The Supreme Court Rules in Reynolds v. United States making it a Crime to Practice Polygamy

Reynolds v. United States (1878) was a test case put forward by the Church of Jesus Christ of Latter-Day Saints (the Mormons) in an attempt to prove that the Morrill Act of 1862 was a violation of the First Amendment’s guarantee of the free exercise of religion. It was the first of a series of cases in which the U.S. Supreme Court rejected the Mormons’ First Amendment claims. The Morrill Act, which made the Mormons’ religiously based polygamy a crime throughout the United States and the Territories, was the first in a series of laws enacted by Congress attacking the Mormon’s practice of polygamy.

These laws were enacted, and these cases tried, in an atmosphere of anti-Mormon hysteria that gripped the nation from the time that Brigham Young, who as successor to founder Joseph Smith, had led the Mormons to what is now Utah, publicly announced the church’s advocacy of polygamy in 1852 to at least 1890 when the church ostensibly banned the practice. The cases suggest that the Court was also in the grip of this hysteria.

Previously, U.S. Attorney William Carey promised to stop his attempts to indict general authorities during the test case. However when Carey failed to keep his promise and arrested George Q. Cannon, LDS Church leaders decided that they would no longer cooperate with him.₁

The plaintiff, Reynolds, the private secretary of Brigham Young, pleaded not guilty to polygamy. In the subsequent trial, obviously polygamous jurors were struck for cause, and jurors with fairly obvious antipolygamous opinions were allowed to remain on the jury. The judge’s jury instructions bear repetition:

I think it not improper, in the discharge of your duties in this case, that you should consider what are to be the consequences to the innocent victims of this delusion. As this contest goes on, they multiply, and there are pure-minded women and there are innocent children, innocent in a sense even beyond the degree of the innocence of childhood itself. These are to be the sufferers; and as the jurors fail to do their duty, and as these cases come up in the Territory, just so do these victims multiply and spread themselves over the land.

Following these instructions, a jury verdict of guilty was inevitable, and Reynolds was sentenced to two years of hard labor and a $500 fine. Nevertheless, the Supreme Court, rejecting a variety of procedural appeals, concluded that Reynolds had been tried by an impartial jury.

In its examination of Reynolds’s free exercise clause argument, the Court first noted that ‘‘religion’’ had not been defined in the Constitution, suggesting that the Mormon practice of polygamy might not enjoy free exercise clause protection because Mormonism was not a religion. But the Court did not pursue this line of argument.

The Court instead focused on free exercise as the right to believe in any religion as opposed to the right to act in any way as part of the practice of religion. The Court found the origin of this ‘‘thought–action dichotomy’’ in Thomas Jefferson’s 1784 Virginia ‘‘Bill for Establishing Religious Freedom,’’ which later was embodied in the First Amendment. Thus, the Court reasoned, ‘‘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 Court noted that polygamy had always been a crime, punishable by death, in England and that Virginia, after passage of the above-mentioned Religious Freedom Act, adopted the English statute making it a capital felony.

The Court next applied the ‘‘slippery slope’’ argument, outlining the horrors that would result if the exercise of religiously based polygamy were allowed. Human sacrifice and Suttee, the Hindu practice, banned by the British in colonial India, of a widow throwing herself upon the burning funeral pyre of her dead husband, were cited.

Perhaps the Court’s biases are further exposed by the statement that ‘‘[p]olygamy has always been odious among the northern and western nations of Europe,’’ but was ‘‘exclusively a feature of the life of Asiatic and of African people.’’

Of small solace to Reynolds and the Mormons, reacting to a petition for rehearing, the Court concluded that Reynolds’s imprisonment should not be ‘‘at hard labor’’ because the Morrill Act called for imprisonment only.

CHIEF JUSTICE WAITE delivered the opinion of the court.

. . . As to the defense of religious belief or duty.

On the trial, [Reynolds] proved that at the time of his alleged second marriage he was, and for many years before had been, a member of the Church of Jesus Christ of Latter-Day Saints, commonly called the Mormon Church, and a believer in its doctrines; that it was an accepted doctrine of that church “that it was the duty of male members of said church, circumstances permitting, to practice polygamy. . . .”

Upon this proof he asked the court to instruct the jury that if they found from the evidence that he “was married as charged—if he was married—in pursuance of and in conformity with what he believed at the time to be a religious duty, that the verdict must be ‘not guilty’”. . . .

. . . [T]he question is raised, whether religious belief can be accepted as a justification of an overt act made criminal by the law of the land. The inquiry is not as to the power of Congress to prescribe criminal laws for the territories, but 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.

Congress cannot pass a law for the government of the territories which shall prohibit the free exercise of religion. The First Amendment to the Constitution expressly forbids such legislation. Religious freedom is guaranteed everywhere throughout the United States, so far as congressional interference is concerned. The question to be determined is, whether the law now under consideration comes within this prohibition.

The word “religion” is not defined in the Constitution. We must go elsewhere, therefore, to ascertain its meaning, and nowhere more appropriately, we think, than to the history of the times in the midst of which the provision was adopted. The precise point of the inquiry is, what is the religious freedom which has been guaranteed.

Before the adoption of the Constitution, attempts were made in some of the colonies and states to legislate not only in respect to the establishment of religion, but in respect to its doctrines and precepts as well. The people were taxed, against their will, for the support of religion, and sometimes for the support of particular sects to whose tenets they could not and did not subscribe. Punishments were prescribed for a failure to attend upon public worship, and sometimes for entertaining heretical opinions. The controversy upon this general subject was animated in many of the states, but seemed at last to culminate in Virginia. In 1784, the House of Delegates of that state having under consideration “a bill establishing provision for teachers of the Christian religion,” postponed it until the next session, and directed that the bill should be published and distributed, and that the people be requested “to signify their opinion respecting the adoption of such a bill at the next session of assembly.”

This brought out a determined opposition. Amongst others, Mr. Madison prepared a “Memorial and Remonstrance,”[1] which was widely circulated and signed, and in which he demonstrated “that religion, or the duty we owe the Creator,” was not within the cognizance of civil government. At the next session the proposed bill was not only defeated, but another, “for establishing religious freedom,” drafted by Mr. Jefferson, was passed.[2] In the preamble of this act religious freedom is defined; and after a recital “that to suffer the civil magistrate to intrude his powers into the field of opinion, and to restrain the profession or propagation of principles on supposition of their ill tendency, is a dangerous fallacy which at once destroys all religious liberty,” it is declared “that it is time enough for the rightful purposes of civil government for its officers to interfere when principles break out into overt acts against peace and good order.” In these two sentences is found the true distinction between what properly belongs to the church and what to the state.

. . . [A]t the first session of the first Congress the amendment now under consideration was proposed with others by Mr. Madison.[3] It met the views of the advocates of religious freedom, and was adopted. Mr. Jefferson afterwards, in reply to an address to him by a committee of the Danbury Baptist Association, took occasion to say: “Believing with you that religion is a matter which lies solely between man and his God; that he owes account to none other for his faith or his worship; that the legislative powers of the government reach actions only, and not opinions,—I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should ‘make no law respecting an establishment of religion or prohibiting the free exercise thereof,’ thus building a wall of separation between church and state. Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore man to all his natural rights, convinced he has no natural right in opposition to his social duties.”[4] Coming as this does from an acknowledged leader of the advocates of the measure, it may be accepted almost as an authoritative declaration of the scope and effect of the amendment thus secured. 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.

Polygamy has always been odious among the northern and western nations of Europe, and, until the establishment of the Mormon Church, was almost exclusively a feature of the life of Asiatic and of African people. At common law, the second marriage was always void, and from the earliest history of England polygamy has been treated as an offence against society. After the establishment of the ecclesiastical courts, and until the time of James I, it was punished through the instrumentality of those tribunals, not merely because ecclesiastical rights had been violated, but because upon the separation of the ecclesiastical courts from the civil the ecclesiastical were supposed to be the most appropriate for the trial of matrimonial causes and offences against the rights of marriage, just as they were for testamentary causes and the settlement of the estates of deceased persons.

By the statute of 1 James I. (c. 11) , the offence, if committed in England or Wales, was made punishable in the civil courts, and the penalty was death. As this statute was limited in its operation to England and Wales, it was at a very early period re-enacted, generally with some modifications, in all the colonies. In connection with the case we are now considering, it is a significant fact that on the 8th of December, 1788, after the passage of the act establishing religious freedom, and after the convention of Virginia had recommended as an amendment to the Constitution of the United States the declaration in a bill of rights that “all men have an equal, natural, and unalienable right to the free exercise of religion, according to the dictates of conscience,” the legislature of that state substantially enacted the statute of James I., death penalty included, because, as recited in the preamble, “it hath been doubted whether bigamy or polygamy be punishable by the laws of this commonwealth.” From that day to this we think it may safely be said there never has been a time in any state of the Union when polygamy has not been an offence against society, cognizable by the civil courts and punishable with more or less severity. In the face of all this evidence, it is impossible to believe that the constitutional guaranty of religious freedom was intended to prohibit legislation in respect to this most important feature of social life. Marriage, while from its very nature a sacred obligation, is nevertheless, in most civilized nations, a civil contract, and usually regulated by law. Upon it society may be said to be built, and out of its fruits spring social relations and social obligations and duties, with which government is necessarily required to deal. In fact, according as monogamous or polygamous marriages are allowed, do we find the principles on which the government of the people, to a greater or less extent, rests. Professor, Lieber[5] says, polygamy leads to the patriarchal principle, and which, when applied to large communities, fetters the people in stationary despotism, while that principle cannot long exist in connection with monogamy. . . . [T]here cannot be a doubt that, unless restricted by some form of constitution, it is within the legitimate scope of the power of every civil government to determine whether polygamy or monogamy shall be the law of social life under its dominion.

In our opinion, the statute immediately under consideration is within the legislative power of Congress. It is constitutional and valid as prescribing a rule of action for all those residing in the Territories, and in places over which the United States have exclusive control. This being so, the only question which remains is, whether those who make polygamy a part of their religion are excepted from the operation of the statute. If they are, then those who do not make polygamy a part of their religious belief may be found guilty and punished, while those who do, must be acquitted and go free. This would be introducing a new element into criminal law. Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. 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?

So here, as a law of the organization of society under the exclusive dominion of the United States, it is provided that plural marriages shall not be allowed. Can a man excuse his practices to the contrary because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances. . .

Reynolds was indicted in the District Court for the 3rd Judicial District of the Territory of Utah under sect. 5352 of the Revised Statutes of the United States, which stated, as quoted in the Supreme Court decision:

Every person having a husband or wife living, who marries another, whether married or single, in a Territory, or other place over which the United States have exclusive jurisdiction, is guilty of bigamy, and shall be punished by a fine of not more than $500, and by imprisonment for a term of not more than five years.

Other arguments

Reynolds argued that the grand jury that had indicted him was not legal. United States law at that time required that a grand jury consist of no fewer than 16 persons. The grand jury that indicted Reynolds had only 15 persons. The court rejected this argument because the Utah Territory had passed a law in 1870 under which a grand jury had to consist of only 15 persons.

During his original trial, Reynolds had challenged two jurors, both of whom stated that they had formed an opinion on the guilt or innocence of Reynolds before the trial. The court held that universal education and press reports made it hard to find jurors who had not formed some opinion. It found that Reynolds had failed to meet the requirement that he, as challenger of a juror’s objectivity, demonstrate that a juror had developed a real and strong opinion. The prosecution had discharged two potential jurors who refused to say whether or not they were living in polygamy. The Court held that it would not overturn a case based on the legality of challenges to dismissed jurors.

The Court held that evidence Amelia Jane Schofield, Reynold’s second wife, gave during an earlier trial of Reynolds for the same offense but under a different indictment was admissible. Schofield could not be found during the second trial and so evidence from the previous trial was used. The Court held that “if a witness is kept away by the adverse party, his testimony, taken on a former trial between the same parties upon the same issues, may be given in evidence”. The court held that Reynolds had every opportunity under oath to reveal the whereabouts of Schofield. This was the one point on which Justice Field dissented, finding that the evidence should not have been allowed.

Reynolds had argued that the jury had been improperly instructed by the judge when he told them that they “should consider what are to be the consequences to the innocent victims of this delusion”. Reynolds argued that this introduced prejudice to the jury. The Court held that Reynolds had freely admitted that he was a bigamist. All the judge had done was “call the attention of the jury to the peculiar character of the crime” and had done so “not to make them partial, but to keep them impartial”.

Reaction

George Q. Cannon, representative of the territory, wrote in response to this decision:

Our crime has been: We married women instead of seducing them; we reared children instead of destroying them; we desired to exclude from the land prostitution, bastardy and infanticide. If George Reynolds [the man who was convicted of committing bigamy] is to be punished, let the world know the facts…. Let it be published to the four corners of the earth that in this land of liberty, the most blessed and glorious upon which the sun shines, the law is swiftly invoked to punish religion, but justice goes limping and blindfolded in pursuit of crime.

The New York Times defended the decision, noting that the 1862 act that banned bigamy, though “obviously directed at the polygamous practices of the Mormons, merely extended over the Territories the common law in relation to bigamy which exists in every State of the Union.” Its editorial ridiculed the Mormon defense of polygamy as a religious practice and said: “Similarly, a sect which should pretend, or believe, that incest, infanticide, or murder was a divinely appointed ordinance, to be observed under certain conditions, could set up that the enforcement of the common law, as against either [sic] of these practices, was an invasion of the rights of conscience.”

Sources:

• https://uscivilliberties.org/cases/4380-reynolds-v-united-states-98-us-145-1878.html
• https://teachingamericanhistory.org/library/document/reynolds-v-united-states/
• https://en.wikipedia.org/wiki/Reynolds_v._United_States
• https://bible.org/illustration/reynolds-v-united-states