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The Mormon Question
by Prof. Sarah Barringer Gordon
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Renowned for his sonorous voice, striking looks and fierce patriotism, Devens had long been a popular speaker. His capacity for touching the emotions of an audience served him well in Reynolds, as he sidestepped the dry abstractions and jurisdictional arguments of his opponent. According to press reports of the oral argument, Devens focused on the potentially gory consequences of allowing polygamists to escape criminal punishment. Should George Reynolds go free, Devens argued, the territories would soon be home to all manner of religious atrocities. “Hindu widows [would] hurl themselves on the funeral pyres of their husbands, East Islanders ... expose their newborn babes, Thugs ... commit gruesome murders,” all in the “name of religion.” He closed with a “moving reference to the Mountain Meadows massacre,” homing in on the blood that Mormons reputedly had spilled already.15

The murder in 1857 of some 125 members of a wagon train in Mountain Meadows by a group of Mormons and Indians was, by 1878 when Devens argued the Reynolds case, an old and well-worn story. Its currency, however, had been revived by the trial in Utah of ringleader Mormon Bishop John D. Lee, who was not captured until 1873. Lee’s trial for murder and its associated publicity rekindled tales of “Avenging Angels,” “blood atonement,” and other real and imagined offenses associated with the virulent and isolationist rhetoric of the Mormon Reformation in the 1850s. Many non-Mormons believed that Lee had long been shielded by Brigham Young, who they charged had ordered (or at least countenanced) the slaughter. Young turned him over to federal officials, antipolygamists maintained, when the scandal of the massacre showed such persistence that the continued lack of any official punishment was more costly than the loss of one of the faithful. Whatever the merits of such a theory, stories of murderous bands of Mormon zealots extracting revenge for transgressions made good copy, and added spice to the claim that behind polygamy lurked bloodshed. Human sacrifice, Devens claimed, was the logical consequence of the sacrifice of humanitarianism at the behest of local religious majorities in the territories.16

These were familiar themes to antipolygamists. But their deployment in court changed the tenor of the claims. Depicting the galloping wrongs that would follow on the mistaken extension of rights is a classic form of legal argument. Lawyers for the federal and state governments had, by 1879, frequently made such arguments at the Supreme Court as they wrestled over the meaning of the Fourteenth Amendment. The lesson that lawyers and judges had taken from the results of such arguments in cases involving individual rights against state and local majorities, was that for most purposes the power of the federal government remained inaccessible to individual citizens. The Fourteenth Amendment, for example, did not extend to the protection of small butchers against a city ordinance that established a local monopoly over the slaughter of animals. Nor did the amendment apply to a woman who wanted to practice law despite the state’s limitation of legal practice to men, or immunize from criminal prosecution a woman suffragist who had voted knowing that local law restricted the franchise to men. Arguments against the extension of rights in such a climate were both predictable and intimately tied to the recent jurisprudence of the Court.17

 
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