Finding Their Religion

ED: In 1852, the Mormon Church publicly acknowledged that plural marriage, also known as polygamy, was part of their faith. And this did not go over well with many Americans outside of the Utah territory. Many worried that Mormon elders were ensnaring young women into marriages with much older men.

BRIAN: So in 1862, Congress passed the Morrill Anti-Bigamy Act, which banned polygamy in the territories. By the 1870s, federal officials were arresting prominent Mormons for polygamy. This didn’t sit well with church leaders. So they decided to challenge the constitutionality of the Morrill Act. To do that, they needed an appealing defendant.

ED: The Saints soon settled on a young man named George Reynolds. He was young, handsome, mild-mannered. And he only had two wives.

SARAH BARRINGER GORDON: And I think they thought he belied the stereotype of the fat old guy with a big beard who had six wives, each one younger than the last.

BRIAN: This is Sarah Barringer Gordon, a law professor at the University of Pennsylvania. She says that by the time the trial began, the Mormon leaders had changed their strategy. The new plan was to try to get Reynolds acquitted.

SARAH BARRINGER GORDON: When witnesses were called, they forgot that they knew George Reynolds. His neighbors had no idea whether he was known as a polygamist. No one could remember the wedding ceremony and so on. And it looked, during the first day of the trial, as though Reynolds might get off, because there simply was no evidence at the trial to prove that he was, in fact, a polygamist.

ED: But I’m guessing that something happened. This sounds like a great courtroom drama. So then what happened?

SARAH BARRINGER GORDON: Well, I’m afraid something did happen. There was a smart young lawyer who had showed up in the territories shortly after the Civil War. He was sitting in the courtroom. And he saw this whole prosecution going south. And he suggested to the marshal that he go find the second Mrs. Reynolds and bring her to the court, which is what happened. She appeared in the courtroom.

And as it also happens, she was visibly pregnant at that time. Her name had not been given as a witness. So she, apparently, was entirely unaware that everybody had forgotten they knew George Reynolds and that that was the program for the day. And she marched down, took the oath, sat in the witness box, and proudly identified herself as the second Mrs. Reynolds and the guy who had forgotten whether he ever knew Reynolds or had performed a wedding ceremony that he, in fact, had married them. And she provided the evidence that convicted her own husband.

ED: The Mormons, I take it, after the appearance of the second Mrs. Reynolds, lose.

SARAH BARRINGER GORDON: Well, they called for an adjournment toward the end of the day. And the next morning, they arrived in court with a new defense, saying that, yes, they admitted that Reynolds was, in fact, married to more than one woman. But, and here’s where the Constitution really comes in, but he was a member of the LDS Church. And as a loyal Latter Day Saint, if he was given the opportunity to practice polygamy, he must do so or be damned, so that this was a religious practice.

ED: So my understanding is that this makes it all the way to the Supreme Court?

SARAH BARRINGER GORDON: Eventually it did. The case was argued in November 1878 and decided in early January 1879. ’79

ED: And so by this time, I assume the central question has been distilled in some way. And what does it boil down to? And what does Reynolds argue?

SARAH BARRINGER GORDON: Well, there were several arguments made on his behalf. His lawyer was George Washington Biddle. He argued strenuously that the federal government had no jurisdiction over such domestic relationships in the territories. And at the very end, he tossed in the claim that, by the way, this was a religion and that was a separate defense. But most of the time, he talked about technical legal claims of who had power where.

And in the opinion of the Supreme Court, they virtually ignore all that jurisdictional stuff and say, well, really, the defense here is based on religion. And Reynolds claims that his religion commands him to behave this way. And so he has an excuse for not following the criminal law that the Congress has validly enacted. And then they say, if we let a guy like this redefine what counts as marriage and what counts as criminal behavior for himself just based on his religion, we’re introducing anarchy. This is not what the Free Exercise Clause is about. We can’t let this happen.

ED: So Sarah, how does this case fit into the evolving understanding at the separation of church and state in our country?

SARAH BARRINGER GORDON: One crucial component of this separation is one we talked about few moments ago– the fulcrum of marriage. Is marriage a civil institution? Is it a sacred institution? Who gets to decide? And what the Supreme Court said was, well, marriage has sacred elements. But it is a civil undertaking.

And the secular government gets to decide its components and regulate marriage so that state and federal legislatures have power to write statutes about adultery, to talk about inheritance, and so on. These are civil undertakings. So Reynolds is a landmark from the perspective of marriage, as well as the perspective of religion.

ED: So how do people around the country react to this decision then? They said, that’s Utah. Who cares? Or did they recognize that this has significance for all of us? And how did Mormons react to it?

SARAH BARRINGER GORDON: Well, The New York Times ran a headline, “Little Georgie Goes to Jail.” The case was very, very popular around the country. In other words, this seemed like a humanitarian result, the protection of women from the sexual deprivation of men. The reaction within Utah was extremely outraged, a sense of betrayal of the religious liberty that Mormons argued was itself divinely inspired. The Constitution as this spectacular document that had created space for a new revelation the Book of Mormon to enter.

And one of the leaders of the church said that this is typical of a nation ripened for damnation. And they weren’t going to give in. And only in 1890, 11 years after the Reynolds case was decided and a huge swath of prosecutions later, thousands upon thousands of cases, did the leader of the Mormon Church, President Wilford Woodruff at that time, issue what was known as a manifesto, not quite a revelation, but a very important religious communique, saying that he would no longer counsel the saints to disobey the criminal laws of the land. And gradually, over years, the jangled nerves began to settle. And Utah was finally admitted as a state in 1896.

ED: Sarah Barringer Gordon is a law professor at the University of Pennsylvania. She’s the author of the forthcoming book, The Place of Faith, about disestablishment in the 19th century.

BRIAN: It’s time for another short break. But don’t go away. When we get back, what do you get when a rabbi, a minister, and a priest get together? A legal revolution.