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352 pp., 61/8 x 91/4, 53 illus., notes, bibl., index

$49.95 cloth
ISBN 0-8078-2661-8

$19.95 paper
ISBN 0-8078-4987-1

Published: Fall 2001

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

by Sarah Barringer Gordon

Copyright (c) 2001 by the University of North Carolina Press. All rights reserved.


In the mid-nineteenth century, an extraordinary contest over religion and law took shape. The conflict began with the announcement in 1852 by Brigham Young, president and prophet of the Church of Jesus Christ of Latter-day Saints, popularly called Mormons. Young proclaimed that Mormons believed in and practiced polygamy--known to the faithful as the "celestial" law of plural marriage, or "Patriarchal Marriage," or simply "the Principle."[1] In 1890, however, the church formally announced that it would no longer counsel the Saints to disobey the laws of man by practicing polygamy. The public announcement of the intention to abandon all claims to legal right eventually (although with aftershocks that lasted into the twentieth century) satisfied the great majority of those who opposed polygamy (antipolygamists) that their goal had been achieved at last, and that American civilization had been saved from a potent and destructive "barbarism."[2]

What went on during the years between? As this book shows, the conflict over polygamy became the preoccupation of novelists, journalists, political cartoonists, and newspaper editors, clerics, lecturers, lobbyists, woman's rights activists, political theorists, missionaries, state and national politicians, criminal defendants and their families, constitutional and criminal defense lawyers, federal and territorial officials, presidents, and Supreme Court justices. This book is about their efforts to explain why the practice of polygamy in the Mormon territory (eventually state) of Utah and surrounding jurisdictions created a constitutional conflict over the meaning and scope of liberty and democracy in the United States. Vast quantities of ink and paper were invested in the project, and yield rich rewards. The "Mormon Question," as many nineteenth-century Americans called it, posed fundamental questions about religion, marriage, and constitutional law. The national Constitution must not shield such immorality, those who opposed polygamy (antipolygamists) argued, or liberty would be fatally compromised. There must be a relationship between the structures of government created by the Constitution and the structures of Christian morality that made civilized life possible.[3]

The doubt that swirled about the moral nature of the Constitution, however, meant that such claims were always tinged by uncertainty. Real and significant differences about the core of sovereign authority in America propelled defenders of monogamy into untested constitutional theories, as they struggled to articulate how the national government could assume authority over marriage and faith in Utah. Most important, such arguments met with fierce resistance from Mormons.

The glory of the Constitution, according to Mormon theorists, was that its protection of religious liberty and local difference created the space through which the New Dispensation could enter. Nineteenth-century Mormons and their opponents agreed that marriage was central to religious faith and political order. Yet Mormons believed in a distinct and different moral order based on new divine revelation. To many Mormons, polygamy was the most difficult, and arguably the most exhilarating, of the revealed Word in these latter days. God, speaking through Prophet Joseph Smith, commanded Mormon men to marry more than one wife--to practice polygamy when called upon by faith and church authority to do so. The restoration of God's eternal law of marriage was a vital aspect of the new faith. It also brought Mormons into direct and prolonged conflict with the law of marriage in the rest of the nation. As one polygamist argued, the "whole superstructure" of government rested on divine authority exercised in marriage. From its starting point in Utah, the spread of latter-day faith and practice would remake government, cleansing society of the scourge of prostitution, and elevating all of humanity. A Mormon wife reflected on the struggle of the faithful, "It was the principle of plural marriage that we were trying to establish . . . and if we had established it, it would have been for the benefit of the whole human race, and the race will say so yet."[4]

These debates were not about a "place" for faith in law and government; rather, they revealed the fact that differing faiths, vital and hotly contested, involved the very cornerstones of government in nineteenth-century America. Then as now, the Constitution set such cornerstones. But the precise meaning of the Constitution, then as now, was painfully elusive. Both sides fought over the meaning of liberty and self-government in Utah, which remained a territory (and thus neither a state, nor quite a part of the national government) throughout the conflict over polygamy. As Mormons and their opponents learned through repeated battles, constitutional contests can consume a people's stamina as well as its interpretive skill and moral vision.

Both sides of the religious divide realized that a broad understanding of local autonomy preserved by the national Constitution was integral to the Mormons' ability to remake marriage and law for Utah. The relationship between national and state governments described in the Constitution, which constitutional lawyers and theorists call "federalism," mediates the degree of power the national government may claim over any one of its constituent parts. Principles of federalism changed over the course of the nineteenth century, although the basic structure of national and state governments remained the same. The Civil War determined first that states did not have the right to secede, and second that local governments did not have the right to maintain slavery. Beyond that, however, the power of local governments to resist federal intervention was staunchly maintained by many Americans (especially Southerners) and bitterly opposed by others (usually Northerners). Battles over polygamy recast and focused such constitutional debates in ways both new and familiar.

Mormons insisted that constitutional principles of federalism protected their right to govern themselves even as the states did, and to practice whatever religion seemed best to the majority of the inhabitants of the territory. The Mormons' claim to local sovereignty resonated with powerful strands of constitutional theory, as well as with the language of faith. Mormons drew on constitutional lessons that were key to the structures of federalism before the Civil War. They forced their opponents onto new ground; in reply, antipolygamists drew on the moral and legal reform that surrounded the conflict over slavery, and that supported a stronger and more authoritative central government. As they poured emotion and energy into constitutional argument, the contestants translated the conflict into a struggle between faiths for constitutional validity.

Driven by religious difference, Mormons and their opponents learned that faith had everything to do with government, and vice versa. Spiritual meaning and this-worldly power converged most poignantly in marriage. In monogamy (as in polygamy), husbands and wives blended faith with governance, obedience with power, spiritual growth with human sexuality. Commitment to one or the other form of marriage shaped public as well as private life. Participants in the conflict discovered that local sovereignty, democracy, consent, economic power, and wifely subordination all hinged on faith and its realization in marriage. As one vision flourished, it diminished the other; and the power to live in light of faith was proportionately realized or denied.

The conflict of faiths pitted the laws of God against the laws of man; believers on both sides learned that their Constitution was, perhaps, not theirs after all. The instability of constitutional claims and interpretation tortured and energized the combatants. Their struggle to capture and hold the Constitution provided a unifying field of conflict; antipolygamists and Mormon defenders of polygamy alike yearned for the dignity and validity that the defeat of their enemies would bring. To win would be to acquire constitutional legitimacy, and to prove that the opposition had betrayed the legacy that was enshrined in the constitutional text. The long and painful conflict over religious liberty, marriage, and law is the subject of this book, which tells the story of the Mormon Question and constitutional change in the nineteenth century.

Mormons and their opponents began their conflict in a legal world that was far different from the one they created. In 1830, when the Church of Jesus Christ of Latter-day Saints was founded in upstate New York, the federal government was weak and legal power was decentralized. The national Constitution, which occupies so much legal space in the early twenty-first century, was all but invisible in most Americans' day-to-day lives. If anything at all was clear about constitutional law in the new nation, moreover, it was that the constitutional amendments known as the Bill of Rights did not apply to the states. Freedom of religion, separation of church and state, freedom of speech, trial by jury, the prohibition of cruel and unusual punishment, unreasonable searches and seizures by government officials, all of these limited the power of the national government. But unlike the twentieth and twenty-first centuries, in which federal constitutional rights have been applied against state as well as federal government action, in the eighteenth and nineteenth centuries, states were immune from federal intervention in crucial areas of civil liberties. Confirming earlier cases, the U.S. Supreme Court held in 1845 that the First Amendment, which addresses the "free exercise" of religion as well as separation of church and state, did not limit the rights of states to govern within their borders.[5]

The establishment clause, for example, as the provision of the First Amendment that prohibits Congress from enacting legislation "respecting an establishment of religion" is called by constitutional lawyers, prevented the federal government from establishing a given denomination as the official federal church. It also protected the established religions in six of the original thirteen states from federal interference. Thus it is a mistake to assume that the national Constitution guaranteed the separation of church and state or religious liberty to all citizens from its inception: "[T]hat is left," held the Supreme Court, "to the state constitutions and laws." There had been momentous and important changes in law and religion by the 1830s, to be sure, but it was not the federal Constitution that mattered.[6]

That constitutional world was both essential to the conflict over polygamy that followed and irrevocably changed by it. When Mormonism appeared on the crowded and ebullient religious scene in 1830, the constitutional law of religion in many states was already well developed. Many of the legal doctrines that were later deployed in cases dealing with Mormon polygamy were developed in decisions by state courts in the early national period. Americans valorized their national Constitution, but it was in state courts and legislative assemblies that they first fought out basic questions of civil liberties.

Disestablishment, or the separation of institutions of religion from institutions of government, had been a new and potentially upsetting idea in the late eighteenth century. But the American colonies, and then the new states, especially in the mid-Atlantic region, were as diverse religiously as they were ethnically. Pennsylvania, just to give one example, was home to English Quakers, Scotch-Irish Presbyterians, German Moravians, and many more. In the new nation, the separation of church and state formally began in Virginia with the enactment of Thomas Jefferson's Bill for the Establishment of Religious Freedom in 1785. Jefferson's bill was not motivated by the conviction that religious belief would flourish in a disestablished state; instead, the skeptical Jefferson hoped to purge Virginia politics of religious influence. Religious diversity affected politics as well as worship in Virginia, however; Baptists and other dissenters were crucial to the enactment of the bill, as they joined forces with Jefferson and elite rationalists to defeat the Anglican establishment.[7]

Six states retained establishments into the national period, though they generally were weak and underfinanced. Other states either followed Virginia's lead or had never had a formal establishment. Even those states that maintained a formal establishment soon found that religious diversity and republican government undermined its value to the holders of the privilege. By the second quarter of the nineteenth century, only Massachusetts maintained an establishment, and it, too, was in crisis. Following the lead of other states, the Supreme Judicial Court in 1820 held that the majority of voters (rather than only those with the most impeccable religious credentials) could decide whom to employ as their minister. Disestablishment eventually followed this decision. Embracing democratic rule for established faiths, state court judges also implicitly attacked nondemocratic theologies. In the early Republic, Roman Catholicism was the primary object of such attacks. American judges, by convincing themselves that democratic institutions were essential to religious as well as secular governance, allied themselves with a fundamentally Protestant conception of religious liberty. Local decision-making, majority rule, and a minister's accountability to his congregation rather than to a remote and hierarchical (read Roman) authority all distinguished Protestantism in American "nativist" theory from foreign, "papist" Romanism. Thus in a constitutional world defined in part by anti-Catholicism, separation of church and state took root and flourished.[8]

The law of religious liberty also dovetailed comfortably with Protestantism. As one eminent New York judge put it, religious freedom was bounded by majority rule in much the same way that establishments were. The "moral discipline" created by the "people of this state" reflected their "profess[ion of] the general doctrines of christianity, as the rule of their faith and practice." The great majority of the people were Christians, and the law mirrored their preferences. An argument that religious liberty should protect anything other than "general [Protestant] Christianity" was thus an attempt to shield undemocratic beliefs and practices, confusing the abuse of liberty with its exercise. Disestablishment and constitutional protections of religious liberty in the states may have unsettled centuries of English legal tradition, but by the 1830s, American jurists recrafted links between democracy and "general" Protestantism, reassuring themselves that their government was neither heathen nor sectarian.[9]

That was, briefly described, the constitutional world in which Mormons sought protection for themselves and their practices. Like many Americans, most Mormon leaders in the early period had only the sketchiest idea of the relationship between the state and federal governments. Mormons also did not have a clear understanding of state constitutional law. They had a profound admiration for the federal Constitution, and they believed that its provisions were divinely inspired--there to safeguard them against the ravages of mobs that tarred and feathered their prophet, harassed their missionaries, pillaged their fields, and even murdered women and children in the 1830s and 1840s. They were amazed and mortified that the Constitution failed to protect them or to avenge their suffering at the hands of local populations. Principles of federalism, Mormons found to their chagrin, meant that they had no claim to national protection. As a concept, federalism, like many abstract legal doctrines, is the stuff of learned and dry theorizing. On the ground, as Mormons learned from bitter experience, questions of states' rights and the limits of federal power can make all the difference.[10]

As they absorbed this painful lesson in federalism, the Saints eventually turned it to their advantage. After they fled westward in the late 1840s, Mormon leaders claimed that the same principles that left them exposed to the vicissitudes of local majority rule in the states, dictated that they had the same rights to self-governance in their own jurisdiction--the Territory of Utah, which was admitted into the union as part of the famous Compromise of 1850. And yet Utah was a territory, and thus neither a state nor entirely under federal control. Territories occupied an ambiguous and changeable place in the legal order, for although they clearly were not states (yet), they also were presumed to have the power to become states. Territories were subject to federal organization as political entities. But it was not clear how much of the states' power to govern themselves they acquired after organization but before statehood. Advocates of states' rights frequently argued in favor of local sovereignty for territories; the existence of slavery and polygamy in the territories prompted others to rethink the virtues of localism. Antipolygamists in particular struggled to cope with what they considered a betrayal of fundamental constitutional principle, applicable to all jurisdictions through "general Christianity."

To most political, religious, and legal theorists of post-Revolutionary America, Christian faith was indispensable to the survival of the new nation. Without the authority of God, insisted outgoing president George Washington in his farewell address in 1796, the less potent commands of earthly sovereigns could not ensure the obedience of citizens. "[W]here is the security for property, for reputation, for life," Washington queried, without "religious principle" at the back of public morality and patriotism? Washington assumed that "[w]ith slight shades of difference," Americans shared the "same Religeon." This assumption was soon challenged by the appearance of new faiths. As many Americans learned to their chagrin, even Christian belief was ungovernable in a land of such diversity and size. Religious enthusiasm led new believers in new directions, often onto divergent political and spiritual paths.[11]

Mormonism was one such new direction. However different from most Christian expression in the early nineteenth century, Mormonism was integrally connected to the broader American religious experience. This relationship would have been vehemently denied both by polygamists and by their foes. Nonetheless, the religious fervor of Mormons and Mormonism was an example of the vigor of American religious experience. Both pro- and antipolygamists shared a deep sense of religious mission and of the cosmic significance of the American experiment. Yet, personal testimony and action reflecting the experience of God's love and authority--most aptly summarized in the phrase "religious witness"--led believers in radically different and conflicting directions. Their divisions were painful in part because each side shared a fundamental conviction that it had exclusive access to the true American faith.[12]

Most antipolygamists were so alarmed by the Mormons that they refused to concede even that latter-day faith was itself Christian. For their part, the Latter-day Saints condemned the religious and social confusion, the "war of words" they saw everywhere around them. The Saints insisted theirs was the true Christian church, that the Protestants who opposed them were apostates, and the Catholic Church, the "Mother of Harlots." Mormons rejected the heresies and hypocrisies of the rest of the Christian world, and embraced a new sense of sacred space and time. Plural marriage, evidence of profound commitment and sacrifice to those within the faith, also communicated defiance of traditional Christian precepts to the rest of the country.[13]

In some senses, latter-day revelation and practices were indeed so different than other forms of Christianity that it is valid to call Mormonism a new religion. Religious historian Jan Shipps has cogently argued that Mormonism in the nineteenth century brought believers out of one faith and into a new one--a distinct religion, emerging out of but different from Christianity. As this book emphasizes, latter-day faith was also deeply related to American Protestantism and was frequently opposed with tools that had been deployed against Catholicism. If nineteenth-century Mormonism was a new, post-Christian dispensation, it was also developed and defended in American space and time. The Mormon Question was riveting and different in part because Mormonism shared so much with other forms of religious witness.[14]

The conflict over polygamy forces us to reassess the strength of national legal and political movements after the Civil War and to appreciate the role of faith in nineteenth-century legal interpretation and political culture. The breadth of issues both sides addressed is astounding--religion, sexuality, slavery, moral relativism, freedom, consent, democracy, women's rights. The conflict included disputes over the relationship of political legitimacy to private structures of governance and state control over marriage, as well as the moral meaning of religious liberty and separation of church and state, all issues that have dogged lawyers and constitutional theorists for a century and more. By recovering important constitutional debates and legal developments, this book begins to explain why such issues provoke tangled and enduring questions. Legal scholars and constitutional historians have focused on the abolition of slavery, the failure of Reconstruction, and the jurisprudence of race, all important topics but not capable of yielding an understanding of the role of religion in the development of constitutional law and federal power. They have neglected slavery's "twin relic of barbarism," as contemporary Republicans called polygamy, missing the conflict over religion that remade legal history and constitutional law in the second half of the nineteenth century.

Attention to the conflict, moreover, reveals a history at odds with shopworn stories of the "rise of religious liberty" in the United States. According to these stories, religious diversity and freedom grew naturally over the course of American history. Other old chestnuts include theories that questions of marriage and family did not trouble the federal government before the privacy cases of the 1960s and 1970s, and that the abandonment of Reconstruction in the South spelled the end of federal moral oversight, at least for the duration of the nineteenth century. My research has led me to qualify such theories, as I probed the significant restrictions on religious difference imposed by the national government. The campaign against polygamy created a second reconstruction in the West as the national government forcibly retooled marriage in Utah in the late nineteenth century.[15]

The Mormon Question also adds tone and texture to historical studies of the "Christian nation" that jurists and clerics hoped was the nineteenth-century United States. As the struggle between Mormons and their opponents shows, the religious nature of the nation was in substantial doubt until the very end of the century. Even then, antipolygamists' victory was expressed in explicitly secular terms. The Supreme Court protected the constitutional vision of American Protestants by holding that religious belief was not a valid criterion for challenging legal mandates; new faith could not validate a new and different legal order. Mormons protested that this was a vapid understanding of religious liberty, but the unpopularity of the Latter-day Saints and their faith obscured the vulnerability that such decisions created for all faiths. Thus the battle over religion and law, and the constitutional triumph of antipolygamy, indirectly and implicitly undermined the constitutional power of antipolygamists, even as it eviscerated the constitutional claims of Mormons.[16]

The courage, tenacity, and conviction of both sides impressed me throughout my research and writing on the Mormon Question. Mormons, and their church, lost the battle for a religiously determined legal order. The defeat was wrenching, but the battle was also exhilarating and productive of important victories. As the Mormon Question roiled through the nation, the Saints and their opponents retooled the constitutional landscape. The struggle for constitutional recognition and protection was fast paced and tellingly argued. It finally defined the basic and still valid federal law of church and state. The story is rich and intriguing. Contestants left voluminous and important records of their conflict. More than a century later, the power of their competing convictions leaps off the page, drawing us in and leading us on to the edge of the spiritual and constitutional precipice they confronted.

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