The Story of a Forgotten Battle: Reviewing The Mormon Question: Polygamy and Constitutional Conflict in Nineteenth Century America

Law libraries are generally boring places to outsiders (and to many insiders). Row upon row of identically bound books containing the arguments of long dead judges hardly make the blood boil or excite the imagination. Yet, a Latter-day Saint1 venturing into the volumes of United States Supreme Court decisions from the closing decades of the nineteenth century may well be surprised by what she finds. For example, in 1890 the Court suggested that The Church of Jesus Christ of Latter-day Saints ("the Church") was not entitled to constitutional protection because Mormonism was not really a religion.2 In another case, the Court held that states could (and they did) pass laws denying the vote to any who belonged to an organization that taught the doctrine of "celestial marriage."3 Such cases are the dusty remains of the massive legal war waged by the federal government against the Church over the practice of plural marriage. As a Latter-day Saint, I had a visceral, tribal reaction when I first encountered these cases. Notwithstanding the passage of time and the Church's change of practice,4 I felt betrayed by America and the Constitution. IMAGE FORMULA2 The scholarly treatment of the Church's early legal struggles has been disappointing. While Mormon historians have frequently dealt with polygamy and anti-polygamy, they have written comparatively little on these subjects from a legal perspective.5 Law, it seems, has remained a relatively neglected field within Mormon studies, and legal scholars have had little interest in Mormon thought or experience. This is unfortunate because the legal history of the Church is a fascinating story that touches on many of the most fundamental questions in American jurisprudence. In particular, the legal war waged over polygamy was one of the titanic-and largely unstudied-struggles of American legal history. In The Mormon Question, Sarah Barringer Gordon tackles this particular story. Currently on the history and law faculties of the University of Pennsylvania, she specializes in the history of churchstate relations in nineteenth-century America. Although she has published articles related to Mormon history and church-state issues,6 The Mormon Question is her first book. It has three main strengths: It offers a much more nuanced and sympathetic portrayal of the ideology of anti-polygamist activists than one generally finds in Mormon history; it offers insights culled from the vast records of the Utah territorial courts; and it places the Supreme Court's polygamy cases in their legal and historical contexts. Mormon writers have often described nineteenth-century antipolygamists in harsh terms, painting them as hypocrites more interested in scoring cheap political points than the earnest protectors of hearth and home they pretended to be. B.H. Roberts, a very influential Mormon intellectual and historian, summed up this view, writing in 1930 the following: Honorable individual exceptions to this arraignment of the anti"Mormon" "crusaders" are cheerfully and gladly conceded; but they are exceptions. For the rest, the indictment for hypocrisy, sex IMAGE FORMULA5 immorality, indifference to the purity of the home, on the part of the "crusaders," stands. Their concern about the alleged evils of polygamy was mere pretense. The real cause of this anti-"Mormons crusade was a fight for the political control of Utah on the part of the "crusaders."7 Modern Mormon historians may lack Roberts's strident tone, but they often agree in substance with his views.8 Gordon, in contrast, argues that concern with polygamy was actually central to the federal government's legal campaign against the Mormons and formed an important part of the ideology of the GOP politicians who dominated post-Civil War politics. According to Gordon, the roots of the crusade lie in the sentimental anti-polygamy novels of the 1850s and 1860s. …