“Consistent with prevailing public opinion”: The Feds and Marriage, Utah Style

Last updated on: May 2, 2016 at 11:18 am by Joanne McPortland

“Consistent with prevailing public opinion”: The Feds and Marriage, Utah Style 2016-05-02T11:18:33-06:00 Joanne McPortland

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In sorting the tangled threads of response to today’s Court decisions on marriage and states’ rights, it occurred to me to look at a somewhat related issue from an earlier time in our nation’s history.

In the late 19th century, the federal government was embroiled in another battle over the definition of legal marriage. In the Utah Territory, settled almost entirely by Mormons, plural marriage (a practice accepted and even believed to be divinely ordained by mainstream Mormons at the time) was legal. Here’s how Wikipedia summarizes the resolution of that struggle:

For over 40 years, the church and the United States were at odds over the issue: the church defended the practice as a matter of religious freedom, while the federal government aggressively sought to eradicate it, consistent with prevailing public opinion. Polygamy was probably a significant factor in the Utah War of 1857 and 1858, given the Republican attempts to paint Democratic President James Buchanan as weak in his opposition to both polygamy and slavery. In 1862, the United States Congress passed the Morrill Act, which prohibited plural marriage in the territories (including Utah) and dis-incorporated the church.[3] In spite of the law, Mormons continued to practice polygamy, believing that it was protected by the First Amendment. In 1879, in Reynolds v. United States,[6] the Supreme Court of the United States upheld the Morrill Act, stating: “Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinion, they may with practices.”[3]

In 1890, church president Wilford Woodruff issued a Manifesto that officially terminated the practice of polygamy.[7] Although this Manifesto did not dissolve existing plural marriages, relations with the United States markedly improved after 1890, such that Utah was admitted as a U.S. state.

Interesting and thought-provoking. What got me looking at it was my own curiosity about whether, should Utah revive or any other state enact plural marriage as a legal definition, that decision would now be upheld under Windsor. It seems to me that it would. And it’s possible that the constitutional basis was a concern even back in 1862, when Congress pressured Utah to disallow plural marriage as a condition of statehood.

I’d be interested in hearing from Mormons and legal scholars on this—not because I’m jumping on the slippery-slope bandwagon (“What if states make it legal to marry your iPhone?” “There’d be fewer divorces”), but because I am intrigued by the throwaway line that even back then, the Feds were aggressive in conceding to prevailing public opinion. And the arguments used to uphold the Morrill Act—especially that part about laws not being able “to interfere with mere religious belief and opinion, [but] they may with practice”—are going to be yanked out of mothballs right quick, too, I suspect.

Just quietly musing. And many thanks to My Friend the Hermit for the meme!

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