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The Case

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

George Reynolds, a citizen of Utah, was charged with bigamy, in violation of a federal criminal statute. At trial, Reynolds testified that at the time of his second marriage he was, and for many years had been, a member of the Church of Jesus Christ of Latter-Day Saints, commonly known as the Mormon church, and that it was an accepted doctrine of that church to practice polygamy. Indeed, polygyny was enjoined upon the male members of the Church as a duty, derived from the example of the Old Testament and also by divine revelation to Joseph Smith, the founder and prophet of the church. Reynolds’ second marriage was performed with the permission of LDS authorities and under the auspicies of an LDS ceremony.

Reynolds’ case was appealed to the United States Supreme Court, which had to confront directly the question whether Congress could pass a law prohibiting a practice which sincere practitioners of a minority religion considered their duty. The First Amendment to the United States Constitution expressly states “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...”

The Rationale

At the time, a majority of Americans would have preferred that the Court simply declare that the Mormon Church was an illegitimate religion, and thus not entitled to the protections of the First Amendment. The text of the Amendment, however, and particularly the Establishment Clause, and the history of its adoption, foreclosed this option.

Referring to James Madison’s “Memorial and Remonstrance”, published in opposition to a bill in the Virginia legislature to establish a tax to support teachers of religion, the Court noted that religion is not within the “cognizance” of civil government. “At the next session,” the Court relates, “the proposed bill was not only defeated, but another ‘for establishing religious freedom’, drafted by Mr. Jefferson, was passed.” Quoting from the Preamble to the bill, The Virginia Statute for Religious Freedom, the Court noted that it is not the government’s role to restrain “the profession or propagation of principles on the supposition of their ill tendency” but rather to interfere only “when principles break out into overt acts against peace and good order”. The Court also quotes Jefferson’s the Address to the Danbury Baptist Association, famous for the characterization of the First Amendment as “a wall of separation between church and state”. The Court’s purpose, however, is better served by Jefferson’s observation that “the legislative powers of the government reach actions only, and not opinions”. The Court concludes that “Congress was deprived of all legislative power over mere opinion, but was left free to reach actions which were in violation of social duties or subversive of good order.”

The First Amendment protects the “free exercise” of religion, a phrase which clearly connotes action and so the distinction between “opinion” and “action” is problematic. The Court forgets for a moment that a mental state --criminal intent-- is necessary to hold the defendant accountable for a crime. Presented with the defense that Reynolds lacked the requisite criminal intent or mens rea because of his religious opinion, the notion that opinions are protected by the Constitution is immediately repudiated:

The only defence of the accused in this case is his belief that the law ought not to have been enacted. It matters not that his belief was a part of his professed religion: it was still belief, and belief only.

The Court then offers a slippery slope argument to justify an exception to the “free exercise” clause:

Suppose one believed that human sacrifices were a necessary part of religious worship, would it be seriously contended that the civil government under which he lived could not interfere to prevent a sacrifice? Or if a wife religiously believed it was her duty to burn herself upon the funeral pile of her dead husband, would it be beyond the power of the civil government to prevent her carrying her belief into practice?

The fact that polygamy involves no killing seems to deflate this argument, so the Court is left essentially with an argument based on precedent --relatively recent English precedent, mostly-- and not much else.

Status of Reynolds as legal precedent

In later cases, the Court emphasized that, to withstand scrutiny for violating the First Amendment, laws must be generally applicable and “facially neutral” toward religion, and serve a compelling government interest which only incidently burdens religion, and be narrowly tailored to further that interest. See, e.g. Wisconsin v. Yoder, 406 U.S. 205 (1972) (invalidating compulsory school-attendance laws as applied to Amish parents who refused on religious grounds to send their children to school). Under this analysis, the federal law prohibiting polygamy probably could have passed Constitutional scrutiny.

The notion that criminal law trumps the Constitution seemed headed for the ashbin of legal history, until Justice Scalia revived it in the case of Employment Division v. Smith. In that case, Native Americans were the minority with the unpopular religious practice (peyote: drug use) rather than Mormons with many wives, but the Court’s reasoning (or lack thereof) remained the same.

Polygamy: still illegal, still exists

The LDS Church announced it would stop solemnizing plural marriages in 1890. By that time, the gender balance of early converts, who had been overwhelmingly female, had somewhat evened out, eliminating the practical reasons for polygamy in Utah, which had become somewhat of an embarrasment for the Territory as it sought Statehood. However, a “Fundamentalist” LDS sect, up until recently headed by the late “prophet” Rulon Jeffs, still promotes polygamy as a “sacred pioneer heritage”. Utah prosecutor David White, in the trial of the notorious polygamist, Thomas Green, indulged in rhetoric similar to the above quoted 19th Century slippery slope argument:

Are we not still condoning the offering up of a "human sacrifice" when a 40-year-old polygamist pretends to marry a 13-year-old virgin in a religious ceremony with the intent on having sex with her and producing 7 to 10 children by her by the time she is 30 years old?

(Green was sentenced to five (5) years in prison for child rape, i.e. having sex with one of his five (5) wives when she was 13 years old).


Sources:

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

http://www.polygamyinfo.com/frontdoor.htm

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