The Mormon Question: Polygamy and Constitutional Conflict in Nineteenth-Century America

by Sarah Barringer Gordon

From the Mormon Church's public announcement of its sanction of polygamy in 1852 until its formal decision to abandon the practice in 1890, people on both sides of the "Mormon question" debated central questions of constitutional law. Did principles of religious freedom and local self-government protect Mormons' claim to a distinct, religiously based legal order? Or was polygamy, as its opponents claimed, a new form of slavery--this time for white women in Utah? And did constitutional principles dictate that democracy and true liberty were founded on separation of church and state?

As Sarah Barringer Gordon shows, the answers to these questions finally yielded an apparent victory for antipolygamists in the late nineteenth century, but only after decades of argument, litigation, and open conflict. Victory came at a price; as attention and national resources poured into Utah in the late 1870s and 1880s, antipolygamists turned more and more to coercion and punishment in the name of freedom. They also left a legacy in constitutional law and political theory that still governs our treatment of religious Americans are free to believe, but they may well not be free to act on their beliefs.

Genres: Religion, History, Mormonism, Nonfiction, Lds, Grad School, Polygamy

352 pages, Paperback

First published January 1, 2002

About the author

Sally Gordon is a widely recognized scholar and commentator on religion in American public life and the law of church and state. She researches and teaches extensively in American constitutional and legal history, religion and religious experience, and property. Her first book, The Mormon Question: Polygamy and Constitutional Conflict in Nineteenth-Century America (University of North Carolina, 2002), won the Mormon History Association’s and the Utah Historical Society’s best book awards in 2003. Her new book about religion and law in the 20th century, titled The Spirit of the Law: Religious Voices and the Constitution in Modern America (Harvard University, 2010), explores the world of church and state. She is currently working on a third book, tentatively titled The Place of Faith, about religion and property in American history. Gordon serves on the advisory boards of the National Constitution Center, the American Society for Legal History, Vassar College, the William Nelson Cromwell Foundation, and the Mormon History Association. In 2004 and 2009 she received the Robert A. Gorman Award for Teaching Excellence.

Reviews

[Miriam · Rating 4 out of 5]

A fascinating exploration of the constitutional issues that were raised around the topic of plural marrieage. It highlighted the inescapable conclusion that legal principles often disappear when they result in interpretations that contradict one's prejudice or morality. The continuing echoes of those same questions, and the changing sides of the debators, made this a book truly worth reading. What it was missing was data to illuminate whether perceptions about divorce, abandonment, conversion rates, etc... were reflections of reality or simply fears of social dissolution.

[Brian · Rating 5 out of 5]

A phenomenal read indeed. Some bits were boring because I am not a political science or law professional nor am I a hobbyist in those disciplines. I am interested in history and this book was fascinating in demonstrating the vigorous debate and argument that shaped the way modern Americans view the tension between state and federal jurisdiction as well as the near sacred position that the Constitution takes in the hearts of modern conservative Americans.

I often take for granted the current structure of modern law and views regarding church and state. I have assumed incorrectly that our modern interpretation or practice was set in the founding of the United States. Reality is far messier, and shows that in fact we are constantly reworking our interpretation and standards, we just aren't always aware of significant changes as they come about.

The constant theme that was running through my head throughout the book, and emphasized strongly by the author in the final chapter and epilogue is that modern Mormons, who seem quite comfortable next to modern Evangelical Christians, would actually be much more comfortable with the rhetoric of 19th century anti-polygamists than their ancestors defense of plural marriage. The argument, that monogamous marriages and general christian principles are the true and proper foundation for society, that we hear so often today as debates around same-sex marriage rage on was precisely the argument used to dismantle the Mormon institution of polygamy.

The ironies found in the pages of history are abundant indeed.

[John E · Rating 2 out of 5]

Another reason to dislike lawyers. If I wasn't so interested in Mormon history I would have quit by page 10. Hopefully all legal studies and briefs are not this repetative and disjointed. The conflict was very simple: can the national government legislate on religious behaviors. The final result over a forty-five year struggle was yes. Every law passed by Congress to outlaw polygamy was upheld even going to the point of disincorporating the Mormon Church. But then when the church said it wouldn't continue the practice the Federal Government gave everything back to the church even though the church lied. The church still believes in polygamy it "just doesn't practice it any more," but will when they gain control of the country.

[Ci · Rating 5 out of 5]

This fascinating and rigorous study of polygamy offers a sober view on how the claims of religious freedom were contested vigorous in US history, involving not just individual religious freedom and citizenly belongings, but also a state's plenary power over federal power.

The most important legal case is the Reynolds case in which the constitutional conflicts came into full play. How did the Mormons frame the relevant issue in the Reynolds case? How did the government want it to be framed? What difference does the framing make to the result?

The Mormon party framed their argument in Reynolds using the theory of local popular sovereignty: “would the Court validate the traditional theories of the limitations of federal power to change (or even to investigate) the decisions of majorities in areas of law traditionally reserved for local populations?” (123). This case was a deliberately set up test-case in response to the Poland Act, a federal anti-bigamy legislative act penetrating into Utah territory’s legal structure (which is Mormon self-government de facto). Why did the Mormons venture to chance the courtroom? In the post-Civil War atmosphere, the local majority was optimistic about launching successful challenges to central government. Expecting a judicial validation of localism, the Mormons hoped to remove the federal power pressed upon Utah’s territorial power structure (which for Mormons was equal to ecclesiastic structure), thus paving the way to Utah statehood. Marriage (here implicitly polygamy), being the paradigmatic Mormon domestic relation (thus private, and local affair), was framed by the Mormon party in the context of the traditional localism’s self-governance. Against the local sovereignty, the Morrill & Poland Acts were framed as federal encroachments. Casting a winsome ordinary young man, George Reynolds, as defendant in this test-case was perhaps part of the Mormon framing device to concretize the Mormon marriage as an ordinary “domestic” issue.

The government eschewed the question of federal power; instead, it focused mainly on the American democratic and humanitarian principles allegedly violated by polygamy. Perhaps unanticipated by the Mormon party, the national narrative at that time was preoccupied by the “twin relics of barbarism” – slavery and polygamy. For many non-Mormons, slavery and polygamy both belonged to a general form of domestic tyranny. As Gordon points out, “in this political and jurisprudential atmosphere, polygamy described the limit beyond which a husband, or a state, might not go.” (130). The government rhetorically identified “Christian family structure, human, rights, and stable government” as a unified US democratic ideal. Thus, by a decisive shift of perspective, the government reframed the issue to polygamy’s antagonism of American democracy, liberty and law. In so doing, the more fundamental questions of justice and humanity successfully obscured the original Mormon framing of federal power vs. local popular sovereignty.

Sympathetic to the government’s view, the Court further recast the argument as “to the guilt of one who knowingly violates a law which has been properly enacted, if he entertains a religious belief that the law is wrong.” (132) The Court then launched into “an elaborative constitutional historiography,” by which a re-appropriation of democratic history of the nation emphatically re-interpreted the religious freedom clause in the Mormon context. The Court advanced a “belief-action” doctrine which effectively excluded Mormonism from the Free Exercise protection. The anti-polygamy laws were right and properly enacted, and Reynolds was judged guilty of violating such laws. I note, as Gordon observes, there were various problems in the Court’s deliberation and opinions which included questionable interpretation of US legal history (esp. Jefferson and the State of Virginia featured as heroes of American democracy), utilizing Francis Lieber’s social theories tinted with gross racism, and other “jurisprudential sleight(s) of hand.”

In the end, the failure of Mormon’s framing was a catastrophe for the Mormon cause. In one stroke, the Court effectively sanctioned national intervention in the matter of polygamy (now officially shorn of judiciary protection even under the Freedom Clause). Reynolds ended up lime-lighting polygamy unfavorably in the post-war national central stage, leading to further national oppression of the Mormons.

[Bryan · Rating 5 out of 5]

A fascinating look at how the U.S. government clashed with the Mormon practice of polygamy in the 19th century. The author, Sarah Barringer Gordon, addresses the limits of religious freedom, the power of law, and how the Constitution was understood at the time.

Gordon does an excellent job weaving together legal cases, politics, and especially culture (Mormon and non-Mormon). Her primary argument is that the polygamy issue is the genesis of free exercise jurisprudence. And she supports it thoroughly and beautifully. She masterfully balanced focus on both the human side of the conflict and the bigger constitutional questions.

It’s not a light read, but it’s very much accessible for a book this deeply researched. If you’re interested in American religious history, constitutional law, or just the unique and dramatic battles of the 19th century, this book is well worth your time.

[Dan Gorman · Rating 5 out of 5]

A thrilling read, clearly written with a broad audience mind, but it also features clear discussions of constitutional and corporate law. In the fight against Mormon polygamy, Protestant Americans brought their religious assumptions to bear upon secular law, expanding the power of the federal government but infusing religious prejudice into the legal system.

[Suzanne · Rating 4 out of 5]

Very interesting read on the government’s overstep into state’s rights

[McKenna Andrew · Rating 4 out of 5]

Didn’t realize polygamy was this big of a thing!!!!!

[Susie Meister]

Gordon uses the legal and judicial struggle over Mormon polygamy to demonstrate the way a narrowly-interpreted Christian worldview can dictate American legislation. She shows how moral law became intertwined with secular law. The anti-polygamists' fear of spiritual, marital, and political danger on marriage and the State inspired their fight against Mormon plural marriage. Anti-polygamists used popular fiction to sway public opinion against the practice. Interestingly, in these novels, women were characterized as morally strong and victims of a Mormon patriarchy that squashed their liberties through plural marriage. The Republicans believed that polygamy and slavery were "twin relics of barbarism" and pitched a campaign to position them as related. By couching their argument in Christian dogma, Republicans gained a political advantage as the party who sought to defend the Christian values they believed were the foundation of American law. The Mormon secrecy regarding the practice gave their enemies leverage and their sovereignty over Utah territory was seen as a threat to the whole country. Conversely, the behavior of the Protestants convinced Mormons that monogamists were corrupt. Gordon responses to Shipps Mormon research only in agreeing that their exodus to Utah was in a way a trip back in time. In the end, polygamy became a convenient way to legislate against an "other" Christianity that Protestants saw as a threat to their faith and perhaps more importantly to their power. For my purposes, this book is valuable in its demonstration of how the mainstream Christian worldview is seen as the only acceptable practice in America and minority groups are often silenced, persecuted, and ignored through majority rule.

[Jonathan Case · Rating 4 out of 5]

A thoughtful, balanced approach to an era of church history I previously didn't know very much about. I thought the author did a good job representing both sides and painting an objective picture. As an outsider to the church, I thought she was demonstrated good understanding of the sacredness and importance of the marriage covenant and practices that the saints so adamantly defended. I thought opposing strategies ranged from absurd to reasonable. Modern church membership actually uses many of the same arguments that were used to attack polygamy to counter the spread of same-sex marriage marriage rights today.

I look forward to reading a follow up book that is still unpublished that goes into more depth about the federal prosecution raids that occurred over about 15 years at the end of the 19th century. That part of this book was the most captivating--profoundly sad, eye-opening, and at times even kind of funny.

[J · Rating 5 out of 5]

This book is brilliant -- Gordon’s years of study and thought have produced a singular work in legal history. In The Mormon Question, Gordon puts the polygamy debate of the 19th century in context by revealing the progression of statutory and case law that brought the demise of “The Principle.” To accompany each stage of legislation or court case, Gordon highlights debates on both sides of issue, with careful analysis of constitutional questions. She explores congressional debates and court briefs to set forth the social, moral and legal arguments on each side of the issue. The highlights of the book, for me, were the search for constitutional footing by both sides and the reference to common law concepts. My nerd crush for Sarah Barringer Gordon after the PBS Series The Mormons is now officially nerd love.

[Mishqueen · Rating 4 out of 5]

Fascinating stuff, this is. I only rated it 4 stars because it's hard to follow some of the legal jargon, and it left me with a distinctly uncomfortable and hunted feeling. BUT I think it's important for people to know how it all happened, and the changes it made to the way our country views the Constitution. Who knew that a small group of Mormons would change political and legal history to that extent? If you're Mormon, you might not love everything you see in the book, but the author backs up all the legal statements with examples and arguments from both sides. I think if we don't read it just out of principle, we're turning a blind eye to what could happen again.

[Dwight · Rating 4 out of 5]

A terrific study of the political and constitutional landscape of the last-half of the nineteenth century, which uses the Republican-led campaign against Mormon polygamy (one of the "twin relics [to slavery] of barbarism," according to the Republican platform of 1856) to bring into focus the religiously infused constitutionalism that characterized that era. The book could have used a final editing, since Gordon makes many of her key points multiple times at length, suggesting that the component parts were never edited with a view to the whole after they were all put together , but it is nevertheless well-written and a lively read.

[Paul Bond · Rating 4 out of 5]

A careful, timely study of the interplay between federal government, state government, and religious conceptions of marriage. Gordon reviews a wealth of contemporary materials to tell the story of the LDS, if not in a sympathetic manner, at least in the voice of its own adherants alongside that of their dissenters and opponents. The Mormon church was driven from state to state on the basis of state control over marriage. When they assembled in their own territory, a ban on plural marriage become a federal political issue, including before the United States Supreme Court. The lava lamp of church and state keeps bubbling.

[Sam Newton · Rating 2 out of 5]

I am a lawyer and this book was very tedious. Dry, dry, dry. Gordon makes a great contribution to the legal/constitutional arguments made by Mormons and antipolygamists and makes a good case for the changing scope of federalism as a result of these cases. Read it for that. Don't read it to actually understand what happened. If you want that look to Carmen Hardy, Van Wagoner, or Kathleen Flake. They do a more thorough job. She pontificates ad nauseum about legal theory which really bogs down the narrative.

[Paul Callister · Rating 4 out of 5]

Excellent historical account of conflict between Mormons and the federal government by a noted law professor. Gordon gets underneath the surface and provides understanding to the depth and magnitude of the issues, which concern not just polygamy but problems of minority religious groups when then have or appear to have centralized power. It is the threat of such power centers that often drives the conflict.

[Martha Smith · Rating 5 out of 5]

Brilliant and much needed book on the subject. Gordon explores the constitutional and legislative foundations for current debates over marriage, morality, and law. This book illuminates the events that transpired from the Mormon Church's public announcement of its sanction of polygamy in 1852 until its formal decision to abandon the practice in 1890, people on both sides of the "Mormon Question" debated central questions of constitutional law.

[Evan Thomas · Rating 4 out of 5]

A fantastic book for anyone interested in either the history of polygamy in America, or the broader history of attempts to regulate marriage. The issues are not only applicable to 19th century Utah, but touch on the fight over gay marriage today.

[Michael Closson · Rating 3 out of 5]

I'm a practicing Mormon without a legal background. What surprised me was how much the leaders of the church in the 19th century wanted to practice polygamy. I had a hard time understanding all the legal language in the book.

[Rick · Rating 3 out of 5]

This book concentrates on the Constitutionality questions of polygamy. I enjoyed the book, but not being a lawyer, it got a bit tedious at times.

[Nicole · Rating 4 out of 5]

Excellent for generating discussion among students.

[Jared Gillins · Rating 4 out of 5]

For class. Should be interesting...

[Jennifer · Rating 2 out of 5]

Very dry reading, and did not help my paper one bit with worthy information.

[Gillian · Rating 2 out of 5]

While chock full of information this book went on many tangents and suffered from a lack of subheadings.