Mormon Polygamy: Race Treason?

Some very interesting papers:

Natural Law and the Rhetoric of Empire: Reynolds v. United States, Polygamy, and Imperialism

Nathan B. Oman
William & Mary Law School

William & Mary Law School Research Paper No. 09-43

Abstract:
In 1879, the U.S. Supreme Court construed the Free Exercise Clause for the first time, holding in Reynolds v. United States that Congress could punish Mormon polygamy. Historians have interpreted Reynolds and the massive wave of anti-polygamy legislation and litigation that it midwifed as an extension of Reconstruction into the American West. This Article offers a new historical interpretation, one that places the birth of Free Exercise jurisprudence in Reynolds within an international context of Great Power imperialism and American international expansion at the end of the nineteenth century. It does this by recovering the lost theory of religious freedom that the Mormons offered in Reynolds, a theory grounded in the natural law tradition. It then shows how the Court rejected this theory by using British imperial law to interpret the scope of the first amendment. Unraveling the work done by these international analogies reveals how the legal debates in Reynolds reached back to natural law theorists of the seventeenth-century such as Hugo Grotius and forward to fin de siècle imperialists such as Theodore Roosevelt. By analogizing the federal government to the British Raj, Reynolds provided a framework for national politicians in the 1880s to employ the supposedly discredited tactics of Reconstruction against the Mormons. Embedded in imperialist analogies, Reynolds and its progeny thus formed a prelude to the constitutional battles over American imperialism in the wake of the Spanish-American War. These constitutional debates reached their dénouement in The Insular Cases, where Reynolds and its progeny appeared not as Free Exercise cases but as precedents on the scope of American imperial power. This Article thus remaps key events in late nineteenth-century constitutional history, showing how the birth of Free Exercise jurisprudence in Reynolds must be understood as part of America’s engagement with Great Power imperialism and the ideologies that sustained it.

Keywords: legal history, polygamy, constitutional law, free exercise, first amendment, race, imperialism, Insular Cases, Reynolds v. United States, Reconstruction, Mormons, Latter-day Saints, law and religion, natural law, progress

Accepted Paper Series
Date posted: February 28, 2010
Suggested Citation
Oman, Nathan B., Natural Law and the Rhetoric of Empire: Reynolds v. United States, Polygamy, and Imperialism (February 26, 2010). William & Mary Law School Research Paper No. 09-43. Available at SSRN: http://ssrn.com/abstract=1560015

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Race Treason: The Untold Story of America's Ban on Polygamy
Martha M. Ertman, University of Maryland School of Law
Abstract
Legal doctrines banning polygamy grew out of nineteenth century Americans’ view that Mormons betrayed the nation by engaging in conduct associated with people of color. This article reveals the racial underpinnings of polygamy law by examining cartoons and other antipolygamy rhetoric of the time to demonstrate Sir Henry Maine’s famous observation that the move in progressive societies is “from status to contract.” It frames antipolygamists’ contentions as a visceral defense of racial and sexual status in the face of encroaching contractual thinking. Polygamy, they reasoned, was “natural” for people of color but so “unnatural” for whites as to produce a new, degenerate race, licentious and submissive to despotism. The article suggests that the tension between status and contract, together with anthropologist Edward Said’s concept of Orientalism, bridge the seemingly separate issues of Mormon polygamy and racial inferiority. In particular, Orientalism explains how the nation deprived overwhelmingly white Mormons of citizenship rights such as voting on grounds of racial inferiority. It concludes by paralleling the status-based, white supremacist rejection of polygamy and today’s arguments against same-sex marriage.

Suggested Citation
19 Columbia Journal of Gender and Law 287 (2010).

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The Story of Reynolds v. United States: Federal "Hell Hounds" Punishing Mormon Treason
Martha M. Ertman, University of Maryland School of Law
Article comments
With permission of Thomson Reuters/West.

Abstract
Part of the “Law Stories” series published by Foundation Press, this chapter in Family Law Stories tells the back story of the 1878 US Supreme Court case Reynolds v. U.S.. While the case held that Mormon polygamy was not protected as the free exercise of religion, this chapter shifts our focus away from sex and religion and toward the Court’s language linking Mormon polygamy with “Asiatic and African” peoples as well as political despotism. This close examination of the historical record shows that 19th century concerns about Mormon separatism – commercial, social and political separatism as well was religious – were as important, or even more so, than plural marriage itself. To make its case that antipolygamists of the day viewed Mormon polygamy as both politically and culturally treasonous, the chapter describes George Reynolds’ career, marriages, and imprisonment, including how his life-long devotion to the Mormon Church led to him to be the defendant in this test case. In conclusion, this chapter suggests that Reynolds reliance on political claims of treason (as well as white supremacist views of Mormon polygamy as race treason) may limit the precedential value of the case. In particular, if Reynolds is really about Mormon’s treasonous establishment of a separatist theocracy, it has little applicability to current discussions of same sex marriage since same sex marriage is an assimilationist project.

Suggested Citation
The Story of Reynolds: Federal "Hell Hounds" Punishing Mormon Treason, in Family Law Stories 51 (Carol Sanger ed., 2007)