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.



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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...




 Excelsior!

1 comment:

Anonymous said...

Great info! A lot of interesting tie-ins to this subject that make it worth looking into more. I like how all sides and their points of view are discussed. The humor made the post enjoyable.