Warren Jeffs may be a very bad man, but Utah prosecutors had no business charging him with accessory to rape in the case of a 14-year-old girl whose marriage to a 19-year-old cousin he ordained as leader of the Fundamentalist Church of Jesus Christ of Latter-day Saints (FLDS). In coming to the unanimous decision that the judge’s charges to the jury were erroneous, the court effectively told the state that its “accessory to rape” theory was bogus.

The young husband was himself only charged with rape after he testified on Jeffs’ behalf–and that case has still to be resolved. The object of the exercise was to throw the heaviest book possible at the FLDS leader. During the trial, Jeffs’ attorney declared, “”The state can say Warren Steed Jeffs is on trial, but it’s his…church, his religious beliefs that is on trial here, dressed up as a
crime called rape.” Although the prosecuting attorney angrily denied it at the time, Utah Attorney General Mark L. Shurtleff essentially granted the point yesterday:

I do recognize and respect our judicial process and the Supreme Court’s
responsibility not only for victims of crimes but people accused of
crimes. But I am left scratching my head as to how we can, in the executive
branch of law enforcement, go about protecting children from the actions
of religious leaders like Warren Jeffs.

One way to do so might be to pass a law requiring girls to be married under the age of 18 to appear alone before a judge and testify that they consent to be married of their own free will. In the Jeffs case, the uncontested evidence suggests that the girl would not have so testified. But solving the problem by twisting the criminal law in order to go after religious leaders like Jeffs as such is not how we’re supposed to roll, under the Free Exercise clause of the First Amendment.