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The Mormon Question
by Prof. Sarah Barringer Gordon

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The jurisprudential harvest of the polygamy cases supports a more nuanced interpretation of the late-nineteenth-century’s moral philosophy of law. At the Supreme Court, litigation over Mormon polygamy was the vehicle for the development of a jurisprudence that explored and delineated what one scholar has felicitously called “the sharp moral edges [of ] complex legal problems.” Reynolds stands as the first, and the foundation, of the complex legal problems brought to the Supreme Court by the Saints of Utah.23

The new forum in which litigants and decision-makers deployed their legal stratagems was also affected by the logic of resistance. By the time the Court decided the Reynolds case, polygamy had been illegal for more than sixteen years. Yet in all appearances, the Mormon polygamists remained defiant, and impervious to congressional command or public condemnation. They maintained, as they always had, that the federal government had no power to punish a local majority’s domestic relations.

Instead of addressing the Mormons’ jurisdictional claim directly, the Court invoked the religion clauses of the First Amendment, only to reject their applicability to the question of Mormon plural marriage. The issue crept in sideways, not as a direct argument. George Biddle, in his brief and again at oral argument, had stressed the prejudicial effect of the charge to the jury in the second Reynolds trial. First, the judge refused to charge the jury that religious belief vitiated criminal intent, undermining the Mormon contention that latter-day celestial marriage had nothing in common with the venality of garden-variety bigamy in the states. Instead of focusing on the religious nature of plural marriage, the judge charged the jury to consider the “innocent” victims of polygamy (that is, the wives and their children) as they deliberated the fate of George Reynolds. Biddle argued that these procedural decisions had unfairly conveyed to the jurors the message that Reynolds was in fact a criminal. He cited extensive case law to bolster this argument, which was unquestionably one of criminal procedure rather than First Amendment right. Biddle’s constitutional argument, on the other hand, was jurisdictional, based on the powers of Congress over the territories, and far from gritty questions of sexual behavior and religious mandates or even criminal mens rea.24

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