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January|February 2003
Dante and the Death Penalty By Matthew Pearl
A History of Hard Time By Daniel Brook
Farewell, Raymond Chandler By James Fallows
Chapel and State By Sarah Barringer Gordon

Chapel and State

Laws written in the 19th century to prevent polygamy are thwarting the efforts of today's same-sex marriage advocates.

By Sarah Barringer Gordon

In 1852, Brigham Young announced publicly that Mormons believed in the marriage of one man to two or more women at once. As president and prophet of the Church of Jesus Christ of Latter-day Saints, Young himself was a polygamist. Other Mormon leaders also defended the practice, arguing that they obeyed "the Almighty, and ... His holy law of polygamy, and sexual purity."

In 1890, however, the church declared that it would no longer counsel its followers to practice polygamy. What happened in the intervening years? The conflict over Mormon polygamy was fought with tenacity and profound conviction as both sides struggled for dominance and constitutional recognition. The antipolygamists eventually won: Lawmakers and the courts made it clear that the government, rather than local religious groups, would set the terms and boundaries of marriage.

That resolution affects today's debates over same-sex unions. Some conservatives have argued that legalizing marriage for same-sex partners would inevitably make polygamy legal as well. Many Mormons find the equation insulting, and Yale Law School professor William Eskridge, a supporter of same-sex marriage, calls it a "lavender herring." He argues that gay couples, like heterosexual ones, make an exclusive commitment.

Eskridge is right that there's no necessary connection between polygamy and same-sex marriage. Yet the 19th-century conflict over polygamy created the legal framework within which contemporary advocates of same-sex marriage must work. Since that conflict, American courts have denied individuals or groups the right to define marriage for themselves. It's unrealistic to argue that only consent should matter when a gay or lesbian couple wants to marry. Their consent just gets them to the next hurdle—the consent of the government. Gays and lesbians must pair their claim that marriage is a fundamental human right with the concession that it's also a legal category defined by the state. This is the lesson of the conflict over polygamy—a conflict that is seared into Mormon memory, but that for the rest of the country has faded into obscurity.

The story begins with religious faith. Joseph Smith, the founder and first prophet of the Mormon church, was a visionary from upstate New York. Smith claimed that he had translated the foreign writing on "golden plates" revealed to him by an angel. The Book of Mormon that resulted was published in 1830, and the church was established the same year. The work is a religious history of the New World—"Another Testament" of the coming of Christ in North America. Smith's inspiration forever changed his world, and the new religion quickly drew passionate followers.

God continued to speak to Smith, for whom the "latter days" of the 19th century were filled with the power of God's words. As new revelations supplemented the founding text, Smith gradually created a new faith with a communal ethic, one that urged, for example, bloc voting in civil elections. He also established a democratic priesthood composed of all Mormon men. The covenant between God and the Latter-day Saints gave these men a sense of history and purpose. They were helping to restore God's law on earth.

Polygamy was not one of the original tenets of the faith. Instead, the "law of celestial marriage" was revealed to Smith in 1843. The revelation made clear that polygamy was the highest order of marriage for the faithful, and it called upon men to enter the practice "for their exaltation in the eternal worlds." Smith also had himself crowned "king," and he became a candidate for U.S. president in 1844. But an anti-Mormon mob killed him that year, creating a martyr to the new faith. Smith's death prompted his successor, Brigham Young, to lead an exodus of the faithful to the Great Salt Lake Basin in 1847. There they hoped to found a new Zion as well as to avoid persecution.

Once in Utah, the Saints settled in quickly to build their kingdom. They were remarkably successful. As they like to point out to critics, in Utah they "made the desert bloom as the rose." The Mormons set up a government for the area around Salt Lake, maintaining that the rest of the country had no right to interfere with them. The U.S. Constitution, they argued, allowed a local majority to construct whatever law of "domestic relations" seemed best to the people who lived there. The national government had no business telling local communities how to define marriage because the Constitution's conception of federalism provided for self-governance over just such matters.

As rumors spread about Mormon "immorality," the Saints continued to defend themselves. Always, they made it clear that they practiced plural marriage only because they were certain that God had commanded them to do so. To many Americans, the Mormons' arguments were not persuasive. But they drew on powerful strands of constitutional law and tradition, and they dovetailed with other political convictions of the time. Until the Civil War, proslavery Southerners blocked any attempt to legislate against polygamy. The legal category of domestic relations covered masters and servants as well as husbands and wives; both slavery and polygamy were relationships of private authority, Southerners argued, that should be shielded from state intrusion.

Northern Republicans who opposed slavery exploited its legal link to polygamy. In their first national platform in 1856, they called for the abolition of the "twin relics of barbarism—polygamy and slavery" in all U.S. territories. No position could have been more incendiary or divisive in the years leading up to the Civil War. Southerners retorted that the real tyranny was not husband over wife or master and slave, but the centralization of power that any ban on polygamy or slavery would foreshadow. As a congressman from South Carolina said in 1860 about the proposed prohibition, "if there is power in Congress to inspect the morals of a nascent political community, and of its own autocratic will to decree this and prohibit that, may they not declare slaveholding a crime? To allow this power is to consolidate the Government."

The Mormons' opponents, for their part, drew on the religious principles of individual human worth and dignity that underlay antislavery thought. Justin Morrill, a senator from Vermont, argued that polygamy enslaved women, "tear[ing] the endearing passion of love from the heart, and install[ing] in its place the rage of jealousy . . . degrad[ing] her to the level of a mere animal." Congressman Thomas Nelson of Tennessee said that the "law of God" required legislators to "avenge the insult [of polygamy] to our own wives and our own daughters." Harriet Beecher Stowe, author of Uncle Tom's Cabin, the phenomenally successful 1852 antislavery novel, said that the emptying of the "slave pens" of the South created a precedent for acting against polygamy in Utah.

Antipolygamists also predicted that plural marriage would erode the practice of democracy and adherence to law. Like slaveholders, Mormon men would give in to passion and become unable to govern themselves. The "rule of law" would give way to a "rule of men" who tyrannized their wives and their compatriots. Monogamous marriage, by contrast, restrained men through the exclusive commitment it involved. The prominent political theorist Francis Lieber claimed that polygamy bred a form of "patriarch[y] . . . which fetters the people in stationary despotism." These tendencies, he maintained, "cannot exist long in monogamy."

In this way, antipolygamists deflected criticisms of traditional marriage by 19th-century women's rights activists. Wives in monogamous unions might have to put up with the law of coverture, which could restrict them from owning property or keeping the money they earned—but at least their husbands weren't despots.

Over time, antipolygamists convinced Congress to ban polygamy, and this ban was upheld by the Supreme Court. In Reynolds v. United States, decided in 1879, the justices adopted the antipolygamists' view that plural marriage was inhumane. Religious belief, they said, was no excuse. "Suppose one believed that human sacrifices were a necessary part of religious worship, would it be seriously contended that the civil government under which he lived could not interfere to prevent a sacrifice?" the court asked. "Or if a wife religiously believed that it was her duty to burn herself upon the funeral pile of her dead husband, would it be beyond the power of the civil government to prevent her carrying her belief into practice?" Though "from its very nature a sacred obligation," marriage "in most civilized nations" was "a civil contract, and usually regulated by law." This was so because marriage was the foundation upon which "society may be said to be built, and out of its fruits spring social relations and social obligations and duties."

The court wrapped the state's authority over marriage in a comforting deference to Protestant belief. And few Protestants questioned the opinion, which anti-Catholics thought could further their goal of ridding the country of "priestcraft." Still, the power deployed by the court was secular, and the power it attacked was religious. Marriage was too central a political matter to be ceded to church control, as it had been before the Protestant Reformation.

Reynolds invigorated the antipolygamists. In the 1880s, antipolygamy legislation poured out of Congress in an unprecedented campaign to eradicate the established practices of a religious community. Most Americans thought of polygamy as "uncivilized," "barbaric," and "cruel," but in this effort, it was the avowed humanitarians who behaved inhumanely. More than a thousand polygamists were jailed, tearing families apart, and anyone who refused to swear that he or she was not a polygamist was not allowed to vote. In 1887, Congress passed legislation that declared the property of the Mormon Church forfeit as punishment for its support of polygamy. The leadership of the church went into hiding to avoid arrest.

In the end, church leaders capitulated. They had little choice if they wanted their faith to survive. Church president Wilford Woodruff announced in 1890 that he would no longer counsel disobedience of civil law. It took more than a generation for many Mormons to accept the abandonment of polygamy, though the community eventually moved on.

But the struggle left a constitutional mark. The most important battle over marriage in the nation's history taught us that the boundaries of marriage are defined by the state, not individuals. In Reynolds, the Supreme Court said that a local community could not define marriage more expansively than the rest of the country. Today, conservative proponents of local control in other contexts—who support, for example, recent Supreme Court rulings that say Congress can't force the states to apply employment discrimination laws—assert federal power to oppose the recognition of same-sex marriages by individual states.

In 1996, Congressional Republicans championed the Defense of Marriage Act, reacting to the prospect that Hawaii and Vermont might allow same-sex marriages. For federal purposes like taxes, the law declares that marriage exclusively means the union of one man and one woman. It says that the federal government needn't recognize a same-sex marriage performed under a state law. The act also allows any state to refuse to recognize another state's alternative form of marriage without violating the Constitution's "full faith and credit" clause, which requires the states to enforce each other's legal judgments. If a same-sex marriage were performed in Hawaii, Utah wouldn't have to treat the couple as married.

The Defense of Marriage Act had the strong support of the Mormon Church. Most contemporary Mormons oppose same-sex marriage, and they're also committed to monogamy. They recognize that even in Utah, where polygamy once found a haven, marriage now means two people.

Most advocates of same-sex marriage agree with that principle. Today's opponents of same-sex marriage try to confuse that point by arguing that polygamy will inevitably follow from gay and lesbian unions. But the battle being fought now isn't the same one that was fought more than a hundred years ago. The argument that gay unions will inevitably become plural unions is just incendiary.

Sarah Barringer Gordon, a professor of law and history at the University of Pennsylvania and a visiting fellow in the Program in Law and Public Affairs at Princeton University, is the author of The Mormon Question: Polygamy and Constitutional Conflict in Nineteenth-Century America.

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