A former police officer and convicted polygamist challenged Utah's 100-year-plus ban on plural marriage before the state Supreme Court Thursday, calling it an infringement of his right to practice his religion.
Rodney Holm, an officer in the polygamous community of Hildale, was convicted of bigamy and illegal sex with a 16-year-old girl that he had taken as a third wife.
His lawyer, Rodney Parker, argued Thursday that polygamy is essential to Holm's religion, and barring him from practicing it violates his First Amendment rights.
Polygamy was among the teachings of LDS Church founder Joseph Smith. But the practice was abandoned by the mainstream Church of Jesus Christ of Latter-day Saints in 1890.
Still, it remains a prickly issue. It's believed that thousands across the West continue the practice, which some splinter sects consider the highest form of religious exaltation.
Many of them are members of the Fundamentalist Church of Jesus Christ of Latter Day Saints, which is based in the isolated twin border towns of Hildale, Utah, and Colorado City, Ariz.
"It's a large group of people, and your decisions in this case should not be based on stereotypes and anecdotal evidence .... That's all the state has," Parker told the court.
Besides simply banning bigamy, as most states do, Utah law allows prosecutors to file bigamy charges when people are spiritually, but not legally, married and cohabitating.
Parker said that makes the law unconstitutionally vague, because it could subject roommates to criminal prosecution.
That brought questions from several of the Utah justices.
Chief Justice Christine Durham asked Assistant Attorney General Laura Dupaix if Utah's bigamy law could be endangered by a 2003 U.S. Supreme Court decision striking down statutes against gay sex as a violation of an individual's right to sexual privacy.
Durham also suggested the law as written would subject people to criminal charges if they were separated but not divorced, and dating.
"How could you avoid ... the statute would apply to people who are shacking up?"
Durham asked.
And the century-old debate over polygamy could have a new twist since Utah voters passed a constitutional amendment in November to ban gay marriage and limit the institution to "one man and one woman."
"If it's one man and one woman, doesn't that mean a man and three women isn't marriage?" Justice Michael Wilkins asked.
Dupaix argued Holm "did everything to make it a marriage except get a license," and insisted the state was not persecuting Holm for his religious beliefs.
She said he was prosecuted because he was a 32-year-old man having sex with a 16-year-old girl.
The law does not violate Holm's religious freedom by prohibiting polygamy because he can believe whatever he wants, she said. He simply can't act on beliefs that run counter to state law. She noted that white supremacists have a constitutional right to hold racist views -- but not the right to harm minorities because of them.
"Nobody's telling Mr. Holm he can't be in a church that believes in polygamy," Dupaix said.
Attorney General Mark Shurtleff has vowed a get-tough attitude toward polygamists who engage in abuse or illegal sexual behavior.