James J. Kilpatrick

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.

James J. Kilpatrick

James J. Kilpatrick has been reporter, editor, columnist, commentator, and briefly an adjunct professor of journalism.

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