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The Mormon Question
by Prof. Sarah Barringer Gordon
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After the war, according to the government’s argument, all states were once again empowered with full control over the civil rights of their inhabitants, with the explicit exception of the rights protected by the Fourteenth Amendment. And because the Reconstruction amendments were themselves designed to erase slavery and its incidents, the happy blending of antipolygamy and antislavery theory in political and cultural venues spilled over into the government’s strategy at the Supreme Court. If the “overshadowing and efficient cause” of the Civil War was slavery, and the extension of federal power through constitutional amendment after the war was directed explicitly at slavery, as the Supreme Court had said in 1873, then how could the Constitution be validly invoked only six years later to shield slavery’s analogue, polygamy? The very moral meaning of the Constitution was contrary, Devens argued. Equally vital was the fact that state law on the question was uniform. Bigamy was a felony everywhere except Utah at the time of the passage of the Morrill Antipolygamy Act in 1862. This meant that even those states that had been “wrong” on slavery were “right” on polygamy. There was no call, on humanitarian grounds, to interfere with the uniform practice of the states.19

Yet uniformity, as lawyers in the nineteenth century well knew, hardly described the law or the practice of the states with regard to marriage. The mobility of the population after the Civil War undercut the ability of state governments to control the law of marriage and divorce. Migration also raised questions of fundamental interstate relations as peripatetic husbands (and sometimes wives) probed the boundaries of the new federalism. As recent scholarship has shown, illicit (or just extralegal) remarriage without a formal divorce in another jurisdiction was endemic to a culture in which disappearing was as easy as walking away from a failed relationship. And several jurisdictions openly (or implicitly) countenanced divorce for reasons far less grave than adultery or desertion. Polygamy thus marked the outer edge of a legal system riven by jurisdictional difference and transient populations. Preoccupation with rising divorce rates, abandonment, the relationship of marriage to political stability — all could be conveniently channeled into the condemnation of polygamy. By attacking plural marriage in Utah, one could pretend that the legal experience of husbands and wives in the rest of the country was more uniform — more monogamous — than it actually was. 20

The hard-fought lessons of the Civil War, especially that of the dangers of fundamental moral diversity by region, were nowhere so seamlessly applicable as they were to Utah Territory. The aura of polygamy colored the case. The arguments at a Supreme Court tainted with the controversy over Dred Scott and an uncomfortable proslavery past produced the desire to distinguish the present from such barbarism. In this political and jurisprudential atmosphere, polygamy described the limit beyond which a husband, or a state, might not go.

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