Author:Kenneth L. Karst

Page 1961

Because polygamy was one of the early tenets of the Mormon Church, the movement to eradicate plural MARRIAGE became bound up with religious persecution. The Supreme Court has consistently held that the FIRST AMENDMENT'S protections of RELIGIOUS LIBERTY do not protect the practice of plural marriage. Thus REYNOLDS V. UNITED STATES (1879) upheld a criminal conviction for polygamy in the Territory of Utah, and DAVIS V. BEASON (1880) upheld a conviction for voting in the Territory of Idaho in violation of an oath required of all registrants forswearing belief in polygamy. The corporate charter of the Mormon Church in the Territory of Utah was revoked, and its property forfeited to the government, in CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS V. UNITED STATES (1890). The church's First Amendment claim was waved away with the statement that belief in polygamy was not a religious tenet but a "pretense" that was "contrary to the spirit of Christianity."

It would be comforting if this judicial record were confined to the nineteenth century, but it was not. In Cleveland v. United States (1946), the Court upheld a conviction of Mormons under the MANN ACT for transporting women across state lines for the purpose of "debauchery" that took the form of living with them in polygamous marriage. The Court's opinion, citing the nineteenth-century cases and even quoting the "spirit of Christianity" language with approval, was written by none other than Justice WILLIAM O. DOUGLAS.

More recently, the Court has recognized a constitutional right to marry, and in a number of contexts has afforded protection for a FREEDOM OF INTIMATE ASSOCIATION. With or without the ingredient of religious freedom, SUBSTANTIVE

Page 1962

DUE PROCESS doctrine seems amply to justify an extension of these rights to plural marriage among competent...

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