Note: When the Supreme Court ruled that sodomy was legal--that no one had the right to question private consenting sexual activities--it opened the door to the legalization of polygamy, as the following story from the Salt Lake Tribune suggests.
Unfortunately, the polygamists will use this ruling to keep in place their practice of marrying very young girls off to dirty old men.
Appeals seek polygamy right
By Pamela Manson The Salt Lake Tribune
Polygamist Tom Green argues in an appeal to the Utah high court that consensual plural marriage is a matter of freedom.
In 1967, the U.S. Supreme Court struck down a law banning marriage between a man and a woman of different races.
In 2003, the high court overturned a Texas anti-sodomy statute prohibiting sexual conduct between same-sex couples.
Advocates of polygamy say these cases are two ends of a tide turning in their favor and argue that the court rulings mean that more than two people have the right to form a marriage.
And two men who espouse polygamy, Tom Green and Rodney Holm, are asking Utah courts to confirm that right. They are challenging their bigamy convictions based, in part, on Lawrence v. Texas, which held the anti-sodomy law violated the privacy rights of consenting adults to choose what takes place in their own bedrooms.
The landmark decision by the U.S. Supreme Court came in the case of two Houston men arrested in 1998 for violating the Texas Homosexual Conduct law. Police found the two having sex after responding to a false report of a disturbance at one man's apartment. Both were convicted and fined $200 each.
The men appealed and the high court in June reversed its own 1986 ruling that upheld a Georgia anti-sodomy law on moral grounds. The majority wrote that the earlier court failed "to appreciate the extent of the liberty at stake."
Based on that ruling, Holm's attorney calls it inappropriate to regulate his client's conduct based only on moral disapproval, saying there must also be some other rational basis to ban certain behavior.
"Our contention is that they have a liberty type of right in their relationship," attorney Rodney Parker said of Holm and his plural wives.
Attorney John Bucher echoed that argument this month when he asked the Utah Supreme Court to overturn Green's bigamy convictions, saying the government should not be allowed to ban private conduct that doesn't hurt anyone.
"Everyone should be free unless there's a compelling state interest that you shouldn't be," Bucher said. "The state is not able to show that there's such an evil to polygamy that it should be prohibited."
Underage girls: But Laura Dupaix, an assistant state attorney general who argued that the court should leave the Green conviction intact, said the men in the Texas case were seeking to validate a monogamous relationship and that no bigamy law would be overturned based on the U.S. Supreme Court ruling.
"I have a hard time believing Lawrence means that they have a constitutional right to take polygamous child brides," Dupaix said of Green and Holm.
The state has focused its prosecutions of polygamists on men who have married minors. Officials claim that a host of social ills flow from polygamy, including forced marriages, child and spousal abuse, and welfare fraud.
Green, who had five women he called his spiritual wives, was convicted by a jury in 2001 of four counts of bigamy and one count of criminal nonsupport of his children and sentenced to five years behind bars. A judge had determined that he had a common-law marriage with his first wife because the two cohabited, defined under the law as living together as husband and wife.
The avowed polygamist was found guilty in a separate case of child rape because his first wife was 13 when the two were wed in a spiritual ceremony and began having sex. Green also is challenging that conviction, arguing that the statute of limitations had expired by the time the charge was filed.
Holm, a former police officer in the polygamous community of Hildale, was convicted of two counts of unlawful sex with a minor and a single count of bigamy stemming from his 1998 "spiritual" marriage to Ruth Stubbs, then 16. At the time, he already was legally married to the teen's sister. He was sentenced to a year in jail.
Before the Holm trial began this fall, Parker unsuccessfully attempted to get the charges dismissed based on the Lawrence v. Texas decision, arguing that regulating what people did in private violated their freedoms under the Constitution. Holm also is challenging his convictions to the Utah Supreme Court.
A lawyer whose organization represented the Texas men said the high court ruling has applications to heterosexual relationships as well as gay partnerships, but said the Utah situations differ because of their impact on third persons.
"In our case, there was no issue of anyone being married to someone else," said Patricia Logue, interim legal director of Lambda Legal Defense and Education Fund, a gay-rights group. "It was the notion of privacy that we were vindicating."
Another attorney who represented the Lawrence plaintiffs, Mitchell Katine of Houston, said the U.S. Supreme Court decision focused on whether there was a rational basis, beyond moral disapproval, to ban sodomy between same-sex couples. The high court issued no opinion on gay marriage, which lessens the impact the case might have on polygamous relationships, he said.
However, Katine said the decision still could fuel a challenge to antipolygamy laws based on the argument that disapproval by the majority is insufficient to prohibit a relationship. He added that interracial marriages once were frowned on by many people. In Utah, the ban on interracial marriage was lifted in 1963.
"How is a third party harmed by a consensual relationship? The state would have to rely on more than moral disapproval," Katine said.
He stressed that his case involved consenting adults and said minors should be treated differently under the law.
In Holm's case, Stubbs had consent from her father to marry the police officer, putting her on the same footing as an adult, Parker said. If Holm had not been married to another woman, the marriage would have been considered a legal union under Utah law, he said.
Michael Ariens, a law professor at St. Mary's University School of Law in San Antonio, Texas, and co-author of a book on religious liberty, said the Lawrence decision focused on the relationship between two people and doubts that courts will interpret it broadly enough to include polygamy.
However, proponents of the practice still will argue that the Supreme Court ruling is about the right of people to choose how they conduct their private sexual life, the professor said, adding, "All cases can be stretched.
"If used in this broad context, of course it would apply to polygamy," Ariens said. "If you use that broad level of generalization, you still have the limit of consent and limit of age. But those would be the only limits you're talking about."
The argument that striking down the Texas sodomy law could lead to the legalization of other prohibited acts was voiced by a dissenter, Justice Antonin Scalia. He wrote that state laws against bigamy, same-sex marriage, prostitution, adultery, adult incest and masturbation could fall next.
Salt Lake City lawyer Brian Barnard, who is backing Green's appeal through the Utah Civil Rights & Liberties Foundation, said the circumstances in the Utah case differ from those in the Texas case, but agrees that the Lawrence decision will prompt attempts to overturn laws prohibiting certain acts between consenting adults.
He already has filed suit on behalf of a client who wants to strike down the state's anti-sodomy law and a statute that prohibits unmarried Utahns from having sex.
"We're taking the next logical step," Barnard said. "Another logical step says polygamy should be allowed."
He added: "The logical progression of the Lawrence decision is it will keep government out of everyone's bedroom."