Sunday, July 12, 2020


Render unto Caesar the things that are Caesar's, and unto God the things that are God’s.[1]

Congress shall make no law . . . prohibiting the free exercise [of religion. . . .

Reynolds v. United States involved polygamy in the then-territory of Utah. 

The Mormon Church — officially the Church of Jesus Christ of Latter-day Saints — was founded in the United States of America in 1830, and many of its adherents settled in the then-territory of Utah.

Congress had enacted a statute criminalizing polygamy. That meant the Free Exercise Clause of the First Amendment of the federal Constitution was involved, not “due process” of the Fourteenth Amendment, because there was no state involvement. 

The federal felony statute provided that “Every person having a husband or wife living who marries another whether married or single in the territory or other place over which the federal government has jurisdiction is guilty of bigamy and shall be punished by a fine of not more than $500 and by imprisonment for a term of not more than five years.”[3]

Set squarely against this federal anti-bigamy statute was the scriptural duty of male Mormons to practice polygamy. Even the Supreme Court unanimous decision/opinion in Reynolds would acknowledge that

this duty was enjoined, required by different books which Mormons believe to be of divine origin, that the members of the church believe that the practice of polygamy was directly enjoined upon the male members thereof by the Almighty God, that the failing or refusing to practice polygamy by such male members would be punished and that the penalty would be damnation in the life to come.[4]
It is easy for non-Mormons and non-believers to scoff at that religious requirement, but it was real to Mormons and impaled them on the horns of a dilemma: renounce and be damned, or render unto God and go to prison.

If a Mormon rendered unto Caesar that which was Caesar’s by obeying the federal law, he affronted God and thus believed himself damned. But if he rendered unto God that which was God’s and thus broke the law by practicing polygamy, Caesar was going to throw him into prison for five years and fine him $500. Then, once Reynolds did the five years, was released, and continued to practice polygamy as his God demanded, he would probably go back to prison. A cruel, repetitive, seemingly unconstitutional choice. 

God won the first round. In accordance with the rituals and dictates of the Mormon religion, Reynolds took a second bride while married to his first wife.

Caesar was not amused. 

The federal government indicted Reynolds for violation of the anti-bigamy statute. 

Predictably, and naively, he defended on the ground that the First Amendment guaranteed him the right freely to exercise his religion. 

He was convicted in the territorial court, sentenced to prison, and eventually the case reached the Supreme Court of the United States.

The Supreme Court affirmed Reynolds’s conviction. That was bad enough. But the reasons given by the Court were worse.

Chief Justice Waite, writing for the unanimous Court, invoked English history. England, a country with its own national church, had never enjoyed a “free exercise” religious guarantee, nor even a written constitution. 

Moreover, Reynolds was an American citizen, accused of violating American law, being judged by American courts, defending himself with the Free Exercise Clause of the First Amendment to the Constitution of the United States of America.

The Court even resorted to nose-counting with a clear racist implication, to buttress its conclusion that

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. 

Translation: “Our civilized tribe here in the good-old of USA doesn’t engage in such uncivilized practices.” 

The nations of northern and western Europe before and at that time had hardly been paragons of religious toleration, nor had they possessed political and legal systems that protected individual rights and fostered limited government.[5] Ask, for example, the Catholics in England.

Moreover, it was the height of intellectual condescension for the Court to distain out-of-hand a practice accepted by many religions. For example, the highly respected Roman law recognized concubinage, a practice akin to polygamy. Throughout history, there have been accepted relationships between married men and their mistresses, and men and women who maintain simultaneous romantic and/or sexual relationships.

Well, if the Supreme Court’s conclusion could not legitimately rest on English history, on abhorrence of savage practices, and the many years of accepted multiple relationships, what was it based on? 

The altruist-collectivist-statist meter will tell us. 

The Court’s unanimous opinion observed that Congress was “free to reach [i.e., to criminalize] actions which were in violation of social duties” and “there has never been a time in any State of the Union when polygamy has not been an offense against society. . . .”  (My italics.)

Since there is no such thing as “society,” just lots of other people who weren’t Mormon Reynolds, the Court was saying that his, and the rest of the Mormons’, religious duty would be sacrificed to the societal tribe’s moral standards, backed by the coercive power of the federal government.

An “offense” against whom? Against the morally puritanical Americans whose moral prejudices had caused Congress to enact the anti-polygamy law in the first place, the president to approve it, the prosecutors to enforce it, the jurors to apply it, and the various courts to uphold its constitutionality?

“Society — the lots-of-other-people-but-not-the-Mormons — opposed polygamy, so society’s values prevailed. No matter the cost to Mr. Reynolds personally, and all Mormons generally.

Yet there was another argument that Reynolds could and should have made but did not. Apart from his religious duty, Reynolds like all Americans was a free American who should have been able to engage in any constitutionally-protected conduct until his actions violated another’s properly understood rights.

Reynolds’s polygamous relationships did not violate anyone else’s rights, yet his were violated by other Americans—by “society.”

Once the door of sacrificing of individuals to the collective is opened even slightly, effectuated by statist laws such as the one that sent Reynolds to prison, it is a slippery slope into the abyss. 


[1] According to Wikipedia, this is the beginning of a phrase attributed to Jesus in the synoptic gospels, which reads in full, “Render unto Caesar the things that are Caesar's, and unto God the things that are God’s. [Matthew 22:21]

[2] First Amendment, Constitution of the United States of America.

[3] Presumably, the statute would apply not only to any male (Mormon or not) marrying more than one female, and vice versa. 

[4] To whatever extent the Mormon religion requires or countenances male practitioners marrying, or outside of marriage having sexual relations with, underage girls, that conduct should be condemned as immoral and prosecuted as a serious crime. Statutory rape is statutory rape, no matter if its motive is religious. Whatever sympathy one might have for Mormon religious practices should be reserved for consenting adults exercising a religious duty imposed under threat of eternal damnation, a duty one would think was protected by the express language of the First Amendment’s “free exercise” Clause.

[5] See, for example, the Spanish Inquisition.

1 comment:

Tim Kern said...

Several bad ideas are in play here.
One is that the State can regulate what is solely a religious institution, i.e., marriage. Once the State bestowed certain special rights upon those who got married under State statutes, the State then assumed governance over all other aspects of marriage, even usurping the authority to define "marriage" from the clergy.
The second bad idea is that, as is pointed out in the essay, there is no such thing as "society." "Society" is merely the result of individuals' actions and preferences into the creation of a body of fashions accepted by a (usually -- but not necessarily -- large majority of) the members of a given group. Thus, individuals trump "society," not the other way around.