If they didn't attempt to get legal sanction for their polygamous union, it's hard to see the difference between that and a married couple which invites a friend over for a threesome, or in which one spouse is having an affair. If this conviction holds up, wouldn't anyone having an affair be prosecutable for bigamy?

"Utah law defines bigamy as a married person purporting to marry or cohabiting with someone other than his or her spouse."

As long as you're not purporting to marry or cohabiting with the person with whom you're having an affair, it isn't bigamy. And a threesome likely wouldn't count either, then.

Although: even given the freedom of residents of the state of Deseret to have threesomes at will, I still think this law is ridiculous.

“I certainly agree with the Court's view that marriage is "the most important relation in life, as having more to do with the morals and civilization of a people than any other institution." But it is precisely for that reason that I feel the state should stay away from marriage and leave it to churches and social groups to create their own. And when they do, the disctinction should be sharp, clear, and free from state intervention.”

Good points, Josh, but what about common-law marriages and the children born from them? How would you distribute real and personal property among heirs, whether legitimate or illegitimate?

How would you determine, for example, which member of a household should stay in a residence and which should be removed when there are allegations of abuse, neglect, failure to provide for children, etc.? How would you compel fathers (or mothers) to care for children if they no longer lived with them?

Look at the recent case filed on behalf of Matt Dubay - how quickly would fathers seek to abandon their obligations toward their children if the legal system did not force them to honor them? “The National Center for Men and its president don't want to be able to force women to have abortions or give up a child for adoption. They want to be able to go into court before a child is born and renounce parenting responsibilities -- and 18 years of child support.” [From the Detroit News, March 9, 2006, by David Shepardson and Eric Lacy].

The problem with quoting C.S. Lewis is that he almost never spoke in sound-bites; therefore, you have to give people some context to his statements before you can properly and appropriately apply them. The preface to that quote is (in somewhat edited fashion) as follows:

The Christian idea of marriage is based on Christ's words that a man and wife are to be regarded as a single organism-for that is what the words "one flesh" would be in modern English. And the Christians believe that when He said this He was not expressing a sentiment but stating a fact-just as one is stating a fact when one says that a lock and its key are one mechanism, or that a violin and a bow are one musical instrument. The inventor of the human machine was telling us that its two halves, the male and the female, were made to be combined together in pairs, not simply on the sexual level, but totally combined. The monstrosity of sexual intercourse outside marriage is that those who indulge in it are trying to isolate one kind of union (the sexual) from all the other kinds of union which were intended to go along with it and make up the total union.

*****

The Christian attitude does not mean that there is anything wrong about sexual pleasure, any more than about the pleasure of eating. It means that you must not isolate that pleasure and try to get it by itself, any more than you ought to try to get the pleasures of taste without swallowing and digesting, by chewing things and spitting them out again. As a consequence, Christianity teaches that marriage is for life.

*****

[Churches are] all agreed that it is more like having both your legs cut off than it is like dissolving a business partnership or even deserting a regiment. What they all disagree with is the modern view that it is a simple readjustment of partners, to be made whenever people feel they are no longer in love with one another, or when either of them falls in love with someone else. Before we consider this modern view in its relation to chastity, we must not forget to consider it in relation to another virtue, namely justice. Justice, as I said before, includes the keeping of promises. Now everyone who has been married in a church has made a public, solemn promise to stick to his (or her) partner till death.

*****

The duty of keeping that promise has no special connection with sexual morality: it is in the same position as any other promise. If, as modern people are always telling us, the sexual impulse is just like all our other impulses, then it ought to be treated like all our other impulses; and as their indulgence is controlled by our promises, so should its be. If, as I think, it is not like all our other impulses, but is morbidly inflamed, then we should be especially careful not to let it lead us into dishonesty.

*****

To this someone may reply that he regarded the promise made in church as a mere formality and never intended to keep it. Whom, then, was he trying to deceive when he made it? God? That was really very unwise. Himself? That was not very much wiser. The bride, or bridegroom, or the "in-laws"? That was treacherous. Most often, I think, the couple (or one of them) hoped to deceive the public. They wanted the respectability that is attached to marriage without intending to pay the price: that is, they were imposters, they cheated. If they are still contented cheats, I have nothing to say to them: who would urge the high and hard duty of chastity on people who have not yet wished to be merely honest? If they have now come to their senses and want to be honest, their promise, already made, constrains them. And this, you will see, comes under the heading of justice, not that of chastity. If people do not believe in permanent marriage, it is perhaps better that they should live together unmarried than that they should make vows they do not mean to keep. It is true that by living together without marriage they will be guilty (in Christian eyes) of fornication. But one fault is not mended by adding another: unchastity is not improved by adding perjury. The idea that "being in love" is the only reason for remaining married really leaves no room for marriage as a contract or promise at all. If love is the whole thing, then the promise can add nothing; and if it adds nothing, then it should not be made.

*****

The Christian law is not forcing upon the passion of love something which is foreign to that passion's own nature: it is demanding that lovers should take seriously something which their passion of itself impels them to do.

*****

And, of course, the promise, made when I am in love and because I am in love, to be true to the beloved as long as I live, commits one to being true even if I cease to be in love. A promise must be about things that I can do, about actions: no one can promise to go on feeling in a certain way. He might as well promise never to have a headache or always to feel hungry. But what, it may be asked, is the use of keeping two people together if they are no longer in love? There are several sound, social reasons; to provide a home for their children, to protect the woman (who has probably sacrificed or damaged her own career by getting married) from being dropped whenever the man is tired of her. But there is also another reason of which I am very sure, though I find it a little hard to explain.

It is hard because so many people cannot be brought to realise that when B is better than C, A may be even better than B. They like thinking in terms of good and bad, not of good, better, and best, or bad, worse and worst.

*****

Being in love is a good thing, but it is not the best thing. There are many things below it, but there are also things above it. You cannot make it the basis of a whole life. It is a noble feeling, but it is still a feeling.

*****

People get from books the idea that if you have married the right person you may expect to go on "being in love" for ever. As a result, when they find they are not, they think this proves they have made a mistake and are entitled to a change-not realising that, when they have changed, the glamour will presently go out of the new love just as it went out of the old one.

*****

Another notion we get from novels and plays is that "falling in love" is something quite irresistible; something that just happens to one, like measles. And because they believe this, some married people throw up the sponge and give in when they find themselves attracted by a new acquaintance. But I am inclined to think that these irresistible passions are much rarer in real life than in books, at any rate when one is grown up. When we meet someone beautiful and clever and sympathetic, of course we ought, in one sense, to admire and love these good qualities. But is it not very largely in our own choice whether this love shall, or shall not, turn into what we call "being in love"? No doubt, if our minds are full of novels and plays and sentimental songs, and our bodies full of alcohol, we shall turn any love we feel into that kind of love: just as if you have a rut in your path all the rainwater will run into that rut, and if you wear blue spectacles everything you see will turn blue. But that will be our own fault.

[End quotes]

The problem with the Utah chief justice’s dissent is that she takes her own pre-conceived belief about what “should be” and then builds her argument around it, ignoring the clear and unambiguous language of the statute itself and ignoring the other evidence produced at trial supporting the majority’s decision. For example, Utah Code section 76-7-101 provides, in pertinent part, as follows:

A person is guilty of bigamy when, knowing he has a husband or wife or knowing the other person has a husband or wife, the person purports to marry another person *or cohabits with another person.*

Like it or not, that’s what the statute says. It’s the legislature’s job to write the laws – not the Courts’. While the Court can certainly evaluate statutes in light of the state’s constitution (and to an extent the U.S. Constitution), the Court is not authorized to write new law or overturn existing law. That is a job reserved exclusively for the legislature.

The testimony at trial was as follows:

“At trial, Ruth Stubbs testified that although she knew that the marriage was not a legal civil marriage under the law, she believed that she was married. Stubbs’s testimony included a description of the ceremony she had participated in with Holm. Stubbs testified that, at the ceremony, she had answered “I do” to the following question:

Do you, Sister [Stubbs], take Brother [Holm] by the right hand, and give yourself to him to be his lawful and wedded wife for time and all eternity, with a covenant and promise on your part, that you will fulfil all the laws, rites and ordinances pertaining to this holy bond of matrimony in the new and everlasting covenant, doing this in the presence of God, angels, and these witnesses, of your own free will and choice?

Stubbs testified that she had worn a white dress, which she considered a wedding dress; that she and Holm exchanged vows; that Warren Jeffs, a religious leader in the FLDS religion, conducted the ceremony; that other church members and members of Holm’s family attended the ceremony; and that photographs were taken of Holm, Stubbs, and their guests who attended the ceremony.

5 Stubbs also testified about her relationship with Holm after the ceremony. She testified that she had moved in with Holm; that Holm had provided, at least in part, for Stubbs and their children; and that she and Holm had “regularly” engaged in sexual intercourse at the house in Hildale, Utah. Evidence was also introduced at trial that Holm and Stubbs “regarded each other as husband and wife.””

In light of this, Judge Durham states, “I also believe that the majority’s reasoning fails to distinguish between conduct that has public import of a sort that the state may legitimately regulate and conduct of the most private nature.” That has nothing to do with the statute; it has to do with this particular judge’s personal opinions about what “should be” instead of reasoned application of the law to the facts as presented at trial.

How, for example, would Judge Durham adjudicate this question if the marriage in question was a common-law marriage? Utah is one of the few remaining states that recognizes common-law marriages. Does Judge Durham intend to abrogate this law, too? What about children born from that marriage? Would they have any legal rights to support from their father, would they be able to legally establish rights of inheritance, and would they be legally able to use their father’s last name?

Judge Durham is – and I think deliberately – trying to push the notion that whatever consenting adults want to do in the privacy of their own homes/bedrooms means that the state has absolutely no say whatsoever in how they classify their behavior.

I think it’s deliberate because, for one thing, everything I’ve read about her indicates that she’s very bright and very well-educated. She seems to understand that her place is not necessarily to make new law as to lay the foundation for someone else to do so. In a recent child-custody case, Durham was quoted as saying, “You're talking about common law that is decades old here,” adding there is a need to understand common law that applies to “contemporary” circumstances.

She seems to have a clear agenda to redefine Utah’s constitution to pave the way for legislation allowing not only same-sex marriages but also co-parenting rights for same-sex couples, especially considering that less than three months after Utah voters approved an amendment banning same-sex marriage, the Legislature considered a bill to give some rights to gay and lesbian couples. Based on her representation of the legal history of polygamy and the statutes at issue in her dissent, I believe she’s trying to set the stage for revision of Utah law – possibly by appeal to the U.S. Supreme Court.

While the Court can certainly evaluate statutes in light of the state’s constitution (and to an extent the U.S. Constitution), the Court is not authorized to write new law or overturn existing law. That is a job reserved exclusively for the legislature.

Two words and a letter: Marbury v. Madison. While that is about SCOTUS, sure, courts have a long history of overturning statutes that go against the Constitution (or the state Constitution, as it were), as well as any number of other reasons.

Besides, that whole thing about "the courts don't make the law" is a fallacy that really needs to stop being dragged around. Courts make law all the time. You don't know what the law is simply by looking at the Indiana Code on the state's webpage - you have to read the case law as well.

It's just more obvious that courts make law when, say, they allow gay marriage in MA then when they change the applicability of the parol evidence rule. (Which the IN State Supreme Court did in March...) Anyway, courts make laws all the time - it's just that most people watch CNN or Fox News or think back to their woefully inefficient 12th Grade Government class and think "the legislature makes the laws!" when it's plainly not true.

Interpreting statutes is making laws - as I would think any lawyer should know.

Judge Durham is – and I think deliberately – trying to push the notion that whatever consenting adults want to do in the privacy of their own homes/bedrooms means that the state has absolutely no say whatsoever in how they classify their behavior.

I agree. Everything you said before that is a complete non-sequiter. No one's arguing (or at least, no one should be arguing) that the statute didn't apply to the facts. I think it's quite clear that it DID apply to the facts.

But if there's something wrong with the statute, then it shouldn't be applied. Surely you don't think that SCOTUS was overstepping its bounds when it threw out statutes banning interracial marriage?

(And yes, I know that it's a different subject than what we're dealing with here. I'm only using the example to point out that sometimes there are statutes that are clearly unconstitutional and that those statutes should correctly be overturned.)

The whole point is not whether the statute applied; the whole point, to Judge Durham, is that the statute is constructed poorly and that while what occurred certainly was covered by the statute, it should not have been covered by any statute at all.

"Interpreting statutes is making laws - as I would think any lawyer should know."

Interpreting statutes is interpretation, which may be binding, but it is neither legislation nor, necessarily, "making law." Court rulings have effects that depend on what the opinions themselves say and on what the state has determined the effect of their rulings is.

Further, while court holdings can constitute or contain principles of common law, dicta is neither law nor binding.

It's called "case law," not "case interpretation."

What the Supreme Court says (given interpretation, etc) is just as much law as what the legislature says (given inerpretation, etc). They're both law.

"What the Supreme Court says ..."

What the Supreme Court *holds*.