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The Mormon Question
by Prof. Sarah Barringer Gordon
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Reynolds was the first Supreme Court case to apply a provision of the First Amendment and determine its meaning in law. Previous cases had dismissed the contention that the protections of the original amendments to the Constitution provided federal protection for citizens against the power of the states. The Bill of Rights was addressed explicitly to Congress, held the Supreme Court, and it meant what it said. Any other interpretation would undermine the sovereignty of the states. And yet in Reynolds the Supreme Court decided that the establishment and free exercise clauses would not protect local difference in domestic relations. The Court upheld the criminal punishment of participants in a marital system that was perceived by the majority of the nation as a fundamental violation of humanitarian precepts, a sexual analogue to slavery. The fact that the Court decided the case on First Amendment grounds indicates that at the end of the 1870s, Chief Justice Morrison Remick Waite and his brethren were beginning to think of the amendments to the Constitution as entailing a positive vision of the moral limits on the American federal system. This was a sea change in federalism, even applied against a territory, but one that was cloaked in a layer of familiarity. The states provided the template for this new constitutional law of federalism, blending respect for the (past) local development of law with a (present and future) national rendering and harmonization of local tradition.6

The court’s opinion in Reynolds drew heavily on the jurisprudential lessons of the states, relying on state precedent to explain and delineate the meaning of the religion clauses of the federal Constitution. State courts had long wrestled with questions of religious liberty, marriage and political legitimacy. State constitutional jurisprudence provided the pattern for federal constitutional analysis. If the federal Supreme Court respected and even replicated the jurisprudence of the justices of state supreme courts, especially against as unpopular a system as that of the Mormons in Utah, then its constitutional analysis would not be susceptible to charges of radicalism or abandonment of first principles.

The lawyers’ arguments in the case framed the central questions: would the Court validate the traditional theories of the limitations of federal power to change (or even to investigate) the decisions of majorities in areas of law traditionally reserved for local populations? Mormon leaders and their counsel relied primarily on the lessons of majority power over local government that had been painfully and violently inflicted on the faithful before the exodus to Utah. The government, on the other hand, focused directly on polygamy. Attorney General Charles Devens stressed the individual and social inequities he claimed were inherent in a form of marriage that sacrificed the sensibilities of women at the behest of priests.

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