THE LAW AND RODNEY HOLM
 
 
Some long-forgotten jurist long ago laid down a maxim for the ages: "De minimis non curat lex." Loosely translated: Appellate courts should not bother with trifles.

On the surface, the case of Holm v. Utah, recently filed in the Supreme Court, is a trifling case. The facts are messy and the law is long established. It would be surprising if the high court agrees to hear it.

All the same, the case of Rodney Holm in Utah evokes uncomfortable echoes of the high court's controversial opinion three years ago in John G. Lawrence v. Texas. In that case, six justices voted to sanction consensual sodomy. The Utah case involves consensual polygamy. Is there a precedent taking shape?

In the currently pending case from Utah, the facts and the underlying law are not seriously in dispute. Under Utah's law, a man is guilty of a felony when, knowing he has a wife, he purports to marry or cohabit with another woman. This is bigamy. When this case began, Rodney Holm was already legally married to (1) Susie Holm and "religiously committed" to (2) Wendy Holm. In December 1998, pursuant to rites of the Fundamentalist Church of Jesus Christ of Latter-Day Saints, he participated in a "religious commitment ceremony" with (3) Ruth Stubbs. She was 16, he was 32.

In the ensuing two years, she bore him two children. Subsequently, disenchantment set in. She moved out of the commune, taking the infants with her. She talked to the cops. They arrested him for bigamy. A jury found him guilty. The trial court fined him $3,000 and sentenced him to a year in prison. He appealed to the state Supreme Court, which ruled that even though Ruth and Rodney did not describe their relationship as "marriage," they "purported" to be married, which the court regarded as all the same thing. We will know in a few weeks if the U.S. Supreme Court will hear the case.

Constitutionally speaking, may the states make polygamy a crime? A dumb question, perhaps, for the states universally have made it a crime. But if these laws violate the First Amendment's guarantee of free exercise of religion, may they be sustained? So far as we know, Holm and his remaining two "wives" regard themselves not as statutory polygamists but as devoutly religious polygamists -- part of an estimated 37,000 religious polygamists now residing in nine western states.

Their public life is not a happy one. In Utah and Arizona, members of the sect have been dismissed as police officers because of their beliefs. In Utah a polygamist wife was forced to place her presumptively illegitimate children in foster care. The record abounds with examples of discrimination. Last month the minority leader of the Senate, Harry Reid of Nevada, proposed a criminal investigation into the community's way of life.

Appellate law on religious bigamy dates from the Supreme Court case of Reynolds v. United States in 1878. It too was a Utah case, challenging the simultaneous marriages of George Reynolds, first to Mary Ann Tuddenham, then to Amelia Jane Schofield. At trial, the judge admonished jurors to consider the consequences to "pure-minded women and innocent children" if the defendant were acquitted. He was in fact convicted and sentenced to two years at hard labor and a fine of $500.

On appeal to the U.S. Supreme Court, poor Reynolds failed miserably. A unanimous court, speaking through Chief Justice Morrison Waite, affirmed the sentence and compared polygamy to human sacrifice -- an "odious" practice, indefensible in the name of freedom of religion. He found it impossible to believe that the First Amendment's religious clause could sanction the practice.

Now, let us leap from the territory of Utah in 1878 to the state of Texas in 2003. Two homosexual men, John Lawrence and Tyrone Garner, have been convicted and fined $200 each for consensual sodomy. They appeal. Over the strenuous dissent of Justice Antonin Scalia, the Supreme Court, 6-3, reverses the judgment.

Speaking for the majority, Justice Anthony Kennedy holds that an emerging awareness of liberty gives substantial protection "to adult persons in deciding how to conduct their private lives in matters pertaining to sex." Our fundamental concept of human "liberty" protects "an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct."

The Reynolds case of 1878 has become an embarrassing anachronism. It ought to be overruled, but after all these years its dumping deserves a better case than this one.

(Letters to Mr. Kilpatrick should be sent in care of this newspaper, or by e-mail to kilpatjj@aol.com.)
 
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Originally published Tuesday, November 7, 2006
 
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