Marriage Wars: Same-Sex Marriage, Reserved Rights

MARRIAGE WARS: SAME-SEX MARRIAGE, “RESERVED RIGHTS,”

AND MORMON POLYGAMY

by Robert J. Morris, JD, PhD[1]

“I say God speed everybody that is for freedom and equal rights!”[2]

—Brigham Young

I. Introduction

Viewers of the 2010 documentary, 8: The Mormon Proposition,[3] will know that one of the primary linkages drawn to same-sex marriage is the connection to Mormon polygamy. The film tracks, inter alia, the story of a male same-sex couple in California, one of whom is a descendant of Mormon polygamists. The irony is poignant. Both are stories of hatred directed at a minority because of its sexual practices and pleas for marriage equality. The participation of prominent Mormons Mitt Romney (himself of an honored polygamous lineage)[4]and Jon Huntsman in the 2012 presidential campaigns, has brought into scrutiny the political position taken by their “Mormon faith” on these subjects and its specialdefinitions of marriage, family, and equality. It is therefore crucial to understand accurately and fully the larger context of the specifically Mormon argument about the definition of “marriage,” and especially its claims for the historicity of that argument.[5] Viewers of the HBO television series, Big Love,[6] will know that polygamy is very much a living issue today. Beyond the historical, theological, and political concerns, same-sex marriage has invoked a practical debate over the possible resurgence of polygamy.[7] The Mormon church has never eschewed the doctrine of polygamy, only the practice[8]—anessential point made in 8: The Mormon Proposition and verified by the fact that the full text the “revelation” on polygamy, D&C section 132, remains a part of the scripture and is frequently quoted in official texts to this day.[9]

All of these threads may be brought together in the increasingly frequent invocation of the Ninth and Tenth Amendments to the Constitution—the so-called “popular sovereignty” or “reserved rights” amendments. Both state that rights and powers not delegated to the government are reserved to “the people,” and also, in the Tenth, to “the States.” The recent California bankruptcy case of Balas and Morales[10](a male married couple) relied upon the quintessential Ninth Amendment case of Griswold v. Connecticut[11]to hold that the federal Defense of Marriage Act (DOMA)[12] was unconstitutional because it “violates the equal protection rights of the Debtors’ as recognized under the due process clause of the Fifth Amendment.”[13] The application of the Ninth Amendment to same-sex marriage via Griswold, and the connection of same-sex marriage to Mormon polygamy, leads us, then, to a discussion of the Mormon position on the Ninth and Tenth Amendments during the era of polygamy[14]which remain relevant today.[15]

All of these issues of sexuality, family, and marriage aroseduring various stages of what is often roughly called the “Utah Period” of the church from 1847 to 1890 when the Mormons practiced polygamy under the presidency of Brigham Young (1847-1877), successor to church founder Joseph Smith (1830-1844), and two of Young’s successors—John Taylor (1880-87) and Wilford Woodruff (1887-98).[16] The overriding legal issues of the entire period were polygamy and the status (with its attendant constitutional mandates and limitations) of the federal Territory of Utah. Congress provided an Organic Act of 1850 for Utah which provided some rights that were “limited” and “clipped.”[17] These two issues inflected each other in powerful and surprising ways. In 1890, Wilford Woodruff issued the “Manifesto” that purported to end the practice of polygamy.[18] Polygamy, of course, went on, and does go on, but the approximate dates of 1847 to 1890 will be a convenient frame for this study.[19] Brigham Young and John Taylor, along with Apostle Orson Pratt (1811-1881), were the primary exponents of Mormon doctrine on the Ninth and Tenth Amendments.[20]

Mormon scripture holds that the US Constitution—the whole Constitution, including the Bill of Rights—is divinely inspired,[21] as indeed is the Declaration of Independence[22]—each to be interpreted in light of the otherpari passu. Both were sources of substantive liberty and equality claims. Aligning the two and reading them together constitutionally was both common and necessary in the early era,[23] in order to “proclaim liberty to the world; equal rights, liberty and equality; freedom of conscience….”[24] “There are many rights that are named in the Constitution,” said Apostle Orson Pratt, “and many that the Constitution says nothing about.”[25] Apostle George Q. Cannon, Utah’s delegate to Congress who would near the end of his life become the chief official exponent of Mormon homophobia, stated in 1875:

”I have been taught to believe that the constitution of the United States was revealed of God; and that the destiny in store for the Latter-Day Saints was to uphold constitutional government upon this land…. But there is a class of men who consider everybody disloyal who does not dance to their tunes, and who does not re-echo the sentiments which they express and seem to entertain.”[26]

This “Constitutional faith,” with the concomitant right to be one’s own self, is what makes the early unqualified Mormon support for locating new and malleable marriage, family, and sexual rights in the popular “reserved rights”[27] of the Ninth and Tenth Amendments so valuable a study for same-sex marriage now, and for answering objections to it.[28] “How true it is,” they lamented, “that, when any new principle, or any new idea concerning an old principle is promulgated, the human heart seems to rise up in rebellion against it….”[29]

II. Civil Rights, Natural Rights, and Human Rights

Polygamy was, as James Clayton puts it, “the most fundamental, intense and prolonged challenge to that institution [marriage] in our history….”[30] Like same-sex marriage, it was a fighting faith that included politics, power, religion, sex, sexuality, family, and marriage. Unlike same-sex marriage, however, it was never legalized anywhere. To any who denied polygamy practically, doctrinally, or emotionally, Brigham Young said, “I promise that you will be damned.”[31] By the rhetoric and practice of polygamy the Mormonsattempted to redefine marriage, and they chafed against the preaching of their religious and political enemies about the wrongfulness of their conduct. They wished to be protected from the “freedom of religion” that allowed their enemies, often other religionists, such license to attack them—and they went on the attack themselves. The church’s arguments were not based solely upon constitutional jurisprudence, but also upon sexual, marital, and familial theory.

A century ago the church identified the “Mormon system of marriage” as the very “institution of marriage” itself,[32] and denounced as “this doctrine of devils” all those “who fight against Zion [the Mormon establishment][33]and her institution of marriage.”[34] Plural marriage was the essential mark of the true Church of Jesus Christ. The leaders condemnedthe “false tradition” of the “monogamic system” of marriage.[35] They damned one-man-one-woman marriage as being responsible for the evils of the “Christian nation”—America—and held that marriage to a non-Mormon “is not a marriage in our estimation.”[36] “This polygamic form of marriage,” they taught, “is far in excess of the monogamic.”[37] Again and again, they damned “Christian” ministers and churches for exerting influence over politicians—being in cahoots with them—to condemn and outlaw theirmarital arrangements.[38] Indeed, politicians in Congress, they said, were the “hireling Priesthood of the age,”obedient to their churched pulpit-masters[39],and the Mormons relentlessly preached against the influence of religion in politics.[40] They accused their religious and political enemies of “pandering to the prejudices of an ungodly age”[41] and of “making a bugaboo about polygamy.”[42] “It would be a poor thing,” they said, “if we should be under the necessity of calling in the Devil [politics] to help us to do theLord’s work”[43]—and yet they did. The “apostate” churches, particularly the Catholic Church and its “hireling priests,” had adopted the evil monogamy that“has been taught from the days of heathen Rome down to the present time, which has resulted in the prostitution of many of the fair daughters of Eve as mistresses.”[44] They noted that marriage was not always a sacrament of religion but that the “Established Church”(i.e., the apostate Christianity) took over the control of one-man-one-woman marriage in order to gain political and economic power.[45] But when the polygamous Mormons wanted their own political power in Washington—the same sort of political“coalition of churches” that is today the mainstay of their heavy involvement in such projects as Proposition 8 and other activities[46]—their religious enemies denied it to them. “There can be no fellowship between Mormon and Christian,” one Protestant newspaper wrote. “They cannot exist under the same social system. They cannot be partners in political power.”[47] To which the Mormons replied:

“Here the line is drawn! All fellowship is denied us. No social relations are permitted…. If outsiders do not like us to endorse their paper, they should not present it; and when we endorse it to a limited extent, it ill becomes them to object to their own doctrine when the tables are turned.”[48]

They objected to the melding of church and state by the “federal Christianity that has been introduced among us…by our good, kind, pure, pious Christian friends.”[49] They objected to the fact that someone would consider someone else disloyal who disagreed with their version of the Constitution and did not “dance to their tunes, and who does not re-echo the sentiments which they express and seem to entertain.”[50] Their enemies exhibited “an animus—a united operation against justice, equity and law, and, in our case, against the Constitution of the United States, and the rights and privileges and immunities of the Latter-day Saints.”[51] Great anger, wrath, indignation, and animus;[52] persecution and opposition,[53] came against them because of polygamy. There are “people that are coming here to reform us,” said President John Taylor, who “are so disgusted with our corruptions.”[54] Perhaps most significantly—and ironically—when the Mormons were fighting for their Constitutional rights of equality as residents of a federal territory, they noted that the “other” non-Mormon churchmen were not opposed to polygamy if only it were to remain just the Mormons’ private little immorality:

“‘If you were to protect immorality and not call it religion,’ I have been told many and many a time, ‘we should not object to it; but you are sanctioning by the forms of religion that which we cannot endure, and which is hateful to our civilization. It is the marriage ceremony, that is the offensive part of it; it is, in other words, the marrying that excites dislike and hatred.’”[55]

“‘Your marriages,’ says the objector, ‘are founded upon principles entirely new, and different from the Christian world.’”[56]

The marrying was the rub—just as todaythe same-sex marriageexcites the disgust and fear. As Apostle Dallin Oaks told his associates in 1984:

“The major objective of the gay rights homosexual movement is to win legitimacy and public approval for the homosexual ‘sexual preference’ or ‘lifestyle.’ Nothing would accomplish that objective as effectively as legal recognition of homosexual marriages.”[57]

“The best way,” he told them, “to oppose further anti-discrimination legislation protecting homosexuals is to propose well-reasoned exceptions rather than to oppose such legislation across the board.”[58] As in the 19th Century, the specific target was to be the marriage itself. “We claim the same rights,” the polygamous Mormons said,“as other folks,and no more.”[59] This, of course, was not true, but they saw it as true. They perceived no discontinuity between their rather novel claims and the rights of any other ordinary Americans. When Congress passed anti-polygamy laws (the counterpart of which is today’s Defense of Marriage Act (DOMA)), the Mormons condemned them: “I hold that if Congress has a right to enact a law in relation to marriage, it might just as consistently make a law affecting baptism, or prescribing, if at all, the manner in which the sacrament of the Lord’s supper should be administered.”[60] They defended their practice of polygamy by arguing the “God made us do it” defense. “I cannot help it. Can you? Can anyone?”[61] “If they [our enemies] could only tell us how to get out of the dilemma they have placed us in we should be very much obliged to them, we really should like to get out of it.”[62] And yet the churchwent to law—Congress, judges and courts whom they expected to be activist, the White House—to get their definition of “marriage” and “family” enacted into law. They exerted enormous political pressure as a uniform voting block. But to claim the “same rights as others, and no more” meant no less, either—the same rights—and new additional rights as well. In their argument for polygamy as being among the “same rights,” they said:

“We have to contend for our liberties and the rights of the people before the courts, wherein we strive to maintain the Constitutional rights to which we are entitled, both civilly and politically. We have not gone to the authorities that are over us in the nation and supplicated them saying: ‘Will you please give us some extraordinary liberties or privileges—we contend for the rights of every American citizen, which are our rights.’ We have not cut ourselves off from the rights of citizenship.[63]

This was at bottom a claim for equality, for as the Book of Mormon says, “the great inequality of man is because of sin and transgression.”[64]

III. Reserved Rights; Privileges & Immunities

The Mormons were willing and anxious to contend for “new” rights, specifically under theNinth and Tenth Amendments to the Constitution as inflected through the First Amendment, and vice versa.[65] Both the Ninth and Tenth Amendments were included in the Bill of Rights specifically to counter the argument that the listing of specific rights in the first eight amendments would automatically preclude the recognition of other but unenumerated rights.[66] These amendments state:

Amendment IX

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Amendment X

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

In other words, it is expected that “new rights” will be identified. Indeed, the word “new” is a misnomer because, as the two amendments make clear, there are “other” rights and powers already in existence which are retained and reserved to the states and the people, and which may not be denied or disparaged. The speakers often couched these claims in references to their “privileges and immunities” or “rights and privileges,” echoing the language of the Privileges and Immunities Clause of Article IV, Section 2, Clause 1; and ofthe first clause of the Fourteenth Amendment, respectively:

The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States….

All this is consistent with both Madison’s and Jefferson’s views of a priori rights which the government could not negate by “abridging,” and this has been the assumption since Jefferson wrote of the Creator-endowed “unalienable rights” in the Declaration of Independence. When Brigham Young couched these references specifically in both the Declaration of Independence and the Bill of Rights,[67] he adopted the common view of both Jefferson and Madison that human rights are organic—inherent, inborn, “unalienable” in Jefferson’s term, and belonging to “all mankind”[68] in Joseph Smith’s term—not bestowed by any government or person or law, but a pre-existent part of human nature itself. Such rights “do not belong to politics” because they are “born in us.”[69] Apostle Orson Pratt gave the Tenth Amendment the broadest possible reading and placed it centrally in the interpretation of the Constitution:

“A few years sufficed to demonstrate the inadequacy of the ‘Articles of Confederation,’ to obviate which the Constitution was established, conferring increased power upon the General Government. That its power might be clearly understood, Article X of the amendments was ratified as follows—‘The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the states respectively, or to the people.’ It will be perceived that there are no prohibitions upon citizens outside the boundaries of States.”[70]

Brigham Young’s doctrine was that both the “spirit and letter of our Constitution and laws,” including the Ninth and Tenth Amendments as well as the Declaration of Independence, contained new yet unenumerated rights specifically regarding sexual conduct and marriage—among many other such rights as then claimed by the Mormons as federal citizens in the Territory of Utah.[71] Young’s position was supported by other general authorities, including Apostle (later Church President) John Taylor[72] and Apostle Orson Pratt.[73] This was consistent with the sentiments of Young’s immediate predecessor, church founder Joseph Smith, speaking in the same year that he formally introduced polygamy[74], who said,“Powers not delegated to the states or reserved from the states are constitutional. The Constitution acknowledges that the people have all power not reserved to itself.”[75] When the church authorities read the Ninth and Tenth Amendments together in the Utah Territory, they necessarily omitted the “to the states” clauses of the Tenth Amendment, leaving only “the people” as the repository of the unenumerated rights and powers guaranteed in the amendments. And they were “the people”—the insular sexual, marital, familial, and political minority.