Friday, April 5, 2013

The DOMA of 1862: A History Lesson (Pt. 2)

In my last post, I talked about how the Mormon practice of polygamy inspired the Morrill Anti-Bigamy Act of 1862, but that act was basically a lame-duck party-pleasing effort signed by Abe Lincoln, because it was never actually enforced.

Enter Senator George Edmunds from Virginia.

He introduced both the Edmunds Act of 1882 and, with Virginia Congressman John Tucker, the Edmunds-Tucker Act of 1887. These two acts combined took the anti-polygamy sentiments of the Republicans and Conservative Americans and gave them teeth. 

Like, huge teeth. 

I mean, like, shark teeth. 

Yeah, that's better.

See, these acts took away people's rights to vote, to hold public office, to serve on a jury, and basically to be a citizen. And that was if you even said you AGREED with the doctrine of polygamy, you didn't have to actually be a polygamist. It also disincorporated the LDS church, the largest of the Mormon organizations. 

And, in what might be the most significant move for modern times, it made it a Federal requirement that you have a state issued marriage license before you and your spouse could be recognized as married. Common-law marriages were nullified.

People of the Mormon faith (and many who weren’t) saw these acts (Morrill, Edmunds, and Edmunds-Tucker) as major violations of the First Amendment. You know, the whole 

 After all, polygamy was an essential element of the Mormon religion and the acts specifically targeted that religion's rights to free exercise. Surely anyone with half a brain could see that, right?

Um, apparently no. The Edmunds-Tucker act was challenged before the Supreme Court based off the first amendment violation, and yet it was upheld . In the statement made after the LDS v. US  case, in which the Supreme Court upheld their status as the legal guardians of idiots (seriously, it's in the statement), there is this mind-boggling quote:

The state has a perfect right to prohibit polygamy, and all other open offenses against the enlightened sentiment of mankind, notwithstanding the pretense of religious conviction by which they may be advocated and practiced.

So, in other words, if the "enlightened sentiment of mankind" deems a practice to be an offense, it stands as an offense even if it aligns with religious conviction, tradition, and ordinances.  First amendment rights be darned.

Later on in this statement he clarified that the “enlightened sentiment of mankind” was probably defined, in his mind, as common practices among European nations. (He targeted traditions in Africa and Asian countries as being unenlightened.) Which, if we're going to be more European in our lawmaking, then...

To be even more clear, he clarified that the "enlightened sentiment of mankind" which was shared by the European nations was traditional Christian belief. Because, you know, the church and the state should be separate except for when it isn't.

 Keep in mind, though, that this was the same Supreme Court that would later label America a “Christian Nation” in Church of the Holy Trinity v. US.  (A statement that was denied by the Senate in the Treaty of Tripoli in 1797

 and by Thomas Jefferson in his letter to the Danbury Baptists in 1802. Justice Brewer apparently regretted making this statement and later clarified himself in his book, The United States: A Christian Nation, saying that "The government, as a legal organization, is independent of all religions.") 

This is also the Supreme Court that determined the tomato was a vegetable instead of a fruit in Nix v. Hedden. 
If they would have been around for the major blowup of 1997's Fans Worldwide v. George Lucas, they probably would have ruled that Greedo shot first. 

So, you know, they may not have known everything.

At any rate, the Edmunds-Tucker Act stood as a law that Congress had made respecting an establishment of religion (the Mormons and, specifically, the LDS church) and prohibiting the free exercise thereof (polygamy), even through other Supreme Court decisions in the opposite direction, such as Engel v. Vitale, which removed prayer from school, 

Abington School District v. Schempp, which removed Bible reading from school, 

and finally Lemon v. Kurtzmann, which drew a definite line in the sand between Church and State and set up ground rules as to what was allowed and not allowed by the government in regards to religious practices. 

Still, Edmunds-Tucker stood as law.

It was eventually repealed in 1978, but only so that the LDS church could get their charter back.

Coincidentally, this was also the same year that the LDS church began to permit African Americans to be ordained as priests. This was a big deal for the LDS church, as they had a pretty soiled history of poor relations with African Americans. Brigham Young, the early and most prolific leader of the church, used to say that black people were cursed by God and if a white person married a black person, they should be beheaded. Which really gives a whole new nuance to the phrase 

Surprisingly, the federal government never had an issue with the LDS opposition and oppression of minorities, only its practice of polygamy.

So, once Edmunds-Tucker was repealed, polygamy finally became legal, right? 

The repealing of Edmunds-Tucker only repealed the action of yanking the LDS church’s legal status away. It did not touch laws created by the Morrill Act of 1862. In fact, polygamy stayed illegal and remains illegal in America to this day.

But here’s the question: Why hasn’t it been challenged again recently? I mean, the Supreme Court ruled in Church of Lukumi Babalu Aye v. City of Hialeah that the laws against animal sacrifices was inhibiting the first amendment rights of the adherants to the religion Ricky Ricardo used to sing about on the I Love Lucy Show.

 This set a new precedence for laws that restrict religious practice, even those found to be off-kilter from the views of common society.

So, why hasn’t the LDS church challenged anti-polygamy laws in light of that? I mean, the guy from Sister Wives needs those laws reversed, right?

Well, the LDS church has worked fairly hard to distance themselves from the plural marriage part of Celestial Marriage in an effort to comply with the laws and commonly held practices in Western society. So, they don’t really care about the polygamy laws any more.

Which, I guess, means that the 21st century will never get to see a Federal act that defines marriage based off of religious tradition challenged before the Supreme Court.

Umm, wait...


Thursday, April 4, 2013

The DOMA of 1862: A History Lesson (Pt. 1)

In response to a growing national trend, which had been unforeseen in the crafting of the constitution, congress drafted an act that proclaimed the only valid marriage as being between one man and one woman. This act was signed into law by a President who was, otherwise, well known for his more liberal views on civil rights. It was hotly contested, citizens saw their rights taken away, and worse, many marriages were suddenly deemed null and void.

Oh, you thought I was talking about DOMA of 1996? No, I’m talking about the Morrill Anti-Bigamy Act of 1862, signed into law by President Abraham Lincoln. 

The Mormon faith was introduced to the world by Joseph Smith in the 1830s and got a lot of attention because of the idea of “Celestial Marriage,” which at that time meant that a man who wanted to make heaven needed to be married, and the more wives you had, the higher your status in heaven would be. 

This view was not popular among those who were not Mormons, and apparently initially Joseph Smith’s own wife, 

because the traditional view was that marriage was a holy institution between one man and one woman.

And, as people are inclined to do when they see families that aren’t constructed the way folks think they should be constructed, when Mormons came around, the general public tried their best to shoo them away. With guns.  

However, these Mormons were no pansy pacifists, and they did not take kindly to being told where they could and couldn’t live. So the Mormons pulled out their knives, guns, and bayonets, and the ensuing conflicts, most notably in Illinois and Missouri, turned into fully armed battles with bloodshed and death. 

All this mess eventually caught the attention of the federal government, and President James Buchanan 

decided they needed to do something about it. He sent US troops to Utah, 

in hopes to find out what the heck was going on and to make sure the Mormons were abiding by the US constitution. However, the Mormons feared that the troops were coming down to kill them all, so they again rose to arms. Thankfully, no blood was spilled between the Army and the Mormons , although one Mormon militia group mistook a traveling band of Pioneers from Arkansas for US troops and slaughtered all 120 men, women, and children. 

Anyway, this whole conflict really sealed the deal to lawmakers that something had to be done. In fact, the newly found political party, called the Republicans, made it part of their platform that they were against, “those twin relics of barbarism: polygamy and slavery.”

(That's Elephant, from Ben Clanton's Vote For Me! btw. Repped by my agent. Just saying.)
So, when The Morrill Act was introduced under the Lincoln administration in July of 1862, it was seen as a major win for the Republican Party. In fact, coupled with the Emancipation Proclamation which Lincoln would sign six months later in January of ‘63, it sealed the deal that Lincoln was a hard-line Republican, perhaps the only hard-line Republican in history who could still win a presidential election today. 

Interestingly, it does seem that President Lincoln never really intended to ENFORCE the Morrill act. He was too involved with the Civil War at the time to send any troops to drag men’s wives out of their houses. It was more likely a political move done to appease his party (so, yeah, even Lincoln did that). 

Oh, but wait! This story is not done. More to come in my next post when...

SCOTUS GETS INVOLVED!!! (Preview: We find out the legal status of tomatoes.)

Pt. 2 coming tomorrow!