(concurring in the result):
I agree that the district court’s order should be reversed and the case remanded for a factual hearing on the issue of whether the Fischers’ adoption petition, if granted, would be in the best interests of the Thornton children. Since I am unable to concur in Justice Durham’s opinion, but do concur in the result, I write separately to explain the reasons for the result I reach.
In my view, the trial judge ruled as a matter of law that Vaughn and Sharane Fischer, who live together in a polygamous marriage, did not qualify as putative adoptive parents of the six Thornton children, who were children of another polygamous marriage. Since Sharane Fischer is the first wife of Vaughn Fischer, it can be stated that she is not living in violation of *1087the state bigamy statute. However, her husband, Vaughn Fischer, is married to two other wives and is in violation of the statute.
I disagree with Justice Durham on the issue of the power of the courts to place a judicial gloss upon broad statutory terms such as § 78-80-9, which establishes the standards for granting a petition of adoption. That section requires that a court be “satisfied that the interests of the child will be promoted by the adoption....” The gloss the trial court placed on the statute was that putative adoptive parents living in a polygamous marriage are disqualified as a matter of law to adopt. This Court has, over the years, placed judicial glosses on a number of statutory terms such as “public interest.” I do not think that courts are powerless to do so under § 78-30-9. As I read the record, the trial judge did just that and held that because polygamy is contrary to the fundamental policy of the state of Utah and because the Fischers are polygamists, they are disqualified from adopting. Although I am of the view that the trial court had the power to do that, I disagree that as a matter of judicial policy polygamy should be considered an absolute bar in all cases.
As I view the matter, the issue is not whether polygamous adults who wish to adopt have a right to a hearing with respect to an adoption petition; rather, it is whether children who are subject to adoption have a right to have as adoptive parents those who may be the only people who can give the children the reasonable nurture, care, guidance, and love as a foundation for realizing their highest potential as human beings. The factual context in which the need for adoption arises can be of critical importance in determining the best interests of the child. As Justice Durham properly points out, critical factual differences may well exist in different cases, and for that reason, the existence of a polygamous relationship on the part of putative adoptive parents must be considered a significant, although not necessarily a determinative, factor in an adoption proceeding.
Not only is polygamy a factor that weighs against adoption, but it is a factor which I believe must be given considerable weight and, in at least some cases, will be the determining factor. I am aware that in so stating, I have not defined a precise, workable standard, but this is the kind of case in which a trial judge should not be bound by such rigid standards that one’s best wisdom in the exercise of highly equitable powers must be abandoned. The lack of specificity places a premium on the trial judge’s judgment. I emphasize that I consider polygamy neither a neutral factor nor a determinative factor as a matter of law in adoption proceedings. There must be clear and solid reasons based on the present and future welfare of the children to justify an adoption by polygamous parents.
The fundamental question is not whether polygamists are denied a privilege or right or are otherwise disadvantaged because of the state constitutional and statutory prohibitions against polygamy. The question is, rather, whether children subject to adoption should be adopted by adults who are living in a continuous, ongoing violation of the law concerning one of the most fundamental institutions in society. Polygamy is more than just an “alternative lifestyle,” as that term is sometimes used in describing a manner of living that is unorthodox and outside the accepted norms and established customs of society. Having said that, I add that I do not subscribe to a view that condemns polygamists as being depraved or debased. Much evidence suggests that polygamists, as they are generally known in this state, are honest and hardworking. My point is not that polygamy raises an issue of moral (in the broadest sense) inferiority on the part of those who practice it, but rather, that the people have a right through constitutional and legislative enactments to determine how the most basic social unit in society should be organized. That judgment has the most profound ramifications for many fundamental concerns, such as views about the roles of women and men, the rearing of children, education, and many other kinds of basic values socie*1088ty deems appropriate to promote by a monogamous family structure.
I do not believe that the exceptionally thorough, thoughtful, and extensive briefing that has been submitted in this ease by the parties and amici showing evidence of changes in moral, sexual, and even law enforcement values — even if taken at face value — justifies this Court in concluding that the state’s fundamental legal policy concerning polygamy should be viewed differently by this Court. Nor do I believe that the concept of desuetude, even if factually proved, would justify this Court in ignoring our Constitution, statutes, and the enabling act, which require and establish the basic policy of this state.
In my view, Senior Judge 0. Sherman Christensen’s thoughtful and scholarly opinion in Potter v. Murray City, 585 F.Supp. 1126 (D.Utah 1984), aff'd, 760 F.2d 1065 (10th Cir.), cert. denied, 474 U.S. 849, 106 S.Ct. 145, 88 L.Ed.2d 120 (1985), reaches the proper conclusion both as to what state policy is and the current state of federal constitutional law on the issue of polygamy and religious freedom under the First Amendment to the United States Constitution.
Perhaps, as Justice Howe suggests, an evidentiary hearing on remand of this matter will not end in a different result, but I do not prejudge what conclusion the trial judge might reach. In all events, to me it seems necessary to let the relevant facts be developed and the issue decided in light of the judge’s considered judgment.