The Mormon Question: Polygamy and Constitutional Conflict in Nineteenth Century America.

• Author: Dow, David R.
• Position: Book Review

THE MORMON QUESTION: POLYGAMY AND CONSTITUTIONAL CONFLICT IN NINETEENTH CENTURY AMERICA. By Sarah Barringer Gordon (1) University of North Carolina, Chapel Hill. 2002. Pp. xiv, 337. $49.95 (hard); $19.95 (paper).

"By convention, and perhaps out of psychological need, we too often interpret the bizarre facts of our universe as mere farce, beneath belief." (4)

Thomas Green will never be mistaken for Martin Luther King, Jr. He has sparked no national movement. Historians will not write books about him. It is even doubtful that very many people will remember his name a century hence. Like King, however, he is someone who has lived his life in a manner dictated by his moral code; like King, he did so despite the risk that living in accordance with his values would lead him to prison. Thomas Green is in fact in prison, sentenced to a term of five years. Waiting for him to be freed are his five wives and twenty-nine children. Green is a polygamist. He is one of some 30,000 people living in Utah who, calling themselves Mormons, live in polygamous families. He was sentenced in August 2002 for violating Utah's anti-polygamy statute.

For most Americans, polygamy is a bizarre fact. What type of man would want such a family, and what type of woman would agree to such a relationship? Polygamy is a bizarre fact because the lifestyle is abhorrent to some and unfathomable to most. But the fact that something is different does not mean that it warrants vilification. Obviously, not all eccentricity is valuable, but neither is all eccentricity malignant. For reasons rooted in the First Amendment as well as the due process clause, Americans remain indifferent to most eccentricities. Increasingly, unconventional lifestyles are common, uncontroversial, and accepted by mainstream culture. Arrangements that once turned heads--married couples that elect not to have children, unmarried couples that together do have children, interracial and same-sex civil unions--are now unremarkable. Polygamy, however, is an exception. It is a form of domesticity that is not accepted, a mode of living that the government has criminalized. Polygamy is a form of eccentricity that has been singled out for eradication in America--singled out a century ago, and singled out again today.

Polygamy strikes many people as somewhere between abhorrent and laughable. But if it does not cause loud and acrimonious debate any longer, it is perhaps because so few Americans practice it, and because few are aware of it. Indeed, to the extent people are aware of polygamy at all, they treat it as a perverse curiosity, not a problem of national import. Polygamy is irrelevant, because it is rare. It is not nonexistent, however, and because it is not, the constitutionality of measures that purport to criminalize it merit attention.

Sarah Barringer Gordon's book, The Mormon Question, (5) is not about contemporary polygamy; it instead addresses the federal effort to exterminate the practice. The success of the federal effort is one reason for polygamy's current rarity: In the nineteenth century, Congress, the Executive, and the judicial branch, successfully attacked it. No one can know whether polygamy would have thrived in the American West had it not been largely eradicated by the federal government, but Gordon, as an historian, shows carefully and dispassionately how the federal government conducted its campaign.

Gordon's book is a volume of history, not an ideological or argumentative tome, but the history she delineates exposes the outline of a constitutional argument. In her historical narrative lurks a simple constitutional proposition: Laws prohibiting polygamy rest on tenuous constitutional ground.

The structure of this Review is as follows. In Part I, we summarize Gordon's conclusions and review her examination of the practice of polygamy as well as the origin of the federal government's efforts to eradicate it. In Part II we initially discuss the concept of authority in establishment clause and free exercise jurisprudence. Our objective is to develop an approach to establishment and free exercise issues that focuses on the authority that underlies the legislation that is the subject of constitutional challenge. Then, using data that Gordon has presented (as well as some that she has not), we argue that under the approach to the religion clauses that we have delineated, the effort to rid Utah of polygamy violates the essential value of the establishment clause.

1. THE CHRISTIAN CAMPAIGN AGAINST POLYGAMY

   In The Mormon Question: Polygamy and Constitutional Conflict in Nineteenth Century America, Professor Sarah Barringer Gordon traces the historical development, socially and legally, of the Church of Jesus Christ of Latter-Day Saints (better known as the Mormon Church) from its inception and foundation by Joseph Smith in 1830, to its adoption and eventual renunciation of the so-called Principle: the practice of polygamy. As Gordon observes, the Mormon religion began without the practice of polygamy. Founded in 1830 by the Church's first president, Joseph Smith, the Church of Latter Day Saints (LDS) began because it satisfied the spiritual yearnings of an identifiable community (p. 19). Indeed, the expressed desire of the early Mormons is reminiscent of contemporary critics of American culture. (6) The LDS Church preached commitment to morals, values, and sanctity in a nation that the early Mormons perceived as corrupt, greedy, and selfish (p. 19).

   According to Mormon tradition, Joseph Smith was a Moses-like figure, but instead of receiving ten commandments at Sinai, Smith received the "golden plates," through which developed the cornerstone of the Mormon faith (p. 19). Central beliefs of the Mormon faith include the notion that God is a physical being, who began as a human and became a god through "celestial living"; that Jesus was not immaculately conceived; and that the site of salvation would be North America, because that is where the true believers, or Saints, gathered (p. 21). Above all, Mormons believe that following God's laws--even if these laws are contrary to the laws of civil society--will elevate a person into eventual godhood (p. 22).

   When, in 1843, Smith purportedly received the "Revelation on Celestial Marriage," the LDS Church for the first time officially endorsed polygamy (p. 22). Initially, only the truly faithful, which meant only the highest-ranking church officials, were allowed to practice polygamy (p. 27). Polygamy was regarded as a serious responsibility, one that only those sufficiently committed and disciplined would be able to undertake; "ordinary" men did not possess the character to manage more than one wife (p. 27). In the LDS faith, the ability to take more than one wife showed true commitment to the faith, and the polygamous lifestyle was accordingly regarded as congruous with sanctity (p. 22).

   In a formal sense, a woman's consent to polygamous marriage was required. By living in such a relationship, women received the opportunity to live a holy life. Yet it should also be noted that, although women had the power to refuse to enter such marriages, LDS doctrine held that were they to so refuse, they would be forever damned for the selfish act of depriving their husbands of true faith (p. 22).

   Polygamy therefore established itself in the LDS community, and reports of polygamous relationships quickly spread beyond Mormon communities. As stories of this unorthodox lifestyle reached non-Mormons in Illinois, Missouri, and Ohio, persecution soon followed, both verbal and physical. Most dramatically, after Joseph Smith was arrested and imprisoned for ordering the destruction of printing presses that had been used to criticize his policies, a mob raided the prison where he was housed and murdered him (pp. 23-25). Mormons realized that the state would not protect them, if it even could, and they began their westward trek under the leadership of Brigham Young (pp. 25-26).

   In what would become the Utah territory, Mormons settled and thrived, with Brigham Young himself presiding as the first governor of the Territory (pp. 26-27). The tranquility ended in 1852, when Orson Pratt announced the Principle to the nation. The reaction was furious. Opponents of polygamy compared the relationship to slavery (p. 55), the great moral issue of the time, insisting that women were coerced into such marriages, just as slaves were coerced into bondage; they characterized polygamous culture as violent, promiscuous, and exploitative (pp. 2735). In turn, animosity toward polygamy reinvented itself as hostility toward the LDS Church (p. 57). Opponents of polygamy outside of Utah correctly perceived that the secular and religious authorities were entangled in the Utah Territory, and they insisted that the church be separated from the state (e.g., pp. 57, 63).

   As this animus toward polygamy and the Mormons was developing, American courts began to draw on Christian doctrine as they explicated principles of common law (e.g., pp. 66-75). At the same time, Mormons questioned whether common law principles were binding, a questioning that intensified as the line between common law and Protestant principles grew more blurry. In turn, this Mormon questioning intensified hostility toward the LDS in the states. Professor Gordon paints a picture of a cycle which, once begun, was truly endless.

   People outside of Utah worried, in short, that the territory was establishing a church, and that the church it was establishing endorsed practices that were anathema. This worry was heightened precisely because the LDS church was organized and efficient, and largely beyond the control of outside governmental influence (p. 77). Members of Congress decided that it was time for the federal government to exert some control.

   In 1862, Congress enacted the Morrill Act for the Suppression of Polygamy. The Act "outlawed bigamy in the territories; ... annulled the Utah territorial...