Antipolygamy Laws

In the United States Antipolygamy Laws were exclusively aimed at the polygamous practices of the nineteenth- century Church of Jesus Christ of Latter-day Saints (the Mormons) which began to publicly practice and advocate polygamy in 1852.

In 1827, Joseph Smith, Jr., found and translated gold plates that became the basis of a new religion that considered itself the true version of a Christianity that had lost its way. The Mormons believed Indians were a lost Hebrew tribe that had been visited by Jesus after the crucifixion. Smith’s new religion was born in an era of religious enthusiasm and revivalism centered in the northeastern part of the United States. Mormons believe all the fundamental tenets of Christianity; in addition, they believe that Native Americans are one of the lost tribes of Israel and were visited by Christ after his crucifixion, deny original sin and stress that everyone can advance to godhood, and believe that they are the only true Christians.

Although Smith, who had as many as forty-eight wives, began practicing polygamy as early as the 1835, the church did not publicly announce its advocacy of polygamy until 1852, after Brigham Young, Smith’s successor after his 1844 assassination by an angry mob, had taken the Mormons to the basin of the Great Salt Lake. The antipolygamy movement, which began immediately after the announcement, was linked to the antislavery movement. Authors penned novels featuring themes of plural wives as slaves, the lust of old men for young girls, and incest in polygamous families. Scientists said that the progeny of polygamous unions carried genetic defects, as was also true of miscegenous unions; polygamy was described as an un-Christian practice found among Africans or Asians but not civilized Europeans (that is, whites).

Congress responded with a series of increasingly draconian Antipolygamy Laws. First, fearing that the Mormons would attempt to bring the Utah Territory into the Union as a polygamous state, Congress enacted the Morrill Act of 1862, making polygamy a crime in all territories. However, enforcement of the act was left to local probate judges and local juries, most of whom were Mormon in the Utah Territory.

In 1874, hoping to prove that polygamy was protected by the First Amendment, the Mormons set up a test case involving Brigham Young’s personal secretary, George Reynolds. But in the resulting case, United States v. Reynolds, a unanimous Supreme Court upheld the constitutionality of the antipolygamy act against this claim, analogizing polygamy to human sacrifice in the process. Because of these enforcement problems, Congress enacted the Poland Act in 1874 to shift enforcement of the Morrill Act to federally appointed judges. The act included a variety of procedural changes that sought to guarantee successful prosecution of polygamists.

Antipolygamy sentiment continued to grow in Congress. The resulting Edmunds Act of 1882 took away past and present polygamists’ right to vote and allowed prosecutors to strike potential jurors not only for being polygamists but also for espousing belief in polygamy or even refusing to discuss their marital status. In addition, the act made ‘‘unlawful cohabitation’’ criminal, facilitating convictions when multiple marriages could not be proven. The even harsher Edmund–Tucker Act followed in 1887. This act made unrecorded marriages felonies, forced wives to testify against husbands, disinherited children of polygamous marriages, and allowed for the confiscation of virtually all church property.

Utah legislators began drafting an antipolygamy constitution the following year. On May 19, 1890, the Court upheld the constitutionality of the government’s seizure of church property in Late Corp. of the Church of Jesus Christ of Latter-day Saints v. United States, 136 U.S. 1 (1890).

With Congress moving towards the passage of the Cullom–Stubble Bill, which took away all the Citizenship rights of Mormons, Church President Wilford Woodruff issued the ‘‘Woodruff Manifesto’’ outlawing polygamy in 1890. However, the practice of polygamy continued, with more than 250 secret plural marriages performed until at least 1904. Although exact numbers are impossible to determine, today there are more than thirty thousand ‘‘Mormon fundamentalists’’ living mostly in Utah, Arizona, and Montana and practicing polygamy. Prosecution has been sporadic, notably prior to the 2002 Salt Lake City Winter Olympics and, in one case, that of Royston Potter, who was prosecuted following an appearance on the Phil Donahue television show.

The continued practice of polygamy prompted unsuccessful congressional efforts in 1902 to amend the U.S. Constitution to ban polygamy.

The Supreme Court has not examined the constitutionality of Antipolygamy Laws since the 1890 Late Corp. of the Church of Jesus Christ case. Under the ‘‘Smith test’’ announced in the 1990 case of Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990), the Court held that a generally applicable Criminal Law was not unconstitutional even though it had a negative impact on a religious practice. Seemingly, this holding would protect Antipolygamy Laws from constitutional attack. However, in Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993), the Court found a criminal statute to be unconstitutional because, although it was of general applicability, it was aimed at a particular religion. This suggests the argument, untested to date, that polygamy statutes aimed at the Mormon practice could be unconstitutional.

Antipolygamy provisions are preserved in the present day state constitutions of Utah (Utah Const. art. III), Oklahoma (Okla. Const. art. I, } 2), Idaho (Idaho Const. art. I, } 4), and New Mexico (N.M. Const. art. XXI, § 1).

KEITH E. SEALING

References and Further Reading

• Ostling, Richard, and Joan Ostling. Mormon America: The Power and the Promise. New York: Harper, 1999
• Sealing, Keith. Polygamists out of the Closet: Statutory and State Constitutional Prohibitions Against Polygamy Are Unconstitutional Under the Free Exercise Clause, Ga. St. U. L. Rev. 17 (2001): 691 (arguing that antipolygamy statutes are unconstitutional)
• Van Wagoner, Richard. Mormon Polygamy: A History. Gaithersburg, MD: Signature Books, 1989

Cases and Statutes Cited

• Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993)
• Davis v. Beason, 133 U.S. 333 (1890)
• Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990)
• Late Corp. of the Church of Jesus Christ of Latter-day Saints v. United States, 136 U.S. 1 (1890)
• Murphy v. Ramsey, 114 U.S. 15 (1885)
• Reynolds v. United States, 98 U.S. 145 (1878).