The US Supreme Court Monday declined to consider the appeal by a Utah man with three wives who sought to overturn his bigamy conviction by citing the high court's 2003 landmark ruling on gay rights.
The action lets stand a Utah Supreme Court decision upholding the state's bigamy law even though it clashes with some residents' sincerely held religious beliefs.
"There are literally thousands of religious people in Utah ... who now have to be concerned to look over their shoulder that some day [state Attorney General] Mark Shurtleff and the state of Utah will come after them," says Raymond Berry, one of the lawyers representing polygamist Rodney Holm. The ruling will raise concerns among religious fundamentalists in Utah that the state will step up its pressure against them, he adds. "They are kind of like turtles, they pull their heads in, they stay out of the public eye."
The Holm case offers a glimpse into a world rarely seen by most Americans. There are an estimated 37,000 religious polygamists in Arizona, California, Colorado, Idaho, Montana, Nevada, South Dakota, and Utah.
Mr. Holm's lawyers hoped to use the Supreme Court's 2003 ruling on gay rights as a means to challenge state laws against multiple marriage.
In that landmark case, called Lawrence v. Texas, the court invalidated Texas' sodomy law, ruling that gay adult Texans, like all other adults, were entitled to intimate relations without government interference. In a fiery dissent, Justice Antonin Scalia warned that the court's rejection of moral disapproval as a foundation for certain laws would open the door to legal challenges to state statutes banning same-sex marriage, prostitution, and bigamy, among others.
A key legal question is how broadly Lawrence v. Texas should be read. Most judges have interpreted that case narrowly. But within five months of the Lawrence decision, the Supreme Judicial Court in Massachusetts announced a constitutional right in that state to gay marriage.
Lawyers for Holm were hopeful that a majority of justices would see his case as an opportunity to extend the holding in Lawrence v. Texas to protect polygamist relationships from state prosecution in cases where all the parties were aware of and approved of the practice.
There has been no shortage of other challenges as per Justice Scalia's warning, but the high court has so far avoided revisiting the 2003 landmark. In declining to take Holm's case, the justices offered no explanation.
Holm is a member of a religious group that practices polygamy as a tenet of their faith.
"They are the philosophical, and often biological, descendants of early Mormons who refused to compromise their religious principles in the face of the most extreme form of coercion," wrote Holm's other lawyer, Rodney Parker of Salt Lake City, in his petition to the court.
Although polygamy was once accepted, the Church of Jesus Christ of Latter-day Saints banned the practice in 1890.
The issue arose recently on the presidential campaign trail with the Associated Press reporting over the weekend that Republican presidential candidate Mitt Romney had a great-grandfather who had five wives and a great-great-grandfather with 12 wives.
Mr. Romney, a Mormon, says he is opposed to polygamy. He has been married for 37 years to his high school sweetheart. But prejudice against Mormons might hurt Romney's chances in a run for the White House, some analysts say.
The Holm case arrived at the Supreme Court after the Utah resident was convicted of violating the state's bigamy law and of having unlawful sexual contact with a minor. Holm was charged after his third wife – then age 16 – moved into his house with his two other wives and children following an unlicensed religious marriage ceremony.
The third wife was the younger sister of Holm's first wife.
Holm believes his religious faith requires that he have more than one wife. He and his wives are members of the Fundamentalist Church of Jesus Christ of Latter-day Saints, a spinoff sect with no connection to the Mormon Church.
At issue in his case was whether state prosecutors violated his constitutional right to practice his religion and maintain an intimate family relationship without intrusive government interference.
In Lawrence v. Texas, the high court declared that a state sodomy law treated gay Texans as second-class citizens. Holm's lawyers told the high court that Utah's polygamy statute does the same for certain religious fundamentalists.
In urging the high court not to take the case, Assistant Attorney General Laura Dupaix said the protections established in Lawrence v. Texas only apply to relationships between consenting adults.
"This case does not involve consenting adults," she wrote. "It involves an arranged polygamous and sexual relationship between a 32-year-old adult and his 16-year-old sister-in-law, who conceived two of his children before her 18th birthday."
In contrast, Mr. Parker said Utah's bigamy law applies a double standard that targets and punishes religious fundamentalists but allows others to engage in the same conduct and escape criminal punishment.
"Widespread popular departure from traditional marriage practices has made the anti-polygamy laws, like laws against cohabitation, adultery, and fornication, anachronistic," Parker wrote. "These laws are not enforced against those practicing contemporary lifestyles, but are asserted as weapons, as in this case, against those living a traditional, family-grounded, religious-based life."
He added, "In gross absurdity..., one can behave in the same way in two circumstances but in one (polygamy) the action is illegal, and in the other (promiscuity) the action is ignored by the law. One can do legally the same act with immoral or amoral intent and have it be legal. Yet the same act with religious intent is deemed illegal."