GEORGE REYNOLDS believed firmly in his Mormon faith at a time when it was anathema to many Americans. Born in London in 1842, he converted to Mormonism at the age of fourteen, and devoted the rest of his life to his new church. He emigrated to the United States in 1865, and then trekked overland to the Utah Territory, where Mormons had migrated in the hope of establishing a new Zion. Reynolds became the first Mormon successfully prosecuted for the practice of polygamy, in a case that wound up in the U.S. Supreme Court. The doctrine enunciated in Reynolds v. United States (1879), separating beliefs from actions, still informs the jurisprudence of the First Amendment’s free exercise clause.
The Mormons comprise the most populous branch of the Church of Jesus Christ of Latter-Day Saints (LDS). The movement traces back to Joseph Smith Jr., who founded the group in New York in the 1820s, and began winning its first converts as Smith translated the revelation he had received into the Book of Mormon. The sacred text of the religion is a chronicle of the early indigenous peoples of the Americas, picturing them as believing Israelites and calling for their restoration to the Christian faith. Smith claimed that he translated over five hundred pages in sixty days, and that it was an ancient record vouchsafed to him “by the gift and power of God.”
Smith had his first vision in the spring of 1820 as an answer to his question of which faith he should join. He saw God the Father and Jesus Christ as two separate entities, a major departure from orthodox Christian doctrine, which sees Father and Son as two aspects of the same deity. Although vilified by most Christian groups at the time, Smith viewed Mormonism as the rebirth of an early and unperverted Christianity, with authority residing in the Mormon prophets chosen by God. The various doctrines pursued by the Roman Catholic Church, the Eastern Orthodox Church, the Anglican Communion, and Trinitarian Protestantism were all abominations in the sight of God, and had in fact been foretold as such in the second book of Thessalonians. Mormons then and now believe in both the Old and New Testaments, although they consider the modern translations to be full of inaccuracies that were corrected by the Book of Mormon.
The disdain with which Mormonism viewed mainstream Christian faiths accounted for some of the hostility against it, as did its belief in a theocratic form of government—that is, rule of the government and society by Church leaders according to Church doctrine. Building the Kingdom of God on Earth—a truly righteous society governed by holy men—would pave the way for the second coming of Jesus and the onset of the Millennium. But the aspect of Mormonism that drew the most ire was plural marriage, or polygamy.
Joseph Smith claimed that he was told in a revelation that some Mormon men would take more than one wife. Marriages celebrated in the proper manner endured not only during the lives of the husband and wife, but throughout eternity. Only those married according to the new revelation would be exalted and reach the highest levels of salvation. According to the law of Abraham, men who were called upon by faith and church were justified in marrying more than one woman. Refusal to enter into such marriages could result in destruction and damnation. Diaries and other records from this period indicate early believers often had unhappy experiences as they tried to accommodate to the demands of the faith, since plural marriage represented such a radical departure from the monogamous family structure they had known as children. “Living the Principle,” as Mormons called the demands of polygamy, often tore families apart and led to apostasy, especially in the early years of the practice. Yet as historians and Church leaders noted, despite the difficulties, plural marriage helped knit together people of diverse backgrounds into a community of faith.
Although Mormon leaders believed that the American tradition of religious pluralism would lead to toleration of their faith, this proved not to be the case. As members of the sect began to practice polygamy, they found increasingly high barriers to public tolerance, much less acceptance. Smith’s followers were first driven from New York to Ohio, and then settled in Nauvoo, Illinois, in 1839. There Smith and his chief lieutenants, Brigham Young and Heber Kimball, took plural wives, leading the state of Illinois to make polygamy illegal. On June 27, 1844, a mob killed Smith and his brother. Led by Brigham Young, the Mormons trekked westward to the Utah Territory, where they established Deseret, a Mormon kingdom in the middle of the desert.
Initially it seemed that the Mormons had finally found a place where they could live in peace, and under Young’s leadership they enjoyed good relations with the neighboring Indian tribes. Although the federal government did not approve of Mormon theology or practices, the distance from Utah to Washington, and the seeming isolation of the Mormon community from mainstream society, led the federal government to leave Young and his followers alone. But after the Civil War the transcontinental railroad tied East and West together; in fact, the ceremonial “golden spike” driven by Leland Stanford connecting the Central Pacific and Union Pacific Railroads took place at Promontory Summit in the Utah Territory.
Even before the two roads linked up, the government in Washington, under pressure from mainstream Christian groups, began a forty-year campaign to eradicate Mormon distinctiveness. Although the population of Utah soon reached the minimum required for statehood, Congress refused to admit Utah to the Union until the Mormons abandoned polygamy, which was illegal everywhere else in the United States and its territories.
Between 1862 and 1877, Congress enacted four major pieces of legislation aimed at the Mormons. Antislavery activist and representative Justin Morrill of Vermont, best known as the father of the land grant public universities, sponsored the Morrill Anti-Polygamy Act of 1862. The statute made polygamy a crime in any U.S. territory, punishable by fines of up to $500 and imprisonment for as many as five years. The act also revoked the charter given by the Utah territorial legislature incorporating the Church of Jesus Christ of Latter-Day Saints, and annulled all acts of that legislature that supported or protected polygamy in any way.
While seemingly very stringent, in fact the Morrill Act was all noise, passed to quiet some constituents who saw Mormonism as an affront to all (proper) God-fearing people. In the middle of the Civil War the Lincoln administration had more important matters at hand than the behavior of a small sect out in the desert, and the federal government turned a blind eye to Mormon practices. Members of the LDS were for the most part sober, hardworking people industriously making a desert bloom. So long as no one made a big deal out of their practices, the government saw no reason to intervene in the territorial government’s running of daily affairs.
All remained quiet until the summer of 1873, when one of Brigham Young’s wives renounced her faith in Mormonism and sued him for divorce. Ann Eliza Young then embarked on one of the most successful lecture tours of the nineteenth century. She told audiences that the harmony of polygamous households—so touted by Mormons in defense of the practice—was only superficial, and hid the facts of systematic torture of women, jealousy, violence, and deception.
The uproar that followed her lectures, as well as the prior lack of action by the federal government against what many non-Mormons saw as the sexual enslavement of women in the Utah Territory, prompted Congress to pass the Poland Act in 1874. The law breathed new life into antipolygamy laws already on the books, and provided for appeal of convictions to the U.S. Supreme Court. It is at this point in our story that George Reynolds walks onstage.
Before he left England, Reynolds had served the Church as a missionary in London, then as an emigration clerk in Liverpool, assisting other Mormons to arrange for travel to the United States. He had a talent for writing, and also worked on various Church newspapers and publications. Reynolds arrived in Utah near the end of the Civil War, and joined a society governed almost entirely by its religious principles, which included proselytizing and polygamy. He embraced the demands of the faith, and vowed his obedience to the authority of the New Dispensation, which Mormons viewed as the communications God had made to Joseph Smith.
Church leaders quickly recognized his abilities, and Reynolds served as private secretary to a succession of Mormon Church presidents. He married Mary Ann Tuddenham and soon settled into life in Salt Lake City. In addition to his duties in the office of the Church presidency, Reynolds taught in his local Sunday school and helped edit the daily Deseret News. He had a facility with devotional essays, and often wrote on the duty of obedience that belonged to every saint, which is what the LDS Church called its adherents. In one of his early essays he told his fellow saints that if they asked for advice from priests, they had to obey that advice or risk divine punishment.
In 1871 the Church sent him back to England as a missionary, and while there he edited a Church newspaper in Liverpool. He also met Amelia Jane Schofield. After he returned to Salt Lake City in 1874, he wrote to her proposing that she become his second wife. She agreed, emigrated to Utah, and married him. The peaceful life in Deseret that he had described to her, however, was about to end.
Ann Young’s lectures and the resulting Poland Act led federal prosecutors to begin harassing Mormon leaders. George Q. Cannon, Utah’s territorial delegate to Congress and the LDS Church’s most articulate spokesman in the Capitol, found himself under arrest in Utah on charges of polygamy shortly before he was due to depart for Washington in October 1874. The Poland Act allowed appeal to the Supreme Court, and Mormon leaders believed that since they lived in a federal territory, the First Amendment protected their religious practices. A decision was reached to have a test case, although one without a prominent Mormon leader in the suit. The Church valued Cannon’s role in representing Utah in national politics, and wanted to protect him. A younger, less-known defendant might diffuse some of the political animus that a trial might generate.
A few days later, as George Reynolds and his second wife were strolling in Temple Square, they met Cannon, who informed them that Reynolds had been selected to be the model Mormon polygamist in the test case. Supposedly, an arrangement had been made with the local U.S. attorney. In his diary for October 16, 1874, Reynolds wrote, “[I]t has been decided to bring a test case of the law . . . before the court . . . and to present my name before the grand jury.” Reynolds then met with the prosecutor and provided the information that resulted in his indictment. It never occurred to him that he should refuse what amounted to an order from Church officials. After his indictment, he entered a plea of not guilty and was released on $2,500 bail.
The decision to use Reynolds for the test case made a great deal of sense. Young (thirty-two years old at the time), handsome, sober, and hardworking, only had two wives, both of them near to him in age. The LDS Church was well aware of the perception held by many non-Mormons that all polygamists were old, grizzled men with a number of very young wives. Reynolds would be an effective antidote to this image, and Church leaders trusted his religious and emotional stamina to withstand the indignities and pressure of a trial. On this point they were right, but the trial itself cost Reynolds dearly—public humiliation and eventual imprisonment. The LDS Church lost as well in its bid to establish a separate and religiously governed society within the United States.
The Mormons—and Reynolds—thought that a deal had been struck with the U.S. attorney, who would prosecute the case in order to get a definitive decision from the Supreme Court on whether or not the Constitution protected plural marriage. To do this all they needed was a verdict—either guilty or not guilty—that could then be appealed; there would be no need for a jail sentence, and Mormons believed that this arrangement had been what they and the prosecutor had agreed to. However, even before the trial they became convinced that the government had reneged on the agreement. Moreover, it appeared that the U.S. attorney had also scared defense witnesses by threatening them with prosecution.
Reynolds had provided a list of witnesses to the government, but at the trial they all suffered from amnesia, and could not recall whether Reynolds had ever been married, if the LDS Church kept records of marriage, and so on. (Given the Church’s belief in eternal marriage it is inconceivable that it would not keep records.) Then, at the last minute, the prosecutor called Amelia Reynolds, his second and, at the time, very pregnant wife. She had no idea of the strategy adopted by the Mormon elders, and so testified that yes, she was married to Reynolds, and the ceremony had been performed by the previous witness, a man who testified he could not recall any ceremony.
Although the defense conceded that a plural marriage had occurred, Reynolds’s lawyers argued that it did not matter, since the Constitution protected practices mandated by religious beliefs. The judge dismissed this claim, ruling that matters of religious conscience had no place in a criminal trial. The jury deliberated thirty minutes and found Reynolds guilty.
The territorial court threw out the conviction on a technicality, namely that the grand jury that had indicted Reynolds had been improperly impaneled. In his diary Reynolds rejoiced at this “signal triumph” over those who “persecuted the people of God.” The U.S. attorney brought him to trial a second time and again secured a conviction, the judge sentenced him to two years of hard labor and a $500 fine, and this time the territorial court upheld the verdict.
Reynolds now turned to the U.S. Supreme Court, which heard oral arguments over two days in November 1878.
The chief argument of Reynolds’s lawyers was that Congress had no jurisdiction over “domestic relations” in the territories. Any other view would reduce the territories to the status of colonies, and they bolstered this view with language from Chief Justice Roger Taney’s opinion in Dred Scott v. Sandford (1857), the infamous opinion denying Congress control of slavery in the territories. That decision, which many people believe had helped precipitate the Civil War, had been roundly denounced, and the Court was now dominated by Republicans. If the Mormon lawyers hoped to defend polygamy by relying on a notorious decision upholding slavery, they made a very poor tactical decision.
Chief Justice Morrison Waite wrote for a unanimous Court, and rather than deal with how much power Congress had over the territories, he focused on the question of whether or not a defendant in a criminal case should be able to avoid conviction because he claimed to be obeying a higher religious law when he committed the act. Although the Court had never explored the meaning of the free exercise clause of the First Amendment, Waite was undoubtedly correct in making that the key issue. In effect, the Mormons had said all along that they could freely pursue their religious beliefs, including plural marriage, because of the protection of religion provided in the Constitution. Reynolds v. United States, decided on January 4, 1879, is thus the Court’s first explication of what free exercise of religion means.
To answer this question, Waite turned to the writings of Thomas Jefferson, the author of the Virginia Statute for Religious Freedom (1786) and a passionate advocate of the separation of church and state. According to Waite, Jefferson’s Virginia provided the model to follow, since the 1786 statute was the direct forebear of the First Amendment religion clauses. Waite noted that in the three years after Virginia banned state support for the Anglican Church, it also enacted a law that imposed the death penalty for bigamy and polygamy. In 1802 then-president Jefferson, in his famous “Letter to the Danbury Baptists,” declared that the religion clauses had erected a “wall of separation” between church and state, and that while religious “opinions” were absolutely protected, government could reach and punish “actions.”
Developing this argument, Waite declared that the Mormons retained absolute freedom to believe in polygamy, but could be punished if they acted on this belief. This distinction between belief, protected by the Constitution, and action, which opened the believer to the law, was well founded in state law across the country, even though Waite spoke primarily about Virginia. This did not mean that the state could punish any religious-based action. But it could make illegal those practices if, and only if, they transgressed “peace and good order.” Polygamy, the Court declared, was just such a transgression. Quoting from Professor Francis Lieber, a leading nineteenth-century legal scholar, Waite described a political regime that tolerated polygamy as one that would inevitably become mired in stationary despotism, a term that reformers and liberal politicians had long used to describe slavery. Marriage so deeply affected society that civilized nations always regulated it in the interests of social stability and progress. Reynolds’s claim of religious freedom not only flew in the face of progress, it violated “the direct and serious prohibition of polygamy . . . in our law [based] on the precepts of Christianity, and the laws of our social nature, supported by the sense and practice of civilized nations.”
“Congress was deprived of all legislative power over mere opinion,” Waite declared, “but was left free to reach actions which were in violation of social duties or subversive to social order.” He then went on to attack polygamy as “odious among the Northern and Western Nations of Europe” and, until the advent of Mormonism, “almost exclusively a feature of the life of Asiatic and African people.” The late nineteenth century was an age of social Darwinism, when the rights of blacks were under constant assault and a powerful movement was building to ban Chinese immigration. By tying polygamy to Asians and Africans, Waite set the stage to denounce Mormonism as essentially “un-American” and foreign, even though the faith was entirely the product of native-born citizens of Anglo-Saxon origins. He then compared polygamy to human sacrifice and to the Hindu practice of widows throwing themselves on the funeral pyres of their dead husbands.
Having lined up Thomas Jefferson, the law, civilization, and Christianity against Mormon polygamy, the Court had no trouble finding that plural marriage satisfied the standard of an action that violated “good order” and therefore could be punished. Otherwise, Reynolds’s claim of free action, if religiously directed, would undermine the power of law and eventually destroy government itself. The guilty verdict stood, although on May 5, while denying a petition for rehearing, the Court changed the punishment to imprisonment without hard labor.
Non-Mormons applauded the decision. The New York Times, for example, wrote that Mormon arguments for plural marriage as divinely sanctioned were on the same moral ground as claims that “incest, infanticide or murder was a divinely appointed ordinance.” In the story about the case, entitled “A Blow against Polygamy,” the Times expressed pleasure that the “courts have made short work of George Reynolds and his celebrated test case” and struck down this “relic of barbarism.”
In Utah, of course, Mormons had a far different reaction. George Woodruff, later to be the Church president, thundered, “I will not desert my wives and my children and disobey the commandments of God for the sake of accommodating the public clamor of a nation steeped in sin and ripened for the damnation of hell.” Other Mormon leaders condemned the opinion as a product of fanatical anti-Mormonism, and they swore undying resistance. George Cannon, whose arrest in 1874 had precipitated the entire affair, was especially bitter, perhaps because he felt some responsibility for what had happened to George Reynolds. He attacked the opinion and the justices as out of step with history, bigoted, and just plain wrong when it came to the meaning of religious freedom. “Liberty, then, not of mere opinion alone,” he declared, “but religious liberty of practice, is my natural and indefeasible right, and with this neither the legislature nor any branch of the civil power can legitimately interfere.” As for the charge that polygamy violated peace and good order, he said, “Our actions do not injure others. We do not trespass on private right or the public peace.” Just because human sacrifice is wrong, he asked rhetorically, “does it necessarily follow that human propagation [through plural marriage] is wrong?”
Despite the decision and the federal laws, polygamy continued to thrive in Utah. Prosecutions were rare, however, because local juries refused to convict their neighbors of an action that they themselves condoned. As a result, in 1881 President Chester A. Arthur asked Congress to enact new legislation to deal with the problem of “procuring legal evidence sufficient to warrant a conviction [of polygamy] even in the case of the most notorious offenders.” Congress responded with the Edmunds Act of 1882, which imposed civil liabilities on polygamists, depriving both polygamists and their wives of the vote (in Utah women had enjoyed the right to vote since 1870) as well as the ability to hold public office. The law also greatly simplified prosecution of plural marriage. To get around the problems caused by the legal distinction in the Morrill Act between bigamy and polygamy, the Edmunds Act created a new offense, unlawful cohabitation, for which no proof of marriage was required. All the prosecutor had to show was that a man lived in the same household with two or more women who were not his mother or daughters; a marriage license proved of little use, since the law allowed prosecutors to mix cohabitation and polygamy in the same indictment. Prosecutors could also dismiss from the jury pool for cause anyone who was or had been a polygamist, or even one who although a monogamist himself believed it acceptable to have more than one wife. Since Church policy still upheld polygamy, this in effect excluded all believing Mormons from juries hearing polygamy cases.
Still, the Mormons maintained the practice. In 1887, Congress passed its strongest measure yet, the Edmunds-Tucker Act. The law eliminated various evidentiary obligations on the part of prosecutors to prove polygamy, and repealed the common-law proscriptions barring a wife from testifying against her husband in cases involving bigamy, polygamy, or unlawful cohabitation. U.S. marshals could compel witnesses to appear in court, all marriages in the territory had to be licensed and registered, and a Utah law directing that only a spouse could bring a polygamy charge in court was annulled. In addition, and for reasons that are clearly not related to the attack on polygamy, Section 20 completely disenfranchised Utah’s women. Women married to polygamists had lost the suffrage in the 1882 Edmunds Act; now, single as well as monogamous women were disenfranchised as well. Last, the Edmunds-Tucker Act stripped the Utah territorial legislature of much of its power, placed the state’s school system under federal control, and dismantled the LDS Church. The act directed the attorney general to seize all Church real estate in excess of $50,000 in value. Because the Morrill Act had already revoked the charter the territorial legislature had granted to the Church, theoretically it could no longer own any property, and thus faced the potential seizure of all its assets. It can hardly be doubted that had these laws been passed today, all but the provisions outlawing polygamy would have been struck down as unconstitutional. But Congress enacted these measures in the latter nineteenth century, when many middle-class Protestants saw Mormon teachings and practices as a threat to social stability and morality.
The Mormons, of course, fought all of these laws in federal court, but to little effect. Judges in district courts shared the same prejudices as members of Congress and of the Supreme Court. The religious bias as well as the male chauvinism of the high court (which only a few years earlier had upheld an Illinois law prohibiting women from practicing law—see Chapter 9), its unquestioning acceptance of a monogamistic social order, its willful ignorance of women’s interests or desires, and its underlying assumption that the United States was a Protestant Christian nation may strike the modern reader as outrageous, but they fit perfectly into the mental patterns not only of nineteenth-century judges but of the entire population of the country outside of Utah. At the time and even today, polygamy strikes most people as offensive and subversive of the social order.
After deciding Reynolds, the Court also heard cases arising from the Edmunds Act of 1882 prohibiting cohabitation. The statute did not provide definitions of cohabitation, and as one might expect from a Victorian-era document, it shied away from the obvious—namely that a man living with one or more women could be presumed to be having sexual intercourse with them. Angus Cannon had married three women before passage of the law; two of his three wives lived with him in separate quarters in the same house, and the third lived nearby. At his trial, Cannon claimed that after the law had been passed he had told two of his wives and their families that he intended to obey the law and not occupy their beds or have intercourse with them, but he could not afford separate houses for all of them. After having been found guilty of cohabitation, Cannon based his appeal on the grounds that the law had been aimed at sexual relationships, and that because he had declared he would not engage in sex with two of the women, he should have been found not guilty.
The Supreme Court upheld the conviction, having dismissed Cannon’s testimony as unreliable. Moreover—and in this comment one can read not only the Court’s moral compass but that of the country as well—“compacts for sexual non-intercourse, easily made and easily broken, when the prior marriage relations continue to exist . . . [are] not a lawful substitute for the monogamous family which alone the statute tolerates” (United States v. Cannon [1886]).
The Court heard several other cases deriving from the cohabitation act. Zealous prosecutors claimed that each year a man lived with more than one woman in a house constituted a separate offense, and thus Lorenzo Snow was charged with three counts of cohabitation, all with the same women, each offense relating to a different year. By the time Snow’s appeal reached the high court, prosecutors had started charging cohabitation for six-month periods as separate offenses. In one of the few victories won by the Mormons, the Court in In re Snow (1887) found that cohabitation was a “continuous offense, having duration, and not an offense consisting of an isolated act.”
Despite this one case, for the most part the Supreme Court ignored the constant dilution of evidentiary requirements needed for conviction, so that by 1890, even if a man were living with only one of his wives and had absolutely no contact with others who resided apart from him, he could still be found guilty under the cohabitation law. A man could live with only one legal wife, and the presumption seemed to be that the first woman he married occupied that position, no matter the circumstances.
In addition to violations of free exercise of religion, the courts seemed willing to tolerate restrictions of due process and criminal procedure in order to stamp out polygamy. The high court upheld the Edmunds Act exclusion of Mormons as petit as well as grand jurors (Clawson v. United States [1885]). In Murphy v. Ramsey (1884) the Court held that the Utah Commission could disenfranchise practicing polygamists as well as bar them from holding office, and a few years later, in a case from Idaho—a state known for its anti-Mormon sentiments—the Court upheld a constitutional provision barring Mormons from voting. In Davis v. Beason (1890), the Court not only justified the exclusion of practicing polygamists because they were little better than common criminals, but also approved the exclusion of those who believed in polygamy or supported an organization that taught about polygamy. In a little over a decade, hatred of Mormons blinded the Court to the core holding of Reynolds—that belief by itself could not be punished.
In the end the government won its battle against polygamy through economic warfare. The Morrill and Edmunds-Tucker laws made all of the Church’s real and tangible property vulnerable to confiscation. By the 1880s this property amounted to a considerable sum.
Under its original charter, issued by the Assembly of the State of Deseret in 1851, the Church had vast powers, none of which were subject to judicial review. Over the years, in part due to the theocratic nature of Mormon society, the Church became a major economic force in Utah, and as a result of Mormon communal doctrines, it held a major portion of the group’s collective wealth. The seizure of those assets not only would have harmed the Church but would have dealt a devastating blow to the community. In July 1887 the U.S. attorney for Utah went into court seeking an order to dissolve the Church as a corporate entity and to recover all property held by the Church except for real property acquired before 1862 (the date of the Morrill Act) and valued at less than $50,000.
Here the Mormons should have had a sound constitutional defense, for ever since the Dartmouth College case in 1819, the sanctity of corporate charters had been held inviolate. Although the contract clause of the Constitution applied to states, one might have inferred from the Court’s defense of property rights in this era that under the Fifth Amendment’s due process clause, that same prohibition would have held against the federal government. Even if Congress had the right to nullify the charter, the property should have reverted to the Church’s membership and not to the United States.
However, the Court disagreed with each of these contentions in The Late Corporation of the Church of Jesus Christ of Latter-Day Saints v. United States (1890). It held that the property had been donated to the Church to promote public and charitable purposes, but instead the Church had used it to spread polygamy, an evil and illegal activity. By depriving the Church of its property, Congress was doing no more than redirecting the use of the property to its original, charitable purposes. To justify this reasoning, the Court invoked the ancient common-law doctrine of cy pres. Under this doctrine, if a charitable trust could not be fulfilled according to its terms, the state would apply it to those purposes most nearly like that of the original intent. The Mormon Church’s continued adherence to polygamy made it impossible to return the money to its members, since that would only continue its use for illegal purposes. The majority opinion by Justice David Brewer likened polygamy to barbarism and dismissed out of hand LDS claims to religious freedom. Brewer described the plenary powers of Congress to legislate for the territories in truly sweeping terms.
Chief Justice Melville Fuller, joined by Justices Stephen Field and Lucius Q. C. Lamar, dissented. They agreed that Congress could try to erase polygamy through criminal sanctions, but they argued that it had no authority to confiscate the property either of persons or of corporations that might have been guilty of criminal practices. “I regard it of vital consequence,” Fuller wrote, “that absolute power should never be conceded as belonging under our system of government to any one of its departments.”
The Court remanded the case to territorial court for final disposition of property. While the lower court considered the issue, Mormon leaders officially abandoned polygamy in October 1890. Church president Wilford Woodruff issued a manifesto declaring that he was prepared to submit to the laws of the United States and that he strongly urged all members of the Church to do so as well. This action did not, however, move the Utah Supreme Court, which refused to give the assets back and named a trustee to oversee the property for the maintenance of Church structures and the relief of the poor. Eventually Congress, satisfied with its victory, and perhaps influenced by Fuller’s dissent, passed a resolution returning the Church’s personal property in 1894 and its real property two years later.
Congress had won its war against polygamy, and in doing so had seriously crippled the LDS. Aside from the seizure of real and personal property, there had been 1,004 convictions for unlawful cohabitation and 31 for polygamy. Moreover, under Mormon doctrine only men who were morally worthy and financially able to support large families could marry more than one woman. Thus the attack on polygamists was also an attack on Mormon leadership, and it had a devastating effect on the lives of many people. Wives who refused to testify against their husbands often wound up in jail. Many men either went into hiding or obeyed federal law and lived with only one wife, leaving numerous women abandoned and their children fatherless. Federal agents crisscrossed the Utah Territory looking for polygamists, disrupting communities and invading the privacy of homes.
One can see how great the anti-Mormon sentiment was in the latter nineteenth century, and how far the Mormon vision of a theocratic society differed from that of mainstream Protestant America. Yet one wonders whether the Mormon plan would have been acceptable at any time in our history—even today, when pluralism is so much in vogue. There has been a resurgence of polygamy in Utah, a counterpart to the resurgence of conservative religion in other parts of the country. But whereas the Christian Right and Orthodox Judaism are seen as respectable, public opinion still runs strongly against polygamy. Even in a nation as devoted to religious freedom as the United States, the limits to this freedom are apparent.
In the middle of the twentieth century the Court and society in general began to have a greater appreciation of the relationship between religious belief and those activities that flowed directly from that belief, such as the requirement for proselytization or not working on the Sabbath day. In Sherbert v. Verner (1963), the Court ruled that the state had to make a reasonable accommodation to satisfy the religious practices of its citizens. But in Employment Division v. Smith (1990), the Court reaffirmed the belief-action dichotomy in criminal matters in a case involving the religious use of peyote. Although many constitutional scholars condemned Justice Antonin Scalia’s opinion, the case firmly put the basic ruling of Reynolds—a distinction between religious belief and action—back at the heart of free-exercise jurisprudence.
George Reynolds himself wound up spending eighteen months in prison, first in Lincoln, Nebraska, and then in a facility outside Salt Lake City. Like most Mormons, he dismissed the Supreme Court opinion with contempt. In response to a query from a reporter, he answered that “to say the Constitution simply grants freedom of religious opinion but not the exercise of that opinion is twaddle.”
Reynolds suffered in prison from loneliness and physical privation. At the time authorities did not believe that prisoners deserved anything but minimal accommodations, so during the winter they endured icy conditions, and in the summer dust and heat. But he did have many visitors, especially after being transferred to the Utah prison, and these included his family members as well as Church leaders. Authorities allowed him access to books, and he read widely and wrote on religious topics and scripture. During the period of his incarceration Mormon newspapers and periodicals carried some eighty articles that he wrote. He also began what would be his most famous work, a concordance to the Book of Mormon, which he completed just before his death.
Upon his release he returned to his former position as confidential secretary to the Mormon Church president. He continued writing religious articles, including many on Mormon history. However, the federal government found out that he was still living with both of his wives, although federal law invalidated plural marriage. It indicted him again in 1885, this time for the crime of “unlawful cohabitation.” Like other Mormon leaders with more than one wife, Reynolds avoided arrest by resorting to an underground of “safe houses” in Salt Lake City. During this time, he had a “direct revelation” that led him to take a third wife.
In 1890 Reynolds, in his position as secretary to LDS president Wilford Woodruff, participated in preparing the document—known as the “Manifesto”—that officially announced the Church’s accommodation to federal authority. Tensions with the larger non-Mormon society soon eased, and Reynolds devoted himself to his writing, publishing a dictionary of the Book of Mormon that identifies and describes every person and place mentioned in it, and is still widely read today. He became a “general authority” of the Church, a position of great honor that marked him as an elder statesman.
Reynolds maintained his writing schedule and other work until he suffered a stroke on New Year’s Day, 1907. After that his mental and physical health deteriorated, and he died in 1909.
Clawson v. United States, 114 U.S. 477 (1885)
Dartmouth College v. Woodward, 17 U.S. (4 Wheat.) 518 (1819)
Davis v. Beason, 133 U.S. 333 (1890)
Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857)
Employment Division v. Smith, 494 U.S. 872 (1990)
In re Snow, 120 U.S. 274 (1887)
Late Corporation 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 (1884)
Reynolds v. United States, 98 U.S. 145 (1879)
Sherbert v. Verner, 374 U.S. 398 (1963)
United States v. Cannon, 118 U.S. 355 (1886)
Good introductions to the Mormon faith are Klaus J. Hansen, Mormonism and the American Experience (1981), and Leonard Arrington, Brigham Young: American Moses (1985). Bruce Van Orden has written a full and sympathetic biography in Prisoner for Conscience’ Sake: The Life of George Reynolds (1992). The legal and constitutional issues are fully explored by Sarah Barringer Gordon in The Mormon Question: Polygamy and Constitutional Conflict in Nineteenth-Century America (2002), and in Edwin B. Firmage and Richard C. Mangrum, Zion in the Courts: A Legal History of the Church of Jesus Christ of Latter-Day Saints, 1830–1900 (1988). The end of Mormon claims to polygamy is explored in Kathryn Daynes, More Wives Than One: The Transformation of the Mormon Marriage System, 1840–1910 (2001).