Thomas A. Green is not being selectively prosecuted and his polygamist lifestyle is not protected by constitutional rights to free speech or to practice religion, a 4th District judge has ruled.
Green, 52, had filed motions seeking the dismissal of four counts of bigamy and one count of criminal nonsupport on grounds that his lifestyle was constitutionally protected and that Juab County Attorney David O. Leavitt was targeting him although others practiced polygamy in Juab County.
Judge Guy R. Burningham told the Deseret News on Wednesday that he would deny the motions and the trial would go ahead.
Burningham did, however, grant a motion by Green's attorney, John Bucher, to postpone the trial until Jan. 2-5. It was originally slated for next week.
The charges, four counts of bigamy and one count of criminal nonsupport for more than $50,000 in state support for 25 of his 29 children, are all third-degree felonies.
Green is also accused of rape of a child, a first-degree felony, for allegedly having sex with one of his wives when she was only 13 in 1986. No trial date has been set on that charge, which will be tried separately, because attorneys are still arguing over several pretrial motions.
These include Green's claim that the statute of limitations has run out on the charge and that the state does not have jurisdiction over the matter because Green was not in Utah when the alleged crime occurred.
On his part, Leavitt wants Burningham to rule that Green cannot present evidence to jurors suggesting that sex with a 13-year-old is a religious right. He also wants evidence barred suggesting Green thought Linda Kunz Green was older than 13 or that the sex was consensual.
Burningham is expected to rule on the motions after a hearing next week. Regarding the motions dismissed Wednesday, Bucher had argued that Green's lifestyle was a tenet of his religion and an accepted religious practice. He had hoped to win an evidentiary hearing to allow historians of The Church of Jesus Christ of Latter-day Saints to testify.
Leavitt conceded Green believes his actions are religiously motivated, but said it wasn't legal justification for violating Utah's bigamy statute.
Regarding the selective prosecution claim, Leavitt argued that it didn't matter if he wasn't prosecuting other polygamists because Green still needed to show he was being "maliciously" prosecuted.