Prosecution of Utah Polygamist May Endanger Religious Liberty

0 Comments | Insight on the News, June 18, 2001 | by Henry Mark Holzer

Tom Green sat in a Provo, Utah, courtroom defending himself against a charge of polygamy because he has five wives and 25 children. At the core of Green's defense was that part of the First Amendment to the U.S. Constitution guarantees the "free exercise" of religion. Our Founding Fathers wrote it in response to religious persecution that had plagued Europe for centuries and from which their ancestors had escaped. The case's importance transcends the question of polygamy's place in 21st-century America.

Green's prosecution -- some say persecution -- has its roots in the infamous 19th-century case of Reynolds v. United States. Utah was not yet a state, but merely a territory. Congress had enacted the Anti-polygamy Act in 1862 (Ch. 126, 12 Stat. 501).

George Reynolds, a devout Mormon, had discharged his religious duty -- under Mormon law it was not an option, but his duty -- by entering into a bigamous marriage. Having thus rendered unto God, Reynolds was indicted, tried and convicted by Caesar.

Reynolds appealed from the Supreme Court of the Territory of Utah to the Supreme Court of the United States, whose opinion reeks of blatant racism. For example: "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 African people."

In this assertion the Supreme Court ignored the sad facts that Europeans hardly had been paragons of religious toleration and that their political systems never possessed anything even approaching our First Amendment. Moreover, the Supreme Court dismissed out-of-hand a practice accepted by every major religion save Christianity.

The federal prosecutors argued that the Free Exercise Clause of the First Amendment protected only "belief" not "conduct" -- a specious distinction for at least two reasons. First, textually the constitutional guarantee is of religious "exercise," not belief. Second, a "belief-conduct" dichotomy is indefensible, not only because belief and conduct often are inseparable, but because conduct, expression and exercise are integral to all major religions. Indeed, carried to its logical extreme, a "belief-conduct" dichotomy would permit government to outlaw virtually all religious conduct, including baptisms, sacraments, bar mitzvahs, circumcisions and perhaps even ceremonial weddings.

It also was suggested that anti-polygamy legislation was justifiable because of the state's duty to protect children. The problem with this argument was that no evidence was produced to support the notion that the child of a polygamous marriage was worse off than a child born illegitimate or one with divorced or separated parents. Indeed, evidence from other cultures -- among them the very African cultures disdained by the Reynolds Court-- suggests that unlike situations where there are absentee parents, children of polygamous marriages not only know the identities of their parents but likely are to be

reared in a pious, loving atmosphere with a tightly knit supportive setting.

The Supreme Court next raised a rhetorical question: "Suppose that one believed that human sacrifices were a necessary part of religious worship, would it be seriously contended that the civil government under which he lived could not interfere to prevent a sacrifice? Or if a wife religiously believed it was her duty to burn herself upon the funeral pile [sic] of her dead husband, would it be beyond the power of the civil government to prevent her carrying her belief into practice?"

Although the shallowness of this "argument" easily is revealed -- sacrificing one's self purely is a voluntary act; polygamy is noncoercive and certainly no one dies -- its implications are why the Green case transcends questions of polygamy. Green, his five wives and 25 children raise a question central to the ongoing baffle between the individual and the state. Today, this baffle is exemplified by such "personal autonomy" issues as the use of drugs, the possession of guns and the right to die.

The drama that began unfolding in that Provo courtroom raises perhaps the central political question of today: Can members of a free society engage in any conduct they wish until their actions collide with the rights of others -- and is it government's proper role to stand aside until those rights of others actually are violated? Perhaps the Green case will tell us, when higher courts are asked to revisit Reynolds v. United States.

Henry Mark Holzer, professor emeritus at Brooklyn Law School in New York City and a First Amendment Fellow of the National Press Club of Washington, is author of the forthcoming Aid and Comfort: Hanoi Jane in North Vietnam.