July 8, 1862: Morrill Anti-Bigamy Act

The Republican party platform of  1856 had the following resolution:

Resolved: That the Constitution confers upon Congress sovereign powers over the Territories of the United States for their government; and that in the exercise of this power, it is both the right and the imperative duty of Congress to prohibit in the Territories those twin relics of barbarism — Polygamy, and Slavery.

After the Republicans took control of Congress in 1860, they acted against both polygamy and slavery.   Sponsored by one of the legislative powerhouses of the day, Senator Justin Smith Morill (R. Vt.), the Morill Anti- bigamy Act sailed through Congress and was signed President Lincoln on July 8, 1862.   Thereafter Lincoln, acting with his usual wisdom, ignored the Act, instructing General Patrick Edward Connor, commander of Federal troops at Fort Douglas, Utah, not to confront the Mormon leadership over the Act or for any other reason.  Lincoln had made clear to Brigham Young that so long as the Mormons in Utah stayed loyal to the Union, he would leave them alone.  Young had no intention for the Latter Day Saints to get involved in the immense blood letting on the side of the Confederacy, so a bargain was struck.  This tacit understanding remained in force as long as Lincoln lived. 

The constitutionality of the Morill Anti-bigamy Act was upheld by the United States Supreme Court in Reynolds v. United States, 98 US 145 (1878).  The Court rejected the assertion of the Defendant that the Act violated the First Amendment:

Mr. Jefferson afterwards, in reply to an address to him by a committee of the Danbury Baptist Association (8 id.113), took occasion to say:

“Believing with you that religion is a matter which lies solely between man and his God; that he owes account to none other for his faith or his worship; that the legislative powers of the government reach actions only, and not opinions — I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should ‘make no law respecting an establishment of religion or prohibiting the free exercise thereof,’ thus building a wall of separation between church and State.  Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore man to all his natural rights, convinced he has no natural right in opposition to his social duties.”

Coming as this does from an acknowledged leader of the advocates of the measure, it may be accepted almost as an authoritative declaration of the scope and effect of the amendment thus secured.  Congress was deprived of all legislative power over mere opinion, but was left free to reach actions which were in violation of social duties or subversive of good order.

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 (2 Kent, Com. 79), and from the earliest history of England, polygamy has been treated as an offence against society. 

I rather suspect that such an Act would have much tougher sledding if it came before the Court today, based on subsequent developments in the case law of the Supreme Court.

The text of the Act:

An Act to punish and prevent the Practice of Polygamy in the Territories of the United States and other Places, and disapproving and annulling certain Acts of the Legislative Assembly of the Territory of Utah.

            Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That every person having a husband or wife living, who shall marry any other person, whether married or single, in a Terrority of the United States, or other place over which the United States have exclusive jurisdiction, shall, except in the cases specified in the proviso to this section, be adjudged guilty of bigamy, and, upon conviction thereof, shall be punished by a fine not exceeding five hundred dollars, and by imprisonment for a term not exceeding five years: Provided, nevertheless, That this section shall not extend to any person by reason of any former marriage whose husband or wife by such marriage shall have been absent for five successive years without being known to such person within that time to be living; nor to any person by reason of any former marriage which shall have been dissolved by the decree of a competent court; nor to any person by reason of any former marriage which shall have been annulled or pronounced void by the sentence or decree of a competent court on the ground of the nullity of the marriage contract.

            Sec. 2. And be it further enacted, That the following ordinance of the provisional government of the State of Deseret, so called, namely: “An ordinance incorporating the Church of Jesus Christ of Latter Day Saints,” passed February eight, in the year eighteen hundred and fifty-one, and adopted, reenacted, and made valid by the governor and legislative assembly of the Territory of Utah by an act passed January nineteen, in the year eighteen hundred and fifty-five, entitled “An act in relation to the compilation and revision of the laws and resolutions in force in Utah Territory, their publication, and distribution,” and all other acts and parts of acts heretofore passed by the said legislative assembly of the Territory of Utah, which establish, support, maintain, shield, or countenance polygamy, be, and the same hereby are, disapproved and annulled: Provided, That this act shall be so limited and construed as not to affect or interfere with the right of property legally acquired under the ordinance heretofore mentioned, nor with the right “to worship God according to the dictates of conscience,” but only to annul all acts and laws which establish, maintain, protect, or countenance the practice of polygamy, evasively called spiritual marriage, however disguised by legal or ecclesiastical solemnities, sacraments, ceremonies, consecrations, or other contrivances.

            Sec. 3.  And be it further enacted, That it shall not be lawful for any corporation or association for religious or charitable purposes to acquire or hold real estate in any Territory of the United States during the existence of the territorial government of greater value than fifty thousand dollars; and all real estate acquired or held by any such corporation or association contrary to the provisions of this act shall be forfeited and escheat to the United States: Provided, That existing vested rights in real estate not be impaired by the provisions of this section.

            APPROVED, July 1, 1862 

3 Comments

  1. A couple of things.

    First, it should be noted that part of Lincoln’s wisdom was realizing that the act was largely unenforceable as written. It would take later and more punitive legislation to bring the Mormons to heel.

    Second, I’m not sure modern courts would be more sympathetic necessarily. The Act-Belief distinction in Reynolds has become one of the cornerstones of First Amendment law. Which is unfortunate. I think a more productive approach is right there in the case, where the Court looked at Western religious practice to point out that polygamy was a definite outlier. That way the First Amendment could protect religious practice with a historical basis in addition to religious belief.

    • I think under Hosanna-Tabor, Adam, the Supreme Court has signaled that it is willing to give religions more freedom from general laws.

      http://www.scotusblog.com/?p=136532

      Then we have the impact of the Religious Freedom Restoration Act of 1993.

      http://en.wikipedia.org/wiki/Religious_Freedom_Restoration_Act

      If such a case were brought today, I would not bet on the court affirming Reynolds.

      • I wouldn’t either, but its because of the post-Reynolds right to privacy as it has developed into a right of sexual self-expression.

        I disagree that Hosanna-Tabor is part of a broader move away from the act-belief distinction.


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