Oct. 9, 2002-- John Hollenhorst reporting
But the sex and bigamy charges against Rodney Holm
and his wife, Suzie, also raise constitutional issues of
religious freedom that date back well over a century,
and which some consider unsettled in the law.
The last big crackdown on polygamists was in the
1950's in a town called Short Creek, now known as
Colorado City and Hildale. Houses were given
numbers. Wives and children were separated from
husbands, who were hustled off to jail.
The legal basis goes back to 1879 when George
Reynolds, Brigham Young's private secretary, was
convicted of polygamy. Law professor Ed Firmage
says it was a test case. Church leaders believed they'd
win in the Surpeme Court because polygamy was a
religious practice.
Prof. Ed Firmage/Univ. of Utah Law
School: "THAT THEY HAD THE RIGHT TO
MARRY, AND THAT IT WAS PROTECTED BY
THE UNITED STATES CONSTITUTION."
But the court upheld Reynolds' conviction, saying the
constitution protects religious beliefs, but not actions.
Firmage says the Reynolds case was decided in a
undercurrent of hysteria over Mormon polygamy.
Prof. Ed Firmage/Univ. of Utah Law
School: "AND IT IS STILL THE LAW
TODAY. BUT, THE UNDERGIRDING HAS
ALSO BEEN SHREDDED BY LATER CASES."
Those modern cases, brought by the Amish and
Jehovah's Witnesses, changed the legal equation. They
were not about polygamy. The Supreme Court sided
with the Amish in a challenge to a Wisconsin law
requiring kids to go to school.
Prof. Ed Firmage/Univ. of Utah Law
School: "IT LEFT INTACT THE
COMPULSORY EDUCATION LAW FOR
EVERYBODY ELSE IN WISCONSIN. BUT
THE AMISH HAD A BYE BECAUSE THEY
WERE SELF-EDUCATING THEIR KIDS IN
HOME SCHOOLS. AND THAT EXCEPTION IS
WHAT HAS EATEN THE HEART OUT OF A
LOT OF THE REYNOLDS RATIONALE."
JOHN HOLLENHORST REPORTING: "THE
NEW LEGAL STANDARD IS THAT
RELIGIOUS PRACTICES ARE PROTECTED
TOO, UNLESS THE STATE HAS A STRONG
OR 'COMPELLING' REASON TO FORBID
THEM. THE LEGAL THINKING HAS
EVOLVED SINCE PROSECUTORS WENT
AFTER GEORGE REYNOLDS."
Prof. Ed Firmage/Univ. of Utah Law
School: "THEY DID NOT NEED TO PROVE
A COMPELLING STATE INTEREST. NOW
THAT INTEREST MUST BE PROVEN."
So, is this the time to take a new polygamy test case
before the nine justices?
Prof. Ed Firmage/Univ. of Utah Law
School: "IF I WERE A POLYGAMIST,
WHICH I AM NOT, I WOULD WAIT FOR A
LITTLE BIT MORE LIBERAL COURT.
HOWEVER, YOU'VE GOT ABOUT A 5-4
CASE, I'D SAY."
If Reynolds were alive today, he might go to prison.
But it would be close. John Hollenhorst, Eyewitness
News.
Rodney Holm's lawyer says he may fight the charges
as an un-constitutional attack on religious freedom.
