IUPUI seminar: Mormonism in American Life pt5

[rameumptom]

Sarah "Sally" Barringer Gordon, Prof of Law and History, UPenn

Kathryn Daynes, Assoc Professor of History, BYU

:

In early days of anti-polygamy actions, the law was rather lenient. If a man stated he would remain with only one wife, he could do so. John Daynes given $150 fine and ordered to remain only with 2nd wife and kids.

Legal changes occurred in the 1880s. Prosecutors sought to stamp out polygamy, while the Saints strove harder to defend it.

Reynolds vs US (1879) – George Reynolds' polygamy conviction upheld. Religions cannot ignore laws of land. Reynolds defended religious freedom, un-American to fight against religious freedom. Prosecutors thought LDS men were tyrants with varying and wandering sexual desires.

Merrill Anti-Bigamy Law (1862) proved to be ineffective, as it was hard to prove anyone was living in plural marriage. Edmunds Act (1882) expanded effectiveness by declaring in the territories that illegal cohabitation was the standard. One could not live with more than one woman.

Marriage laws based upon English tradition, and brought to America with John Winthrop. He stated that people had freedom to choose a spouse, but were obligated once wed.

Cohabitation meant living together in a house, not necessarily meant having sex. Edmunds saw this as working perfectly for Mormon polygamy. Mormons tried to appeal, due to the vagueness of the law and the increased penalties. Supreme Court decided that sex was not necessary to determine a case of cohabitation. Sex in this case was punished under adultery laws.

Early on, Judge Charles Zane offered no jail if defendants agreed to repudiate polygamy and agree to no longer cohabitate. John Sharp agreed to this deal, but the Brethren said it was not acceptable to repudiate God's commands in order to obey the law of the land.

US government hated the expense of trying and jailing old polygamists who were otherwise law abiding, and sought compromise.

Lorenzo Snow was arrested at the age of 71. He was living with his youngest wife, Minnie only, so wasn't cohabiting. However, all his wives met for his birthday party, he gave them all financial support, and visited them. He lost with Chief Judge Zane dissenting from the ruling, because living in the same neighborhood did not constitute cohabiting.

From this came the Rebuttable Presumption argument. A polygamy charge could be overcome if a man could prove he was not cohabiting with more than one wife. It was a brilliant tactical stroke that allowed men to live with the wife with the youngest children (or where needed most), stay married to all his wives, but sign a separation contract with each one.

The problem arose with the term, “legal fiction of marital unity as one person.” Couples could not contract with each other, because they were considered one person. This undermined the Rebuttable Presumption. In the cases of James Smith and John Harris, their marriages could only be ended by government approval, and not by the parties making a contract.

This was a major change, as nationwide separating couples were often making their own contracts to separate, rather than divorce. The new view was polarizing: rule of law versus rebuttable presumption.

Joseph Clark sought a new trial, having abandoned Sarah, his first wife for over 3 years. Judge Judd ordered the jury to ignore the issue of abandonment, and they returned a guilty finding. Clark appealed, but was denied. Edmunds Law was being misconstrued in Utah. One could not live with a woman, then abandon her for someone else, do it again, and again. It defeated the purpose and sacredness of marriage. Rebuttable presumption considered too vague. Utah would now mirror USA, in that couples could not contract with one another without government's express permission.

In the rest of America, bigamy was common. It was a crime of mobility of the 19th century. Judges were sympathetic until 1865 when condemned. By the 1880s, government marriage licenses were required, even for clergy marriages.

1896, Utah statehood ended the Edmunds Act, as it only applied to territories. Some Mormons quietly started to cohabit with their wives, including Lorenzo Snow in 1900.

In 21st century, law defines and governs marriage. FLDS group tried to have power over marriage, but losing to feds.

Q/A: Today, why are there not more actions against polygamists? Marriage not preferred as it once was. Hook-up culture due to male monogamy, creating serial monogamists. Prosecutors want a few big cases, but not directly on polygamy, which is hard to prosecute.

Q/A: How does Church deal with foreign polygamy? LDS ban all of it. RLDS/CoC accepts those in polygamous relationships that convert. Interesting how they flip-flopped.

Q/A: What about Utah culture still not wanting to discuss polygamy/painful issues? Sally: we study holocaust, etc., and benefit from it. But we can't alleviate or solve all the issues. Helps with understanding. Daynes: it also may be a generational issue. Pres Hinckley avoids questions on polygamy, while Elder Jensen has encouraged their research. It is not a part of the experience of younger LDS, as it is even for older members like Pres Hinckley.

Q/A: Will this change under Pres Monson? Who knows? Hopefully we'll have greater access to the LDS archives. New research on Mountain Meadows Massacre gives hope for success.

Q/A: Sally, as a lawyer, do polygamy cases still apply? Yes. In family law. Reynolds v USA is a keystone law on religion.

Q/A: How do same sex issues and laws affect polygamy? Legal system made for 2 people/couple. Polygamy is complicated. Even divorce-on-demand is highly routinized today, and simpler.

Q/A: Are there cases of multiple husbands? Rare, but yes. Edmund Richardson and wife joined Church. He couldn't have kids, but wanted to have some. They spoke with Brigham Young, who was practical, who told her to choose a polygamist man to father children for Edmund. These were called, marriages of convenience. Still, 2/3 of LDS polygamists only had 2 wives.

Q/A Session

1.Today we discussed Mormonism in 1820s-1880s. How is it different today?

Fluhman: LDS takes less turbulent place now in history. But there still is Mormon-baiting today, such as with Mitt Romney's candidacy. Questions asked sound old.

Gordon: George Romney wasn't attacked. In the last 40 years there's been a Reawakening of evangelism. Mormons and evangelicals raid each other for converts, causing tension.

Daynes: Years ago we were proud to be a “peculiar people.” Now we are shocked when others call us peculiar.

2.In today's world, do Muslims feel a lack of toleration from America?

Daynes: Nativism happens when we feel threatened

Flake: Today we're more cynical and try to fix things. In trying to fix, we make new problems. Religious xenophobia toward Muslims was not created by 9/11, but was exacerbated by it.

Gordon: We often seek enemies, such as the Cold War commies to unite us. We get them in waves.

3.What are LDS problems viewed by mainstream religions?

Fluhman: Revival/evangelicalism not about ritual, as is Mormonism. They react to LDS rites.

Flake: Categories are problematic from Protestant sociology.

Deverell: People tend to take discreet moments from leaders, instead of viewing the whole.

Flake: Mormonism is America's story, but Mormonism is often un-American.

Deverell: Yes, I've taught Manifest Destiny as a Mormon experience.

Flake: Why then does Mormonism grow in other nations if it is so American?

Fluhman: It is because we can offer different portions to each person. Mormons are family, but also corporate. You can pull new birth from the Book of Mormon and say, “see? We've taught it since 1830.”

Flake: Mormons are always on a date, but will never marry America.

There was a study that showed Mormons are proud to be LDS, but shocked with the attacks of others. Why attack us, we're so great?

4.How will the Joseph Smith papers project affect Mormon history?

Only time will tell. How clean will the it be when published. Already revised 3 times for first volume. Will it be archival or interpretive document will determine its usefulness. Contested legal papers of Joseph Smith are a big concern. They started to provide current D&C sections and were sent back to determine the earliest forms of these revelations.

5.Familial relations compared to Masonic rite?

Flake: Having women involved takes it out of the fraternal society. Radical to think man and woman strapped together eternally. Other Christians struggled with marriage concept (better to marry than to burn), while Mormons embraced it as part of the requirement for exaltation.

6.Joseph Smith Papers – will they have a critical text of D&C, like Royal Skousen's Book of Mormon? Flake: BYU scholars hope so.

7.Church mostly focuses on doctrine only now, no speculation, how does that affect continual growth and change?

Gordon: Growth and change cause exhaustion in a group after a while, they need time to digest what they currently have before moving forward.

Flake: Twenty years from now we may still be digesting Elder Holland's recent Conference addresses on how we're not Trinitarian and do believe in continuing revelation.

8.How can we better fit into the world?

Gordon: “Candor, candor, candor.”

9.Sue, a Christian visitor stated that she was sorry for the intolerance of some Protestants to Mormons, due to extremists. She said, “it's wrong, and I apologize.” We ended by applauding her.