January 6, 1879 (a Monday)

Scales of Justice

On this date, the U.S. Supreme Court ruled in Reynolds v. U.S. (98 U.S. 145) that the First Amendment did not protect polygamy, and based its decision on historic American cultural values:

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.… 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.

Turn of the century photograph of Joseph F. Smith, his wives, and his children.

The Supreme Court’s decision rocked the Mormons, who initially vowed to defy the Court but later seemed to accept the inevitable. In 1890, Mormon leader Wilford Woodruff issued a document called the Manifesto, which terminated “any marriages forbidden by the law of the land.” After 1890, most Mormons abandoned polygamy.

The Reynolds case is still the leading Supreme Court decision that the First Amendment does not protect polygamy. In 1984, a U.S. District Court considered the case of Utah policeman Royston Potter, who was fired for bigamy. District Court Judge Sherman Christensen rejected Potter’s First Amendment defense, and the U.S. 10th Circuit Court of Appeals upheld Christensen’s ruling. In October of 1985 the Supreme Court refused to hear Potter’s appeal. By refusing to consider cases like Potter’s, the Supreme Court has effectively decided to keep Reynolds as the law of the land.

Reynolds is also notable as being one of only two cases (the other was Everson v. Board of Education in 1947) in which the Supreme Court cited Thomas Jefferson’s so-called Danbury letter as “an authoritative declaration of the scope of the [First] Amendment” and agreed that the intention of the First Amendment was “to erect ‘a wall of separation between church and state.'” The Court ruled that the First Amendment absolutely protected religious belief but not necessarily religious conduct. If this were not the case, the court reasoned, human sacrifice for example would have to be allowed where religion required it. Thus, the precedent was clearly established that government could control some types of religious conduct.

However, many legal scholars have criticized the Supreme Court for not modifying or overturning Reynolds. It has been over 100 years since 1879, and in many subsequent cases the Supreme Court has greatly expanded the First Amendment’s legal protection for free exercise of religion. Further, in the 1960s and early 1970s the Supreme Court increased the Constitution’s protection for the civil rights of women, minorities, and other persons whose equality under the law had never been a part of the old common law cited in Reynolds. Logically, therefore, one could expect the Supreme Court to reconsider its position on the constitutionality of polygamy. To date, however, the Supreme Court has not reversed its decision.

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