George Reynolds versus the United States of America

SIGNIFICANCE: The Mormons, who settled Utah, permitted members of their religion to practice polygamy. In Reynolds, the Supreme Court held that federal legislation banning polygamy was constitutional and did not violate the Mormons' First Amendment right to free exercise of their religion. The Reynolds case still remains the leading Supreme Court decision that the First Amendment does not protect polygamy.

After a somewhat checkered history and a long trek westward, in the mid-19th century the followers of a religious prophet named Joseph Smith settled the western lands that became the state of Utah. Their religion was called the Church of Jesus Christ of Latter-Day Saints, but most people called them the Mormons. They held a variety of novel beliefs, ranging from their conviction that Jesus Christ visited the American Indians to a prohibition against caffeine drinks such as coffee and tea. Their most controversial belief, however, was that a man could have more than one wife.

Most of the United States knew about the Mormon practice of polygamy since 1852. Most Americans were traditional Christians and believed in monogamy, or having only one spouse. Until the Mormons arrived, however, there were no federal laws against bigamy (legal term for marrying a second spouse while still married to a first spouse) or polygamy (practice of having several spouses). The government left the Mormons alone for many years, but in 1862 President Abraham Lincoln signed the Morrill Anti-Bigamy Act into law. The Morrill Act outlawed polygamy throughout the United States in general and in Utah in particular. The government did not do much to enforce the law, however, because it was preoccupied with the Civil War.

After the Civil War, Congress regained interest in the question of Mormon polygamy. Congress strengthened the Morrill Act by passing the Poland Law in 1874. The Poland Law increased the powers of the federal judiciary within the territory of Utah. Because federal judges were federally appointed, they were more likely to be non-Mormons and thus more aggressive about enforcing the law.

Mormon leader Brigham Young and George Q. Cannon, territorial delegate to Congress and advisor to Young, decided to challenge the federal government in court. They were confident that if the government tried any Mormons for bigamy, the United States Supreme Court would throw out the convictions, based on the First Amendment right to free exercise of their religion. Therefore, they planned to arrange for a "test case" to be brought to court. Young and Cannon chose Young's personal secretary, a devout Mormon and practicing polygamist, George Reynolds.

Young and Cannon were successful: the government indicted Reynolds for bigamy in October 1874. Reynolds had to be re-tried, however, due to juryselection problems. The government indicted Reynolds again in October 1875. The judge was territorial Supreme Court Chief Justice Alexander White, and the prosecutor was William Carey. George W. Biddle and Ben Sheeks represented Reynolds.

The government charged that Reynolds was currently married to both Mary Ann Tuddenham and Amelia Jane Schofield. The prosecution had little difficulty in proving that Reynolds lived with both women, despite some trouble in serving Schofield with her subpoena. The following dialogue is an excerpt from the prosecution's questioning of Arthur Pratt, a deputy marshal sent to serve a subpoena on Schofield:

Question: State to the court what efforts you have made to serve it.

Answer: I went to the residence of Mr. Reynolds, and a lady was there, his first wife, and she told me that this woman was not there; that that was the only home that she had, but that she hadn't been there for two or three weeks. I went again this morning, and she was not there.

Question: Do you know anything about her home, where she resides?

Answer: I know where I found her before.

Question: Where?

Answer: At the same place.

Following more evidence of Reynolds' two marriages, which the defense had no chance of refuting, Judge White gave instructions to the jury. White's instructions smashed Reynolds' defense that by virtue of the First Amendment he was innocent because of his Mormon religious beliefs:

[If you find that Reynolds] deliberately married a second time, having a first wife living, the want of consciousness of evil intent, the want of understanding on his part that he was committing crime, did not excuse him, but the law inexorably, in such cases, implies criminal intent.…

The jury found Reynolds guilty on December 10, 1875. On July 6, 1876, the territorial Supreme Court affirmed his sentence. Reynolds appealed to the U.S. Supreme Court. On November 14 and 15, 1878, Biddle and Sheeks argued to the Supreme Court that it must overturn Reynolds' conviction on the basis of the First Amendment.

On January 6, 1879, the Supreme Court upheld the trial court's decision. The Supreme Court said that the First Amendment did not protect polygamy, and based its decision on historic American cultural values:

Polygamy has always been odious among the northern and western nations of Europe, and, until the establishment of the Mormon Church, was almost exclusively a feature of the life of Asiatic and of African people. At common law, the second marriage was always void, and from the earliest history of England polygamy has been treated as an offence against society.… In the face of all this evidence, it is impossible to believe that the constitutional guaranty of religious freedom was intended to prohibit legislation in respect to this most important feature of social life. Marriage, while from its very nature a sacred obligation, is nevertheless, in most civilized nations, a civil contract, and usually regulated by law.

Therefore, the Supreme Court upheld Reynolds' sentence of two years imprisonment and a $500 fine. The Supreme Court's decision rocked the Mormons, who initially vowed to defy the Court but later seemed to accept the inevitable. In 1890, Mormon leader Wilford Woodruff issued a document called the Manifesto, which terminated "any marriages forbidden by the law of the land." After 1890, most Mormons abandoned polygamy.

The Reynolds case is still the leading Supreme Court decision that the First Amendment does not protect polygamy. In 1984, a U.S. District Court considered the case of Utah policeman Royston Potter, who was fired for bigamy. District Court Judge Sherman Christensen rejected Potter's First Amendment defense, and the U.S. 10th Circuit Court of Appeals upheld Christensen's ruling. In October of 1985 the Supreme Court refused to hear Potter's appeal. By refusing to consider cases like Potter's, the Supreme Court has effectively decided to keep Reynolds as the law of the land.

Many legal scholars have criticized the Supreme Court for not modifying or overturning Reynolds. It has been over 100 years since 1879, and in many subsequent cases the Supreme Court has greatly expanded the First Amendment's legal protection for free exercise of religion. Further, in the 1960s and early 1970s the Supreme Court increased the Constitution's protection for the civil rights of women, minorities and other persons whose equality under the law had never been a part of the old common law cited in Reynolds. Logically, therefore, one could expect the Supreme Court to reconsider its position on the constitutionality of polygamy. To date, however, the Supreme Court has not reversed its decision.

Suggestions for Further Reading

Cannon, George Quayle. A Review of the Decision of the Supreme Court of the United States, in the Case of Geo. Reynolds vs. the United States. Salt Lake City, Utah: Deseret News Printing, 1879.

Casey, Kathryn. "An American Harem." Ladies Home Journal. (February 1990): 116-121.

Embry, Jessie L. Mormon Polygamous Families: Life in the Principle. Salt Lake City, Utah: University of Utah Press, 1987.

Firmage, Edwin Brown. Zion in the Courts: A Legal History of the Church of Jesus Christ of Latter-day Saints, 1830-1900. Urbana: University of Illinois Press, 1988.

Foster, Lawrence. Religion and Sexuality: The Shakers, the Mormons, and the Oneida Community. Urbana:University of Illinois Press, 1984.

Wagoner, Richard S. Mormon Polygamy: A History. Salt Lake City, Utah: Signature Books, 1989.

(Note: Senator Harry Reid would have made a good 19th century anti-Mormon)

By STEVE TETREAULT
STEPHENS WASHINGTON BUREAU

WASHINGTON -- Sen. Harry Reid on Wednesday introduced a bill in Congress to crack down on polygamous groups, charging that crime is organized and "rampant" within the communities.

Reid's first stop today to promote the bill will be at a hearing that he largely organized with the Senate Judiciary Committee.

The measure calls for formation of a federal task force to combat "the unique set of crimes committed by polygamist organizations."

It also would make available $2 million in federal grants for local authorities to investigate and prosecute crimes linked to polygamy. Another $12 million over five years would be offered to organizations that provide protection and services to family members seeking to escape plural marriages.

Former members of polygamous groups have charged domestic and sexual abuse is common through forced marriages and unions involving underage girls, along with other crimes such as welfare fraud, tax evasion, extortion and kidnapping.

Reid, the Senate majority leader from Nevada, has equated activities of polygamist groups with organized crime and has been pressing for federal racketeering investigations of their activities.

The Senate hearing is expected to focus on the Fundamentalist Church of Jesus Christ of Latter Day Saints, a breakaway Mormon sect whose adherents believe plural marriage is ordained by God. The mainstream Mormon church renounced polygamy in 1904.

FLDS membership is based in communities on the border of Utah and Arizona, while members also live in Nevada and other Western states. Its membership is estimated to be between 6,000 and 10,000.

State and local authorities have pursued criminal allegations against FLDS leaders and members, while Reid has argued a stronger federal hand is necessary.

FLDS leader Warren Jeffs was convicted in Utah last year of two counts of being an accomplice to rape, for his role in arranging a 2002 marriage between a 14-year-old girl and her 19-year-old first cousin.

Jeffs faces similar charges in Arizona and this week was indicted by a grand jury in Texas on sexual assault charges.

"We are taking aim at the blatant and systemic crime that is rampant within these polygamist groups," Reid said in a statement accompanying his bill.

Reid, one of 16 Mormons serving in Congress, did not consult with the church in forming his bill, according to his spokesman Jon Summers.

The Mormon church has not taken a position on the bill, spokeswoman Kim Farah said. In an e-mail, she said "The Church of Jesus Christ of Latter-day Saints has repeatedly expressed concern about the illegal practice of polygamy and persistent reports of the possible emotional and physical abuse of women and children."

Today's hearing is entitled "Crimes Associated with Polygamy: The Need for a Coordinated State and Federal Response."

Chief federal prosecutors from Nevada and Utah are scheduled to testify along with attorneys general from Arizona and Texas. Also listed to testify are former FLDS member Carolyn Jessup, and Stephen Singular, who has written about the FLDS and Jeffs.

The Salt Lake Tribune reported that FLDS spokesman Rod Parker, a Salt Lake City attorney, sent the Senate Judiciary Committee a letter protesting that no members of the group were invited to testify.

"History is replete with examples of misinformation becoming the foundation of persecution and hysteria, leading in turn to real harm to real people," Parker wrote, according to the newspaper.

Asked why there were no FLDS witnesses invited, Summers said the committee did not need to hear from them.

"This is not a trial," Summers said. "This is a hearing about ways to increase enforcement against crimes committed by these groups. Are they going to come in and say this is the best way to bust us?"