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Datum: Sonntag, den 26. August 2001, um 2:58 Uhr

Betrifft: UrteilsbegrÃ¼ndung

Sentencing Statement read by Judge BurninghamFriday, August 24, 2001

IN THE FOURTH JUDICIAL DISTRICT COURT IN AND FOR THE COUNTY OF UTAH, STATE OF UTAH
STATE OF UTAH, Plaintiff
vs.
THOMAS ARTHUR GREEN, Defendant.
SENTENCING STATEMENT BY THE COURT
Case No. 0 11401325
Judge Guy R. Burningham

Introduction

Media accounts of this case have been reported on a scale far greaterthan I ever anticipated at the outset. In large part this is due, I believe, tothe highly vocal nature of Mr. Green and his family. On numerousoccasions they have broadcasted their religion, beliefs, and personal livesto members of the media who, in simply doing their jobs, disseminatedstories about the Greens across the globe. This is evident from thevarious news reports I have read that have originated from manycountries throughout the world.

Despite the widespread media attention given to this case, the issuespresented were not new or even novel. As with any other case where aperson is charged with a criminal offense, the Court painstakingly ensuredthat Mr. Green was afforded the protection of every right to which hewas entitled under both state and federal constitutions. From the momentcharges were filed, Mr. Green was cloaked in the mantle of innocenceand was not held in custody pending trial. After a time-consuming andcareful examination of potential jurors, and despite Mr. Green’scontinuous outpouring of information and opinions about the case, theCourt was able to select a panel of jurors who thoughtfully and impartiallyconsidered the evidence. Only after careful deliberation was thepresumption of innocence removed and Mr. Green found guilty. Withoutquestion, the defendant in this case received a full and fair trial.

Prior to sentence being imposed, the Court wishes to address severalimportant issues, previously raised during the case, in order to dispel anymisconceptions relating to the absolute right of a citizen of Utah toespouse a religious belief and the State’s power to regulate the conduct ofits citizens.

The United States Constitution

Pursuant to principles embodied in the United States Constitution, theState of Utah is permitted to restrain religious practices which violatesocial duties and undermine peace and good order. In 1787, delegatesfrom the original colonies adopted the United States Constitution and thefirst ten amendments known as the Bill of Rights The First Amendmentreads in pertinent part that "Congress shall make no law respecting anestablishment of religion, or prohibiting the free exercise thereof, orabridging the freedom of speech. . . ." While the scope and effect of thisamendment was not expressly defined, the discussions and debates thateventually led up to ratification of the constitution provide a clearerpicture of the boundaries between church and state. In particular,Thomas Jefferson, who was known for his vigorous defense of religiousfreedom, authored a bill passed by the Virginia House of Delegates inwhich he counseled that although states do not, and should not, havepower to restrain the profession or propagation of religious principles,"civil government ... [may] interfere when principles break out into overtacts against peace and good order." Reynolds v. United States, 98 U.S.145, 163 (1878). Based upon this language, the Supreme Court of theUnited States has held that under the First Amendment, "Congress wasdeprived of all legislative power over mere opinion, but was left free toreach actions which were in violation of social duties or subversive ofgood order." Id. at 164. Here "is found the true distinction between whatproperly belongs to the church and what to the State." Id. "The freedomto hold religious beliefs and opinions is absolute.... However, the freedomto act, even when the action is in accord with one’s religious convictions,is not totally free from legislative restrictions." Braunfeld v. Brown, 366U.S. 599, 603 (1961).

Although the First Amendment is a federal constitutional provision, it’sscope and effect apply equally to the individual states pursuant to theFourteenth Amendment and the Supremacy Clause of the United StatesConstitution. See U.S. Const. art. VI, cl. 2. Thus, although the State ofUtah cannot interfere in any way with a person’s religious beliefs, it isgranted the power, consistent with the First Amendment, to restrainconduct which undermines "peace and good order."

The Constitution of the State of Utah

Pursuant to the Utah Constitution, the State of Utah is also permittedto prohibit the practice of plural marriage. The Territory of Utah, like theearly colonies of our great nation, was founded on the idea of religiousfreedom. Although Utah was more populous than many of its sisterstates, its admittance into the Union was delayed based in large part onthe fact that many of its citizens, who were members of The Church ofJesus Christ of Latter-Day Saints (the Mormon Church), engaged in thepractice of plural marriage. In 1890 this Church ceased the practice ofplural marriage and to this day does not allow its members to practicepolygamy. As a prerequisite to admittance, Utah was required tosquarely address the issue of religious freedom and plural marriage, whichit did in 1896 with the enactment of the Utah Constitution.

The Enabling Act instructed the Utah Constitutional Convention, as acondition of admittance, to:

... provide, by ordinance irrevocable without the consent of the UnitedStates and the people of said state: First. That perfect toleration ofreligious sentiment shall be secured and that no inhabitant of said stateshall ever be molested in person or property on account of his or hermode of religious worship: Provided, that polygamous or plural marriagesare forever prohibited.

As enacted, Article III of the Utah Constitution states that "Perfecttoleration of religious sentiment is guaranteed. No inhabitant of this Stateshall ever be molested in person or property on account of his or hermode of religious worship;. . ." Furthermore, consistent with the mandateof the Enabling Act, Article III goes on to state, "but polygamous orplural marriages are forever prohibited."

Thus, in accordance with our own constitution, enacted over onehundred years ago, the practice of plural marriage is forbidden in theState of Utah. Since that time, monogamy, and the myriad laws passedby the legislature for its protection, has been the settled public policy inUtah and the cornerstone of the State’s regulation of marriage. See Potterv. Murray City, 760 F. 2d 1065, 1068 (10th Cir. 1985).

Religious Beliefs Are Not a Defense for a Criminal Act

In 1878, in the case of Reynolds v. United States, 98 U.S. 145(1878), the United States Supreme Court addressed whether a person’sreligious belief or duty could be a legal justification for violating a lawprohibiting the practice of plural marriage. Concerning the power ofgovernment to regulate marriage, the Supreme Court stated that"marriage, while from its very nature a sacred obligation, is nevertheless,in most civilized nations, a civil contract, and usually regulated by law."Reynolds, 98 U.S. at 165. The Court went on to say that

the only question which remains is, whether those who make polygamya part of their religion are excepted from the operation of the statute[prohibiting polygamy]. If they are, then those who do not makepolygamy a part of their religious belief may be found guilty and punished,while those who do, must be acquitted and go free. This would beintroducing a new element into criminal law. Laws are made for thegovernment of actions, and while they cannot interfere with mere religiousbelief and opinions, they may with practices. Suppose one believed thathuman sacrifices were a necessary part of religious worship, would it beseriously contended that the civil government under which he lived couldnot interfere to prevent a sacrifice?

Id. at 166. 1 obviously recognize that human sacrifice is a moreextreme practice than plural marriage. Nevertheless, the principleinvolved is the same. As the Supreme Court goes on to say in Reynolds,

Can a man excuse his practices to the contrary because of his religiousbelief? To permit this would be to make the professed doctrines ofreligious belief superior to the law of the land, and in effect to permitevery citizen to become a law unto himself Government could exist onlyin name under such circumstances.

Id. at 166-67.

Eleven years later, in the case of Davis v. Beason, 133 U.S. 333(1889), the Supreme Court reaffirmed the holding of Reynolds.According to the Court, some

may assume

that because no mode of worship can be established or religious tenetsenforced in this country, therefore any form of worship may be followedand any tenets, however destructive of society, may be held andadvocated, if asserted to be a part of the religious doctrines of thoseadvocating and practicing them. But nothing is further from the truth.Whil[e] legislation for the establishment of a religion is forbidden, and itsfree exercise permitted, it does not follow that everything which may beso called can be tolerated. Crime is not the less odious becausesanctioned by what any particular sect may designate as religion.

Id at 3 4 5.

Finally, as recently as 1984, in the case of Potter v. Murray City, 585F. Supp. 1126,1138 (1984), the United States District Court for theDistrict of Utah recognized the continuing validity of the central holding ofReynolds. While addressing the issue of the free exercise of religion, theCourt stated that

[t]he right to worship according to the dictates of one’s ownconscience and reason and to be free from molestation or restraint in hisperson, liberty, or estate in such worship, is a natural, fundamental andinalienable right, available to every individual, subject only to a properexercise of the police power when action is coupled with belief. Freedomto believe or not to believe is absolute. Freedom to act, however, is notabsolute but limited or qualified by the power of the state withinreasonable limits to protect society pursuant to a compelling state interest.Particularly in the field of marriage and domestic relations has the Statevalid concerns with religiously motivated action to the extent of acompelling public interest. Id at 1137.

Conclusion

It is clear from this brief history lesson in religious freedom thatalthough the State of Utah cannot control in any way the private moral orreligious beliefs of its citizens, it has a fundamental duty to regulate thebehavior of its people for the common good. Particularly in the realm ofmarriage practices, the State has a compelling interest in proscribingcertain types of conduct. In this regard, both state and federalconstitutions grant to the State of Utah the authority to create lawsprohibiting the practice of bigamy and plural marriage and to enforcethese laws notwithstanding a person’s religious beliefs to the contrary.

All this being said, it is this Court’s obligation to enter judgment andsentence for Mr. Green.