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The Mormon Question
by Prof. Sarah Barringer Gordon
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As Chief Justice Waite reframed the argument, however, the claim that the jury charge was unduly prejudicial was tantamount to admitting that the plural marriage had in fact taken place, and that the religion clauses were used as an excuse. The claim, in other words, was for an exemption from an otherwise valid law. Clearly, this misconstrued Biddle’s central constitutional claim, which relied on a far more powerful and more traditionally focused concept of local sovereignty and corresponding limitations of the powers of central government.

The majority opinion recast the argument as follows: “The inquiry is not as to the power of congress to prescribe criminal laws for the Territories, but as to the guilt of one who knowingly violates a law which has been properly enacted, if he entertains a religious belief that the law is wrong.” This inquiry led the Supreme Court into an elaborate exercise in constitutional historiography. The Reynolds opinion became a study in the meaning of disestablishment and free exercise. Waite began by noting that “the word ‘religion’ is not defined in the Constitution. We must go elsewhere, therefore, to ascertain its meaning, and nowhere more appropriately, we think, than to the history of the times in the midst of which the provision was adopted.”25

So began the judicial designation of state constitutional and statutory provisions as the source of meaning for the federal religion clauses. The irony is that when they were introduced, debated, and ratified, the religion clauses were designed in significant part to protect local decision-making against federal interference. Addressed explicitly to Congress, the religion clauses were a check on federal power rather than a model for local behavior. State practices, which were hardly consistent when the First Amendment was adopted in 1791, were protected by it from federal intervention.26

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