-seller
listed “Catholicism” ahead of “Mormonism” as one of the “seven
perils facing the nation.” See John C. Jeffries, Jr. & James E.
Ryan, A Political History of the Establishment Clause, 100 Mich.
L. Rev. 279, 302-03 (2001) (explaining that Catholicism was
considered “inimical to democracy” because of its “authoritarian”
church structure (internal quotation omitted)).
71 No. 20030847
¶167 I note at the outset that the State has not suggested
that section 76-7-101 furthers a governmental interest in
preserving democratic society. I agree that no such interest is
implicated here. As discussed above, the federal government’s
nineteenth century criminalization of polygamy in the Utah
Territory, as construed by the Reynolds Court, was intended to
address the harm to democratic society that LDS Church polygamy
was thought to embody. See Soc’y of Separationists, 870 P.2d at
924 (recognizing that the Morrill Act of 1862 was aimed
specifically at the LDS Church’s practice of polygamy in Utah);
Gordon, The Mormon Question, supra n.9, at 30-115 (describing the
nineteenth century development of the idea that the LDS Church’s
practice of polygamy threatened American democracy). However, I
do not presume that our modern criminal bigamy statute, enacted
in 1973, addresses the same fears--which have since been
discounted by many as grounded more in bias than in fact20--that
propelled Congress’ legislation a century earlier.
¶168 Indeed, this court previously set forth, in Green, a
list of state interests served by the modern statute that omits

21 I note that the bigamous cohabitation prongs in most
state bigamy laws appear to target this particular conduct. See
11 Am. Jur. 2d Bigamy § 2 (1997) (indicating that unlawful
“bigamous cohabitation” occurs “[i]n jurisdictions where
cohabitation within the state following a bigamous marriage is
made a crime” (emphasis added)).
No. 20030847 72
any reference to such a concern. There, we first explained that
the modern statute serves the state’s interest in “regulating
marriage” and in maintaining the “network of laws” that surrounds
the institution of marriage. Green, 2004 UT 76, ¶¶ 37-38. We
cited a Tenth Circuit case that described this network of laws as
“‘clearly establishing [Utah’s] compelling state interest in and
commitment to a system of domestic relations based exclusively
upon the practice of monogamy as opposed to plural marriage.’”
Id. ¶ 38 (quoting Potter v. Murray City, 760 F.2d 1065, 1070
(10th Cir. 1985)). Here, the State has emphasized its interest
in “protecting” monogamous marriage as a social institution. I
agree that the state has an important interest in regulating
marriage, but only insofar as marriage is understood as a legal
status. See Green, 2004 UT 76, ¶ 71 (Durrant, J., concurring)
(asserting that “the State has a compelling interest in
regulating and preserving the institution of marriage as that
institution has been defined by the State” (emphasis added)). In
my view, the criminal bigamy statute protects marriage, as a
legal union, by criminalizing the act of purporting to enter a
second legal union. Such an act defrauds the state and perhaps
an innocent spouse or purported partner. It also completely
disregards the network of laws that regulate entry into, and the
dissolution of, the legal status of marriage, and that limit to
one the number of partners with which an individual may enjoy
this status. The same harm is targeted by criminalizing the act
of cohabiting with a partner after purportedly entering a second
legal marriage with that partner.21
¶169 However, I do not believe the state’s interest extends
to those who enter a religious union with a second person but who
do not claim to be legally married. For one thing, the
cohabitation of unmarried couples, who live together “as if” they
are married in the sense that they share a household and a
sexually intimate relationship, is commonplace in contemporary
society. See, e.g., Utah Governor’s Comm’n on Marriage & Utah
State Univ. Extension, Marriage in Utah Study 35-36 (2003),
available at http://www.utahmarriage.org (indicating that of the
42% of Utah residents between the ages of 18 and 64 who were
unmarried, 30% to 46% were currently cohabiting outside of
marriage). Even outside the community of those who practice
polygamy for religious reasons, such cohabitation may occur where
one person is legally married to someone other than the person

22 When asked at oral argument whether anyone had recently
been prosecuted under the criminal adultery statute, the State
expressed uncertainty, but suggested that there may have been
some “attempts” to prosecute adultery. I have found two federal
district cases in which the adultery statute was claimed to be
relevant. See Oliverson v. West Valley City, 875 F. Supp. 1465,
1469 (D. Utah 1994) (considering the claim of a West Valley City
police officer who alleged his supervisor disciplined him based
in part on his having engaged in conduct that would violate
section 76-7-103); Roe v. Rampton, 394 F. Supp. 677, 689 (D. Utah
1975) (Ritter, D.J., dissenting) (suggesting that if the
plaintiff wife were forced to comply with the requirement that
she disclose an abortion to her husband, he would be able to
bring charges against her under section 76-7-103). However, I
have been unable to discover any prosecution under this
provision. The most recent adultery prosecution to have reached
this court appears to have occurred in 1928, under a previous
criminal provision. State v. Lewellyn, 266 P. 261, 262 (Utah
1928); cf. Note, Constitutional Barriers to Civil and Criminal
Restrictions on Pre- and Extramarital Sex, 104 Harv. L. Rev.
1660, 1672 (1991) (indicating that in many states criminal
adultery statutes are enforced “selectively,” often in the
context of divorce proceedings).
73 No. 20030847
with whom he or she is cohabiting. Yet parties to such
relationships are not prosecuted under the criminal bigamy
statute, the criminal fornication statute, Utah Code Ann. § 76-7-
104 (2003), or, as far as I am aware, the criminal adultery
statute,22 id. § 76-7-103 (2003), even where their conduct
violates these laws. See, e.g., Berg v. State, 2004 UT App 337,
¶ 15, 100 P.3d 261 (indicating that consenting adults are not
prosecuted under Utah’s fornication or sodomy laws).
¶170 That the state perceives no need to prosecute
nonreligiously motivated cohabitation, whether one of the parties
to the cohabitation is married to someone else or not,
demonstrates that, in the absence of any claim of legal marriage,
neither participation in a religious ceremony nor cohabitation
can plausibly be said to threaten marriage as a social or legal
institution. The state’s concern with regulating marriage, as I
understand it, has to do with determining who is entitled to
enter that legal status, what benefits are accorded, and what
obligations and restrictions are imposed thereby. This has
lately emerged as an issue of surprising complexity, with various
commentators attempting to define the nexus between a couple’s
private relationship and the network of laws surrounding marriage

23 See Maggie Gallagher, Rites, Rights, and Social
Institutions: Why and How Should the Law Support Marriage?, 18
Notre Dame J.L. Ethics & Pub. Pol’y 225 (2004); Linda C. McClain,
Intimate Affiliation and Democracy: Beyond Marriage?, 32 Hofstra
L. Rev. 379 (2003).
24 As I discuss in detail below, I also believe that the
imposition of such criminal penalties, at least where the
domestic relationships at issue involve only consenting adults,
violates individual due process rights, as recognized by the
Supreme Court in Lawrence v. Texas, 539 U.S. 558 (2003).
25 See, e.g., supra note 7 (providing statistics). At the
same time, regulation of the content of family relations may be
said to have decreased. The complex evolution of domestic law,
and government regulation of family and marriage, is described
extensively in Lee E. Teitelbaum, Family History and Family Law,
1985 Wis. L. Rev. 1135.
No. 20030847 74
as a legally recognized status.23 Our state’s network of laws
may indeed presume a particular domestic structure--whether it be
that a man will live with only one woman, that a couple living
together will enter a legal union, or that each household will
contain a single nuclear family. However, any interest the state
has in maintaining this network of laws does not logically
justify its imposition of criminal penalties on those who deviate
from that domestic structure, particularly when they do so for
religious reasons. In my view, such criminal penalties are
simply unnecessary to further the state’s interest in protecting
marriage.24
¶171 The state’s abandonment of common law marriage, and the
proliferation of governmentally regulated marriage, contributes
to my conclusion. As mentioned above, the state conditions entry
into the legal status of marriage on the performance of certain
steps beyond simply entering a marriage-like personal
relationship. At the same time, the legal significance of this
status has increased as federal and state governments have
ventured ever further into regulating various aspects of
individuals’ lives.25 The inevitable corollary to these two
facets of governmental involvement with the institution of
marriage is that some will consciously choose to form
relationships outside the state-delineated boundaries of that
institution. At common law, the choice of entering a marriage-
like personal relationship without entering the legal status of
marriage was less available because a man and a woman who
appeared to be married were simply considered married in the eyes
of the law. As discussed above, this is no longer the case. In
an important sense, then, there has been a significant social and

75 No. 20030847
legal divergence between the choice to enter a personal
relationship and the choice to enter the legal status of
marriage.
¶172 Those who choose to live together without getting
married enter a personal relationship that resembles a marriage
in its intimacy but claims no legal sanction. They thereby
intentionally place themselves outside the framework of rights
and obligations that surrounds the marriage institution. While
some in society may feel that the institution of marriage is
diminished when individuals consciously choose to avoid it, it is
generally understood that the state is not entitled to criminally
punish its citizens for making such a choice, even if they do so
with multiple partners or with partners of the same sex. The
only distinction in this case is that when Holm consciously chose
to enter into a personal relationship that he knew would not be
legally recognized as marriage, he used religious terminology to
describe this relationship. The terminology that he used--
“marriage” and “husband and wife”--happens to coincide with the
terminology used by the state to describe the legal status of
married persons. That fact, however, is not sufficient for me to
conclude that criminalizing this conduct is essential in order to
protect the institution of marriage.
¶173 In this regard, the case before us resembles Spence v.
Washington, 418 U.S. 405 (1974). There, the United States
Supreme Court held that a state law criminalizing the exhibition
of the national flag with any extraneous material attached to it
violated the defendant’s First Amendment right to symbolically
communicate his message through such a practice. Id. at 406. In
analyzing the issue under the O’Brien test, mentioned above, the
Court assumed without deciding that the state had valid interests
“in preserving the national flag as an unalloyed symbol of our
country” and “prevent[ing] the appropriation of a revered
national symbol by an individual . . . where there was a risk
that association of the symbol with a particular product or
viewpoint might be taken erroneously as evidence of governmental
endorsement.” Id. at 412-13. The Court nevertheless held that
this interest did not justify the defendant’s conviction because
“[t]here was no risk that [the defendant]’s acts would mislead
viewers into assuming that the Government endorsed his
viewpoint.” Id. at 414. In other words, the defendant was free
to appropriate a revered national symbol for his own
communicative purposes so long as he did not thereby purport to
speak for the state. I similarly conclude here that an
individual is free to appropriate the terminology of marriage, a
revered social and legal institution, for his own religious
purposes if he does not thereby purport to have actually acquired
the legal status of marriage.

26 The Note asserts that “modern testimonials and government
investigations suggest that physical and sexual abuse frequently
occur in polygamist communities as a result of the structure of
such communities.” Richard A. Vazquez, Note, The Practice of
Polygamy: Legitimate Free Exercise of Religion or Legitimate
Public Menace? Revising Reynolds in Light of Modern
Constitutional Jurisprudence, 5 N.Y.U. J. Legis. & Pub. Pol’y
225, 233 (2001). Yet it reveals no factual basis for this
assertion other than (1) the Utah case of State v. Kingston, 2002
UT App 103, 46 P.3d 761, which, as I indicate below, did not
involve a bigamy prosecution; (2) a New York case, People v.
Ezeonu, 588 N.Y.S.2d 116 (Sup. Ct. 1992), involving a Nigerian
(continued...)
No. 20030847 76
¶174 The second state interest served by the bigamy law, as
recognized in Green, is in preventing “marriage fraud,” whereby
an already-married individual fraudulently purports to enter a
legal marriage with someone else, “or attempts to procure
government benefits associated with marital status.” 2004 UT 76,
¶¶ 37-39. This interest focuses on preventing the harm caused to
the state, to society, and to defrauded individuals when someone
purports to have entered the legal status of marriage, but in
fact is not eligible to validly enter that status because of a
prior legal union. This interest is simply not implicated here,
where no claim to the legal status of marriage has been made.
¶175 In Green, the court cited “protecting vulnerable
individuals from exploitation and abuse” as the third state
interest served by the bigamy statute. 2004 UT 76, ¶ 40. The
court concluded that this was a legitimate state interest to
which the criminal bigamy statute was rationally related for
purposes of our First Amendment Free Exercise Clause analysis.
Id. ¶ 41. The court rested this conclusion on the idea that
perpetrators of other crimes “not unusually attendant to the
practice of polygamy”--such as incest, sexual assault, statutory
rape, and failure to pay child support”--could be prosecuted for
bigamy in the absence of sufficient evidence to support a
conviction on these other charges. Id. ¶ 40. Because the
federal First Amendment analysis required only rational basis
scrutiny, the court was content to rely on assertions in a
student law review piece that polygamy was frequently related to
other criminal conduct, together with two local cases, including
the case of Green himself. Id. ¶ 40 & n.14. However, reviewing
this assessment in light of the heightened scrutiny I believe is
called for here, I cannot conclude that the restriction that the
bigamy law places on the religious freedom of all those who, for
religious reasons, live with more than one woman is necessary to
further the state’s interest in this regard. Upon closer review,
the student Note is unconvincing.26 The State has provided no

26 (...continued)
native’s assertion that he had legally married a thirteen-year-
old girl in Nigeria; and (3) information contained in an A&E
television broadcast and various newspaper articles concerning
the claim of one Utah woman, who grew up in a polygamous family,
that her father ritually sexually abused her and her sisters on
their sixteenth birthdays. Vazquez, supra, at 240-43. The Note
itself predicts that “it is unlikely that a flat-out ban on
polygamy would meet the ‘least restrictive means’ requirement of”
a traditional strict scrutiny analysis. Id. at 253.
27 Other than Vazquez, supra n.26, the only “evidence”
offered by the State is a journalist-written collection of
anecdotal accounts, Andrea Moore-Emmet, God’s Brothel (2004).
28 Indeed, one scholar has concluded that “criminalization
of polygamy is largely a symbolic tool that seems unlikely to
either provide substantial protection to victimized adult and
teenage women or to enhance state oversight and regulation of
fundamentalist communities.” Strassberg supra n.20, at 411
(suggesting that “targeting the economic structures and
arrangements that make these insular polygamous communities
viable” would likely be more effective).
29 The court in Green noted that the defendant had been
convicted of criminal nonsupport and rape of a child in addition
to bigamy. 2004 UT 76, ¶ 40 n.14. Similarly here, Holm has been
convicted of unlawful sexual conduct with a sixteen- or
seventeen-year-old in addition to bigamy. The polygamist
defendant in Kingston was not charged with bigamy but was
convicted of incest and unlawful sexual conduct with a sixteen-
or seventeen-year-old. 2002 UT App 103, ¶ 1. It appears from
these three cases that the State may be using its ability to
prosecute offenders under section 76-7-101 as a means of imposing
(continued...)
77 No. 20030847
evidence of a causal relationship or even a strong correlation
between the practice of polygamy, whether religiously motivated
or not, and the offenses of “incest, sexual assault, statutory
rape, and failure to pay child support,” cited in Green, id.
¶ 40.27 Moreover, even assuming such a correlation did exist,
neither the record nor the recent history of prosecutions of
alleged polygamists warrants the conclusion that section 76-7-101
is a necessary tool for the state’s attacks on such harms.28 For
one thing, I am unaware of a single instance where the state was
forced to bring a charge of bigamy in place of other narrower
charges, such as incest or unlawful sexual conduct with a minor,
because it was unable to gather sufficient evidence to prosecute
these other crimes.29 The State has suggested that its initial

29 (...continued)
additional punishment for an already-charged offense rather than
as a proxy prosecution for conduct that is otherwise
unchargeable. To the extent this is true, such prosecutions may
well raise double jeopardy concerns. See Illinois v. Vitale, 447
U.S. 410, 415 (1980) (recognizing that the Double Jeopardy Clause
“protects against multiple punishments for the same offense”
(internal quotation marks omitted)).
30 The recently enacted child bigamy statute, Utah Code Ann.
§ 76-7-101.5 (2003), limits its criminalization to the conduct of
those married individuals who purport to marry or cohabit with
persons other than their legal spouse who are under the age of
eighteen. As the child bigamy statute was not enacted until
after Holm’s prosecution, Holm was not charged with child bigamy.
I express no opinion on the constitutionality of a conviction
under that statute.
31 Media reports suggest that this situation has worsened
since Warren Jeffs, the son of Rulon Jeffs, assumed the
leadership position in 2002 following his father’s death.
(continued...)
No. 20030847 78
ability to file bigamy charges allows it to gather the evidence
required to prosecute those engaged in more specific crimes.
Even if there were support for this claim in the record, I would
consider it inappropriate to let stand a criminal law simply
because it enables the state to conduct a fishing expedition for
evidence of other crimes. Further, the State itself has
indicated that it does not prosecute those engaged in religiously
motivated polygamy under the criminal bigamy statute unless the
person has entered a religious union with a girl under eighteen
years old. Such a policy of selective prosecution reinforces my
conclusion that a blanket criminal prohibition on religious
polygamous unions is not necessary to further the state’s
interests, and suggests that a more narrowly tailored law would
be just as effective.30
¶176 I do not reach this conclusion lightly. I acknowledge
the possibility that other criminal conduct may accompany the act
of bigamy. Such conduct may even, as was suggested in Green, be
correlated with the practice of polygamy in a community that has
isolated itself from the outside world, at least partially in
fear of criminal prosecution for its religious practice. Indeed,
the FLDS community in its current form has been likened to a
cult, with allegations focusing on the power wielded by a single
leader who exerts a high degree of control over followers,
ranging from ownership of their property to the determination of
persons with whom they may enter religious unions.31 In the

31 (...continued)
Polygamous Church May Pull up Roots, Associated Press, Mar. 5,
2005, available at Rick A. Ross Institute, Polygamist Groups,
http://www.rickross.com/groups/polygamy.html [hereinafter Ross
Institute site]; Lawsuits and Governmental Scrutiny Increase
Pressure on Polygamist Sect, Associated Press, Sept. 17, 2004,
available at Ross Institute site, supra; Authorities Probe
Arizona Polygamist Town, N.Y. Times, Jan. 23, 2004, available at
Ross Institute site, supra.
32 E.g., FLDS Runaways Speak Out on Dr. Phil Show, S.L.
Trib., May 4, 2005, available at ReligionNewsBlog.com,
http://www.religionnewsblog.com/11129; Polygamists on Utah-
Arizona Border Under Scrutiny, All Things Considered, May 3,
2005, available at http://www.npr.org (search term “polygamy”);
Allegations Abound: Colorado City’s Polygamous Community Comes
Under Increasing Scrutiny, Havasu News-Herald, Sept. 25, 2004,
available at Ross Institute site, supra n.31.
79 No. 20030847
latter regard, reports of forcible unions between underage girls
and older men within the FLDS community have recently appeared in
the media.32 Yet, the state does not criminalize cult
membership, and for good reason. To do so would be to impose a
criminal penalty based on status rather than conduct--long
considered antithetical to our notion of criminal justice. See
Powell v. Texas, 392 U.S. 514, 533 (1968); Robinson v.
California, 370 U.S. 660, 666-67 (1962). Moreover, such a
criminal law would require that the state make normative
judgments distinguishing between communities that are actually
“cults” and those that are voluntary associations based on common
religious or other ideological beliefs. Our system of government
has long eschewed this type of state interference. Rather,
despite the difficulties that are always associated with
gathering evidence in closed societies, the state is held to the
burden of proving that individuals have engaged in conduct that
is criminal because it is associated with actual harm. The State
of Utah has criminal laws punishing incest, rape, unlawful sexual
conduct with a minor, and domestic and child abuse. Any
restrictions these laws place on the practice of religious
polygamy are almost certainly justified. However, the broad
criminalization of the religious practice itself as a means of
attacking other criminal behavior is not. Cf. Church of Lukumi
Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 538 (1993)
(“The legitimate governmental interests in protecting the public
health and preventing cruelty to animals could be addressed by
restrictions stopping far short of a flat prohibition of all
Santeria sacrificial practice.”).
¶177 Although the argument has not been raised, I note that

33 See also Down & Maldonado, Jr., supra n.20, at 607
(asserting that “there are no reliable, reported data suggesting
that children of polygamous families are uniquely and
significantly disadvantaged from an economic or emotional
standpoint”).
No. 20030847 80
for similar reasons I could not uphold Holm’s bigamy conviction
on the basis that the religiously motivated conduct at issue is
inherently harmful to children who grow up in polygamous homes,
and are thereby exposed to the “culture” of polygamy.33 Our
previous rulings and legislative policy support this conclusion.
For example, this court has previously held that those engaged in
the practice of polygamy are not automatically disqualified from
petitioning for adoption of a child. In re Adoption of W.A.T.,
808 P.2d 1083, 1085 (Utah 1991) (plurality) (“The fact that our
constitution requires the state to prohibit polygamy does not
necessarily mean that the state must deny any or all civil rights
and privileges to polygamists.”). Rather, a trial court must
hold an evidentiary hearing to consider on a case-by-case basis
whether the best interests of the child would be promoted by an
adoption by the prospective parents. Id. at 1086.
¶178 We have also held that a parent’s custody petition
could not be denied solely because she practiced polygamy.
Sanderson v. Tryon, 739 P.2d 623, 626 (Utah 1987). Our holding
in Sanderson was based on our recognition that the legislature’s
policy regarding child custody and parental rights termination
issues has shifted in the past half-century, and now requires
that courts focus on the “best interests of the child” rather
than passing judgment on the morality of its parents. Id. at 627
(recognizing that the 1955 plurality opinion of this court in In
re Black, 283 P.2d 887, upholding a ruling terminating the
parental rights of polygamist parents, was no longer good law in
light of the legislature’s deletion in 1965 of moral references
from the termination of parental rights statute, Utah Code Ann.
§ 78-3a-48 (1986) (current version at Utah Code Ann. § 78-3a-407
(Supp. 2005))). Given these developments, and the existence of
legal mechanisms for protecting the interests of abused or
neglected children apart from criminally prosecuting their
parents for bigamy, I do not believe the criminalization of
religiously motivated polygamous conduct is necessary to further
these interests.
¶179 Thus, neither the State nor this court’s prior decision
in Green has identified an important state interest served by the
criminal bigamy law that requires its application to those who
enter religious unions with no claim of state legitimacy. I
would therefore reverse Holm’s bigamy conviction on the ground
that it violates his religious freedom as guaranteed by the Utah

34 The majority could have limited its rejection of Holm’s
liberty claim to the fact that Holm’s behavior involved a minor.
That fact alone, in my view, justifies the conclusion that Holm’s
bigamy conviction does not violate his right to individual
liberty under the Due Process Clause of the Fourteenth Amendment
to the United States Constitution.
81 No. 20030847
Constitution.
III. FOURTEENTH AMENDMENT DUE PROCESS CLAIM
¶180 Because I conclude that Holm’s bigamy conviction
violates the Utah Constitution’s religious freedom guarantees, my
dissenting vote is not based on the majority’s analysis of Holm’s
federal constitutional claims. I do, however, wish to register
my disagreement with the majority’s treatment of Holm’s claim
that his conviction violates his Fourteenth Amendment right under
the Due Process Clause to individual liberty, as recognized by
the United States Supreme Court in Lawrence v. Texas, 539 U.S.
558 (2003). As the majority acknowledges, the Court in Lawrence
stated the principle that “absent injury to a person or abuse of
an institution the law protects,” adults are free to choose the
nature of their relationships “in the confines of their homes and
their own private lives.” Id. at 567. The majority concludes
that the private consensual behavior of two individuals who did
not claim legal recognition of their relationship somehow
constitutes an abuse of the institution of marriage, thus
rendering Lawrence inapplicable. On that basis,34 the majority
summarily rejects Holm’s due process claim as beyond the scope of
Lawrence’s holding. Supra ¶ 56. I disagree with this analysis.
¶181 As I have discussed extensively above, I do not believe
that the conduct at issue threatens the institution of marriage,
and I therefore cannot agree that it constitutes an “abuse” of
that institution. The majority fails to offer a persuasive
justification for its view to the contrary. It asserts that “the
behavior at issue in this case” implicates “the state’s ability
to regulate marital relationships.” Supra ¶ 57. According to
the majority, this regulation includes the state’s ability to
impose a legal marriage on an individual against his or her will
in order to enforce spousal support obligations or prevent
welfare abuse. In regard to spousal support, I am unpersuaded
that the potential interests of consenting adults who voluntarily
enter legally unrecognized relationships despite the financial
risks they might face in the future justify the imposition of
criminal penalties on the parties to those relationships. Under
the majority’s rationale, the state would be justified in
imposing criminal penalties on unmarried persons who enter same-
sex relationships simply because the state, under the applicable

No. 20030847 82
constitutional and statutory provisions, is unable to hold them
legally married. In regard to welfare abuse, I find it difficult
to understand how those in polygamous relationships that are
ineligible to receive legal sanction are committing welfare abuse
when they seek benefits available to unmarried persons.
¶182 The majority also offers the view that “[t]he state
must be able to . . . further the proliferation of social unions
our society deems beneficial while discouraging those deemed
harmful.” Supra ¶ 61. The Supreme Court in Lawrence, however,
rejected the very notion that a state can criminalize behavior
merely because the majority of its citizens prefers a different
form of personal relationship. Striking down Texas’s criminal
sodomy statute as unconstitutional, the Court in Lawrence
recognized that the Fourteenth Amendment’s individual liberty
guarantee “gives substantial protection to adult persons in
deciding how to conduct their private lives in matters pertaining
to sex.” 539 U.S. at 572. As described in Lawrence, this
protection encompasses not merely the consensual act of sex
itself but the “autonomy of the person” in making choices
“relating to . . . family relationships.” Id. at 574. The
sodomy statute was thus held unconstitutional because it sought
“to control a personal relationship that, whether or not entitled
to formal recognition in the law, is within the liberty of
persons to choose without being punished as criminals.” Id. at
567.
¶183 I agree with the majority that marriage, when
understood as a legal union, qualifies as “an institution the law
protects.” See id. at 568. However, the Court’s statement in
Lawrence that a state may interfere when such an institution is
“abuse[d],” id., together with its holding that the sodomy
statute was unconstitutional, leads me to infer that, in the
Court’s view, sexual acts between consenting adults and the
private personal relationships within which these acts occur, do
not “abuse” the institution of marriage simply because they take
place outside its confines. See id. at 585 (O’Connor, J.,
concurring in the judgment) (indicating that Texas’s criminal
sodomy law did not implicate the state’s interest in “preserving
the traditional institution of marriage” but expressed “mere
moral disapproval of an excluded group”). In the wake of
Lawrence, the Virginia Supreme Court has come to the same
conclusion, striking down its state law criminalizing
fornication. Martin v. Ziherl, 607 S.E.2d 367, 371 (Va. 2005).
In my opinion, these holdings correctly recognize that
individuals in today’s society may make varied choices regarding
the organization of their family and personal relationships
without fearing criminal punishment.
¶184 The majority does not adequately explain how the

35 The majority treats Holm’s freedom of intrinsic
association claim as, in a sense, distinct from his individual
liberty claim under Lawrence, while at the same time denying the
(continued...)
83 No. 20030847
institution of marriage is abused or state support for monogamy
threatened simply by an individual’s choice to participate in a
religious ritual with more than one person outside the confines
of legal marriage. Rather than offering such an explanation, the
majority merely proclaims that “the public nature of polygamists’
attempts to extralegally redefine the acceptable parameters of a
fundamental social institution like marriage is plain.” Supra
¶ 63. It is far from plain to me.
¶185 I am concerned that the majority’s reasoning may give
the impression that the state is free to criminalize any and all
forms of personal relationships that occur outside the legal
union of marriage. While under Lawrence laws criminalizing
isolated acts of sodomy are void, the majority seems to suggest
that the relationships within which these acts occur may still
receive criminal sanction. Following such logic, nonmarital
cohabitation might also be considered to fall outside the scope
of federal constitutional protection. Indeed, the act of living
alone and unmarried could as easily be viewed as threatening
social norms.
¶186 In my view, any such conclusions are foreclosed under
Lawrence. Essentially, the Court’s decision in Lawrence simply
reformulates the longstanding principle that, in order to “secure
individual liberty, . . . certain kinds of highly personal
relationships” must be given “a substantial measure of sanctuary
from unjustified interference by the State.” Roberts v. U.S.
Jaycees, 468 U.S. 609, 618 (1984); see also Laurence H. Tribe,
Lawrence v. Texas: The “Fundamental Right” That Dare Not Speak
Its Name, 117 Harv. L. Rev. 1893, 1922 (2004) (“[T]he claim
Lawrence accepted . . . is that intimate relations may not be
micromanaged or overtaken by the state.”). Whether referred to
as a right of “intimate” or “intrinsic” association, as in
Roberts, 468 U.S. at 618, a right to “privacy,” as in Griswold v.
Connecticut, 381 U.S. 479, 485 (1965), and Eisenstadt v. Baird,
405 U.S. 438, 453 (1972), a right to make “choices concerning
family living arrangements,” as in Moore v. City of East
Cleveland, 431 U.S. 494, 499 (1977) (plurality), or a right to
choose the nature of one’s personal relationships, as in
Lawrence, 539 U.S. at 574, this individual liberty guarantee
essentially draws a line around an individual’s home and family
and prevents governmental interference with what happens inside,
as long as it does not involve injury or coercion or some other
form of harm to individuals or to society.35 As the Court in

35 (...continued)
association claim on the basis that no individual liberty
interest had been established. Supra ¶ 72. In so doing, the
majority fails to reconcile its conclusion that private
relationships somehow threaten the institution of marriage, and
therefore fall outside the scope of any due process protection,
with the Court’s recognition in Roberts that, to the contrary,
private relationships can be protected. Roberts, 468 U.S. at
618.
No. 20030847 84
Lawrence recognized:
[F]or centuries there have been powerful
voices to condemn [certain private] conduct
as immoral. The condemnation has been shaped
by religious beliefs, conceptions of right
and acceptable behavior, and respect for the
traditional family. For many persons these
are not trivial concerns but profound and
deep convictions accepted as ethical and
moral principles to which they aspire and
which thus determine the course of their
lives. These considerations do not answer
the question before us, however. The issue
is whether the majority may use the power of
the State to enforce these views on the whole
society through operation of the criminal
law.
Id. at 571. The Court determined that when “adults . . . with
full and mutual consent from each other” enter into particular
personal relationships with no threat of injury or coercion, a
state may not criminalize the relationships themselves or the
consensual intimate conduct that occurs within them. Id. at 578.
¶187 In conclusion, I agree with the majority that because
Holm’s conduct in this case involved a minor, he is unable to
prevail on his individual liberty claim under the Due Process
Clause. However, I disagree with the majority’s implication that
the same result would apply where an individual enters a private
relationship with another adult.
CONCLUSION
¶188 The majority’s analysis of Holm’s challenges to his
bigamy conviction under Utah Code section 76-7-101 relies to a
large extent on its failure to distinguish between an
individual’s false claim to have entered the legal status of
marriage and an individual’s private, religiously motivated

85 No. 20030847
choice to enter a relationship with another person. Because I
disagree with this premise, I am unpersuaded that the conclusions
flowing from the majority’s understanding are correct. In my
view, Holm was not properly subject to prosecution under the
“purports to marry” prong of section 76-7-101 because he never
claimed to have entered a legally valid marriage. Moreover, I
would hold Holm’s conviction under the “cohabits” prong of
section 76-7-101 invalid under the religious freedom provisions
of the Utah Constitution. In addition, I believe the majority
has erred in suggesting that the Supreme Court’s decision in
Lawrence v. Texas, 539 U.S. 558 (2003), does not recognize
private relationships between consenting adults as entitled to
protection under the Fourteenth Amendment’s Due Process Clause.
I therefore dissent from the majority’s conclusion upholding
Holm’s bigamy conviction. I join the majority in upholding
Holm’s conviction for unlawful sexual conduct with a minor under
section 76-5-401.2.
---