Revisiting Reynolds: Mormon Polygamy, Natural Law, and Whiteness

(cross-posted at the Juvenile Instructor)

Nathan B. Oman, Visiting Professor at Cornell Law School and Associate Professor at William & Mary Law School, posted an article last week at SSRN (available for download here) that reconsiders the context and historical significance of the Reynolds v. United States, the famed 1879 Supreme Court case that ruled that Congress could punish Mormon polygamy and ultimately set the Latter-day Saints on the path to prohibiting plural marriage.

I was lucky enough to read an earlier draft of the article, and because Nate is currently shopping it to law reviews and historians may consequently miss it, I thought I'd post the abstract, along with a few of my own thoughts here:

Abstract:
In 1879, the U.S. Supreme Court construed the Free Exercise Clause for the first time, holding in Reynolds v. United States that Congress could punish Mormon polygamy. Historians have interpreted Reynolds and the massive wave of anti-polygamy legislation and litigation that it midwifed as an extension of Reconstruction into the American West. This Article offers a new historical interpretation, one that places the birth of Free Exercise jurisprudence in Reynolds within an international context of Great Power imperialism and American international expansion at the end of the nineteenth century. It does this by recovering the lost theory of religious freedom that the Mormons offered in Reynolds, a theory grounded in the natural law tradition. It then shows how the Court rejected this theory by using British imperial law to interpret the scope of the first amendment. Unraveling the work done by these international analogies reveals how the legal debates in Reynolds reached back to natural law theorists of the seventeenth-century such as Hugo Grotius and forward to fin de siècle imperialists such as Theodore Roosevelt. By analogizing the federal government to the British Raj, Reynolds provided a framework for national politicians in the 1880s to employ the supposedly discredited tactics of Reconstruction against the Mormons. Embedded in imperialist analogies, Reynolds and its progeny thus formed a prelude to the constitutional battles over American imperialism in the wake of the Spanish-American War. These constitutional debates reached their dénouement in The Insular Cases, where Reynolds and its progeny appeared not as Free Exercise cases but as precedents on the scope of American imperial power. This Article thus remaps key events in late nineteenth-century constitutional history, showing how the birth of Free Exercise jurisprudence in Reynolds must be understood as part of America’s engagement with Great Power imperialism and the ideologies that sustained it.

Nate’s argument is both provocative and convincing. He builds on Sarah Barringer Gordon’s fine research presented in The Mormon Question that situates Reynolds within the context of what immediately proceeded it (abolitionism and Reconstruction) by exploring how the decision handed down in the case “also drew on international narratives, using analogies to British imperial law to interpret the scope of the first amendment” (p. 4). As part of this budding imperialist reasoning, Mormons, along with Catholics, Jews, and Italians, were racialized as something other than white. As Nate notes, though, “The logic of Mormon racial identity, however, was slightly different. According to the standard racial logic, behavior resulted from racial identity. … For Mormons, however, the logic moved in the opposite direction. A new race arose precisely because of the unnatural behaviors of the Latter-day Saints” (p. 22). Nate’s exploration of the legal implications of the racialization of Mormons dovetails nicely with Paul Reeve’s current research that situates the Mormon struggle for acceptance and Utah's quest for statehood as a social and cultural struggle for whiteness (as well as that of Sam Houston State grad student and Juvenile Instructor blogger Ed Jeter). Collectively, these scholars are taking Mormon history in new, exciting, and important directions that should interest legal historians and religious historians alike.

Christian Witnessing

by Chris Beneke

How Christian was the early national U.S.? Providing a credible answer to that question is not as easy as some politicians and journalists would have us believe.

Short of blurting responses that accord with our ideological prejudices, we can cite the founders(the most popular approach), use church membership data, or skimpier but perhaps more revealing church adherence data, consult state and federal constitutional language, examine early national publications, diaries, letters, etc. Unfortunately, there was no Pew Forum on Religion and Public Life on Religion & Public Life in 1790. So to determine who went to church and what believers believed we must rely on often un-reliable observers and scattered records.

Ronald P. Formisano and Stephen Pickering introduce another form of evidence in the summer issue of The Journal of the Early Republic. Their focus is the early national debate over witness competency (i.e. the religious tests that were imposed on potential witnesses in the early republic).

Formisano and Pickering are not the first to look at such laws. But they appear to be doing it more systematically than anyone before them. The authors’ key finding “is that religious tests for ‘witness competency’ remained on state statute books and in judges’ decisions a much longer time” than scholars have generally thought. Formisano and Pickering point out that “[m]any state courts retained religious tests for most of the nineteenth century” (it’s not clear that anyone knows how many and for how long. It appears that a conservative estimate would be: 1) a dozen or more states, and 2) into the early twentieth century). A witness’s success in passing such tests usually hinged on whether she or he believed in “a future state of rewards and punishments.”

Formisano and Pickering identify two primary judicial approaches to witness competency in religious matters. The first emphasized that "a future state" entailed belief in an afterlife of rewards for some and punishments for others, which excluded Universalists who professed that every soul would eventually be saved. A second, more common approach accommodated Universalists by allowing that a belief in rewards and punishments in this life could also be a sufficient qualification. On the whole, the trend was away from strict religious requirements for witness competency and toward their abolition. Nonetheless, these laws changed much more slowly than those that had maintained tax support for Protestant churches. Their persistence gestures towards a fairly robust Christian sensibility in the understanding of early national law and culture. In the end, however, Formisano and Pickering are careful to observe that “[n]either a narrow interpretation of the First Amendment nor … the ‘nonpreferentialist’ advocacy of federal aid to religion follows from the recognition of Christianity being ‘interwoven’ in the common law and influencing other areas of governance and ritual within the states.”