Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof… Amendment I, U.S. Constitution
“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.” ~ Thomas Jefferson, letter to the Danbury Baptist Association, 1802
By: Christa Lasher
Reynolds has the prestigious position of being the first case in the U.S. Supreme Court’s history involving either the Establishment Clause (Congress shall make no law respecting an establishment of religion…) or the Free Exercise Clause (…or prohibiting the free exercise thereof…). Reynolds was the first Free Exercise case heard by the Supreme Court who would not agree to hear an Establishment case until 1947 with Everson v. Board of Education. After Reynolds, the Court did not consider another Free Exercise case until 1940 with Cantwell v. Connecticut. (That is not to say that lower courts did not hear and adjudicate other Establishment or Free Exercise cases. In fact, they did. The Supreme Court simply did not choose to hear any until about 60 years after Reynolds.) Up until 1940, Reynolds was the only precedent involving religion decided by the Supreme Court. The decision in that case still has effect today.
I will spend very little time discussing the history surrounding this case and instead defer to Sarah Barringer Gordon’s The Mormon Question (2002) which carefully and thoroughly outlines not only the history of the Church of Jesus Christ of Latter-day Saints as they journeyed from New York to the Utah Territory but also of the reaction to and debate about Mormonism and polygamy. A brief survey of the highlights will do. Joseph Smith, while living in upstate New York, claimed to have been guided by an angel to golden plates which he translated into the Book of Mormon in 1830. He quickly attracted a good number of disciples who followed him through Ohio, Missouri, and Illinois. In 1843, he received the “Revelation on Celestial Marriage,” (see LDS Doctrine and Covenant 132) which remained a secret held by Joseph Smith and his intimate circle for almost a decade after. During the intervening years, Mormons met with discrimination and violence wherever they went. In 1844, Smith was murdered by a mob that attacked the jail where he was being held awaiting trial. Following his
death, faithful Mormons migrated to what would become the Utah Territory in 1847 with Brigham Young at the lead. In 1850, Congress organized the Utah Territory, and two years later, the church acknowledged and read aloud the “Revelation on Celestial Marriage.” After years of intense debate (polygamy was rhetorically connected to slavery, so states’ rights became an issue in the debate over polygamy as well), Congress passed the Morrill Anti-Bigamy Act of 1862. In order to challenge this act, and the federal government’s right to interfere with local government (at the time, the federal government had little significant control over the states and other local governments), the Church of Jesus Christ of the Latter-day Saints (LDS) decided to get a member convicted of polygamy and appeal it all the way to the Supreme Court. George Reynolds was a perfect candidate for this test case, for he was both a dedicated Mormon and yet of only modest standing within the Church. In 1878, the Court heard the case, and in 1879, it handed down its decision.
Chief Justice Waite wrote the decision of the Court, with no dissenting and only one concurring opinion. He identified six questions before the Court, the first four of which were technical issues such as improperly excusing jurors or improperly admitting evidence. The fifth question interests us here: “Should the accused have been acquitted if he married the second time, because he believed it to be his religious duty?” The first four questions were dismissed – the court below had not acted improperly. On this question about the exercise of religion Chief Justice Waite spent proportionally more time than any other question.
This was the first time the Court adjudicated the significance of the First Amendment’s religion clauses, and so first, they set about defining religion. Here, they used Thomas Jefferson’s understanding – the Jeffersonian interpretation of the wall of separation – to determine what religion and freedom of religion meant. Quoting Jefferson’s letter to the Danbury Baptist Association, the court determined that religion – at least that part of it which was to be protected – sat in the realm of opinion. The letter, the Court stated, “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.” That is, belief is protected absolutely according this decision, but action is not. Reynolds may believe whatever he wishes about the importance of polygamy, but that did not mean he could necessarily act upon that belief. The Court had then to tackle the issue of polygamy itself.
Chief Justice Waite traced the history of marriage – monogamy versus polygamy – within Europe, declaring polygamy to be “almost exclusively a feature of the life of Asiatic and of African people.” Polygamy had virtually always been a disagreeable and punishable offence in all European societies and their descendents. Moreover, it was not just a “sacred obligation” but also a “civil contract” which could be regulated by law.
Upon it society may be said to be built, and out of its fruits spring social relations and social obligations and duties… In fact, according that monogamous or polygamous marriages are allowed, do we find the principles on which the government of the people… rests.
Marriage, according to this reading, is the base of the entire society. From the marriage comes every other social relationship and institution, all the way up to the government. Depending upon the type of marriage allowed the government is formed accordingly. Polygamous marriage, the Court, and the larger culture, “fetters the people in stationary despotism.” Only monogamous marriage could form the society necessary to support a democratic government.
Still, was the government not required to give Reynolds – and the Mormons – an exemption because of religious belief? No—certainly not. “This would be introducing a new element into criminal law.” After all, as the Court already determined, law may interfere with the practice of religion. Suppose, the government asked, someone believed human sacrifice was a religious necessity? Or the practice of sati? Could these practices – central as they may be – be exempted from criminal law? Absolutely not, according to Chief Justice Waite, “To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect, to permit every citizen to become a law unto himself.” Law had to be the final authority. The Free Exercise Clause, according to Reynolds, does not allow religion to exempt a citizen from criminal law.
Reynolds was, and in certain cases, still is good law, according to the Supreme Court. Until 1940 in Cantwell v. Connecticut, Reynolds was the only decision on Free Exercise, and the rule of law was this: Belief is protected absolutely by the First Amendment. The government could not dictate to people their beliefs, nor make belief a prerequisite for benefits given to citizens, nor outlaw or punish citizens for their beliefs. However, practice is not so absolutely protected. A generally applicable law was constitutional even if it impinged upon a citizen’s free exercise.
Reynolds was the first case—but case law is not static. Cantwell v. Connecticut, the next opinion I intend to examine for Religion Nerd, will expand upon Reynolds and apply the First Amendment to the States.