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Wednesday, December 04, 2013

The Livery Of Heaven

Could a man charged with burglary or rape find privilege and excuse before any of our courts on a plea that it was an act done in accordance with the religion of the prophet Mercury or the prophet Priapus, and that our Constitution permits the free exercise of religion?

- Mr Morrill of Vermont, speech in House of Representatives on Utah Territory and polygamy (February 24, 1857)


The legal history of polygamy in the US is really quite fascinating from where I sit.  And since it oft comes up in the context of marriage equality, I thought I'd delve into it.

First off all, I must note that Mormonism's founder, Joseph Smith, was born in Vermont, and the architect of the first Federal law against polygamy was introduced by Justin Smith Morrill, a Representative of the very same little state.  History, it would seem, is not without a sense of ironic symmetry.

It took several years of abortive efforts and debate to finally ban polygamy in the Territories, and Morrill started on the task almost immediately after the LDS church publicly came out in support of multiple marriages.  But there really wasn't much will to pass legislation until after the Civil War began because...

Slavery.  

Naturally.

The two issues were intertwined such that the controversy about polygamy was similar to things like Popular Sovereignty.  When secesh fired the first shots the Union was concerned about putting anybody, including Mormons, into the rebels's camp.  And slavery as an institution was quickly mooted, so polygamy's fate was sealed as well.

As Mr Branch, Democrat of North Carolina, noted in 1860:

The question as to whether we shall pass a general law rendering criminal this practice in all the Territories of the Union brings up a different class of considerations altogether. I will suggest to my friends in this Democratic side of the House, Sir, that if we can render polygamy criminal, then we can also render criminal that other "twin relic of barbarism" -- Slavery, as it is called in the Black Republican Platform of 1856. I therefore cannot vote for any provision that shall make a general law in regard to polygamy, applicable to all the Territories of the Union...

The nascent Republican Party certainly made explicit use of the connection.  Their 1856 platorm included this plank that Branch alluded to:

Resolved: That the Constitution confers upon Congress sovereign powers over the Territories of the United States for their government; and that in the exercise of this power, it is both the right and the imperative duty of Congress to prohibit in the Territories those twin relics of barbarism--Polygamy, and Slavery.

But it wasn't just the GOP making hay.  Free Soil Whig from Ohio, Joshua Giddings, attacked Democratic inconsistency on the issue in 1856

[F]or weeks and months, I have sat here and heard gentlemen denounce all attempts to interfere with the domestic institutions of our Territories. From the commencement of the discussion upon the Nebraska question to this day, scarcely a southern man has spoken who has not sneered at, condemned, and repudiated all attempts "to interfere with the domestic institutionsof mar Territories," They are now in favor of interfering with the domestic institution of marriage in Utah, among the Mormons.
...
I would deal out to the Mormon the same measure of justice and freedom that I would give to the citizens of Nebraska, with their hundreds of concubines. I will permit the Mormon to enjoy his dozen wives, and I believe I could do it with a great deal Better conscience than 1 could give the slaveholder the privilege of an unlimited number of concubines.

Now, sir, when the Mormon marries, he does it openly before the public. The act is lawfully registered; and, when it has taken place, the woman assumes and takes the same standing in society and in the community as her huaband. He recognizes her as his lawful partner. His children are legitimate. They are educated; they are taught to understand the laws of the country, and its Constitution. They become enlightened and intelligent, and may become useful members of the community.

Sir, the Mormon does not sell his wife, nor does he sell his children. No, sir. God forbid. The Mormon recognizes his child as entitled to his care, to his attention, to his protection, to the privileges of education. He does not sell his own offspring to a slave dealer. No, sir; no, sir.

The gentleman over the way, from Virginia, [Mr. Smith,] says that negroes in the South are entitled to marriage. Why, sir, am I to stand here at this day and proclaim that there is no such institution as legal marriage among three millions of slaves in the United States ? A fact of which we all are conscious. Is it not true that the gentleman who has made the declaration, would sell the wife of his slave to-morrow, if he could get his price for her? Or, that he would do worse, perhaps ? That there is no law in Virginia to protect that female from the outrages of a brutal owner.

Are we to sit here, month after month, and hear discussions in favor of promiscuous, unlimited concubinage in the South, and then turn round and pass laws limiting the Mormons in Utah in respect to marriage?

And during his presidential campaign, Lincoln made reference to the House's passage of Morrill's bill (overwhelmingly, but it died in a Senate committee):

These gentlemen...were less than half the democratic members of the house---southern democrats voting for the anti-polygamy bill, because it favored the doctrine that congress could control the subject of slavery in the territories. But the Illinois democrats, although as much opposed to polygamy as any body else, dare not vote for the bill, because it was opposed to Mr. Douglas.

Mr. McClernand, of Illinois, had proposed to suppress the evil of polygamy by dividing up the territory, and attaching the different portions to other territories...how much better was it to divide up the territory and attach its parts to others? It was effecting indirectly that which Mr. McClernand denied could be done directly. This inconsistency [is] illustrated by a classic example of a similar inconsistency: "If I cannot rightfully murder a man, I may tie him to the tail of a kicking horse, and let him kick the man to death!''

But why divide up the territory at all?...Something must be wrong there, or it would not be necessary to act at all. And if one mode of interference is wrong, why not the other? Why is not an act dividing the territory as much against popular sovereignty as one for prohibiting polygamy? If you can put down polygamy in that way, why may you not thus put down slavery?

[I suppose] that the friends of popular sovereignty would say---if they dared speak out---that polygamy was wrong and slavery right; and therefore one might thus be put down and the other not...

But even after the ban was passed, President Lincoln wasn't entirely invested in enforcing the measure.  He had a war on, you know.  He is reported to have told TBH Stenhouse, editor of the Deseret Tribune, in an interview:

When I was a boy on the farm in Illinois there was a great deal of timber on the farm which we had to clear away. Occasionally we would come to a log which had fallen down. It was too hard to split, too wet to burn, and too heavy to move, so we plowed around it. You go back and tell Brigham Young that if he will let me alone I will let him alone.

Stenhouse, BTW, became a dissident Mormon, and his wife Fanny Stenhouse wrote a book about the evils of polygamy.

Anyway, the law was strengthened through later amendments, and withstood a Supreme Court challenge.  Other attempts to defend polygamist activity have also failed through the years.  But hey, I guess that could change just like bans on other forms of marriage.

I'm not entirely sure I would be opposed to that, though I don't see legalizing polygamy to be anywhere near the same league as marriage equality in terms of race, orientation, etc.  Still a few too many sticking points for me right now to be wholly supportive, particularly given how the Mormons fought so hard for PropH8.

ntodd

PS--I'm also a bit tired of people today trying to lay claim to religious protection against generally-applicable laws.

December 4, 2013 in Constitution, Schmonstitution | Permalink

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