Race treason: the untold story of America's ban on polygamy.

• Author: Ertman, Martha M.

Today's ban on polygamy grew out of nineteenth century Americans' view that Mormons committed two types of treason. First, antipolygamists charged Mormons with political treason by establishing a separatist theocracy in Utah. Second, they saw a social treason against the nation of White citizens when Mormons adopted a supposedly barbaric marital form, one that was natural for "Asiatic and African" people, but so unnatural for Whites as to produce a new, degenerate species that threatened the project of white supremacy. This Article reveals how both kinds of treason provided the foundation of polygamy law through the discourse of legal, political and medical "experts, " as well as, most vividly, cartoons of the day. This discourse designated the overwhelmingly White Mormons as non-White to justify depriving them of citizenship rights such as voting, holding office, and sitting on juries. Paralleling the Mormon question to miscegenation disputes also raging in the decades after the Civil War, the Article suggests two theoretical perspectives to understand the "blackening" of Mormons. First, postcolonial theorist Edward Said's concept of Orientalism helps explain how designating Mormons a subject race rendered their subjection inevitable. Second, Sir Henry Maine's 1864 observation that progressive societies move from status to contract reveals the visceral defense of status embedded in antipolygamy discourse. That defense of status may also have implicated other ways status was giving way to contract, such as wage labor replacing slavery and the partnership theory of marriage beginning to displace coverture. In either case, the Article contends, the racial foundations of American antipolygamy law require us to rethink our own often reflexive condemnation of the practice. It concludes by suggesting three questions to help us frame that inquiry, asking: (1) whether we need to rethink this rarely-enforced ban; (2) whether current antipolygamy law associates polygamy with barbarism, foreignness, and people of color; and (3) whether it is coincidental that the plain language of the Defense of Marriage Act prohibits both polygamy and same-sex marriage.

INTRODUCTION

[R]ace is at the center of all of American history.

--Ken Burns (1)

Many people think that American law bans polygamy to ensure women's equality and shield teenage girls from marrying old men. (2) But that notion is largely wrong, at least if we interpret the relevant cases and statutes in light of the intentions of the lawmakers who enacted four federal statutes and the courts that upheld them in a line of cases that are still cited as good law. They were hardly concerned with gender equality or protecting children's safety. Instead, the statutes went far beyond criminalizing polygamy, depriving Mormon men and women of voting and other citizenship rights to achieve the larger goal of preventing the traitorous establishment of a separatist theocracy in Utah. Polygamy was merely a symptom, fascinatingly salacious and easily ridiculed, of the pathology that most Americans saw in Mormonism. However, knowing the treason-based genesis of antipolygamy law need not force us to rethink the ban on polygamy. Treason remains unlawful, making it a permissible justification for the law today.

But race is also at the center of antipolygamy law, in a way that forces us to rethink the ban itself. Many Americans, from the highest levels of government to political cartoonists, viewed the Mormons' political treason as part of a larger, even more sinister offense that I call race treason. According to this view, polygamy was natural for people of color, but unnatural for White (3) Americans of Northern European descent. When Whites engaged in this unnatural practice, antipolygamists contended, they produced a "peculiar race." (4) Antipolygamists linked this physical degeneration to Mormons' submission to despotism, reasoning that their primitive form of government was common among supposedly backward races. The Supreme Court accepted this argument in the leading antipolygamy case, Reynolds v. United States, in which it rejected Mormon claims that polygamy was protected as the free exercise of religion. (5) The Court reasoned that polygamy was "odious among the northern and western nations of Europe," "almost exclusively a feature of the life of Asiatic and of African people," and ultimately "fetters the people in stationary despotism." (6) Well into the twentieth century, many Americans continued to associate White Mormons with people of color, as evidenced by a character's quip in Jack London's 1914 novel, "They ain't whites; they're Mormons." (7)

This racialization requires us to ask whether the polygamy ban today continues to import those white supremacist values. In another context, states criminalized cocaine and marijuana in the early twentieth century to police and generally demonize Chinese and Mexican immigrants as well as African Americans. (8) By the late twentieth century, that policy, though officially rejected, found expression in federal sentencing guidelines that penalized offenses related to crack cocaine (more common in African American communities), more harshly than powder Cocaine (more common in White communities). (9) There, as here, virulent racial motivations that animated a legal rule requires us to examine the law's current incarnation to ensure it has shed the taint of its origin.

Casting overwhelmingly White Mormons as non-White required rhetorical slights of hand. While Mormons' distinctive theology and social organization were politically unsettling in many ways, the practice of polygamy justified the larger culture's demotion of Mormons from full citizenship on the grounds of racial inferiority. This Article tells the story of race in polygamy law through the words of government actors and scholars, using political cartoons to literally illustrate the widespread view of Mormons as race traitors.

It then offers two theoretical frames through which to view nineteenth century perceptions of polygamy as race treason: Orientalism and jurisprudential insights about the tensions between status and contract. Edward Said's work on Orientalism offer some clues as to why cartoonists might have portrayed Mormon polygamists as Black and Asian. (10) Viewing the discourse as Orientalist--essentially an "us/them" rubric that primarily underpins colonialism--shows that antipolygamy discourse also spoke of Mormon polygamy in "us/them" terms, treating polygamists not as people, but as problems to be solved. The most valuable insight Orientalism offers here is that framing a group as Oriental--an inherently backward, sensual, and therefore subordinated Other--makes its subjection inevitable. (11) Thus the public imagination's construction of Mormons as members of subject racial groups (Asian and Black, mainly) played a crucial role in subjecting Mormons to federal control. (12)

An alternative, or perhaps complementary, interpretation turns on the famous 1864 assertion of English comparative jurist Sir Henry Maine that "the movement of the progressive societies has hitherto been a movement from Status to Contract." (13) This insight situates seismic nineteenth century changes--such as slavery incrementally giving way to wage labor and coverture eroding through reforms like the Married Women's Property Acts--as part of a larger, progressive transition away from family and toward individuals as the organizing principles of legal regulation. (14)

Applying Henry Maine's insight to the polygamy debates reveals a complex tension between status and contract. Both sides raised issues of consent, a foundational component of contractualism. Antipolygamists contended that no sane White woman would consent to polygamy, and Mormons countered that the federal government should not coerce people into monogamy when their religious beliefs dictated that they practice polygamy. Similarly, both forms of marriage assigned men and women rights and responsibilities based on their status. Status-based rules excluded monogamous wives from aspects of public life such as the practice of law. (15) Along the same lines, the "Patriarchal Principle," as the Mormons called polygamy, reaffirmed the status-based authority of fathers and husbands that the rest of America was slowly leaving behind. (16) In short, status and contract played key roles in both monogamy and polygamy.

However, we can see monogamy as substantively more contractual, and procedurally more status-oriented. Polygamy, conversely, was substantively grounded in status, but procedurally more contractual. Procedure here has both micro and macro aspects. By micro, I mean to designate individuals' entry and exit from marriage. Macro, in contrast, refers to broader levels of regulation. Focusing on the micro or individual, Mormon polygamy was contractual in its liberal divorce rules. At the macro or general level, it offered a way to "contract out" of monogamy into an alternative marital regime. This contractualism, I argue, played a central role in antipolygamy law. Polygamy constituted, for the rest of the nation, the most obvious evidence of how wrongheaded Mormons were to "contract out" of the nineteenth century American polity by establishing a separatist culture and economy.

This Article uses political cartoons of the day to demonstrate how viscerally the American polity fought against the Mormons' attempt at private ordering, deploying images of domestic and governmental disorder to rail against the chaotic consequences of abandoning status in marriage. In the cartoons, race and gender served as shorthand for status, the notion of assigned, inherent and unchanging roles. Because marriage was deeply raced and gendered, and not coincidentally defined citizenship, (17) antipolygamists' equation of polygamy with Asian and Black foreignness reaffirmed the centrality of Whiteness to full citizenship. Equating Whiteness...