Utah Supreme Court Hears Arguments in Polygamy Case
Arrested husband claims U.S. Supreme Court decision indicates right to polygamy.
Did the 2003 Supreme Court decision in Lawrence v. Texas, which overturned a Texas law against homosexual sodomy, open the door to polygamy? On February 3, 2005, the Utah Supreme Court heard arguments in a shocking case that raises this issue.

The case began in 2002 with the arrest of Rodney Holm, a police officer living in Hildale, Utah, near the Arizona border. Hildale and neighboring Colorado City, Arizona, have a large population of polygamists. Many, like Holm, are members of the Fundamentalist Church of Jesus Christ of Latter Day Saints (FLDS), an offshoot of the Mormon religion that openly supports polygamy. The main LDS church disavowed polygamy in 1890.

Police arrested Holm on charges of bigamy and sex with a minor to whom he was not legally married. The arrest followed his admission in a custody lawsuit that, at age 32, he impregnated 16-year-old Ruth Stubbs, his common-law "spiritual wife," who is the younger sister of Holm’s first and only lawful wife, Suzie Stubbs Holm.

Besides the legal marriage to Suzie and the "spiritual marriage" to Ruth, Holm had another common-law "spiritual wife." He has 21 children by the three women.

The prosecution has also charged Suzie with abetting her husband’s bigamy and illegal sex, apparently the first time in more than 100 years that Utah has prosecuted a woman on polygamy-related charges. The bigamy charge was later dropped when Ruth refused to testify against Suzie.

It is reported that the union of Ruth and Rodney was at the direction of the Fundamentalist Church leadership. PhoenixNewTimes.com cites Ruth’s statements to government investigators and describes a meeting between Ruth and the Fundamentalists’ powerful 88-year-old leader, Rulon Jeffs. Rodney Holm brought Ruth to see Jeffs and, when she indicated her desire to marry a neighbor boy she knew, Jeffs instead pointed to Holm and said, "I feel she belongs to you." Ruth told the investigators "Shocked, I was."

Ruth tried to postpone the "wedding," which was scheduled for the next day, but Suzie pressured her not to. Ruth was "sealed" to her 32-year-old groom in a ceremony performed by Jeffs in the presence of Suzie and Holm’s other “spiritual wife.” Two months after the wedding, Ruth was pregnant with her first child. A few years later, during her third pregnancy, she fled Holm and filed the custody case.

In a notarized affidavit filed in the custody case, Ruth said: "At the age of 16, I was pressured to marry Rodney H. Holm, under the rule of the [FLDS] church. Since that time, I have lived in a controlling and abusive environment common in the community. The ‘sister-wives’ were physically and emotionally abusive to both myself and my children. I have scars on my face from one beating. Children were beaten and locked in rooms. On several occasions, younger children would be smothered by one of the mothers until they choked or gasped for air. ...I was required to work and leave my children with the other 18 in the care of the other two mothers."

Critics of polygamy, including the nonprofit Tapestry Against Polygamy (TAP), founded by former polygamist wives, denounce the abuses that can occur within polygamous societies, including statutory rape and underage marriage. The organization’s Web site states: "The Mormon fundamentalist tradition has been interwoven into Utah’s culture for so long that today it is being protected by the ACLU, local NOW, and much of the state of Utah as a religious freedom without any regard for the polygamous women and children whose human rights are being violated."

In August 2003, a jury convicted Holm on all charges. The judge sentenced him to up to five years in the Utah State Prison on each of the three counts, to be served concurrently. But he allowed Holm to serve three years’ probation and one year of incarceration in Purgatory Correctional Facility, with daily travel to his job—he has been reassigned to the public works department — under a work release program.

In January 2004 the Utah Supreme Court denied Holm’s request that he be released from jail pending the appeal. By mid-2004, Holm had completed his prison sentence.

Holm’s appeal is based in part on the argument that the bigamy charge is unconstitutional in the wake of Lawrence v. Texas, which announced a constitutional right to engage in private homosexual sodomy. Holm’s attorney argued that his client should be allowed to marry more than one wife.

Prosecutors distinguished Lawrence as involving two consenting adults, unlike Holm’s prosecution. The appellate court ruled for the state.

On February 3, the Utah Supreme Court heard oral arguments. Holm’s attorney argued that in light of the Lawrence decision, the court should find that his client has a constitutional right to practice polygamy. His brief states: "Popular departure from traditional marriage has made our domestic laws on cohabitation and fornication anachronistic."

According to the Deseret Morning News, Chief Justice Christine Durham cited Lawrence as indicating that a state cannot regulate private sexual relationships.

Arguing for the state, Assistant Attorney General Laura Dupaix countered that there is no constitutional right to have sex with a minor. According to The Salt Lake Tribune, Ms. Dupaix, in responding to Holm’s claim that he was being prosecuted for his beliefs, stated: "No one is telling Mr. Holm that he can’t belong to a church that believes in polygamy."

Meanwhile, according to the Yale Daily News, Nadine Strossen, president of the ACLU, recently told a group of students at Yale that the ACLU is actively fighting to defend polygamous unions, saying: "We have defended the right for individuals to engage in polygamy."

Concerned Women for America (CWA) will remain at the forefront to defend marriage. Resources are available on our Web site. On February 4, CWA filed an amicus brief in the Washington Supreme Court urging the court to reverse a trial court decision permitting same-sex "marriage."

Anne Downey is a Christian attorney who practices law with her husband in New York state. She is a member of the Christian Legal Society, an Alliance Defense Fund "ally," and is volunteering her services to CWA's Legal Studies Department.
Originally published February 15, 2005