The Judicial Campaign against Polygamy and the Enduring Legal Questions



For lay people the chief virtue of our Constitution is not in its distribution of power or in its guarantees of participation in governmental processes but in the protections it affords individual liberties, not least of which is freedom of conscience. Yet ratification of the Bill of Rights did not fix in stone the content of constitutional guarantees. Instead, it was left to the judiciary to interpret the simple phrases of the first eight amendments in concrete cases, illuminated by evidence of the framers’ intent and changing social values. Perhaps no provision of the Bill of Rights better exemplifies this process of judicial interpretation than the First Amendment’s free exercise clause.

Officially acknowledged as part of LDS church doctrine in 1852, polygamy soon became a national issue. But weak laws, tenuous federal control in Utah Territory, and national distraction with other issues prevented effective enforcement of the antipolygamy laws until the 1880s. Congress’s first attempt to deal with polygamy was the Morrill Act. It was not passed until 1862, ten years after the Church first announced its practice of polygamy, and then went largely unenforced for the next thirteen years. At least four reasons explain why the Mormons were left in relative peace for so long. First, when polygamy became an issue, the nation’s energies were distracted by more pressing problems—the Civil War and Reconstruction. The fight for national survival forced the Mormon problem to wait. Second, the handful of federal officials in Utah during the 1860s did not believe they possessed the means to enforce compliance with the unpopular polygamy act. This attitude was not unfounded. In 1863 the mere rumor that Brigham Young was about to be arrested for polygamy provoked two thousand armed Mormons to assemble at his home to resist the arrest.

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