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Free Exercise of Religion in Nineteenth Century America: The Mormon Cases*

Published online by Cambridge University Press:  24 April 2015

Edwin B. Firmage
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Extract

The Mormon cases present a fascinating study of diversity and conformity in the United States in the nineteenth century. From their beginning the Mormons were a gathered people. Almost immediately, from their origins in New York, the Mormons challenged the legal systems in the nation and the states where they resided to protect or at least tolerate their idiosyncracies. Mormon belief and practice came to include communal economics, theocratic government, and most challenging and offensive of all to the larger national community, a radically different marital and social practice—polygamous marriage.

Mormon history began in New York and continued briefly in Ohio where Mormons first gathered. Mormons experienced their most savage suppression in Missouri, where the Governor, Lilburn Boggs, finally issued an extermination order and the “Mormon war” finally saw Mormons driven into Illinois to seek refuge and a new community. After the community initially welcomed Mormon refugees, the abrasiveness of a people who were so incapable of assimilation into the existing society led to conflict again, culminating in the murder of Joseph Smith, the founder of Mormonism, and his brother Hyrum. The Mormon exodus to the Great Basin of the American West followed, under the direction of Brigham Young, one of this nation's leading colonizers. But the story of free exercise of religion among the Mormons in nineteenth century America had just begun.

Type
Georgetown Symposium on Church and State and Society and Law Colloquium
Information
Journal of Law and Religion , Volume 7 , Issue 2 , 1989 , pp. 281 - 313
Copyright
Copyright © Center for the Study of Law and Religion at Emory University 1989

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Footnotes

*

Major parts of the argument of this paper were first presented in the first legal history of the Mormon experience, done with my friend and colleague, Professor E. Collin Mangrum Zion in the Courts: A Legal History of the Church of Jesus Christ of Latterday Saints 1830-1900 (University of Illinois Press, 1988), and in Firmage, The Judicial Campaign Against Polygamy and the Enduring Legal Questions, 27 BYU Studies 91 (1988).

Significant portions of this paper were also presented at the Conference on Religious Law and Legal Pluralism, sponsored by the Benjamin Cardozo School of Law, Yeshiva University, New York, New York, September 17-18, 1989. That paper, entitled Religion and the Law: The Mormon Experience in the Nineteenth Century, was published in 12 Cardozo L. Rev. 805 (1991).

References

1. See, e.g., North v. Board of Trustees, 137 Ill. 296, 305, 27 N.E. 54, 59 (1891) (University of Illinois did not violate state constitution in requiring daily chapel exercise, because nothing prevents state colleges from adopting “all reasonable regulations for the inculcation of moral and religious principles in those attending them.”)

2. See Berman, , Religion and Law: The First Amendment in Historical Perspective, 35 Emory L.J. 777, 783 (1986)Google Scholar; Torpey, W., Judicial Doctrines of Religious Rights in America 16 (1948)Google Scholar; see also Ferriter v. Tyler, 48 Vt. 444 (1876) (150 Catholic students expelled by Protestant school board and not readmitted until they vowed that they would not miss school for Catholic religious ceremonies again). But see State ex rel. Weiss v. District School Bd., 44 N.W. 967 (Wis. 1890) (Bible readings in state schools banned as violative of state's constitution).

3. See Donahoe v. Richards, 38 Me. 379 (1854).

4. People v. Ruggles, 8 Johns. 290, 295 (N.Y. 1811). For other cases and discussions of early blasphemy prosecutions, see Levy, L., Blasphemy in Massachusetts (1973)Google Scholar; Zeisweiss v. James, 63 Pa. 465 (1870); Commonwealth v. Kneeland, 20 Pick. 206 Ovlass. 1838); State v. Chandler, 2 Harr. 553 (Del. 1838); Upedegraph v. Commonwealth, 11 Serg. & R. 394 (Pa. 1832); Delaware v. Chandler, 3 Harr. 553 (1837); W. Torpey, supra note 2, at 58-60.

5. See, e.g., Elden v. People, 161 Ill. 296, 43 N.E. 1108 (1896); Lindenmuller v. People, 33 Barb. 548 (N.Y. 1861); Missouri v. Amos, 20 Mo. 214 (1854); Specht v. Commonwealth, 8 Pa. 312 (1848); Commonwealth v. Wolf, 3 Pa. 48 (Serg. & Rawle) (1817). But see State v. Baltimore & Ohio R.R., 15 W.Va. 362 (1879).

6. See, e.g., Stone v. United States, 167 U.S. 178 (1897); Hennington v. Georgia, 163 U.S. 299 (1896); Ball v. United States, 140 U.S. 118 (1891); Bucher v. Chesire R.R., 125 U.S. 555 (1888); Gibbs & Sterret Mfg. Co. v. Brucker, 111 U.S. 595 (1884); Pence v. Langdon, 99 U.S. 578 (1878).

7. 43 U.S. 127 (1844).

8. Id. at 198.

9. 143 U.S. 457 (1892).

10. Id. at 471.

11. See Walters, , Joseph Smith's Bainbridge. New York Court Trials, Westminster Theological J. 123, 129 (1974)Google Scholar.

12. See 1 Smith, J., History of the Church of Jesus Christ of Latter-day Saints 96 (rev. ed. 1978)Google Scholar; Bushman, R., Joseph Smith and the Beginnings of Mormonism 162 (1984)Google Scholar.

13. See 1 J. Smith, supra note 12, at 39-45; 1 Roberts, B., Comprehensive History of the Church of Jesus Christ of Latter-day Saints 240 (1930)Google Scholar.

14. See M. Parkin, Conflict in Kirtland: A Study of the Nature and Causes of External and internal Conflict of the Mormons in Ohio Between 1830 and 1838, 263-73 (M.A. thesis, Brigham Young University 1966).

15. See Hanson, , Money of the Mountains, 64 Improvement Era 158, 158–59 (1961)Google Scholar.

16. See 1 B. Roberts, supra note 13, at 402; Hill, , Rooker, & Wimmer, , The Kirtland Economy Revisited: A Market Critique of Sectarian Economics, in 3 Stud, in Mormon Hist. 81 (l977)Google Scholar.

17. See Doctrine & Covenants of the Church of Jesus Christ of Latter-day Saints 57:3 (1981 printing)Google Scholar.

18. See 1 J. Smith, supra note 12, at 374-76.

19. Id. at 395-99.

20. Id. at 410-15.

21. Id. at 423-24.

22. Id. at 437.

23. Id. at 483-85.

24. Id. at 493.

25. See 3 J. Smith, supra note 12, at 57.

26. See Roberts, B., The Missouri Persecutions 214 (1900 & reprint 1965)Google Scholar.

27. The order of extermination directed the state militia to treat the Mormons as enemies who “must be exterminated or driven from the state.” 3 J. Smith, supra note 12, at 175.

28. Id. at 183-86, 212.

29. Id. at 192.

30. Id. at 311.

31. See 4 J. Smith, supra note 12, at 24-38.

32. Id. at 40, 5:393, 6:203.

33. See 57 Niles Nat'l Register 398 (1840) (Lds Church Archives); Cong. Globe, 02 12, at 185 (1840)Google Scholar.

34. See Kimball, , A Wall to Defend Zion: The Nauvoo Charter, 15 Byu Stud. 491 (1975)Google Scholar.

35. See 5 J. Smith, supra note 12, at 185-92; Oaks, , The Suppression of the Nauvoo Expositor, 9 Utah L. Rev. 862, 888 (1965)Google Scholar.

36. See 6 J. Smith, supra note 12, at 344-51, 405, 412-13.

37. See Newell, L. & Avery, V., Mormon Enigma: Emma Hale Smith (1985)Google Scholar.

38. See 6 J. Smith, supra note 12, at 448.

39. Morrill Act, ch. 126, 1-03, 12 Stat. 501-02 (1862).

40. See Linford, , The Mormons and the Law: The Polygamy Cases, 9 Utah L. Rev. 308, 330 (1964)Google Scholar.

41. See 5 Roberts, B., Comprehensive History of the Church of Jesus Christ of Latter-day Saints 395 (1930)Google Scholar.

42. 80 U.S. (13 Wall.) 434 (1871).

43. See Linford, supra note 40, at 331.

44. See Davis, , The Polygamous Prelude, 7 Am. J. Legal Hist. 1, 9–10 (1962)Google Scholar.

45. Miles v. United States 103 U.S. 304 (1880); Reynolds v. United States, 198 U.S. 145 (1878).

46. See Davis, , Plural Marriage and Religious Freedom: The Impact of Reynolds v. United States, 15 Ariz. L. Rev. 287, 287–88 (1973)Google Scholar.

47. See 5 B. Roberts, supra note 41, at 469.

48. United States v. Reynolds, 1 Utah 226 (1875).

49. See Linford, supra note 40, at 333.

50. United States v. Reynolds, 1 Utah 319 (1876), aff'd, 98 U.S. 145 (1878).

51. Reynolds v. United States, 98 U.S. 145 (1878).

52. U.S. Const, amend. I.

53. Reynolds v. United States, 98 U.S. 145, 164 (1878); see also Jefferson, T., The Complete Jefferson 518–19 (Padover, S. ed. 1943)Google Scholar.

54. See Reynolds, 98 U.S. at 164.

55. Id. at 166.

56. “To permit this,” the Court reasoned, “would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances.” Id. at 167. To illustrate this point, the Court produced a parade of horrors, examples of religiously inspired conduct that no civilized society could abide, such as human sacrifice.

57. In the face of this language, the Court's attempt to define constitutionally protected religion as belief, as one constitutional scholar concludes, “is peculiar.” See Tribe, L., American Constitutional Law 838 n.1 (1978)Google Scholar; see also Freeman, , A Remonstrance for Conscience, 106 U. Pa. L. Rev. 802, 826 (1958)CrossRefGoogle Scholar.

58. See Linford, supra note 40, at 341.

59. See L. Tribe, supra note 57, at 838, n.15.

60. On a petition for rehearing, it was pointed out that Reynolds' sentence to hard labor had been improper because the statute provided only for imprisonment. The Court, therefore, reversed the lower court's judgment in this respect and remanded the case so that the district court could impose proper punishment. See Reynolds, 98 U.S. at 168-89. Reynolds was resentenced to two years in prison and was released Ave months early for good behavior. He was received as a “living martyr” and ultimately became a General Authority of the Church. See Davis, supra note 46, at 291, 291 n.24.

61. Edmunds Act, ch. 47, 1-9, 22 Stat. 30-32 (1882).

62. See Arrington, L., Great Basin Kingdom: An Economic History of the Latter-day Saints 359 (1958)Google Scholar.

63. During this period, no General Authority and few bishops, stake presidents, or their counselors were monogamists. See Arrington, L. & Bitton, D., The Mormon Experience 204 (1979)Google Scholar.

64. Edmunds Act, section 3, 22 Stat. 30, 31 (1882).

65. 4 Utah 122, 76 P. 369 (Utah), aff'd, 116 U.S. 55 (1885), vacated, 118 U.S. 355 (1886).

66. See Linford, supra note 40, at 351.

67. See Cannon, 116 U.S. at 60-61, 65.

68. In May 1885 instructions came from the underground headquarters of the Church to defend every case “with all zeal and energy possible.” See Larson, G., The Americanization of Utah for Statehood 133–34 (1971)Google Scholar.

69. A companion case to Cannon reaffirmed that evidence of sexual conduct was irrelevant. See United States v. Musser, 4 Utah 153, 7 P. 389 (1885). Musser was a stronger case for a finding of no cohabitation because the defendant had established each of his plural wives in a separate house. In sustaining Musser's conviction, the Utah court noted that one of Congress' purposes in passing the Edmunds Act was to reach prominent Church leaders who had escaped prosecution under the Morrill Act's three-year statute of limitations. Id. at 157-58, 7 P. at 391.

70. 116 U.S. 74 (1885), vacated, 118 U.S. 355 (1886).

71. Id. at 71-72. Justices Field and Miller dissented, arguing that the prohibition of cohabitation should be interpreted to mean “unlawful habitual sexual intercourse.” The dissent termed the majority's holding “a strained construction of a highly penal statute.” Id. at 79-80.

72. Linford, supra note 40, at 348.

73. 4 Utah 280, 295, 313, 9 P. 501, 686, 697, appeals dismissed, 118 U.S. 346 (1886).

74. Snow v. United States, 118 U.S. 346 (1886). Realizing that it had already decided one other cohabitation case, Cannon v. United States, 116 U.S. 55 (1885), the Court vacated its decision in that case as having been issued without jurisdiction. See Snow, 118 U.S. at 355. Other courts continued to cite Cannon as an authoritative interpretation of the Edmunds Act, even though it no longer was binding precedent. See, e.g., United States v. Clark, 6 Utah 120, 125, 21 P. 463 (1889); United States v. Kuntz, 2 Idaho 446, 21 P. 407 (1889); United States v. Peay, 5 Utah 263, 14 P. 342, 345 (1887).

75. 4 Utah 487, 11 P. 542 (1886).

76. Id.

77. In re Snow, 120 U.S. 274, 285 (1887).

78. Id. at 281.

79. See Edmunds Act, section 4, 22 Stat. 30, 31 (1882).

80. For example, in Clawson v. United States, 113 U.S. 143 (1885), the defendant was convicted of polygamy for marrying a second wife and sentenced to three-and-one-half years' imprisonment and a $500 fine. He was also convicted of cohabiting with that wife and sentenced to six months and a $300 fine.

81. 131 U.S. 176 (1889).

82. A construction of the Edmunds Act that allowed a polygamist to retain whichever one of his wives he wished to long as he retained only one, however, was not well received by the courts. The Utah Supreme Court suggested that if the act were to have that effect it should have been entitled “An Act to enable a man to forsake his lawful wife, and fly to the arms of his concubine.” United States v. Snow, 4 Utah 313, 9 P. 697-701, appeal dismissed, 118 U.S. 346 (1886).

83. United States v. Snow, 4 Utah 280, 9 P. 501, 504, appeal dismissed, 118 U.S. 346 (1886).

84. See, e.g., United States v. Snow, 4 Utah 295, 9 P. 686, 688, appeal dismissed, 118 U.S. 346 (1886); United States v. Clark, 5 Utah 226, 14 P. 288, 291 (1887).

85. 5 Utah 436, 17 P. 75 (1888).

86. Id.

87. United States v. Simpson, 4 Utah 227, 228, 7 P. 257, 258 (1885).

88. United States v. Schow, 6 Utah 381, 24 P. 30 (1890).

89. 103 U.S. 304 (1881), rev'd, 2 Utah 19 (1887).

90. Id. at 315.

91. Id. at 314.

92. Id. at 311.

93. Id. at 315-16.

94. United States v. Bassett, 5 Utah 131, 13 P. 237, 240 (1887), rev'd, 137 U.S. 496 (1890).

95. 5 Utah 131, 13 p. 237 (1887), rev'd, 137 U.S. 496 (1890).

96. For other early efforts by the Utah Supreme Court to deal with the problem of polygamous wives' testimony, see United States v. Kershaw, 5 Utah 618, 19 P. 194 (1888); United States v. Cutler, 5 Utah 608, 19 P. 145 (1988); United States v. White, 4 Utah 499, 11 P. 570 (1886).

97. See Bassett, 137 U.S. 496 (1890).

98. Id. at 506.

99. See sections 1, 9, 24 Stat. 635, 636 (1887).

100. See In re Harris, 4 Utah 5, 5 P. 129 (1884).

101. Keller, , Book Review, 85 Harv. L. Rev. 1082, 1086 (1972)Google Scholar (referring to a different issue—municipal railroad bonding).

102. Wisconsin v. Yoder, 406 U.S. at 247 (1972) (Douglas, J., dissenting in part).

103. See 7 Richardson, J., A Compilation of the Messages and Papers of the Presidents, 1789-1897 559 (1896–1899)Google Scholar.

104. See section 5, 22 Stat. 31 (1882).

105. See 7 J. Richardson, supra note 103, at 606; Dwyer, R., The Gentile Comes to Utah: A Study in Religious and Social Conflict 42–43 (1971)Google Scholar.

106. 103 U.S. 304 (1880).

107. Id. at 305.

108. Id. at 310.

109. 114 U.S. 477 (1885).

110. Id. at 483-84.

111. Id.

112. 23 P. 232 (1890).

113. Id. at 233.

114. See section 8, 22 Stat. 31 (1882).

115. See section 9, 22 Stat. 32.(1882).

116. See Allen, J. & Leonard, G., The Story of the Latter-day Saints 395 (1976)Google Scholar.

117. 114 U.S. 15 (1884).

118. Id. at 36-37.

119. Id. at 42.

120. Id. at 43.

121. Id. at 45.

122. Innis v. Bolton, 17 P. 264 (1888) (upheld an Idaho law excluding all Mormons from voting).

123. State v. Findley, 19 P. 241 (1888) (held invalid a law excluding all Mormons from voting, holding elective office, and serving on juries).

124. Davis v. Beason, 133 U.S. 333 (1890) (upheld the denial of the vote to an ex-Mormon in Idaho).

125. The Edmunds-Tucker Act provided “that it shall not be lawful for any female to vote at any election hereafter held in the Territory of Utah for any public purpose whatever, and no such vote shall be received or counted or given effect in any manner whatever.” Id. at section 20, 24 Stat. 639 (1887).

126. Weisbrod, & Sheingorn, , Reynolds v. United States: Nineteenth-Century forms of Marriage and the Status of Women, 10 Conn. L. Rev. 828, 828 n.3 (1978)Google Scholar.

127. Id. at 853-54 n.134, 852-53 n.130.

128. See section 8, 22 Stat. 31 (1887).

129. Wenner v. Smith, 9 P. 293 (Utah 1886).

130. See 22 Stat. 313 (1882).

131. See 5 B. Roberts, supra note 41, at 65-66.

132. See Wenner v. Smith, 9 P. 293, 297-98 (Utah 1886) (discussing Kimball v. Richards).

133. 9 P. 293 (Utah 1886).

134. See Ritchie, J., Alford, N. & Effland, R., Cases and Materials on Decedents' Estates and Trusts 71–72 (5th ed. 1977)Google Scholar.

135. 1876 Comp. Laws section 677, at 268. Utah's present law, like that of many states, similarly provides that an illegitimate child may inherit from his father if he has been acknowledged by his father, if the natural parents participated in a marriage ceremony before or after the birth, or if paternity has been otherwise satisfactorily established. See Utah Code Ann. section 75-2-109(b) (1953).

136. See section 11, 24 Stat. 637 (1887).

137. 24 P. 673 (Utah 1890).

138. Id. at 675.

139. Id.

140. 137 U.S. 682 (1891).

141. Id. at 687.

142. Id. at 685.

143. Id. at 688.

144. Id. at 689.

145. See ch. 41, 1896 Utah Laws 128-29.

146. See In re Handley's Estate, 48 P. 832 (Utah 1897).

147. See L. Arrington, supra note 62, at 97-108.

148. Id. at 99.

149. An 1881 essay in Harper's Magazine stated that Mormonism “is an institution so absolutely un-American in all its requirements that it would die of its own infamies within twenty years, except for the yearly infusion of fresh serf blood from abroad.” See Mulder, , Immigration and the “Mormon Question”: An international Episode, 9 W. Pol. Q. 416, 423–24 (1956)Google Scholar.

150. See Mulder, supra note 149, at 428.

151. 7 J. Richardson, supra note 103, at 356.

152. Id. at 362.

153. See 24 Stat. 637 (1887).

154. See section 1, ch. 551, 26 Stat. 1084 (1891); Mulder, supra note 149, at 427.

155. See Mulder, supra note 149, at 429.

156. See In re Sandberg & Horsley, reported in Deseret News, Oct. 19, 1870, at 436; 5 B. Roberts, supra note 41, at 386-87.

157. See Mulder, supra note 149, at 431.

158. Id. at 432.

159. United States v. Church of Jesus Christ of Latter-day Saints, 15 P. 473, 474-75 (Utah 1887).

160. See section 2, 12 Stat. 501 (1862).

161. See L. Arrington, supra note 62, at 356.

162. See 24 Stat. 637 (1862).

163. 15 P. 473 (Utah 1887).

164. 17 U.S. 518 (1819).

165. See Church of Jesus Christ of Latter-day Saints, 15 P. at 478.

166. Id. at 478-79.

167. Id. at 479-81.

168. Id. at 482-83; L. Arrington, supra note 62, at 368.

169. See L. Arrington, supra note 62, at 371.

170. Id.

171. See The Late Corporation of the Church of Jesus Christ of Latter-day Saints v. United States, 136 U.S. 1 (1890).

172. Id. at 43-50.

173. Id. at 67.

174. The Late Corporation of the Church of Jesus Christ of Latter-day Saints v. United States, 31 P. 436 (Utah 1890).

175. See L. Arrington, supra note 62, at 378.