Mormons made, if unwillingly, much of the religious law of nineteenth century America in precisely the same way that minorities have always forced progress in the development of religious and civil rights: by being skunks at the garden party hosted by more conventional people in charge of the feast. In a world then dominated by monogamous capitalists—unbridled capitalists at that—the Mormons practiced polygamousmarriage within aChristian communal theocracy. During the ensuing century, American governments, state and federal, would wage a relentless, ferocious war upon the Mormons. Within that century, women, immigrant groups, Native Americans, and people of color would still be excluded from significant participation. They would be invited to the party only midway through the twentieth century.
Mormons would experience the full weight of an invasion by the American Army and be denied the vote, the right to jury trial, the right of spousal immunity from being forced to testify against a mate, the right to hold political office without a religious test that demanded the renunciation of one’s faith—all rights embedded within the original text of the American Constitution. They would survive an extermination order of the governor of an American state as well as the seizure and the destruction of their homes, farms, and livestock. They would see their homes and meeting houses seized and often burned and destroyed. As has been true in the experience of most religious and racial or ethnic minorities in this country, the mobs of the night were often the soldiers and the officers of the law by day.
Imprisoned en masse, the leadership of the church would send messages from inside prison to believers on the outside, exhorting members to keep the faith while others conducted the governance of their congregations and communities as outlaws in exile in western badlands or from Mormon colonies in Canada and Mexico. In the end, the Mormons had to give up polygamous marriage and their Christian socialism. They accepted the ways of twentieth-century America, initially with reticence and then with such an excess that few traces of the nineteenth-century church, as reflected by those characteristics of difference and of conflict with American society, now exist in the practice of its twenty-first century successor.
What remains is a stark reminder of the limits of law to accomplish benign social change. The savagery employed by those who fashioned and enforced laws of such excess did not eradicate the so-called evils identified by the government for extermination. Some levels of Mormon theocratic ways remain, to the consternation of those, including Mormons, of a more pluralistic, democratic mind. More troubling to the moral majority, however, is the fact that there are more people of Mormon heritage presently practicing polygamy within the American West than ever practiced it during the height of the persecution of the Mormons. One legacy of the persecution is its lingering social cost.
As society, including the twentieth- and twentyfirst- century Mormon faith that renounced polygamy as a necessary cost of statehood, first made criminal and then excommunicated and exiled nonconformists to the badlands, the exiles have since heard only their own echo. Marginalized and deprived of the civilizing influence of education, interaction with other faiths, and civic dialogue, these fringe Mormons now raise their children in an incestuous and monotonic culture far removed from that of the increasingly cosmopolitan towns. As the divide between the religion of the hinterlands and that of the towns grows, Mormons in the centers of power react with yet more outrage and more legal restraints, while the exiled, correspondingly, begin to behave more like real outlaws. Tragic as the effect on the Mormon fringe has been, however, it is the cost as measured in mainstream Mormonism that is most lamentable. This is a loss of a unique form of Christian socialism that Tolstoy predicted would revolutionize the world if given a chance.
Mormonism began in New York State. Its founder and prophet, Joseph Smith, Jr., was born in Sharon, Windsor County, Vermont. With his father, Joseph Smith, Sr., he moved with his family to Palmyra, Ontario (now Wayne) County, and then to Manchester. There, in his fifteenth year, in the midst of the revivals then sweeping New York and New England, Joseph entered a grove of trees near his family’s farm and prayed for guidance regarding the competing claims of the Methodist, Presbyterian, and other groups active in the area. Joseph said that God and His Son appeared to him in answer to his prayer. Over the next several years, Joseph received a series of revelations that included an additional book of scripture, the Book of Mormon, to be used along with the Bible in directing the organization and functioning of a new American religion.
The Mormon practice of polygamy came to be the lightning rod for the violent repression visited upon the Mormons by state governments and finally by the national government. This might be expected. But in the early, pre-Utah years, it was the Mormon inclination toward economic and political communality that perhaps most inflamed the Mormons’ neighbors. While Freud would find this hard to believe, Karl Marx would understand. The Mormons’ communal and economic structures were part and parcel of a faith that sought to bring about a new world order, Zion, in the here and now—an earthly, palpable reality, not simply a finger-hold in heaven. As those practicing a gathered community have always believed— this is true of the first Christians, the early followers of Muhammad, and the followers of the Dalai Lama as well as of the Mormons—the power of conversion is most effective when multiplied in a community of believers. This is true even if such communities must live in tents, build new homes, and endure exile.
All such communities must also somehow come to terms with the dominant and often dominating larger communities. This usually entails anguishing compromise with the vision of the founders. What truly is the bedrock of the faith? What is the foundational theology of the group, the infrastructure, as contrasted with the sociological superstructure that can be jettisoned? In fact, all governments face this challenge as societies move through time and space. Persecution by a dominant culture may exacerbate such a crisis but does not change the central issue of continuity and change.
For the first-century Christians, the precipitating crisis was the phenomenon of Gentile Christianity. Should the Mosaic law, and especially circumcision, be required of the new Gentile convert? To the Jewish Christian, and for that matter Jews of any time, circumcision was and is the token of the covenant with Yahweh. Could this sacred act ever be seen as sociological superstructure and hence something that Gentile members could omit? St. Paul said yes (Acts 15). The Pauline Christianity that thereby survived this crisis thus became a world religion and began to distinguish itself from its Jewish parent. That choice, to a Christian observer looking back from the twenty-first century, may seem obvious. But to the first-century church led by men and women of Jewish background, the answer was anguishing and anything but obvious.
For early Utah Mormons, the practice of polygamy, which they believed continued into the next life and was essential for attaining ultimate salvation, was as central to their faith as circumcision was to many Jewish Christians. Like circumcision, it would be sacrificed in the interest of the survival and spread of the Latter-day Saints (LDS) faith. So too would be their communal economy, which they believed was essential for the establishment of the kingdom of God in the here and now. The arrival of that kingdom would have to await forces more powerful than those the Mormons could raise against the U.S. Army.
Before its demise, the Mormon social and economic order gave rise to a unique system of dispute resolution through ‘‘home teachers,’’ a pair of men assigned to every family in each ward (parish). In the nineteenth century, these home teachers mediated all Mormon disputes of a civil nature: all actions in tort, property, marriage and family law, water law, contracts, and taxation. Those conflicts not amenable to mediation— a small portion of the whole—were appealed to a local congregational court, the bishop’s court that was composed of the lay bishop and his two counselors. Beyond this, one could appeal to the diocesan level, the Mormon stake, if unanimity could not be reached in amity. The only sanction of these courts was loss of some portion of church privilege for a time.
These methods of conciliation, mediation, and fact-finding were fast, fair, and cheap. The Mormon church of the nineteenth century forbade going to Caesar’s courts, as did St. Paul (1 Corinthians 6), under threat of excommunication. Even more innovative and potentially revolutionary was the Mormon practice of shared property. Under the United Order, as it was known, each gave according to his capacity and received according to his needs, with the church acting as gathering house and dispensary. In contrast to contemporary Communism, living the United Order was voluntary, even within the church. Also unlike Communism, it was empowered by shared belief. All this and more was lost as the price to pay for citizenship within the American democracy.
In view of the loss of such effective social structures, the dominant culture must ask what degree of social, political, and religious uniformity is essential, at the minimum, in order to preserve a society’s original vision? How can the larger society avoid such debasement or, at least such dilution, of the existing order as to make inclusion of the new group not worth the cost? For nineteenth-century America, distinguished from its predecessor by a notable lack of vision at the top, the Mormons were too tribal to assimilate. In forcing America to address the question of assimilation, the Mormons, along with Irish Catholics and Jews from Eastern Europe, would push America’s legal system to the limits. In the process, the free exercise and nonestablishment clauses of the First Amendment would come to enjoy new importance and be interpreted with greater robustness than ever before.
Although the LDS Church was officially organized in 1830 in upstate New York, the earliest significant gathering of the Mormons began a year later in Kirtland, Ohio. It was here that the Mormons built the first of several towns, more or less from the ground up. Among the important events of the Kirtland period was the construction of the first LDS temple. The Kirtland period was a critical one for the establishment of a central community of believers, for the introduction of new theology surrounding the temple and its ordinances, and for the expansion of the church’s missionary efforts, which contributed vital new blood to the young church. All of these activities, in LDS thinking, were part of the building of a new Zion, which was an economic and social paradigm as much as it was one of belief, and this fact inevitably brought the Mormon community into conflict with its neighbors.
Of critical importance to understanding the non- Mormon opposition is the fact that at this time the Mormons did not openly practice polygamy. They did, however, enjoy a form of socialist economic practice, with community-owned enterprises and communal manufacture and commerce. For example, the Mormons formed their own bank, the Kirtland Safety Society. Like the majority of settlers of the western lands, these largely Jacksonian Democrats were debtors, not creditors. When the state of Ohio refused to grant a charter to the Kirtland Safety Society, the Mormons issued their own notes. A period of intense innovation and activity, the Kirtland years lasted only until 1838. Inaugurating what was to become standard practice, non-Mormons who feared the latter’s growing economic power and who were angry over the Mormons’ tribal inclination to conduct economic and legal transactions within their own community, forced the Mormons to relocate to Missouri—the first of several steps toward the frontier.
The subtitle of the Missouri period might be ‘‘out of the frying pan and into the fire,’’ for it was in Missouri that the Mormons would face their most ferocious opposition to date. In addition to their insular habits and communally oriented industry, the Mormons were overwhelmingly from New England and the British Isles, and almost all opposed slavery. (This particular demographic would later change, after the Missouri period, as Mormon missionaries began going into the southern states). Missouri was divided between those favoring and opposing the expansion of slavery. The early Mormon practice of seeking proselytes among Native Americans and black slaves resulted in such opposition within Missouri that the Mormon prophet, Joseph Smith, who had permitted the baptism and ordination of blacks, soon stopped this in an effort to preserve his community within the state. This temporary act of acquiescence was to become reified after the murder of Joseph Smith. While the baptism of blacks continued, the church withheld its priesthood from them until 1978. The divisive and hurtful exclusion of blacks from the Mormon priesthood, ironically, is one of the many legacies of the persecution of Mormons—exile and abuse begetting other forms of the same.
The Mormons came to see Missouri, and particularly Jackson County, as the gathering place for the Mormon people. Indeed, Joseph Smith claimed to have received revelation to the effect that the New Jerusalem would be built in Independence, which it also transpired, was the site of the Garden of Eden. Early Mormon settlement in Independence, Missouri, had begun already in 1831, in parallel with the development of Kirtland. But, as in Kirtland, the Mormons’ theocratic socialism brought them into conflict with their neighbors. In 1833, the leaders of Independence, Missouri, formally asked the Mormons to leave the state. The Mormons refused, and violence soon followed. As Mormon farms were attacked, livestock killed, and barns burned, the Mormons asked Governor Daniel Dunklin for military protection of their farms and communities. He told them simply to rely upon the courts and sue for relief. Local judges refused to help the Mormons and Mormon businesses, homes, and farms continued to be burned and destroyed. The Mormons were finally forced to flee Jackson County and settle across the Missouri River in November 1833.
The Mormons then petitioned President Andrew Jackson for relief, requesting that federal troops be sent to restore them to their homes and farms and to protect them until an adequate state response could maintain the peace. Jackson refused, stating that he possessed no power to call out federal troops to enforce state laws. Many Mormons then settled in Caldwell County, Missouri. But there too, the rapid growth of the Mormon population soon caused conflict with neighbors, who early on had welcomed the Mormons. This time, the Mormons began arming themselves and fighting back. As word reached Missouri Governor Lilburn Boggs that the Mormons were arming themselves and that violence was increasing, he issued an extermination order against the Mormon people, unless they would leave the state. Late in October 1838, somewhere between eighteen and twenty-six Mormons were massacred at Haun’s Mill in Caldwell County. The following day a mob, led by the state militia, surrounded the Mormons in far west in Caldwell County and arrested most of the Mormon leaders. With their leaders in jail, the Mormons emigrated from Missouri to Quincy, Illinois.
In Illinois, the Mormons concluded that seeking a redress of grievances and restoration of their property in Missouri, whether through state or local courts or the state legislature, was futile. They initiated a novel legal proceeding to impeach the state of Missouri and petitioned the governors of the other states for support. The action of impeachment was to be accomplished by the federal government in Congress and the presidency. A Mormon delegation left Illinois for Washington in October 1839 with a petition demanding redress by the national government. This was the United States before the Civil War and the Thirteenth, Fourteenth, and Fifteenth Amendments before the civil rights legislation that followed and before the incorporation doctrine had begun a process by which the civil rights of the people would become nationalized with the United States as the guarantor.
The answers they received from the president and the Congress were foredoomed. What President Martin Van Buren told the Mormon delegation, whom he received a day after they arrived in Washington, was reflective of the constitutional law of the time, though probably motivated by political concerns more than national jurisprudence. His answer also explains why there are so few Van Buren streets within Mormon settlements to this day. He told the Mormons that ‘‘your cause is just, but I can do nothing for you.’’ The Mormon efforts towards Congress culminated in three days’ debate within the Judiciary Committee of the Senate. Legitimate concerns about Senate jurisdiction and less legitimate concerns about the politics of siding with the Mormons led to a rejection of the Mormon petition.
Failure to find protection or redress of grievances at local, state, and national levels of government led the Mormons to turn ever more inward. They decided to found a new community of their own in southern Illinois. That community, Nauvoo, came to be one of the largest cities in the state, comparable to Chicago in population. The Nauvoo City Charter had more of the elements of a modern state constitution than of a municipal charter. In it, the Mormons formally sought the power to govern themselves with Mormon institutions. At one point, facing increasing pressure from mobs and law enforcement agencies, the Nauvoo City Council passed ordinances granting itself power to declare void any writ executed by any court in the state.
The charter was an interesting experiment in the use of legal fictions in their own defense (usually Mormons were on the receiving end of such fictions), but proved to be of little value as the seemingly inescapable opposition to their presence began to rise in Illinois as well. But this time, the Mormons faced opposition from dissident Mormons as well. Some of these established a newspaper, the Nauvoo Expositor, which published an edition loaded with allegations against Joseph Smith and other Mormon leaders, accusing them of a number of offenses, including the practice of polygamy. (Though the Mormons denied the allegation as to the practice of polygamy and continued to do so for a few years after they had reached the Great Basin, in fact this accusation was true.) In response, Joseph Smith directed the council to authorize Nauvoo’s law enforcement officials to destroy the type of the Expositor. This led to such an outcry from around Nauvoo that Joseph Smith, his brother, Hyrum, and other Mormon leaders were imprisoned. Shortly after their arrest, Joseph and Hyrum were murdered by elements of the state militia and other residents of surrounding communities.
Once again, the Mormons fled. In 1846, under the direction of Smith’s successor, Brigham Young, they began their trek of thirteen hundred miles into the Great Basin and the valley of the Great Salt Lake, when they left, a part of Mexico. It was their intent to put problems with unruly America behind them by leaving the country altogether. But by the time they arrived in the desert that was to be Salt Lake City, the war with Mexico had occurred, and the territory of Utah had been incorporated into the Union. In what seems like a macabre joke, the Mormons, well along the journey that would see hundreds die of disease, accident, malnutrition, weather, and other hardships of travel on foot, were asked to contribute a contingent of men to fight in the war. Brigham Young agreed. The Mormon Battalion, as this group came to be known, did not see hostile action, but did perform the longest march in American military history, from the American Midwest to California, and played an important role in securing California in particular for the Union. Among other things, they helped put an end to John C. Fremont’s abortive attempt to make California into a separate nation.
Free at last, as they supposed, to build a true Zion society, the Mormons launched a program of settlement and development across much of the West, reclaiming marginal steppe land for farms, founding cities and towns, damming streams, digging canals, and building homes, temples, and meeting houses of astonishing beauty. The impact of this effort remains today. While most of the farms of the later homesteaders and the towns of the miners have returned to the desert, the Mormon communities have almost all survived. The reason is the communality that caused the Mormons such trouble east of the Mississippi. The Mormons came as group, acted as a group, and survived. The others came and acted as individuals and by and large failed in the harsh environment of the West.
If theocratic socialism was the flash point for conflict with non-Mormons prior to 1847, polygamy was to be the issue for the remainder of the century. While Mormons officially acknowledged the doctrine and practice of polygamy in 1852, the Morrill Act, the first of several federal laws passed by Congress to eliminate polygamy, was still a decade away. Brigham Young’s Utah territory was still too remote to be high on anyone’s list of priorities. When the Morrill Act finally made its appearance, the Civil War was in full swing. The Mormons thus had two decades in which to build their utopia without serious opposition. The end of the Civil War, however, brought renewed national attention to the West. The long-awaited transnational railway was completed in 1869. The Union Pacific and Southern Pacific sections came together in, of all places, Promontory, Utah, right under Brigham Young’s nose.
A mixed blessing, the railway brought wealth to Utah but also put Brigham Young’s hitherto isolated kingdom within easy reach of the national government. Losing no time, President Andrew Johnson inaugurated the postwar effort to bring Mormons under control by dispatching an army to Utah. Mormons fought back by sabotaging army supplies and preparing to destroy their cities, including Salt Lake City. The parties ultimately reached a mediated settlement. The army was saved from starvation only by the kindness of the Mormons whom they had been sent to whip into conformity.
The federal government then brought an action against Brigham Young’s secretary, George Reynolds, for violating the Morrill Act, a piece of legislation designed to eliminate polygamy. While this was one of only two cases successfully prosecuted under this flawed law, the conviction of Reynolds, hitting so close to Brigham Young, caused repercussions throughout the Mormon empire.
In reviewing this case, the Supreme Court upheld Reynolds’s conviction and the Morrill Act, dismissing Mormon arguments that polygamy was protected as religious expression under the free exercise clause of the First Amendment. Most American law schools today begin their discussion of the free exercise clause with an examination of this famous case. The Morrill Act, though upheld by the Supreme Court in Reynolds, was too ineffective to be the instrument through which the government could destroy Mormon polygamy. In 1887, Congress passed the Edmunds Act, which created the federal offense of unlawful cohabitation, thus relieving law enforcement officials from proving an unlawful marriage, as had to be done under the Morrill Act.
While Edmunds–Tucker provided that only wives willing to testify against their husbands be allowed to give evidence, Utah judges, appointed by non- Mormons, held Mormon women in contempt of court and jailed them until they would agree to testify against their husbands. Most refused. Many went to jail, and some bore children there. By 1893, after the Mormons had officially renounced polygamy and prosecutions had nearly ceased, there had been 1,004 convictions for unlawful cohabitation and 31 for polygamy. In its effort to eradicate the Mormon theocracy and polygamy, the government had imprisoned most Mormon leaders and had denied Mormons in general many of their rights as U.S. citizens. The antipolygamy acts, for example, contained provisions that disallowed practicing Mormons from serving on juries, thus not only violating a fundamental constitutional right but also making it easier to convict other Mormons of polygamy. The acts denied active Mormons the right to hold elective or public office or to vote. They denied children of Mormon polygamous parents rights of inheritance. They prohibited (but did not stop) the immigration of Mormons to the United States and barred foreign-born Mormons from obtaining citizenship.
The federal government acted not only against individual Mormon leaders and members but also against the church. In an effort to preserve the Mormon Church from legal attack, the assembly of the state of Deseret (which included not only prestatehood Utah but also surrounding areas) had passed an ordinance in 1851 incorporating the Mormon Church. This allowed the church to hold and manage many of the industries and properties of the Utah territory. Under various acts of Congress directed against the Mormons thereafter, much of Mormon property became vulnerable to federal seizure. The Morrill Act, for instance, revoked the charter incorporating the Mormon Church. The Edmunds–Tucker Act directed the Mormon Church to abandon polygamy or face seizure of its property, including communal farms and businesses, houses of worship, and even Mormon temples.
Facing complete destruction, the church decided that it would have to abandon polygamy, and, in 1889, issued the ‘‘Manifesto’’ that, at least officially, ended Mormon polygamy and with it federal persecution. Utah’s admission to the Union in 1896 recognized the new peace. Though not forced to do so, the Mormons also began abandoning institutions of distinction in favor of integration into the American Republic. These disappeared not at the point of a gun but at the cash register. Protecting unique Mormon economic institutions from outside competition proved impossible. Gone, for example, are the communal businesses and farms, as well as church-based forms of dispute resolution by mediation and conciliation.
The costs of the savage suppression of the Mormons will never be known. One can tally the numbers killed or lost in the westward trek, the numbers of fathers and mothers imprisoned, and the numbers of those who chose instead to flee to Mexico or Canada. One can gain some feeling for the general suffering through surviving diaries and journals. But the unique, indigenous American religious culture that fascinated Leo Tolstoy, Richard Burton, and other world-wise visitors died in its infancy. What the industrious Mormon blending of communitarian theocratic and democratic governmental influences might have achieved—as an alternative to a capitalistic system that creates great wealth for a few, some wealth for many, and great poverty for many more—will never be demonstrated, at least by the Mormons.
Years ago, Daniel Boorstin (p. 3) noted, ‘‘The American Puritans’ City Upon a Hill prospered because it was a City on the Sea. How different the story of New England, or of America, might have been if they had built their Zion in a sequestered inland place, some American Switzerland, some mountainencircled valley!’’ Brigham’s Zion, the Mormon City of God, was exactly that interior city. No indication of what the Mormons might have accomplished can be had from their descendents today. The Mormons of the twentieth and twenty-first centuries are profoundly conservative and ally themselves with hardcore capitalists and neofundamentalists. Nothing in their theology dictates this—quite the contrary. Contemporary Mormon conservatism is rather the result of the politics of isolation.
If anything was central to early Mormonism, it was the idea of Zion. The faith of Joseph Smith and Brigham Young was not in a hereafter only but in the imperfect but perfectable present. In this regard, Mormonism might well be considered the American religion. Sir Henry Maine, the first great modern legal historian of the English language, once described the movement from a more static feudal society to modernity as the movement from status to contract. Modern history is built upon the notion that individuals can act so as to determine their destiny. Young agreed. He said, ‘‘I have Zion in my view constantly. We are not going to wait for angels, or for Enoch and his company to come and build Zion, but we are going to build it!’’ Jedediah Grant, a counselor to Brigham Young, said the same, ‘‘If you want a heaven, go to and make it!’’ Mormons came from a sturdy, self-reliant class of laborers and artisans, empowered by their capacity to build a home and a community. They rejected the idea of mediation by an educated, professional clergy. If heaven was achievable at all, they could get there through their own dedicated industry. It is not the least of the losses of America’s penchant for enforced conformity that the early Mormons did not have a chance to build their City of God.
EDWIN B. FIRMAGE
References and Further Reading