concurring in part and dissenting in part:
T131 I join the majority in upholding Holm's conviction for unlawful sexual conduct with a minor. As to the remainder of its analysis, I respectfully dissent. As interpreted by the majority, Utah Code section 76-7-101 defines "marriage" as acts undertaken for religious purposes that do not meet any other legal standard for marriage-acts that are unlicensed, unsolemnized by any civil authority, acts that are indeed entirely outside the civil law, and unrecognized as marriage for any other purpose by the state-and criminalizes those acts as "bigamy." I believe that in doing so the statute oversteps lines protecting the free exercise of religion and the privacy of intimate, personal relationships between consenting adults.
{132 The majority upholds Holm's criminal bigamy conviction based solely on his participation in a private religious ceremony because the form of that ceremony-though not its intent-resembled what we think of as a wedding, a ritual that serves to solemnize lawful marriages and in which the parties formally undertake the legal rights, obligations, and duties that belong to that state-approved institution. In resting its conclusion on that basis, the majority, in my view, ignores the legislature's intent that the concept of marriage in Utah law be confined to a legally recognized union. I also believe that the majority's reasoning fails to distinguish between conduct that has public import of a sort that the state may legitimately regulate and conduct of the most private nature.
€133 In particular, the majority broadly interprets the "purports to marry" prong of Utah's bigamy statute, Utah Code Ann. § 76-7-101 (2003), to include the purported entry into "marriages recognized both by law *759and by custom." Supra 125. The majority then implicitly concludes that the term "marriage" in article III, section 1 of the Utah Constitution, which declares that "polygamous and plural marriages are forever prohibited," has the same broad meaning and, thus, that the Utah Constitution excludes even private polygamous relationships from the seope of its protections of religious freedom and individual liberty. Supra 147. The majority further holds that the United States Constitution's protection of individual liberty under the Fourteenth Amendment's Due Process Clause does not extend to "the type of polygamous behavior at issue in this case," supra 153, not only because that behavior involves a minor but also because it "implicates the public institution of marriage," supra 156. R
" 134 On all three points, I believe that the majority's expansive conception of marriage in Utah law is the result of a flawed analysis with problematic implications. Because I do not agree that the state can constitutionally criminalize private religiously motivated consensual relationships between adults, I believe Holm's conviction under section 76-T-101-which does not rely on the fact that Holm's partner in his alleged bigamy was a minor-must be overturned, and I therefore respectfully dissent from Part I of the majority's opinion. I explain my disagreement with the majority's reasoning below, first addressing its interpretation of the "purports to marry" prong of section 76-7-101. I then address its analysis of Holm's constitutional challenges to the bigamy statute and offer an alternative reading of our state constitution's polygamy and religious freedom provisions and of Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003).
I. INTERPRETATION OF "PURPORTS TO MARRY" IN SECTION 76-7-101
€135 The majority concludes that Holm may be found guilty of "purport[ing] to marry another person" while already having a wife because he entered a religious union with Ruth Stubbs that the two of them referred to as a "marriage," even though neither believed, represented, or intended that the union would have the legal status of a state-sanctioned marriage.1 In doing so, the majority deems irrelevant the distinction between the word "marry" when used in a legal context and the same word's idiosyneratic meaning when used as a label for a relationship recognized as significant by a particular individual or group, but not by the state.
[136 This view is first evident in the majority's preference for the definition of "marry" that appears in Merriam-Webster's Collegiate Dictionary rather than the definition that appears in Black's Law Dictionary. The former work acknowledges the reality that individuals may use the term "marry" to refer to a union formed "according to law or custom." Merriam-Webster's Collegiate *760Dictionary 761 (11th ed.2003) (emphasis added). In contrast, the latter, concerned as it is with what words mean when they are vested with legal import, defines "marriage" as "[the legal union of a couple as husband and wife." Black's Law Dictionary 992 (8th ed.2004) (emphasis added).2
T 137 I do not believe it is appropriate to interpret the term "marry" when it appears in a state statute as providing what is essentially an anthropological description of human relationships. To do so is to ignore the fact that the law of our state and our nation has traditionally viewed marriage as denoting a legal status as well as a private bond.3
138 I also do not believe that the legislature, having so carefully structured the various prerequisites of marriage in state law, as well as the rights, duties, and obligations that state law accords married persons, would use the term "marry" in section 767-101, alone among all statutory provisions, to mean not only entry into a legally recognized marriage but also entry into any relationship that is accepted as marriage in whatever custom or tradition the parties consider applicable.4 *761Beyond Merriam-Webster's, the only authorities cited by the majority are Utah's unso-lemnized marriage statute, Utah Code Ann. § 80-1-4.5 (1998 & Supp.2005), and the "cohabits" prong of Utah Code section 76-7-101. However, Utah Code section 30-1-4.5, which provides an adjudicatory alternative to statutory licensing and solemnization requirements, itself demonstrates that only legally recognized, licensed marriages are marriages under Utah law; so-called "common law marriages" have not been recognized in Utah since statehood.5
1189 As for the "cohabits" prong of seetion 76-7-101, the majority fails to explain why the breadth of that provision should conclusively determine our interpretation of the parallel "purports to marry" prong. I perceive no justification for judicial speculation that the legislature intended a uniquely "expansive definition" of "marry" in section 767-101, see supra « 22, especially given the legislature's express statement to the contrary in another Utah Code provision, section 30-1-4.1 (Supp.2005). That provision explains that Utah "recognize[s] as marriage only the legal union of a man and a woman as provided in this chapter." Utah Code Ann. § 30-1-4.1(1)(a); see also Utah Const. art. I, § 29 ("Marriage consists only of the legal union between a man and a woman."). As a matter of simple grammatical extrapolation, if only a "legal union of a man and a woman" is "marriage," then "purporting to marry," must be purporting to enter into such a legal union.6
1 140 The majority also refers to "the well-documented history of this State's attempts to prevent the formation of polygamous unions" as evidence that section 76-7-101 was intended to criminalize "attempts to form duplicative marital relationships that are not legally recognized." Supra 126. This invocation of legislative history seems somewhat ironic in light of this court's recent refusal to consider the same history in analyzing *762whether section 76-7-101 impermissibly targeted religiously motivated practices. See State v. Green, 2004 UT 76, ¶¶ 24-25, 99 P.3d 820. Moreover, as far as I am aware, the "well-documented history" to which the majority refers ended long before 1978, when section 76-7-101 was originally enacted. State v. Tuttle, 730 P.2d 630, 632 (Utah 1986) (recognizing that in 1978 our legislature "repealed wholesale all the prior substantive criminal statutes ... and enacted a sweeping new penal code that departed sharply from the old common law concepts"). The majority fails to explain how that history could be relevant to our interpretation of section 76-7-101.
" 141 The majority adopts the position that "an unlicensed, solemnized marriage can serve as a subsequent marriage that violates the bigamy statute." Supra 126. The majority then concludes that Holm entered such a "solemnized marriage" with Ruth Stubbs by participating in an FLDS ceremony in which (1) a religious leader officiated, (2) "vows typical of a traditional marriage ceremony" were exchanged, and (8) the woman wore a white dress. Supra 130. This position conflates "solemnization" with participation in a ritual of union specific to one's customs or religious beliefs.
T 142 The majority defines "solemnization" as "the steps, whether ritualistic or not, by which two individuals commit themselves to undertake a marital relationship." Supra 182. A more accurate conception of the term, however, recognizes "solemnization" as the formal undertaking, before witnesses, of the legal obligations of marriage. See Maynord v. Hill, 125 U.S. 190, 210-11, 8 S.Ct. 723, 831 L.Ed. 654 (1888) ("[MJarriage ... does not require any religious ceremony for its solemnization.... [Wlhen the contract to marry is executed by the marriage's [solemnization], a relation between the parties is created which they cannot change. Other contracts may be modified, restricted, or enlarged, or entirely released upon the consent of the parties. Not so with marriage. The relation once formed, the law steps in and holds the parties to various obligations and liabilities."); accord Hernandes v. Robles, 7 Misc.3d 459, 794 N.Y.S.2d 579, 588 (Sup.Ct. 2005); ef Black's Law Dictionary (8th ed.2004) (defining solemnization as "[the performance of a formal ceremony (such as a marriage ceremony) before witnesses"). The parties' intent to assume these legal obligations is what distinguishes a ceremony properly considered a "solemnization" from one that is merely a private religious ritual.
€ 143 Had Holm and Ruth Stubbs intended to marry under state law and to assume the concomitant legal obligations, a sealing ceremony of the type in which they participated would satisfy the state's solemnization requirement, assuming that all other requirements, such as licensure, were met. See Utah Code Ann. § 80-1-6 (Supp.2004); cf. Hilton v. Roylance, 25 Utah 129, 69 P. 660, 670 (1902) (holding that a sealing ceremony performed by an LDS Church official in 1872 effected a marriage cognizable at common law). This fact indicates an accommodation by state law of the personal preferences of individuals regarding the context in which marriage solemnization occurs. Members of a particular religion may combine solemnization with the ritual of union traditionally practiced within their faith. Thus, under the relevant Utah Code section, marriages may be solemnized by "ministers, rabbis, or priests of any religious denomination who are () in regular communion with any religious society; and (i) 18 years of age or older," Utah Code Ann. § 80-1-6(1)(a), as well as by "Native American spiritual advisors." Id. § 30-1-6(1)(b).
T144 It does not follow, however, that every ceremony performed by one of these individuals, who are not public officials, that is designed to unite two individuals in some way meaningful within a particular religion constitutes "solemnization" whenever it is "indistinguishable from a [typical] marriage ceremony." Supra 130. The majority's interpretation will subject religious leaders to criminal sanction for performing religious ceremonies that are not intended by anyone involved to have significance beyond the community in which they occur. See Utah Code Ann. § 30-1-15 (imposing criminal penalties on the solemanization of marriages prohibited by state law). For example, a minister officiating in a commitment ceremony involving a *763same-sex couple may now be held in violation of section 80-1-15(2) (though perhaps only if at least one partner is wearing a white dress). Such a result turns the purpose of Utah Code section 30-1-6 on its head. Cf. In re Estate of Litzky, 206 So.2d 688, 689 (Fla.Dist.Ct.App.1974) (recognizing that the union of a couple for whom an Orthodox Jewish rabbi had performed a religious ceremony was equivalent to a common law marriage, which involves no solemnization, where no marriage license had been obtained).
1 145 The majority claims that "[the crux of marriage in our society, perhaps especially a religious marriage, is not so much the license as the solemnization," and that "[the presence or absence of a state license does not alter thle] [marital] bond or the gravity of the commitments made by Holm and Stubbs." Supra 182. It is apparent that the majority wishes to emphasize the importance of the private commitment between two partners who pledge to each other lifelong love, companionship, and support. The majority also alludes to the sanctification such a commitment receives when the partners participate in a religious ceremony in accord with their faith. Undoubtedly, a couple may feel it is their commitment before God that gives their relationship its legitimacy or permanence. However, it is beyond dispute that such private commitments alone, even when made before God, do not constitute "marriage" in our state or in our legal system. Any two people can make private pledges to each other, with or without the assistance of a religious official, but these private commitments are not equivalent to marriage absent a license or an adjudication of marriage. Likewise, such commitments are not enforceable under state law unless additional steps are taken to set forth mutual obligations in a written contract. Rather, despite the majority's assertion, a state license does indeed alter the bond between two people, and the gravity of their commitments, by making the state a third party to the relationship. See Palmer v. Palmer, 26 Utah 81, 72 P. 8, 7-8 (1903) (recognizing that "[mJarriage differs from ordinary contracts" in that "the State, to every marriage contract entered into within its jurisdiction, makes itself a party" (internal quotation omitted)). When a marriage occurs, no separate contract is needed in order for marital rights and duties to be enforceable; rather, the parties' private commitments are overlaid by a comprehensive legal framework set forth, in part, in a state's statutory law.7
[ 146 The majority points to the fact that Holm and Stubbs referred to themselves as "married" in a religious sense as further evidence that they "purport[ed] to marry" within the meaning of section 76-7-101. However, the law has no monopoly on particular language. In my view, those who choose, for religious or other personal reasons, to refer to themselves as "married," even though they know the law does not so regard them, are free to do so within their private sphere and cannot by that act alone fall subject to criminal penalties. Imposing criminal penalties on such a basis is equivalent to disciplining an individual who goes by the name of "Doctor W," but who is not, in fact, a licensed physician, for violation of state licensing requirements even though he has never professed to be a legally licensed doctor or to have the medical expertise which that status is designed to ensure.
1 147 I therefore interpret the "purports to marry" prong of section 76-7-101 as referring to an individual's claim of entry into a legal union recognized by the state as marriage. The phrase does not encompass an individual's entry into a religious union *764where there has been no attempt to elicit the state's recognition of marital status or to procure the attendant benefits of this status under the law, and where neither party to the union believed it to have legal import. I therefore believe it was error for the district court to submit to the jury the question of Holm's guilt under that prong of section 76-7-101.
148 I next address the majority's treatment of Holm's state and federal constitutional claims and explain why I consider Holm's conviction for engaging in private religiously motivated conduct unconstitutional.8
IL STATE CONSTITUTIONAL CLAIMS
A. Interpretation of Article III, Section 1
149 The majority's conflation of private relationships with legal unions is also problematic in its analysis of Holm's claim that his bigamy conviction violates the guarantees of individual rights protected by article I of the Utah Constitution. The majority dismisses Holm's claim on the basis that the Utah Constitution "offers no protection to polygamous behavior and, in fact, shows antipathy towards it by expressly prohibiting such behavior" in article III, section 1. Supra 136 (emphasis added). However, that provision declares that "polygamous or plural marriages are forever prohibited." Utah Const. art. III, § 1 (emphasis added). Here, as elsewhere in Utah law, I understand the term "marriage" to refer only to a "legal union." See, eg., Utah Const. art. I, § 291) ("Marriage consists only of a legal union between a man and a woman."). Understood in this way, article III, section 1, by its plain language, does not prohibit private individual behavior but instead prevents Utah's state government, to whom the ordinance is addressed, from recognizing a particular form of union as a "marriage."
{150 The majority concludes that article III, section 1 is a restriction on individual rights rather than on state government. It justifies this conclusion primarily by reference to the proceedings of Utah's 1895 constitutional convention, which reflect the drafters' concern with following the federal requirements set forth in the Utah Enabling Act, ch. 188, 28 Stat. 107 (1894). Specifically, the majority emphasizes some delegates' concern that the federal government intended, through the Emabling Act, not only to prevent Utah from recognizing polygamous unions as valid marriages, but also to require that the state impose criminal penalties on polygamy. However, the majority's own analysis makes it clear that the drafters did not address this concern by revising article III, section 1; rather, they simply reaffirmed the validity of a territorial statute. See Utah Const. art. XXIV, § 2 (declaring in force an 1892 law "in so far as the same defines and imposes penalties for polygamy"). Moreover, that statute criminalized only polygamous marriage, not polygamous behavior.9 *7651892 Utah Laws ch. VII, § 1, at 5-6 (defining "polygamy" as "ha[ving] a husband or wife living" and "marr[ying] another," or as "marr[ying] more than one woman" on the same day). The majority reasons that because the drafters thought it necessary to affirm the criminalization of polygamous marriage in article XXIV, they must therefore have intended the reference to polygamous marriage in article III, section 1 to place all private polygamous relationships outside constitutional protection.
1151 My review of the history of Utah's statehood leads me to conclude otherwise, and further bolsters my understanding of the term "marriage" in article III, section 1. I read both the Enabling Act and the ordinance provisions, to the extent the latter can be identified with the former,10 as carrying forward a restriction that Congress had placed on Utah's territorial government beginning with the Morrill Act, 12 Stat. 501 (1862). That statute provided that "'all ... acts and parts of acts heretofore passed by the said legislative assembly of the Territory of Utah, which establish, support, maintain, shield or countenance polygamy, be, and the same hereby are, disapproved and annulled." Cope v. Cope, 137 U.S. 682, 686, 11 S.Ct. 222, 34 L.Ed. 832 (1891) (quoting Morrill Act, ch. 126, § 2, 12 Stat. 501); see In re Handley, 7 Utah 49, 24 P. 678, 674-75 (1890) (citing Morrill Act). Among the "acts" to which the Morrill Act referred was undoubtedly the law incorporating the LDS Church, passed in 1851 by the Provisional State Government of the proposed State of Deseret. This law had granted the LDS Church full authority to conduct marriages of its members in accord with Church doctrine.11 When Deseret's 1850 petition for statehood was denied and a territorial government was established instead, the territorial legislature revalidated the laws enacted by the provisional government. Dale L. Morgan, The State of Deseret 88 (1987) (citing 1852 Utah Laws 222, an October 4, 1851 joint resolution of the territorial legislature). Thus, after 1852, when the Church publicly recognized the doctrine of plural marriage, ceremonies of plural union performed according to Church practice were legally valid marriages under territorial law until the Morrill Act declared otherwise. This history demonstrates that the legal status of polygamous unions was a matter of concern. According ly, the language prohibiting plural or polygamous "marriage" in the Enabling Act and Ordinance provisions was likely intended to preclude the reenactment of laws granting polygamous unions legal recognition once Utah achieved statehood.12
*766[152 The above discussion illustrates that when the term "marriage" in the Ordinance provision is understood, as I believe it must be, as denoting a legal status, the meaning of the provision is plain and in accord with territorial history. It could then be argued that the provision establishes that, as a matter of constitutional law, the state's refusal to recognize polygamous unions as legal marriages may not be construed as discriminatory treatment of those who engage in such unions as a matter of religious practice. However, this case does not present that issue since, as discussed above, Holm has made no claim to legal recognition.
153 Additional history, far from demonstrating the drafters' intent to exelude particular private behavior from access to constitutional protections, raises the possibility that the drafters anticipated some relief from governmental interference for those relationships already in existence. In addition to the provision criminalizing polygamous marriage, quoted above, the 1892 Act contained a separate provision criminalizing unlawful cohabitation, which it defined as "any male person ... cohabit[ing] with more than one woman." Id. § 2, 1892 Utah Laws at 6. Yet, the unlawful cohabitation provision, unlike the polygamy provision, was not specifically mentioned in article XXIV, section 2. The unlawful cohabitation provision was therefore subject to the general statement in article XXIV, seetion 2 that "(alll laws of the Territory of Utah now in force, not repugnant to this Constitution, shall remain in force until they expire by their own limitations, or are altered or repealed by the Legislature." Utah Const. art. XXIV, § 2 (emphasis added). Accordingly, that provision would remain valid only if the state courts did not deem it unconstitutional, and only as long as the legislature kept it in effect. It is not inconceivable that the drafters, while conceding that polygamous unions could never receive legal recognition, believed that private polygamous practice, including cohabitation with former "wives" and their children, might continue.13
154 I therefore conclude that neither article III, section 1 nor article XXIV, section 2 categorically excludes private polygamous conduct from any possibility of protection under article I. I thus disagree that the court can so easily avoid the constitutional challenges Holm raises. My further discussion of Holm's state constitutional claims is limited to whether, in my view, his bigamy convietion violates our constitution's religious freedom guarantees. Because I conclude that it does, I need not consider additional state constitutional arguments.
B. Religious Freedom Claim
{155 Holm essentially argues that the State may not subject him to a criminal penalty under a generally applicable criminal law for his religiously motivated practice of polygamy because imposing that penalty is inconsistent with our constitution's protection of religious freedom. The State does not dispute the sincerity of Holm's religious motivation, and given Holm's established membership in the FLDS community, there appears to be no reason to doubt Holm's assertion that polygamy is a central tenet of his religion. Resolution of this issue therefore turns on the interpretation of the religious freedom guarantees found in the Utah Constitution.
T156 As an initial matter, I accept the premise that our state constitution's guarantee of religious freedom encompasses religiously motivated conduct as well as belief. See, e.g., Utah Const. art. I, § 1 (recognizing right "to worship"); id. art. I, § 4 (guaran*767teeing "free exercise" of religion); see also Michael W. McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 108 Harv. L.Rev. 1409, 1459-60 (1990) [hereinafter McConnell, Origins] {concluding that the terms "exercise" and "worship" in late eighteenth century state constitutions both denoted conduct, though the term "worship" is usually limited to ritual or ceremonial acts). Thus, Holm's conduct-cohabiting with Ruth Stubbs after participating in a religious ceremony with her while legally married to another woman-qualifies as religious "exercise" within the meaning of article I, section 4.
1157 The question remains whether, and under what cireumstances, our constitution requires an exemption from generally applicable criminal laws. This court held in State v. Green, 2004 UT 76, ¶ 37, 99 P.3d 820, that no such exemption was required under the federal constitution's Free Exercise Clause. However, as the majority states, "We have never determined whether the free exercise clause of article I, section 4 [and the other related clauses] of the Utah Constitution provide[ ] protection over and above that provided by the First Amendment to the United States Constitution." Jeffs v. Stubbs, 970 P.2d 1234, 1249 (Utah 1998). I believe that governmental burdens on religiously motivated conduct should be subject to heightened scrutiny, a proposition that a number of my colleagues, past and present, have also previously endorsed. See Green, 2004 UT 76, ¶ 70, 99 P.3d 820 (Durrant, J., concurring); see also Wood v. Univ. of Utah Med. Cir., 2002 UT 184, ¶ 48 n. 1, 67 P.3d 486 (Durham, C.J., dissenting) (recognizing that this court employed heightened serutiny when conducting an article I, section 4 analysis in Soc'y of Separationists v. Whitehead, 870 P.2d 916 (Utah 1998)).
1158 In reaching the conclusion that the framers of our state constitution intended such an analysis, I look first to the United States Supreme Court's decision in Reynolds v. United States, 98 U.S. 145, 25 L.Ed. 244 (1879). In light of the fact that Reynolds was issued in 1879, seventeen years before the 1896 ratification of our state constitution, and the fact that the underlying controversy in Reynolds originated in the Utah territory, it would be disingenuous to assert that the Court's interpretation of free exercise in Reynolds did not inform the understanding of the framers when they inserted an identically phrased clause in article I, section 4 of the Utah Constitution. The Court has subsequently interpreted Reymolds as "reject[ing] the claim that criminal laws against polygamy could not be constitutionally applied to those whose religion commanded the practice." Employment Div. v. Smith, 494 U.S. 872, 879, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990). However, I disagree that Reynolds' reasoning entirely foreclosed religion-based exemptions from eriminal laws.
1159 The Reynolds Court framed the issue under consideration as follows: "whether religious belief can be accepted as a justification of an overt act made eriminal by the law of the land." 98 U.S. at 162. In analyzing this issue, the Court relied on Thomas Jefferson's formulations "almost as an authoritative declaration of the scope and effect" of the Free Exercise Clause. Id. at 164. The Court first quoted the 1786 Virginia Bill for Establishing Religious Freedom, drafted by Jefferson, indicating that religious freedom extends only until "principles break out into overt acts against peace and good order." Id. at 168 (internal quotation omitted). It then quoted Jefferson's 1802 letter to the Danbury Baptist Association, in which he stated that man "has no natural right in opposition to his social duties." Id. at 164 (internal quotation omitted). Summarizing these statements, the Court concluded that Congress was free, consistent with the Free Exercise Clause, "to reach actions which were in violation of social duties or subversive of good order." Id.
"[ 160 The Court then analyzed whether the practice of polygamy or polygamous marriage was in violation of social duties or subversive of good order. It determined that polygamy was indeed an "offence against society," and that punishing polygamy was therefore within Congress's legislative power. Id. at 165-66. Finally, reaching the question of religion-based exemption, the Court concluded that the practice of polygamy could be punished even when the practice *768was motivated by religious belief. Id. at 166-67. The Court observed that allowing individuals to exeuse such conduct, which it compared to human sacrifice or self-immolation, because of religious motivation would effectively "permit every citizen to become a law unto himself." Id.
€ 161 The essential feature of the Reynolds Court's analysis was its conclusion that the practice of polygamy fell within the category of conduct "in violation of social duties or subversive of good order." Id. at 184. In the Reynolds Court's view, polygamy was an "odious" practice that threatened to infect the surrounding society with notions of patriarchal despotism, undermining the democratic principles on which our governmental structure was founded. Id. at 164, 166. Clearly, the purpose of criminalizing polygamy, according to Reynolds, was to protect society and the state from such harm. Allowing individuals to engage in polygamy for religious reasons would have thus permitted them to inflict the very harm the statute was designed to prevent. The same is true in the two other examples given in Reynolds: (1) exempting someone engaged in religiously motivated human sacrifice from a criminal law against murder would allow that person to kill another; and (2) exempting someone wishing to burn herself on her husband's funeral pyre from a criminal law against suicide would allow that person to kill herself. Id. at 165-66.
T 162 Understood in this way, Reynolds is consistent with those early state constitutions that, by their express terms, guaranteed free exercise of religion to the extent such exercise was consistent with public peace and order.14 Indeed, when discussing its Reynolds decision in Davis v. Beason, 133 U.S. 333, 10 S.Ct. 299, 33 L.Ed. 637 (1890), the Court explicitly referred to such state constitutional provisions. Id. at 348, 10 S.Ct. 299 Note (noting that several state constitutions "have declared expressly that [religious] freedom shall not be construed to excuse acts of licentiousness, or to justify practices inconsistent with the peace and safety of the State"). Those who have studied these provisions are divided over whether their drafters contemplated a case-by-case examination in the courts of the particular conduct being criminalized, or whether the violation of any law was per se considered a breach of the peace. Compare McConnell, Origins, supra T156, at 1462 (construing these clauses to "exempt religiously motivated conduct from [generally applicable] laws up to the point that such conduct breached public peace or safety"), with Philip A. Hamburger, A Constitutional Right of Religious Exemption: An Historical Perspective, 60 Geo. Wash. L.Rev. 915, 918 (1992) (indicating that the phrase "contra pacem," or breach of the peace, was understood in the eighteenth century to mean any criminal violation of law). Under either view, it seems clear that there is some conduct that a state may refuse to permit, regardless of its motivation.
1163 I agree that the religious freedom provisions in our state constitution were not intended to exempt religious practitioners from criminal punishment for acts that cause injury or harm to society at large or to other *769individuals. Moreover, I recognize that by defining conduct as criminal, our legislature has signaled its judgment that this conduct generally does harm society or individuals to a degree that warrants criminal punishment. See 1 Charles E. Torcia, Wharton's Criminal Law § 7 (15th ed.1998) (distinguishing crime, which is "a public wrong since it implies injury to the state," from tort, which is a "private wrong since it involves injury to an individual"); Laurence H. Tribe, American Constitutional Low § 14-13, at 1270 (2d ed.1988) [hereinafter Tribe, American Constitutional Law ] (predicting that, "[bleyond . paternalistic laws, [free exercise] exemptions from criminal laws will be rare"). In "our role as the state's court of last resort, called upon to identify the boundaries of the constitution, [we must] givie) appropriate deference to the policy choices of the citizens' elected representatives." Judd ex rel. Montgomery v. Drezga, 2004 UT 91, ¶ 22, 103 P.3d 135.
[ 164 That this is generally true does not, however, foreclose close scrutiny of the circumstances of a particular case in order to determine whether a prosecution for conduct statutorily defined as criminal is truly directed against the harm the statute was intended to prevent, where the conduct in the particular case is religiously motivated. The "right to the free exercise of religion [is] a concept upon which our country was founded and a protection deeply ingrained in the hearts and minds of American citizens." Green, 2004 UT 76, ¶ 70, 99 P.3d 820 (Durrant, J., concurring). This court has recognized that this is particularly true for citizens of our state. Soc'y of Separationists, 870 P.2d at 935. I believe our constitution expresses this fundamental interest in protecting religious freedom. Given the fundamental nature of the constitutional interest involved and the undeniable burden that criminal penalties impose, heightened scrutiny is warranted. Cf. Gallivan v. Walker, 2002 UT 89, 140, 54 P.3d 1069 (recognizing that a "heightened degree of serutiny" is required in a uniform-operation-of-laws analysis where a fundamental right is implicated).
T 165 Moreover, I am cognizant of the fact that the body of criminal law has expanded over time as the state has generally expanded its reach into many areas that before went unregulated. Criminal statutes today punish conduct not only where the targeted conduct is harmful in itself, such as laws criminalizing murder, but also where the targeted conduct is closely tied to other harmful activity. Given this fact, there may be cireumstances where religiously motivated conduct will not implicate the same state interests that are legitimately served by prosecuting those whose conduct was without similar motivation, simply because of the nature of the religious practice at issue. For example, the religiously motivated use of drugs defined as controlled substances may in some cases be so far removed from the context within which illegal drug use typically occurs that applying the controlled substances law to the religiously motivated use simply does not serve the government's legitimate interest in erimi-nalizing drug use-which involves not only protecting people from the harmful physical effects of such substances, but also eliminating the harms that accompany the drug trafficking industry.15 Thus, the few instances in which courts have indicated that a generally applicable criminal law may not apply to a religiously motivated actor have done so on the basis that the religiously motivated conduct at issue did not create a genuine risk of harm.16 Applying this principle, I conclude that in some rare cireumstances an individual *770must be exempted from the operation of a criminal law where the religiously motivated conduct at issue, while technically within the purview of the eriminal prohibition, does not threaten the harm that the law was intended to prevent.
T 166 Applying heightened serutiny, I conclude that imposing eriminal penalties on Holm's religiously motivated entry into a religious union with Ruth Stubbs is an unconstitutional burden under our constitution's religious freedom protections. This is so whether typical strict serutiny is applied,17 or the standard set forth in United States v. O'Brien, 391 U.S. 367, 381-82, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968) (determining whether a general law may be applied to expressive conduct consistent with the Free Speech Clause), which some have suggested provides a more suitable framework for free exercise analysis.18 Under either test, the burden on the religious conduct at issue must be necessary to serve a strong governmental interest unrelated to the suppression of religious freedom. I do not believe that any of the strong state interests normally served by the Utah bigamy law require that the law apply to the religiously motivated conduct at issue here-entering a religious union with more than one woman.19
1167 I note at the outset that the State has not suggested that section 767-101 fur*771thers a governmental interest in preserving democratic society. I agree that no such interest is implicated here. As discussed above, the federal government's nineteenth century criminalization of polygamy in the Utah Territory, as construed by the Reynolds Court, was intended to address the harm to democratic society that LDS Church polygamy was thought to embody. See Soc'y of Separationists, 870 P.2d at 924 (recognizing that the Morrill Act of 1862 was aimed specifically at the LDS Church's practice of polygamy in Utah); Gordon, The Mormon Question, supra n. 9, at 30-115 (describing the nineteenth century development of the idea that the LDS Church's practice of polygamy threatened American democracy). However, I do not presume that our modern criminal bigamy statute, enacted in 1978, addresses the same fears-which have since been discounted by many as grounded more in bias than in fact 20-propelled Congress' legislation a century earlier.
1168 Indeed, this court previously set forth, in Green, a list of state interests served by the modern statute that omits any reference to such a concern. There, we first explained that the modern statute serves the state's interest in "regulating marriage" and in maintaining the "network of laws" that surrounds the institution of marriage. Green, 2004 UT 76, 1137-38, 99 P.3d 820. We cited a Tenth Circuit case that described this network of laws as " 'clearly establishing [Utah's] compelling state interest in and commitment to a system of domestic relations based exclusively upon the practice of monogamy as opposed to plural marriage. " Id. 188 (quoting Potter v. Murray City, 760 F.2d 1065, 1070 (10th Cir.1985)). Here, the State has emphasized its interest in "protecting" monogamous marriage as a social institution. I agree that the state has an important interest in regulating marriage, but only insofar as marriage is understood as a legal status. See Green, 2004 UT 76, 171, 99 P.3d 820 (Durrant, J., concurring) (asserting that "the State has a compelling interest in regulating and preserving the institution of marriage as that institution has been defined by the State" (emphasis added)). In my view, the criminal bigamy statute protects marriage, as a legal union, by criminalizing the act of purporting to enter a second legal union. Such an act defrauds the state and perhaps an innocent spouse or purported partner. It also completely disregards the network of laws that regulate entry into, and the dissolution of, the legal status of marriage, and that limit to one the number of partners with which an individual may enjoy this status. The same harm is targeted by criminalizing the act of cohabiting with a partner after purportedly entering a second legal marriage with that partner.21
1 169 However, I do not believe the state's interest extends to those who enter a religious union with a second person but who do not claim to be legally married. For one thing, the cohabitation of unmarried couples, who live together "as if" they are married in *772the sense that they share a household and a sexually intimate relationship, is commonplace in contemporary society. See, eg., Utah Governor's Comm'n on Marriage & Utah State Univ. Extension, Marriage in Utah Study 35-86 (2008), available at http://www.utahmarriage.org (indicating that of the 42% of Utah residents between the ages of 18 and 64 who were unmarried, 30% to 46% were currently cohabiting outside of marriage). Even outside the community of those who practice polygamy for religious reasons, such cohabitation may occur where one person is legally married to someone other than the person with whom he or she is cohabiting. Yet parties to such relationships are not prosecuted under the criminal bigamy statute, the criminal fornication statute, Utah Code Ann. § 767-104 (2008), or, as far as I am aware, the criminal adultery statute,22 id. § 76-7-108 (2008), even where their conduct violates these laws. Seq, e.g., Berg v. State, 2004 UT App 337, 1 15, 100 P.3d 261 (indicating that consenting adults are not prosecuted under Utah's fornication or sodomy laws).
T170 That the state perceives no need to prosecute nonreligiously motivated cohabitation, whether one of the parties to the cohabitation is married to someone else or not, demonstrates that, in the absence of any claim of legal marriage, neither participation in a religious ceremony nor cohabitation can plausibly be said to threaten marriage as a social or legal institution. The state's concern with regulating marriage, as I understand it, has to do with determining who is entitled to enter that legal status, what benefits are accorded, and what obligations and restrictions are imposed thereby. This has lately emerged as an issue of surprising complexity, with various commentators attempting to define the nexus between a couple's private relationship and the network of laws surrounding marriage as a legally recognized status.23 Our state's network of laws may indeed presume a particular domestic structure-whether it be that a man will live with only one woman, that a couple living together will enter a legal union, or that each household will contain a single nuclear family. However, any interest the state has in maintaining this network of laws does not logically justify its imposition of eriminal penalties on those who deviate from that domestic structure, particularly when they do so for religious reasons. In my view, such criminal penalties are simply unnecessary to further the state's interest in protecting marriage.24
{171 The state's abandonment of common law marriage, and the proliferation of gov-ernmentally regulated marriage, contributes to my conclusion. As mentioned above, the state conditions entry into the legal status of marriage on the performance of certain steps beyond simply entering a marriage-like personal relationship. At the same time, the legal significance of this status has increased *773as federal and state governments have ventured ever further into regulating various aspects of individuals' lives.25 The inevitable corollary to these two facets of governmental involvement with the institution of marriage is that some will consciously choose to form relationships outside the state-delineated boundaries of that institution. At common law, the choice of entering a marriage-like personal relationship without entering the legal status of marriage was less available because a man and a woman who appeared to be married were simply considered married in the eyes of the law. As discussed above, this is no longer the case. In an important sense, then, there has been a significant social and legal divergence between the choice to enter a personal relationship and the choice to enter the legal status of marriage.
1172 Those who choose to live together without getting married enter a personal relationship that resembles a marriage in its intimacy but claims no legal sanction. They thereby intentionally place themselves outside the framework of rights and obligations that surrounds the marriage institution. While some in society may feel that the institution of marriage is diminished when individuals consciously choose to avoid it, it is generally understood that the state is not entitled to criminally punish its citizens for making such a choice, even if they do so with multiple partners or with partners of the same sex. The only distinction in this case is that when Holm consciously chose to enter into a personal relationship that he knew would not be legally recognized as marriage, he used religious terminology to describe this relationship. The terminology that he used-"marriage" and "husband and wife"happens to coincide with the terminology used by the state to describe the legal status of married persons. That fact, however, is not sufficient for me to conclude that erimi-nalizing this conduct is essential in order to protect the institution of marriage.
1173 In this regard, the case before us resembles Spence v. Washington, 418 U.S. 405, 94 S.Ct. 2727, 41 L.Ed.2d 842 (1974). There, the United States Supreme Court held that a state law eriminalizing the exhibition of the national flag with any extrancous material attached to it violated the defendant's First Amendment right to symbolically communicate his message through such a practice. Id. at 406, 94 S.Ct. 2727. In analyzing the issue under the O'Brien test, mentioned above, the Court assumed without deciding that the state had valid interests "in preserving the national flag as an unalloyed symbol of our country" and "prevent[ing] the appropriation of a revered national symbol by an individual ... where there was a risk that association of the symbol with a particular product or viewpoint might be taken erroneously as evidence of governmental endorsement." Id. at 412-18, 94 S.Ct. 2727. The Court nevertheless held that this interest did not justify the defendant's conviction because "[tlhere was no risk that [the defendant]'s acts would mislead viewers into assuming that the Government endorsed his viewpoint." Id. at 414, 94 S.Ct. 2727. In other words, the defendant was free to appropriate a revered national symbol for his own communicative purposes so long as he did not thereby purport to speak for the state. I similarly conclude here that an individual is free to appropriate the terminology of marriage, a revered social and legal institution, for his own religious purposes if he does not thereby purport to have actually acquired the legal status of marriage.
1 174 The second state interest served by the bigamy law, as recognized in Green, is in preventing "marriage fraud," whereby an already-married individual fraudulently purports to enter a legal marriage with someone else, "or attempts to procure government benefits associated with marital status." 2004 UT 76, 1137-89, 99 P.3d 820. This interest focuses on preventing the harm caused to the state, to society, and to defrauded individuals when someone purports to have entered the legal status of marriage, but in fact is not eligible to validly enter that status because of a prior legal union. This *774interest is simply not implicated here, where no claim to the legal status of marriage has been made.
T 175 In Green, the court cited "protecting vulnerable individuals from exploitation and abuse" as the third state interest served by the bigamy statute. 2004 UT 76, 140, 99 P.3d 820. The court concluded that this was a legitimate state interest to which the erimi-nal bigamy statute was rationally related for purposes of our First Amendment Free Exercise Clause analysis. Id. T41. The court rested this conclusion on the idea that perpetrators of other crimes "not unusually attendant to the practice of polygamy"-such as "incest, sexual assault, statutory rape, and failure to pay child support"-could be prosecuted for bigamy in the absence of sufficient evidence to support a conviction on these other charges. Id. ©40. Because the federal First Amendment analysis required only rational basis scrutiny, the court was content to rely on assertions in a student law review piece that polygamy was frequently related to other criminal conduct, together with two local cases, including the case of Green himself. Id. 140 & n. 14. However, reviewing this assessment in light of the heightened serutiny I believe is called for here, I cannot conclude that the restriction that the bigamy law places on the religious freedom of all those who, for religious reasons, live with more than one woman is nee-essary to further the state's interest in this regard. Upon closer review, the student Note is unconvincing.26 The State has provided no evidence of a causal relationship or even a strong correlation between the practice of polygamy, whether religiously motivated or not, and the offenses of "incest, sexual assault, statutory rape, and failure to pay child support," cited in Green, id. 1 40.27 Moreover, even assuming such a correlation did exist, neither the record nor the recent history of prosecutions of alleged polygamists warrants the conclusion that section 76-7-101 is a necessary tool for the state's attacks on such harms.28 For one thing, I am unaware of a single instance where the state was forced to bring a charge of bigamy in place of other narrower charges, such as incest or unlawful sexual conduct with a minor, because it was unable to gather sufficient evidence to prosecute these other crimes.29 The State has suggested that its *775initial ability to file bigamy charges allows it to gather the evidence required to prosecute those engaged in more specific crimes. Even if there were support for this claim in the record, I would consider it inappropriate to let stand a criminal law simply because it enables the state to conduct a fishing expedition for evidence of other crimes. Further, the State itself has indicated that it does not prosecute those engaged in religiously motivated polygamy under the criminal bigamy statute unless the person has entered a religious union with a girl under eighteen years old. Such a policy of selective prosecution reinforces my conclusion that a blanket criminal prohibition on religious polygamous unions is not necessary to further the state's interests, and suggests that a more narrowly tailored law would be just as effective.30
1 176 I do not reach this conclusion lightly. I acknowledge the possibility that other criminal conduct may accompany the act of bigamy. Such conduct may even, as was suggested in (Green, be correlated with the practice of polygamy in a community that has isolated itself from the outside world, at least partially in fear of criminal prosecution for its religious practice. Indeed, the FLDS community in its current form has been likened to a cult, with allegations focusing on the power wielded by a single leader who exerts a high degree of control over followers, ranging from ownership of their property to the determination of persons with whom they may enter religious unions.31 In the latter regard, reports of forcible unions between underage girls and older men within the FLDS community have recently appeared in the media.32 Yet, the state does not criminalize cult membership, and for good reason. To do so would be to impose a criminal penalty based on status rather than conduct-long considered antithetical to our notion of criminal justice. See Powell v. Texas, 392 U.S. 514, 533, 88 S.Ct. 2145, 20 L.Ed.2d 1254 (1968); Robinson v. California, 370 U.S. 660, 666-67, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962). Moreover, such a erimi-nal law would require that the state make normative judgments distinguishing between communities that are actually "cults" and those that are voluntary associations based on common religious or other ideological beliefs. Our system of government has long eschewed this type of state interference. Rather, despite the difficulties that are always associated with gathering evidence in closed societies, the state is held to the burden of proving that individuals have engaged in conduct that is criminal because it is asso-clated with actual harm. The State of Utah has criminal laws punishing incest, rape, unlawful sexual conduct with a minor, and domestic and child abuse. Any restrictions these laws place on the practice of religious polygamy are almost certainly justified. However, the broad criminalization of the religious practice itself as a means of attacking other criminal behavior is not. CL Church of Lukumi Babalu Aye, Inc. v. City *776of Hialeah, 508 U.S. 520, 538, 118 S.Ct. 2217, 124 L.Ed.2d 472 (1998) ("The legitimate governmental interests in protecting the public health and preventing eruelty to animals could be addressed by restrictions stopping far short of a flat prohibition of all Santeria sacrificial practice.").
T 177 Although the argument has not been raised, I note that for similar reasons I could not uphold Holm's bigamy conviction on the basis that the religiously motivated conduct at issue is inherently harmful to children who grow up in polygamous homes, and are thereby exposed to the "culture" of polygamy.33 Our previous rulings and legislative policy support this conclusion. For example, this court has previously held that those engaged in the practice of polygamy are not automatically disqualified from petitioning for adoption of a child. In re Adoption of W.A.T., 808 P.2d 1083, 1085 (Utah 1991) (plurality) ("'The fact that our constitution requires the state to prohibit polygamy does not necessarily mean that the state must deny any or all civil rights and privileges to polygamists."). Rather, a trial court must hold an evidentiary hearing to consider on a case-by-case basis whether the best interests of the child would be promoted by an adoption by the prospective parents. Id. at 1086.
1178 We have also held that a parent's custody petition could not be denied solely because she practiced polygamy. Sanderson v. Tryon, 789 P.2d 623, 626 (Utah 1987). Our holding in Sanderson was based on our recognition that the legislature's policy regarding child custody and parental rights termination issues has shifted in the past half-century, and now requires that courts focus on the "best interests of the child" rather than passing judgment on the morality of its parents. Id. at 627 (recognizing that the 1955 plurality opinion of this court in In re Black, 3 Utah 2d 815, 288 P.2d 887, upholding a ruling terminating the parental rights of polygamist parents, was no longer good law in light of the legislature's deletion in 1965 of moral references from the termination of parental rights statute, Utah Code Ann. § 78-8a-48 (1986) (current version at Utah Code Ann. § 78-38a-407 (Supp.2005))). Given these developments, and the existence of legal mechanisms for protecting the interests of abused or neglected children apart from criminally prosecuting their parents for bigamy, I do not believe the criminalization of religiously motivated polygamous conduct is necessary to further these interests.
$179 Thus, neither the State nor this court's prior decision in Green has identified an important state interest served by the criminal bigamy law that requires its application to those who enter religious unions with no claim of state legitimacy. I would therefore reverse Holm's bigamy conviction on the ground that it violates his religious freedom as guaranteed by the Utah Constitution.
III FOURTEENTH AMENDMENT DUE PROCESS CLAIM
' 180 Because I conclude that Holm's bigamy conviction violates the Utah Constitution's religious freedom guarantees, my dissenting vote is not based on the majority's analysis of Holm's federal constitutional claims. I do, however, wish to register my disagreement with the majority's treatment of Holm's claim that his conviction violates his Fourteenth Amendment right under the Due Process Clause to individual liberty, as recognized by the United States Supreme Court in Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2008). As the majority acknowledges, the Court in Lawrence stated the principle that "absent injury to a person or abuse of an institution the law protects," adults are free to choose the nature of their relationships "in the confines of their homes and their own private lives." Id. at 567, 128 S.Ct. 2472. The majority concludes that the private consensual behavior of two individuals who did not claim legal recognition of their relationship somehow constitutes an abuse of the institution of marriage, thus rendering Lawrence inapplicable. On that basis,34 the majority sum*777marily rejects Holm's due process claim as beyond the seope of Lawrence's holding. Supra 156. I disagree with this analysis.
1181 As I have discussed extensively above, I do not believe that the conduct at issue threatens the institution of marriage, and I therefore cannot agree that it constitutes an "abuse" of that institution. The majority fails to offer a persuasive justification for its view to the contrary. It asserts that "the behavior at issue in this case" implicates "the state's ability to regulate marital relationships." Supra 157. According to the majority, this regulation includes the state's ability to impose a legal marriage on an individual against his or her will in order to enforce spousal support obligations or prevent welfare abuse. In regard to spousal support, I am unpersuaded that the potential interests of consenting adults who voluntarily enter legally unrecognized relationships despite the financial risks they might face in the future justify the imposition of criminal penalties on the parties to those relationships. Under the majority's rationale, the state would be justified in imposing criminal penalties on unmarried persons who enter same-sex relationships simply because the state, under the applicable constitutional and statutory provisions, is unable to hold them legally married. In regard to welfare abuse, I find it difficult to understand how those in polygamous relationships that are ineligible to receive legal sanction are committing welfare abuse when they seek benefits available to unmarried persons.
1182 The majority also offers the view that "[the state must be able to ... further the proliferation of social unions our society deems beneficial while discouraging those deemed harmful." Supre T61. The Supreme Court in Lawrence, however, rejected the very notion that a state can criminalize behavior merely because the majority of its citizens prefers a different form of personal relationship. Striking down Texas's criminal sodomy statute as unconstitutional, the Court in Lawrence recognized that the Fourteenth Amendment's individual liberty guarantee "gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex." 589 U.S. at 572, 128 S.Ct. 2472. As described in Lawrence, this protection encompasses not merely the consensual act of sex itself but the "autonomy of the person" in making choices "relating to ... family relationships." Id. at 574, 128 S.Ct. 2472. The sodomy statute was thus held unconstitutional because it sought "to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals." Id. at 567, 128 S.Ct. 2472.
1183 I agree with the majority that marriage, when understood as a legal union, qualifies as "an institution the law protects." See id. at 568, 128 S.Ct. 2472. However, the Court's statement in Lawrence that a state may interfere when such an institution is "abuse[d]," id., together with its holding that the sodomy statute was unconstitutional, leads me to infer that, in the Court's view, sexual acts between consenting adults and the private personal relationships within which these acts occur, do not "abuse" the institution of marriage simply because they take place outside its confines. See id. at 585, 128 S.Ct. 2472 (O'Connor, J., concurring in the judgment) (indicating that Texas's criminal sodomy law did not implicate the state's interest in "preserving the traditional institution of marriage" but expressed "mere moral disapproval of an exeluded group"). In the wake of Lawrence, the Virginia Supreme Court has come to the same conclusion, striking down its state law criminalizing fornication. Martin v. Ziherl, 269 Va. 35, 607 s.E.2d 367, 371 (2005). In my opinion, these holdings correctly recognize that individuals in today's society may make varied choices regarding the organization of their family and personal relationships without fearing criminal punishment.
1184 The majority does not adequately explain how the institution of marriage is abused or state support for monogamy threatened simply by an individual's choice to *778participate in a religious ritual with more than one person outside the confines of legal marriage. Rather than offering such an explanation, the majority merely proclaims that "the public nature of polygamists' attempts to extralegally redefine the acceptable parameters of a fundamental social institution like marriage is plain." Supra T 68. It is far from plain to me.
€185 I am concerned that the majority's reasoning may give the impression that the state is free to criminalize any and all forms of personal relationships that occur outside the legal union of marriage. While under Lawrence laws criminalizing isolated acts of sodomy are void, the majority seems to suggest that the relationships within which these acts occur may still receive criminal sanction. Following such logic, nonmarital cohabitation might also be considered to fall outside the scope of federal constitutional protection. Indeed, the act of living alone and unmarried could as easily be viewed as threatening social norms.
T 186 In my view, any such conclusions are foreclosed under Lawrence. Essentially, the Court's decision in Lawrence simply reformulates the longstanding principle that, in order to "secure individual liberty, ... certain kinds of highly personal relationships" must be given "a substantial measure of sanctuary from unjustified interference by the State." Roberts v. U.S. Jaycees, 468 U.S. 609, 618, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984); see also Lawrence H. Tribe, Lowrence v. Texas: The "Fundamental Right" That Dare Not Speak Its Name, 117 Harv. L.Rev. 1893, 1922 (2004) ("[T}he claim Lawrence accepted ... is that intimate relations may not be micromanaged or overtaken by the state."). Whether referred to as a right of "intimate" or "intrinsic" association, as in Roberts, 468 U.S. at 618, 104 S.Ct. 8244, a right to "privacy," as in Griswold v. Connecticut, 381 U.S. 479, 485, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965), and Eisenstadt v. Baird, 405 U.S. 438, 453, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972), a right to make "choices concerning family living arrangements," as in Moore v. City of East Cleveland, 431 U.S. 494, 499, 97 S.Ct. 1982, 52 L.Ed.2d 581 (1977) (plurality), or a right to choose the nature of one's personal relationships, as in Lawrence, 539 U.S. at 574, 128 S.Ct. 2472, this individual liberty guarantee essentially draws a line around an individual's home and family and prevents governmental interference with what happens inside, as long as it does not involve injury or coercion or some other form of harm to individuals or to society.35 As the Court in Lawrence recognized:
[Fjor centuries there have been powerful voices to condemn [certain private] conduct as immoral. The condemnation has been shaped by religious beliefs, conceptions of right and acceptable behavior, and respect for the traditional family. For many persons these are not trivial concerns but profound and deep convictions accepted as ethical and moral principles to which they aspire and which thus determine the course of their lives. These considerations do not answer the question before us, however. The issue is whether the majority may use the power of the State to enforce these views on the whole society through operation of the criminal law.
Id. at 571, 128 S.Ct. 2472. The Court determined that when "adults ... with full and mutual consent from each other" enter into particular personal relationships with no threat of injury or coercion, a state may not criminalize the relationships themselves or the consensual intimate conduct that occurs within them. Id. at 578, 128 S.Ct. 2472.
{187 In conclusion, I agree with the majority that because Holm's conduct in this case involved a minor, he is unable to prevail on his individual liberty claim under the Due Process Clause. However, I disagree with the majority's implication that the same result would apply where an individual enters a private relationship with another adult.
*779CONCLUSION
1188 The majority's analysis of Holm's challenges to his bigamy conviction under Utah Code section 767-101 relies to a large extent on its failure to distinguish between an individual's false claim to have entered the legal status of marriage and an individual's private, religiously motivated choice to enter a relationship with another person. Because I disagree with this premise, I am unpersuaded that the conclusions flowing from the majority's understanding are correct. In my view, Holm was not properly subject to prosecution under the "purports to marry" prong of section 76-7-101 because he never claimed to have entered a legally valid marriage. Moreover, I would hold Holm's conviction under the "cohabits" prong of section 76-T-101 invalid under the religious freedom provisions of the Utah Constitution. In addition, I believe the majority has erred in suggesting that the Supreme Court's decision in Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2008), does not recognize private relationships between consenting adults as entitled to protection under the Fourteenth Amendment's Due Process Clause. I therefore dissent from the majority's conclusion upholding Holm's bigamy conviction. I join the majority in upholding Holm's conviction for unlawful sexual conduct with a minor under section 76-5-401.2.
. The evidence at trial was undisputed on the latter point. On cross-examination, Ruth Stubbs engaged in the following exchange with Holm's attorney:
[Holm's attorney]. Did, did this marriage in your mind was it a, a civil, a legal civil marriage under the laws of the, of the government? [Ruth]. No.
Q. You knew that it was not a, a marriage that would be recognized by the law. Right?
A. Right.
Q. Nevertheless, a, did you believe that you were married?
A. Yes.
Q. You believed you were married in a religious sense?
A. Yes.
[[Image here]]
Q. You were married in a religious ceremony. Correct?
A. Correct.
Q. And, and people in the community knew you had been married in a religious ceremony. Is that right?
A. Right.
Q. Did you ever tell people that you were legally married to Rod?
A. No.
Q. Did you ever hold yourself out to anyone, even outside of the community, as being legally married to Rod?
A. No.
Ruth further affirmed, upon questioning, that she was familiar with the basis in scripture for "the idea of plural marriage," and that both she and Holm believed "that plural marriage was a commandment of God."
During his deposition, parts of which were read into the trial record by the State prosecutor, Holm testified that he had never submitted forms to any governmental agency representing that he was married to Ruth Stubbs. Holm further testified that he was not legally married to Ruth.
. The majority argues that Black's Law Dictionary does not confine its definition of the term "marriage" to a "legal union," pointing out that Black's also defines "plural marriage," "bigamy," and "polygamy" as types of "marriage." Supra 119. The majority concludes that if the word "marry" in a legal context referred only to legally recognized marriages, "these definitions would be nonsensical, as one could not 'marry' another while legally married." Supra It is a mistake, however, to understand Black's as presuming a particular legal status quo. Theoretically, it would be possible for a state to recognize plural unions as legally valid, and thus plural "marriages" in a legal sense. Indeed, as discussed below, the territory that became Utah at one time recognized plural marriages as legally valid. Furthermore, I believe the term "marriage" in the definitions of "putative marriage," "clandestine marriage," and "void marriage," quoted by the majority, supra 120, could accurately be replaced by the phrase "legal union."
. See Maynard v. Hill, 125 U.S. 190, 211, 8 S.Ct. 723, 31 L.Ed. 654 (1888) ("When the contracting parties have entered into the married state, they have not so much entered into a contract as into a new relation, the rights, duties, and obligations of which rest not upon their agreement, but upon the general law of the State, statutory or common, which defines and prescribes those rights, duties, and obligations. They are of law, not contract." (internal quotation omitted)); Pennoyer v. Neff, 95 U.S. 714, 734-35, 24 L.Ed. 565 (1878) (''The jurisdiction which every State possesses to determine the civil status and capacities of all its inhabitants ... [includes the] absolute right to prescribe the conditions upon which the marriage relation between its own citizens shall be created, and the causes for which it may be dissolved."); accord Universal Life Church v. Utah, 189 F.Supp.2d 1302, 1315 (D.Utah 2002) (recognizing that "marriage is a state-conferred legal status" (internal quotation omitied)); Riddle v. Riddle, 26 Utah 268, 72 P. 1081, 1084 (1903) (''The legal status of marriage rests solely upon the basis of a civil contract, in which the contracting parties mutually consent and agree to be bound by the 'various obligations and liabilities' which by operation of law arise from the relations of the contracting parties upon the consummation of the marriage."); cf. Snetsinger v. Mont. Univ. Sys., 2004 MT 390, ¶¶ 23, 27, 325 Mont. 148, 104 P.3d 445 (concluding that the fact that a university benefits policy allowed "unmarried opposite-sex couples" to sign an affidavit that they were "married" for purposes of receiving benefits defeated the university's claim that benefits were based on maarital status because "marital status" depends on compliance with legal rules, not an affidavit).
. The separate concurrence questions the connection between the Utah Code's "[dlescribing the characteristics of those who may legally marry" in Title 30, Chapter 1, and "defining and proscribing" bigamy in section 76-7-10. Supra T115. It also contends that the language of section 30-1-2 recognizes certain relationships as "marriages" even as it declares such "marriages" prohibited and void. Supra 1116. In my view, the purpose of section 76-7-10 is to impose criminal penalties on those who purport to enter a legal union that is in fact void under section 30-1-2(1). I understand the declaration in section 30-1-2, that certain "marriages" are prohibited and void, to mean that any attempt by those described to enter into a legal union in fact results only in a purported marriage. The contrary reading suggested in the concurrence simply leads to the perplexing question, in what sense can the state legislature prohibit and declare void a relationship that does not claim any legal status? The majority attempts to bolster the logic of its position by pointing to definitions of bigamy that refer to "marrying" one person while being legally married to another. Supra {22 n. 6. The majority concludes that such definitions are "nonsensical if the term 'marry' is considered limited to legally recognized marriage." Supra 122 n. 6. In my view, the majority too easily discounts the possibility that such definitions were simply inartfully drafted. I suspect that our legislature in fact recognized that such definitions made no logical sense, and this is why section 76-7-101 criminalizes "purport[ing] to marry," rather than "marrying," one person while legally married to another. Significantly, *761this court has commonly used the phrase "purported marriage" to mean a marriage that was represented as legally valid by at least one party, but that in fact was void under state law. See, eg., Kent v. Kent, 28 Utah 2d 34, 497 P.2d 652, 653 (1972) (describing as a "purported marriage" the plaintiff's union with a man who was "unable to contract a valid marriage" because he was married to someone else); Buck v. Buck, 19 Utah 2d 161, 427 P.2d 954, 955 (1967) (describing as a "purported marriage" a "union" that was "legally invalid" because the man's divorce was not yet final); Thomas v. Children's Aid Soc'y, 12 Utah 2d 235, 364 P.2d 1029, 1031 (1961) (describing as a "purported marriage" a marriage that was "void ab initio" because one of the parties was already married); Cecil v. Cecil, 11 Utah 2d 155, 356 P.2d 279, 280-81 (1960) (describing as a "purported marriage" a marriage that was legally invalid because one party was judged incompetent); Popp v. Roth, 9 Utah 2d 96, 338 P.2d 123, 124 (1959) (stating that a man who "purportedly married" a woman when he was already married did not "enter into a valid marriage"); In re Vetas' Estate, 110 Utah 187, 170 P.2d 183, 184 (1946) (describing as a "purported marriage" a marriage that was not "solemnized as required by our statutes," and was thus void); Jenkins v. Jenkins, 107 Utah 239, 153 P.2d 262, 263 (1944) (describing as a "purported marriage" a marriage that was void under the law because one party's divorce was not final when the marriage occurred); In re Waters' Estate, 100 Utah 246, 113 P.2d 1038, 1039 (1941) (describing as a "purported marriage" a marriage that was void because one party's prior divorce had not been valid); Sharp v. Seventh Judicial Dist, Court, 81 Utah 236, 17 P.2d 261, 262-63 (1932) (describing as a "purported marriage" a marriage that was void under the law as it then existed because one party suffered from epilepsy and syphilis).
. Under Utah law, it is the intent to legally marry, not the intent to enter into a personal relationship, that is significant for purposes of section 30-1-4.5 (1997 & Supp. 2005). See In re Marriage of Gonzalez, 2000 UT 28, 125, 1 P.3d 1074 (recognizing that the one-year statute of limitations in section 30-1-4.5 is meant to "protect parties who never meant to be statutorily married from adjudications [of marriage] many years after their relationship has ended" (emphasis added)); Beck v. Utah-Idaho Sugar Co., 59 Utah 314, 203 P. 647, 650 (1921) (distinguishing an individual's intent that women be his "plural wives" under LDS Church doctrine from an intent that any of them be his "legal wife"); Riddle, 72 P. at 1085 (holding that "the legal status of marriage cannot arise" without a mutual agreement "to assume and observe the legal obligations of that relation").
. The majority refutes this argument by suggesting that this language merely imposes "a limit [on] the types of marriages that can be legally recognized in Utah," rather than providing "a definition of marriage." Supra 139. The majority perceives a distinction here based on its prior conclusion that "marriage" in Utah law can include relationships not recognized as "marriage" under Utah law. When this logic is distilled, it seems to me rather circular.
. The General Accounting Office estimates that there are 1,138 federal statutory provisions "in which benefits, rights, and privileges are contingent on marital status" in areas including taxation, social security, housing and food stamp programs, immigration, and employment benefits. U.S. Gen. Accounting Office, Report No. GAO-04-353R, Defense of Marriage Act: Update to Prior Report 1 (2004), available at http:// www.gao.gov; U.S. Gen. Accounting Office, Report No. OGC-97-16, Defense of Marriage Act 1-3 (1997), available at http://www .gao.gov. Areas of state law in which marital status is a factor include, for example, insurance coverage, Utah Code Ann. §§ 31A-22-305, -307 (2005), employment benefits, id. §§ 34A-2-403 (2005), 49-13-405 (2002 & Supp.2005), real estate conveyances, id. § 57-1-5 (2000 & Supp.2005), inheritance, id. § 75-2-102 (1993 & Supp.2005), and wrongful death recovery, id. §§ 78-11-6.5, -7 (2002 & Supp.2005).
. Were I writing the court's opinion, having concluded that Holin's conviction under the "purports to marry" prong was incorrect as a matter of statutory interpretation, my further analysis would be limited to the constitutionality of the alternative "cohabits" prong. However, unless specifically indicated, the analysis below is addressed equally to Holm's conviction under the "eohabits'" prong and the "purports to marry" prong, as the latter has been interpreted by the majority to apply to private religiously motivated conduct.
. I acknowledge that, at that time, there may have been little distinction between the two. Because common law marriage was recognized in Utah until 1898, 29 Utah Rev. Stat. ch. 1, § 1189 (1898), the entry into a polygamous union could be taken as the purported entry into the legal status of marriage. See Reynolds v. United States, 98 U.S. 145, 161, 25 L.Ed. 244 (1878) (affirming a conviction for bigamy based upon the defendant's participation in a religious ceremony); Hilton v. Roylance, 25 Utah 129, 69 P. 660, 670 (1902) (holding that participation in a religious ceremony was sufficient to establish a marriage cognizable at common law). There was no argument in Reynolds that the defendant did not intend his polygamous union to have legal effect; to the contrary, he argued that polygamous unions were entitled to legal effect under the First Amendment's Free Exercise Clause. See Reynolds, 98 U.S. at 161-62; Sarah Barring-er Gordon, The Mormon Question: Polygamy and Constitutional Conflict in Nineteenth Century America 119-45 (2002) [hereinafter Gordon, The Mormon Question] (discussing Reynolds). Moreover, as discussed below, it was against the backdrop of such unions receiving legal recognition in the territory under the control of the LDS Church that the Morrill Act criminalized polygamous marriage.
. Both the majority and the concurrence assume that the framers of our constitution had an intent identical to that of Congress in regard to the purpose and meaning of the ordinance provision. Congress's intent, however, may be beside the point. As the majority acknowledges, the intent of the framers in complying with this mandate was to gain statehood. Taking that fact into account leads me to view the framers' inclusion of the polygamy provision in our constitution, and their discussion self-consciously preserved in the Proceedings, as to some extent a command performance, with Congress and the rest of the country as the intended audience. The Proceedings excerpts quoted by the majority must be understood with that immediate concern in mind, and what they reveal about how the framers believed the provision would operate after Utah became a state deserves more careful consideration.
. The law provided that, "as said church holds the constitutional and original right, in common with all civil and religious communities, 'to worship God according to the dictates of conscience;' ... [the LDS Church may] solemnize marriage compatible with the revelations of Jesus Christ," and granted the church "the power and authority" to make laws relating to marriage as long as these laws were based on doctrines that "support virtue, and increase morality, and are not inconsistent with, or repugnant to, the Constitution of the United States, or of this State, and are founded in the revelations of the Lord." An Ordinance, Incorporating the Church of Jesus Christ of Latter-day Saints § 3 (passed Feb. 4, 1851), reprinted in Dale L. Morgan, The State of Deseret 186 (1987); see also Morgan, supra, at 61 (concluding that "the concept of polygamy, not yet avowed by the church, seems [in this law to have been] considered").
. I am aware that a plurality of this court in In re Interest of Black, 3 Utah 2d 315, 283 P.2d 887 (1955) (plurality opinion), interpreted the Ordinance provision differently. Id. at 905 (stating that through this provision, "the framers of our Constitution wished to make clear that polygamy was not included within an approved mode of religious worship" and that restrictions on the practice of polygamy could not implicate article I's religious freedom guarantees). However, the plurality's observation, made in dicta, does not constitute precedent binding on this court, and *766its opinion makes no mention of the history I have just described. I am convinced, based on my own study of this issue, that the plurality's interpretation is incorrect.
. The "cohabits" prong of the current criminal bigamy statute, Utah Code section 76-7-101(1), extends the definition of polygamy beyond that contained in the 1892 Act by incorporating, to a certain extent, the 1892 concept of unlawful cohabitation. Whereas under the 1892 Act a person would be guilty of polygamy only if he purported to marry two individuals at once, under section 76-7-101(1) a person is guilty of bigamy if he cohabits with one individual while married to another. See Utah Code Ann. § 76-7-101(1). Thus, even if article XXIV, section 2 were interpreted as imposing a constitutional requirement that polygamy, as defined in the 1892 Act, be criminalized, such a conclusion would have no bearing on the constitutionality of the "cohabits" prong of the current criminal bigamy statute.
. See, eg., Ga. Const. of 1777, art. LVI (guaranteeing free exercise of religion "provided it be not repugnant to the peace and safety of the State"); Mass. Const. of 1780, art. II (providing that "no subject shall be hurt, molested, or restrained, in his person, liberty, or estate, for worshiping God in the manner and season most agreeable to the dictates of his own conscience ..., provided he doth not disturb the public peace or obstruct others in their religious worship"); Md. Declaration of Rights of 1776, art. XXXIII (proclaiming that "no person ought by any law to be molested in his person or estate ... for his religious practice; unless, under colour of religion, any man shall disturb the good order, peace or safety of the State, or shall infringe the laws of morality, or injure others, in their natural, civil, or religious rights'"); NH. Const. of 1784, pt. I, art. V (guaranteeing freedom to worship as long as such worship "doth not disturb the public peace, or disturb others"); N.Y. Const. of 1777, art. XXXVIII (providing that its liberty of conscience protection "shall not be so construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace or safety of this State"); RI. Charter of 1663 (providing that all persons may enjoy freedom of religious conscience, "they behaving themselves peacebliec and quietlie, and not useing this liber-tie to lycentiousnesse and profaneness, nor to the civill injurye or outward disturbeance of others"); S.C. Const. of 1790, art. VIII, § 1 (containing same language as New York Constitution of 1777), all quoted in McConnell, Origins, supra 1156, at 1456-57 & n. 242.
. See Garrett Epps, What We Talk About When We Talk About Free Exercise, 30 Ariz. St. LJ. 563, 600 (1998) ("Oregon's categorical prohibition on peyote use ... was not inspired by a finding that peyote, like intentional killing, was evil in and of itself, but instead by the judgment that permitting its ritual use would encourage drug abuse, intoxication, negative health effects, and illegal trafficking in drugs. These legislative determinations are not necessarily absurd or unreasonable; but they are subject to empirical refutation in a way that 'intentional killing is bad' is not.").
. Gonzales v. O Centro Espirita Beneficente Untiao Do Vegetal, -- U.S. --, --, 126 S.Ct. 1211, 1224, 163 L.Ed.2d 1017 (2006) (recognizing in a preliminary injunction analysis of an RFRA statutory claim that the government had failed to show that its interest in protecting public health and safety was served by applying a law criminalizing use of hoasca, a hallucinogenic controlled substance, to those who use the drug in religious ceremonies); Frank v. State, 604 P.2d 1068, 1073-74 (Alaska 1979) (exempting the defendant under federal and state religious freedom *770guarantees from criminal prosecution for unlawful transportation of a moose outside hunting season because there was no evidence that the taking of the moose for ritual use in funeral potlatches would harm the moose population or cause "general lawlessness" among Alaskan citizens); State v. Whittingham, 19 Ariz.App. 27, 504 P.2d 950, 952-53 (1973) (holding that the state could not, consistent with the Free Exercise Clause, prosecute those engaged in the religious use of peyote where such use did not cause "a substantial threat to public safety, order or peace""); People v. Woody, 61 Cal.2d 716, 40 Cal.Rptr. 69, 394 P.2d 813, 818 (1964) (explaining, when granting a Free Exercise Clause exemption from criminal prosecution to Native Americans' religious use of peyote, that "(tlhe record ... does not support the state's chronicle of harmful consequences of the use of peyote"); State v. Miller, 202 Wis.2d 56, 549 N.W.2d 235, 242 (1996) (exempting Amish, under the religious freedom guarantee of its state constitution, from forfeiture pursuant to a traffic law requiring a slow-moving vehicle emblem because there was no evidence that Amish horse-drawn buggies without the emblem had caused any collisions).
. Most of our sister states that have previously recognized that exemptions from generally applicable laws may at times be required under their state religious freedom provisions have followed the Supreme Court's pre-Smith compelling interest analysis. See, eg., Miller, 549 N.W.2d at 241 (" '[WJhile the terms "compelling state interest" and "least restrictive alternative" are creatures of federal doctrine, concepts embodied therein can provide guidance as we seek to strike a balance under the [state] Constitution between freedom of conscience and the state's public safety interest'" (second alteration in original) (quoting State v. Hershberger, 462 NW.2d 393, 398 (Minn.1990)}; see also Catholic Charities of Sacramento, Inc. v. Superior Court, 32 Cal.4th 527, 10 Cal.Rptr.3d 283, 85 P.3d 67, 91 (2004) (holding that the petitioner's claim would not survive the compelling interest test without deciding whether its state constitution required that test "or an as-yet unidentified rule that more precisely reflects the language and history of the California Constitution and our own understanding of its import"); Rupert v. City of Portland, 605 A.2d 63, 65-66 & n. 3 (Me.1992) (denying claim under compelling interest test and thus not deciding what the state constitution required); Hunt v. Hunt, 162 Vt. 423, 648 A.2d 843, 853 (1994) (holding that its state constitution "protects religious liberty to the same extent [as] the Religious Freedom Restoration Act," which requires application of the compelling interest test).
. See Frederick Mark Gedicks, The Normalized Free Exercise Clause: Three Abnormalities, 75 Ind. LJ. 77, 84-93 (2000); Frederick Mark Gedicks, An Unfirm Foundation: The Regrettable In-defensibility of Religious Exemptions, 20 U. Ark. Little Rock LJ. 555, 572-73 (1998); Michael W. McConnell, Free Exercise Revisionism and the Smith Decision, 57 U. Chi. L.Rev. 1109, 1138-39 (1990); Kathleen M. Sullivan, Religion and Liberal Democracy, 59 U. Chi. LRev. 195, 214 (1992); see also Larson v. Cooper, 90 P.3d 125, 132 (Alaska 2004) (recognizing that the compelling interest test fails to "explain{] exactly what degree of fit is required between the [governmen-tall interest and the means used to achieve it" «and adopting a test that is in effect similar to the O'Brien test).
. Holm does not claim that his religious beliefs require that he enter into religious unions with girls under the age of eighteen. As discussed below, I am troubled by the notion that section 76-7-101, which is not explicitly aimed at conduct affecting minors, can be legitimately defended as a necessary tool to combat such conduct. While the age of Ruth Stubbs may have been a relevant factor in the State's decision to bring charges against Holm, it was not a relevant factor in the determination of whether the elements of the crime of bigamy under section 76-7-101 were satisfied.
. See Gordon, The Mormon Question, supra n. 9, at 142 (stating that "prejudice against Mormons and their alternative faith played a role in the [Reynolds ] decision"); Tribe, American Constitutional Law, supra 1163, § 14-13, at 1271 (stating that the Reynolds decision "ilustrate[s] how amorphous goals may serve to mask religious persecution"); David R. Down & Jose I. Maldonado, Jr., How Many Spouses Does the Constitution Allow One to Have?, 20 Const. Commentary 571, 576 (2003-04) (reviewing Gordon, The Mormon Question and (observing that the Reynolds opinion "teems with hostility toward Mormonism")); see also Maura Strassberg, The Crime of Polygamy, 12 Temp. Pol. & Civ. Rts. L.Rev. 353, 406 (2003) (stating that, while the "perceived social danger may have justified the criminalization of polygamy during the nineteenth and early twentieth centuries, ... fundamentalist polygyny does not today pose the same kind of large-scale threat to federal and now state sovereignty over significant areas of the West"). I note that anti-Catholic bias was also prevalent during this period, and an 1880s bestseller listed "Catholicism" ahead of "Mormonism" as one of the "seven perils facing the nation." See John C. Jeffries, Jr. & James E. Ryan, A Political History of the Establishment Clause, 100 Mich. L.Rev. 279, 302-03 (2001) (explaining that Catholicism was considered "inimical to democracy" because of its "authoritarian" church structure (internal quotation omitted)).
. I note that the bigamous cohabitation prongs in most state bigamy laws appear to target this particular conduct. See 11 Am.Jur.2d Bigamy § 2 (1997) (indicating that unlawful "bigamous cohabitation" occurs "(in jurisdictions where cohabitation within the state following a bigamous marriage is made a crime" (emphasis added)).
. When asked at oral argument whether anyone had recently been prosecuted under the criminal adultery statute, the State expressed uncertainty, but suggested that there may have been some "attempts'' to prosecute adultery. I have found two federal district cases in which the adultery statute was claimed to be relevant. See Oliverson v. West Valley City, 875 F.Supp. 1465, 1469 (D.Utah 1995) (considering the claim of a West Valley City police officer who alleged his supervisor disciplined him based in part on his having engaged in conduct that would violate section 767-103); Roe v. Rampton, 394 F.Supp. 677, 689 (D.Utah 1975) (Ritter, D.J., dissenting) (suggesting that if the plaintiff wife were forced to comply with the requirement that she disclose an abortion to her husband, he would be able to bring charges against her under section 76-7-103). However, I have been unable to discover any prosecution under this provision. The most recent adultery prosecution to have reached this court appears to have occurred in 1928, under a previous criminal provision. Stafe v. Lewellyn, 71 Utah 331, 266 P. 261, 262 (1928); cf. Note, Constitutional Barriers to Civil and Criminal Restrictions on Pre- and Extramarital Sex, 104 Harv. L.Rev. 1660, 1672 (1991) (indicating that in many states criminal adultery statutes are enforced "selectively," often in the context of divorce proceedings).
. See Maggie Gallagher, Rites, Rights, and Social Institutions: Why and How Should the Law Support Marriage?, 18 Notre Dame J.L. Ethics & Pub. Pol'y 225 (2004); Linda C. McClain, Intimate Affiliation and Democracy: Beyond Marriage?, 32 Hofstra L.Rev. 379 (2003).
. As I discuss in detail below, I also believe that the imposition of such criminal penalties, at least where the domestic relationships at issue involve only consenting adults, violates individual due process rights, as recognized by the Supreme Court in Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003).
. See, eg., supra note 7 (providing statistics). At the same time, regulation of the content of family relations may be said to have decreased. The complex evolution of domestic law, and government regulation of family and matriage, is described extensively in Lee E. Teitelbaum, Family History and Family Law, 1985 Wis. L.Rev. 1135.
. The Note asserts that "modern testimonials and government investigations suggest that physical and sexual abuse frequently occur in polygamist communities as a result of the structure of such communities."" Richard A. Vazquez, Note, The Practice of Polygamy: Legitimate Free Exercise of Religion or Legitimate Public Menace? Revising Reynolds in Light of Modern Constitutional Jurisprudence, 5 N.Y.U. J. Legis. & Pub. Pol'y 225, 233 (2001). Yet it reveals no factual basis for this assertion other than (1) the Utah case of State v. Kingston, 2002 UT App 103, 46 P.3d 761, which, as I indicate below, did not involve a bigamy prosecution; (2) a New York case, People v. Ezeonu, 155 Misc.2d 344, 588 NY.S.2d 116 (1992), involving a Nigerian native's assertion that he had legally married a thirteen-year-old girl in Nigeria; and (3) information contained in an A & E television broadcast and various newspaper articles concerning the claim of one Utah woman, who grew up in a polygamous family, that her father ritually sexually abused her and her sisters on their sixteenth birthdays. Vazquez, supra, at 240-43. The Note itself predicts that "it is unlikely that a flat-out ban on polygamy would meet the 'least restrictive means' requirement of" a traditional strict scrutiny analysis. Id. at 253.
. Other than Vazquez, supra n. 26, the only "evidence" offered by the State is a journalist written collection of anecdotal accounts, Andrea Moore-Emmet, God's Brothel (2004).
. Indeed, one scholar has concluded that "criminalization of polygamy is largely a symbolic tool that seems unlikely to either provide substantial protection to victimized adult and teenage women or to enhance state oversight and regulation of fundamentalist communities." Strassberg supra n. 20, at 411 (suggesting that "targeting the economic structures and arrangements that make these insular polygamous communities viable" would likely be more effective).
. The court in Green noted that the defendant had been convicted of criminal nonsupport and rape of a child in addition to bigamy. 2004 UT 76, 140 n. 14, 99 P.3d 820. Similarly here, Holm has been convicted of unlawful sexual conduct with a sixteen- or seventeen-year-old in addition to bigamy. The polygamist defendant in Kingston was not charged with bigamy but was convicted of incest and unlawful sexual conduct with a sixteen-or seventeen-year-old. 2002 UT App 103, 11, 46 P.3d 761. It appears from these three cases that the State may be using its ability to prosecute offenders under section 76-7-101 as a means of imposing additional punishment for an already-charged offense rather than as a proxy prosecution for conduct that is otherwise unchargeable. To the extent this is true, such *775prosecutions may well raise double jeopardy concerns. See Illinois v. Vitale, 447 U.S. 410, 415, 100 S.Ct. 2260, 65 L.Ed.2d 228 (1980) (recognizing that the Double Jeopardy Clause "protects against multiple punishments for the same offense" (internal quotation marks omitted)).
. The recently enacted child bigamy statute, Utah Code Ann. § 76-7-101.5 (2003), limits its criminalization to the conduct of those married individuals who purport to marry or cohabit with persons other than their legal spouse who are under the age of eighteen. As the child bigamy statute was not enacted until after Holm's prosecution, Holm was not charged with child bigamy. I express no opinion on the constitutionality of a conviction under that statute.
. Media reports suggest that this situation has worsened since Warren Jeffs, the son of Rulon Jeffs, assumed the leadership position in 2002 following his father's death. Polygamous Church May Pull up Roots, Associated Press, Mar. 5, 2005, available at Rick A. Ross Institute, Polygamist Groups, httpy//www.rick-.html [hereinafter Ross Institute site}; Lawsuits and Governmental Scrutiny Increase Pressure on Polygamist Sect, Associated Press, Sept. 17, 2004, available at Ross Institute site, supra; Authorities Probe Arizona Polygamist Town, N.Y. Times, Jan. 23, 2004, available at Ross Institute site, supra.
. E.g., FLDS Runaways Speak Out on Dr. Phil Show, S.L. Trib., May 4, 2005, available at Reli-gionNewsBlog.com, http://www .religionnewsb-log.com/11129; Polygamists on Utah-Arizona Border Under Scrutiny, All Things Considered, May 3, 2005, available at http://www.npr.org (search term "polygamy"'); Allegations Abound: Colorado City's Polygamous Community Comes Under Increasing Scrutiny, Havasu News-Herald, Sept. 25, 2004, available at Ross Institute site, supra n. 31.
. See also Down & Maldonado, Jr., supra n. 20, at 607 (asserting that "there are no reliable, reported data suggesting that children of polygamous families are uniquely and significantly disadvantaged from an economic or emotional standpoint").
. The majority could have limited its rejection of Holm's liberty claim to the fact that Holm's *777behavior involved a minor. That fact alone, in my view, justifies the conclusion that Holm's bigamy conviction does not violate his right to individual liberty under the Due Process Clause of the Fourteenth Amendment to the United States Constitution.
. The majority treats Holm's freedom of intrinsic association claim as, in a sense, distinct from his individual liberty claim under Lawrence, while at the same time denying the association claim on the basis that no individual liberty interest had been established. Supra 172. In so doing, the majority fails to reconcile its conclusion that private relationships somehow threaten the institution of marriage, and therefore fall outside the scope of any due process protection, with the Court's recognition in Roberts that, to the contrary, private relationships can be protected. Roberts, 468 U.S. at 618, 104 S.Ct. 3244.