(Chief Justice Durham, concurring separately):
¶40 Most importantly, Utah's bigamy statute serves the State's interest in protecting vulnerable individuals from exploitation and abuse. The practice of polygamy, in particular, often coincides with crimes targeting women and children. Crimes not unusually attendant to the practice of polygamy include incest, sexual assault, statutory rape, and failure to pay child support. See Richard A. Vazquez, Note, The Practice of Polygamy: Legitimate Free Exercise of Religion or Legitimate Public Menace? Revisiting Reynolds in Light of Modern Constitutional Jurisprudence, 5 N.Y.U. J. Legis. & Pub. Pol'y 225, 239-45 (2001).(14) Moreover, the closed nature of polygamous communities makes obtaining evidence of and prosecuting these crimes challenging. See id. at 243 ("Given the highly private nature of sexual abuse and the self-imposed isolation of polygamous communities, prosecution may well prove impossible. This wall of silence may present a compelling justification for criminalizing the act of polygamy, prosecuting offenders, and effectively breaking down the wall that provides a favorable environment in which crimes of physical and sexual abuse can thrive.")
¶62 I am constrained to concur with Justice Parrish's analysis of the application here of the "adjudicated marriage" statute and thus with the result of the majority opinion. I write separately to express my deep misgivings about the due process implications (not raised or briefed in this case) of using a statute designed to create civil liability for family support to establish the predicate for criminal behavior. Green took calculated and deliberate steps to avoid violation of the bigamy statute. He never attempted to enter into more than one civil marriage at a time, going to great lengths to dissolve, by divorce, one legal marriage before entering into another. In that regard, his behavior differs little from that of many citizens who (for non-religious reasons) set up households with new partners while still legally married to others, and remarry after divorce, if at all. It was only the action of the State, undertaken pursuant to the adjudicated marriage statute, that rendered his behavior criminal. Absent the application of a party for an adjudication of marriage pursuant to the statute, no legal marriage exists, and Green could not have been prosecuted. The analogy to the doctrine of entrapment, where a defendant is caused by agents of the state to commit acts he would not otherwise have committed, seems to me to be very strong. Here, it was only the prosecutors' application for an adjudication of marriage that created the necessary predicate for criminal bigamy, one that Green most probably, given his course of conduct, did not intend to create himself, and may not have even known was possible. Such a result strikes me as, at best, unfair.