Marriage and the Supreme Court, 1879

There’s been a lot of buzz in the past couple of days about the oral arguments delivered before the Supreme Court on Proposition 8 and DOMA–a lot of hype about how “historic” these cases are (although that will depend a lot on the outcome).

Speaking of historic Supreme Court cases involving unconventional marriages, let’s look back at the very first case in history when the Supreme Court had to rule on the meaning of the First Amendment’s guarantee of “free exercise” of religion. The case was Reynolds v. United States; the decision was issued in 1879. Reynolds was a Mormon polygamist who offered himself as a test case; the Mormons wanted the Supreme Court to rule that the federal anti-bigamy law being using to prosecute Mormon polygamists in the Utah territory was unconstitutional. The Mormons had what they thought was a clear argument in their favor: The First Amendment says that “Congress shall make no law . . . prohibiting the free exercise” of religion. Congress had made an anti-bigamy law that prohibited Mormons from contracting plural marriages, as Mormons believed God had enjoined them to do; ergo, Congress had made a law prohibiting Mormons from freely exercising their religion, something clearly forbidden by the Constitution.

Much to the Mormons’ disappointment (and outrage), the Supreme Court did not rule in their favor. The Court’s decision basically involves two logical steps (though they didn’t lay out the steps as explicitly as I’m about to).

1. As a matter of general principle, Court had to decide what the “free exercise” clause actually entails. What does it promise? The Court argued that the clause can’t be understood as guaranteeing religious groups exemptions from laws, because that would mean (the Court is surprisingly, to my eyes, frank about this) undermining the state’s authority over religions: “Can a man excuse his practices [contrary to the law] because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land…” The Court also raises the specter of anarchy: If we guarantee free religious exercise absolutely, then anyone could claim to have religious beliefs that entitle them to exemption from a law they don’t like–“thus, in effect, to permit every citizen to become a law unto himself.”

So what does it mean, then, when the Constitution says Congress can’t make laws prohibiting the free exercise of religion? In Reynolds, the Court had to decide that for the first time, and what they decided was this: “Free exercise” means you are free to believe whatever you want, but you may not be free to actually put that belief into practice. To me, that seems like saying you’re not free to exercise the belief, but obviously the Court didn’t phrase it that way. What they said was: “Laws are made for the government of actions, and while they cannot interfere with mere [sic!] religious belief and opinions, they may with practices.” As examples of practices that would clearly not be tolerable, even under cover of free exercise, the Court cited human sacrifice and sati (the Hindu practice of widows being burned on their husbands’ funeral pyres).

2. Having laid out the general principle that the state can proscribe certain religious practices, the Court made a case for why the state was justified in proscribing polygamy specifically. They basically had two arguments:

  • Polygamy has always been “odious” to northern and western Europeans and is almost exclusively practiced by “Asiatic” and “African people.” In other words, it’s not what civilized white people do.
  • The Court quotes from… I guess we’d call him a social scientist of the time, who argued that polygamous societies are characterized by “stationary despotism, while that principle cannot long exist in connection with monogamy.” In other words, polygamy is correlated with despotism; monogamy is correlated with freedom and democracy. Implication: If America is to remain a free, democratic country, it needs to remain a monogamous one.

I discussed this landmark decision a couple weeks ago with my intro class on American religious history. As in past iterations of the course, I found that students were overwhelmingly sympathetic to the general principle that beliefs are guaranteed protection but practices aren’t. (I’m always hoping that some semester, a student will say, “Wait a minute, if that’s all freedom of religion means, it doesn’t mean much,” and push for a legal standard approaching strict scrutiny. Someday.) I also found, though, as in past semesters, that most students break with the Court in that they’re willing to extend “free exercise” protection to polygamy; and even those students who aren’t, don’t follow the Court’s reasoning (i.e., “polygamy is uncivilized,” and “polygamy destroys democracy”). The students who oppose polygamy generally do so because they’re worried about the status of women (a concern that may owe less to second-wave feminism than you might think; it was a leading concern of19th-century anti-polygamy reformers, too). One semester I had a student who said he wouldn’t want polygamy to be constitutionally protected because the Bible prohibits it; that answer didn’t go over well with a lot of other students.

Which, I guess, brings us back full circle to the same-sex marriage debate.

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