The Consistency of the LDS Church’s Position Regarding Legislating Marriage

On May 26th, the prophet of The Church of Jesus Christ of Latter-day Saints and his two counselors sent a letter to be read in all of the LDS congregations in the United States urging members to contact their Senators to support proposed amendments to the Constitution that would define marriage as only between a man and a woman to prevent the establishment of legal, homosexual marriage in the United States.

Since the release of this letter of counsel to the members, I have heard of several critics of the church, internal and external, who try to discredit the Church’s position against homosexual marriage as hypocritical in light of the Church’s own struggle against the United States government’s prohibition of the former LDS practice of Polygamy in the late 19th century.

These critics try to draw a parallel between the church’s fight to keep the government from prohibiting its religious practice of plural marriage and the modern fight by homosexuals to prevent the government from prohibiting same-sex marriage. “How can the church support government prohibition of same-sex marriage,” they ask, “when the church itself fought to prevent the government from interfering with their right to marriage in the 19th century?”

This criticism reveals a very superficial understanding of history and the church’s 19th century position in regard to congressional proscription of polygamy. Like the common comparison of the homosexual movement to the civil-rights movement, it is an effective rhetorical device with emotional appeal, but has little basis in reality. It is effective because it is superficially compelling and easily expressed in only a few words while an effective refutation of it requires a lengthy explanation.

What follows is a review of the history of the LDS church’s struggle against congressional prohibition of polygamy in the late 19th century that I hope demonstrates that its modern support for congressional prohibition of same-sex marriage is entirely consistent with its history. Some of the information was gleaned from articles I can no longer find. I will post links to them later if I ever find them. This explanation represents my own understanding of the matter and not the official position of the church.

Polygamy did not become illegal on a national level in the United States until Abraham Lincoln signed the Morrill Anti-Bigamy Law on July 8, 1862, ten years after the practice had become official in the Utah Territory. There had long been state and local laws against bigamy, but the United States had tolerated the polygamy of both Chinese and African/Arabic immigrants before the Morrill Act.

The Morrill act was engineered “to punish and prevent the practice of polygamy in the Territories of the United States.” It annulled all acts passed in the Utah Territory “pertaining to polygamy and spiritual marriage.” The act was, in many ways, exactly what the Saints of the time believed: a legislative attack on a specific religion.

Church President John Taylor justified the Saint’s civil disobedience to the law saying “I have told the people . . . to take care of their liberties, to put their trust in the living God, to obey every constitutional law, and to adhere to all correct principles.” The key phrase in his statement was “obey every constitutional law.” The Saint’s believed that the Morrill Act was an unconstitutional law because it was specifically designed to prohibit the free exercise of their religion, contrary to the first amendment’s prohibition of congress to make such laws.

In 1874 the Church set up court case to challenge the constitutionality of the Morrill Act. Brigham Young’s secretary, George Reynolds, became the defendant. Brigham Young died in August of 1877. The Reynold’s case was appealed up to the Supreme Court. I believe it was the very first case requiring the court to interpret the extent of religious freedom of the first amendment.

Those church members involved in arguing the case before the Supreme Court made a remarkably sophisticated argument concerning religious freedom and the power of congress. The argument appealed to natural law legal philosophy. They recognized, on the one hand, that people could easily claim religious motivation to defy almost any law and make government meaningless. On the other hand, they acknowledged that if there is no religious limit on what the state can criminalize then freedom of religion is an illusion.

They argued that a reading of the constitution that protected only religious “belief” from congressional interference but not religious “action” would permit the government to commit all of the same acts of religious persecution that had previously been committed by governments throughout history and which were the very reason why the founders included the prohibition in the first amendment in the first place. They argued that separating the protection of “belief” from “action” would ultimately allow any belief to be punished on the basis of some act:

“History teaches us that it is not a difficult thing to obtain pretexts for imprisoning and killing people of an unpopular religion. Catholic and Protestant, Episcopalian and Presbyterian, Quaker and Baptist, Infidel and Jew, have each in their turn suffered for carrying their opinions into practice.”

As an alternative, the Mormons argued that the issue could be resolved by applying Natural Law principles to the phrase “congress shall make no law…”

Natural Law jurisprudence says that all law is based on a higher, moral law that is virtually universal among mankind and that no law enacted by government, even if enacted properly, can be legally binding if it violates that higher law. Natural Law had a longstanding tradition in the United States system of government. In fact, it was by citing this Natural Law (“the laws of nature and of Nature’s God”) that the United States had justified its rebellion against England and establishment of the new Republic.

Arguing before the Court, the saints invoked the Natural Law distinction between actions that are inherently wrong (malum in se) and wrong only because they are legally prohibited (malum prohibitum).

The Mormons asserted that religious actions that are malum in se could be justifiably prohibited by Congress, but that religious actions that are only malum prohibitum are exempt from legal prohibition. They then attempted to demonstrate that polygamy was merely mala prohibita, an “artificial crime, created by legislative enactment, and involving, when practiced as a religious duty, no moral guilt.”

19th century American Courts looked routinely at the Biblical Decalogue as a standard of discovering Natural Law. The Saints pointed out that polygamy was not prohibited by the 10 commandments the way that adultery and murder were, that several righteous biblical patriarchs practiced polygamy, and that therefore polygamy could not be mala in se. They also invoked the long standing Natural Law tradition of comparative culture, pointing out that polygamy is permitted in many other cultures and legal traditions while murder and theft were not.

In January of 1879 the Supreme Court ruled on the Reynolds case and upheld the constitutionality of the Morrill Act. The decision ignored almost entirely the Natural Law argument put forth by the saints and instead accepted a Positivist view asserting that the “free exercise” clause applied only to religious “belief” but not to religious “action.” Eventually the church officially discontinued the practice of polygamy and today members who enter into polygamous marriages are excommunicated from the church.

Ironically, the Republicans who passed the bill and the court that upheld it justified the abolition of Slavery by appealing to Natural Law Jurisprudence while at the same time rejecting Natural Law Jurisprudence in favor of Positivist Philosophy to abolish Polygamy.

In the modern church, the support of congressional and constitutional prohibition of same-sex marriage is entirely consistent with the church’s 19th century position. The church viewed polygamy, when practiced for religious reasons, as merely mala prohibita and therefore claimed that the religious practice of it was protected from congressional proscription by the free exercise clause of the first amendment. Other religious acts however, such as human sacrifice, which were contrary to the natural law and malum in se, could be, and should be prohibited by law and remain consistent with the constitution. Homosexual behavior and marriage are contrary to the higher, natural law and therefore are mallum in se. As such, homosexual marriage and behavior can be, and ought to be prohibited by positive law as well.

Of course, those who advocate same-sex marriage do not believe in natural law and therefore do not feel that it can be a factor in determining what should or should not be legal. That is a different issue. The point is that those critics who point to the church’s history with polygamy to downplay or nullify the church’s modern support of anti-same-sex-marriage legislation as inconsistent and hypocritical are just plain wrong. They may disagree with the church, but their rhetoric against the church in this vein is empty and should be disregarded.

I urge all faithful members of the church to listen to the counsel of our prophet to support measures to prohibit same-sex marriage and encourage our elected representatives to do likewise. At the same time we should have charity for, and extend loving kindness to all those who struggle with same-sex attraction. Despite our strong opposition to legal sanction of their behavior, we should not demonize them . They are children of God and He loves all of us despite our sins.

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10 Responses to The Consistency of the LDS Church’s Position Regarding Legislating Marriage

  1. Thank you for your masterful handling of the 19th Century LDS legal view.

    I would disagree that same-sex marriage advocates do not believe in natural law, since they regularly make arguments appealing to natural law. They go to great lengths to demonstrate that homosexuality exists in nature among other species, and they argue that romantic love (regardless of the sex of the individuals involved) is a natural emotion. They argue that all adults should be allowed to publicly demonstrate their natural mutual love, regardless of the sex of those involved. Some of these advocates may not believe in natural law, but their appeals to natural law show that they understand that many in our society do believe in it.

  2. Thanks for the comment, Reach.

    You are right that they make appeals to natural law, whether or not the believe in it. The fundamental appeal to “fairness” is an appeal to the inborn sense of justice that all people possess as a guide to natural law.

  3. Thank you for this clear exposition. I have a question, though: if the biblical decalogue is the standard (or at least was the standard used) for determining natural law, then how is it so clear that homosexual marriage is contrary to natural law? Homosexuality is not prohibited by the ten commandments.

    While I think this legal, apologistic point is unclear, I agree completely with your final point: when the prophet takes a clear stance on a legal issue (as he and the other leaders have on this one), then the clearly correct position is to follow, and I have written to my senators accordingly. But my position is almost purely one based on faith in the prophet and the Church rather than a reasoned justification.

  4. Great question, Dave.

    I’m afraid that in the interest of being as brief as possible with such a complicated subject, I didn’t give an adequate explanation. As I said in my post, the ten commandments were a standard that they looked at, but they weren’t the standard. The way I understand it, the Decalogue was only the starting point of a complicated series of logical reasons.

    Both polygamy and sodomy were absent from the ten commandments. However, there are passages in the Bible that appear to prohibit both polygamy (Deuteronomy 17:17 ) and homosexual behavior (Leviticus 18:22 ). Of course there are many prohibitions in Leviticus and Deuteronomy that are no longer prohibited in Christianity (like cooking meat in milk) while, for Mormons, there are other modern proscriptions that were not previously forbidden (the Word of Wisdom). So the challenge is to determine which prohibitions are malum in se, like murder, and which are merely malum prohibitum like the Word of Wisdom or Jewish eating prohibitions.

    In the Reynolds case the church argued that polygamy was only mala prohibita because the biblical God had permitted individuals to practice, or at least tolerated the practice of polygamy among the biblical patriarchs, especially Abraham who was revered as a righteous prophet by Muslims, Christians, and Jews. Moses, who presented the Decalogue, appears to have had more than one wife (Numbers 12:1 ), and the mosaic law provided stipulations that a man taking an additional wife was required to not diminish his care for the first wife (Exodus 21:10 ). As an additional consideration, most world religions and moral systems permitted polygamy (with restrictions). The logical argument was that God could not permit anything that was inherently bad, and therefore polygamy could only be mala prohibita. That given, and the fact that proscriptions of polygamy through history were the exception rather than the rule, lead to the conclusion that the religious practice of polygamy was not mala in se, and so it should be a protected religious practice under the constitution.

    To show that Homosexual behavior is only mala prohibita using this same line of reasoning, we would have to find instances in the Bible where God identified individuals that clearly engaged in homosexual behavior as blessed and righteous. The Bible is devoid of these kinds of examples. The only one that occurs to me that might be possible is the prophet Daniel. We could speculate that, having been enslaved by Babylonian court, Daniel very well might have been made a eunuch (he never is mentioned having children), and as such may have been sodomized or become the “love slave” of one of his wicked masters or with another eunuch of the court. But such speculation is weak evidence for homosexual behavior as only mala prohibita. The malum prohibitum eating restrictions of the old testament are changed in the New Testament when Peter receives a vision. Paul modifies the restrictions on Polygamy by stating that a Bishop should have only one wife, but there is no example of such a change with regard to homosexual behavior. Paul reiterates the prohibition.

    Even restricted approbation of homosexual behavior in the religious and moral texts of world history is the inverse of that of polygamy: it is the exception rather than the rule. Those cultures where it became common were widely regarded as decadent in many other ways (think the bloodsports of the Colosseum). I’m sure that those looking to show that homosexual behavior is mala in se would point to the rampant practice of sodomy among criminals in all cultures whose sense of right and wrong has already been warped by committing other acts that are malum in se.

    If we extend the question beyond homosexual behavior to same-sex marriage, it is nearly unprecedented in all of history.

    I recognize that there are other interpretations and feelings. I’m sure that homosexuals see their behavior as inherently different than that of prison sodomy. But as far as the church Natural Law argument in favor of religious liberty to practice polygamy and against liberty for homosexuals to marry, it seems consistent.

    Here is an extensive quote from the opening chapters of “Mere Christianity” by C.S. Lewis that I think is applicable:

    EVERY ONE HAS HEARD people quarreling. Sometimes it sounds funny and sometimes it sounds merely unpleasant; but however it sounds, I believe we can learn something very important from listening to the kinds of things they say. They say things like this: “How’d you like it if anyone did the same to you?”–‘That’s my seat, I was there first”–”Leave him alone, he isn’t doing you any harm”—”Why should you shove in first?”—”Give me a bit of your orange, I gave you a bit of mine”—”Come on, you promised.” People say things like that every day, educated people as well as uneducated, and children as well as grown-ups.

    Now what interests me about all these remarks is that the man who makes them is not merely saying that the other man’s behavior does not happen to please him. He is appealing to some kind of standard of behavior which he expects the other man to know about. And the other man very seldom replies: “To hell with your standard.” Nearly always he tries to make out that what he has been doing does not really go against the standard, or that if it does there is some special excuse. He pretends there is some special reason in this particular case why the person who took the seat first should not keep it, or that things were quite different when he was given the bit of orange, or that some thing has turned up which lets him off keeping his promise. It looks, in fact, very much as if both parties had in mind some kind of Law or Rule of fair play or decent behavior or morality or whatever you like to call it, about which they really agreed. And they have. If they had not, they might, of course, fight like animals, but they could not quarrel in the human sense of the word. Quarreling means trying to show that the other man is in the wrong. And there would be no sense in trying to do that unless you and he had some sort of agreement as to what Right and Wrong are; just as there would be no sense in saying that a footballer had committed a foul unless there was some agreement about the rules of football.

    Now this Law or Rule about Right and Wrong used to be called the Law of Nature. Nowadays, when we talk of the “laws of nature” we usually mean things like gravitation, or heredity, or the laws of chemistry. But when the older thinkers called the Law of Right and Wrong “the Law of Nature,” they really meant the Law of Human Nature. The idea was that, just as all bodies are governed by the law of gravitation and organisms by biological laws, so the creature called man also had his law—with this great difference, that a body could not choose whether it obeyed the law of gravitation or not, but a man could choose either to obey the Law of Human Nature or to disobey it.

    This law was called the Law of Nature because people thought that every one knew it by nature and did not need to be taught it. They did not mean, of course, that you might not find an odd individual here and there who did not know it, just as you find a few people who are color-blind or have no ear for a tune. But taking the race as a whole, they thought that the human idea of decent behavior was obvious to every one. And I believe they were right….

    I know that some people say the idea of a Law of Nature or decent behavior known to all men is unsound, because different civilizations and different ages have had quite different moralities.

    But this is not true. There have been differences between their moralities, but these have never amounted to anything like a total difference. If anyone will take the trouble to compare the moral teaching of, say, the ancient Egyptians, Babylonians, Hindus, Chinese, Creeks and Romans, what will really strike him will be how very like they are to each other and to our own. Some of the evidence for this I have put together in the appendix of another book called The Abolition of Man; but for our present purpose I need only ask the reader to think what a totally different morality would mean. Think of a country where people were admired for running away in battle, or where a man felt proud of double-crossing all the people who had been kindest to him. You might just as well try to imagine a country where two and two made five. Men have differed as regards what people you ought to be unselfish to—whether it was only your own family, or your fellow countrymen, or everyone. But they have always agreed that you ought not to put Yourself first. Selfishness has never been admired. Men have differed as to whether you should have one wife or four. But they have always agreed that you must not simply have any woman you liked.

    It seems, then, we are forced to believe in a real Right and Wrong. People may be sometimes mistaken about them, just as people sometimes get their sums wrong; but they are not a matter of mere taste and opinion any more than the multiplication table.

    I highly recommend the other book Lewis cites, his “The Abolition of Man,” which has an extensive exploration of Natural Law and how it applies to public policy.

    Also, for the very best, non-religious discussions of the issue of homosexual marriage, I recommend a blog post that I read last year when it was first posted:

    http://www.janegalt.net/

    Sorry for the long winded response. I guess you are getting used to it by now. :-p

  5. Thanks for that; I am convinced of the key point that the Church is internally consistent in its argument in favor of polygyny (historically) and against gay marriage (today).

    I do think that we have to be cautious in using historical cultures as the benchmark for whether something is “natural” or not. There are certain aspects of the world today that are completely unique in history. For example, widespread accumulation of wealth didn’t really occur in the world until 1800. (Concentrated accumulation, yes; widespread, no.) And that affects certain aspects of society, such as opportunities for women, in ways that have never previously been possible. I don’t think this affects the homosexuality argument, but I have previously heard this idea that gay marriage is unprecedented; unprecedented in and of itself could in fact be a very good thing rather than a bad thing. (In this case, of course, it’s not “in and of itself.”)

  6. Max, thanks for further explaining the LDS legal case on polygamy. Also, thanks for the Jane Galt link. She provides some very cogent arguments from a secular viewpoint.

  7. Dave,

    Good point about the unique state of the modern world. Did you get some time to read the Jane Galt link in my previous comment? It offers an interesting perspective that relates to your point.

    One more point that I find helpful in the same-sex marriage debate is the following exchange between Chicago Public Radio’s Steve Edwards and Republican Politician Alan Keyes from a radio interview in August 2004.

    Edwards:

    I want to come back to this notion of principle for just a moment, especially as it relates to the issue of same-sex marriage. When you talk about those rights endowed by God and you talk about issues of affirmative action or any other issues, one of the core principles as it relates to the notions of natural law is the idea, as you well know, that you cannot be judged for those things which you are powerless to affect—gender, race and so on. If, in fact, as some scientific studies suggest, that being homosexual is, in fact, biologically determined, what then would be wrong with granting rights, and even the right to marry?

    Keyes:

    First, no study has made such a determination…. And I say that unequivocally. I’ve looked at the question many times. Second, we are all in a certain sense genetically and biologically predisposed to a kind of sexual promiscuity. We want to engage and indulge our sexual appetites in ways that have no respect for basic human requirements, conventions, family responsibilities and so forth. That’s not just true of homosexual people. That’s true of heterosexual people. Healthy, red-blooded males who are sexually attracted to every attractive woman they see, and vice versa.

    We as human beings cannot assert that our sexual drive is uncontrollable. If we do, civilization is ended. These are not things we can’t control. Our passions are precisely subject to our moral will and our rationality. That’s what makes us human. So if you’re going to tell me that the sexual impulse of anybody—not just homosexuals—is uncontrollable and you’ve got to do it, then you have removed us from the realm of human moral choice and you have consigned us to the realm of instinctive necessity and animal nature. And we are not there. I will not deny our humanity.

    So I think that in this area as in all the areas of passion: our anger, our greed, our resentment, our jealousy—these are all passions that can be very strong in us but which we know must be disciplined and regulated by our moral will for the sake of conscience and human community. And we have to expect that of one another. Do you realize that the very idea of freedom and self-government is absurd if we are, in fact, subject to uncontrollable passions? Then we’re not free. We’re slaves to our passions. But that’s not so. We believe in this country, in liberty, in . . . true moral choice. And that moral choice is possible with respect to sexual action to such a degree you don’t even have to engage in sexual activity. You can refrain from it altogether, if you think that is required by the dictates of moral conscience. And that capacity shouldn’t be denied in any human being. And I don’t think it’s a question of homosexual or heterosexual. It’s a question of humanity.

    I think that Keyes makes an important point: One of the central issues is whether people can control their natural urges or not. Liberty presupposes that people can and that assumption is at the root of any concept of humanity, civilization, as well as democratic, representative government.

  8. Keyes does make an important point, and he’s correct. BUT I can certainly understand why many participants in the debate see it as problematic that it’s acceptable for one set of people (heterosexuals) to give partial fulfillment to their passions (i.e., within marriage), whereas another group cannot at all. Thus, I think it really fundamentally comes down to whether you believe homosexual sex is a sin. In that sense, it’s similar to the pro-life / pro-choice debate. If you REALLY believe that fetuses are human, then it would be very difficult to defend a pro-choice position. If you don’t, then it would be difficult to justify an anti-choice position.

    I have not yet read the Galt post (it’s a LONG post), but I plan to. Thanks for the link.

  9. Hmmm. Consistency regarding arguments of Constitutional Law is low on the list of most people, who don’t make decisions and vote on issues based on yesteryear’s legal arcana. If people are talking about consistency, they’re probably talking instead about things like:

    1. Amendment XXVIII would go against the life and teachings of Jesus. Consider: What is the modern-day equivalent of throwing stones at the woman caught in adultery? What is the equivalent of writing in the dirt? In another NT episode, Jesus speaks kindly to the woman at the well, when that went against the conservative cultural and legal mores of the time. What is the equivalent of that behavior? He never condones sexual missteps, true, but that doesn’t lead to the conclusion that he would back XXVIII. A careful reading and likening unto us may very well lead one to the opposite conclusion.
    2. The justification for the church’s past polygynous doctrine depends on the possibility of God once again declaring plural marriage to be peachy and keen. (Does this reasoning exist only among the great unwashed, or has such a position at some point come from official channels? I’m not sure. But it was an important point in many quorum discussions I’ve heard, and I heard it in release-time seminary back in the day.) So, does the Church’s current support of one-man-one-woman mean Church leaders don’t believe God will again declare polygyny in season? And does that mean, perhaps, that they know he won’t because it was a mistake the first time? On the other hand, the plan might be to move Church headquarters to Mexico again.

    P.S. Supporting your position with positive statements about the Church’s past position on polygyny won’t win over many women. Lots of women are 100% horrified of That. Any current plea that involves supporting That is handicapped from the get go. And who can blame them for their horror?

  10. Thanks for your thoughts, NotMy.

    I wrote this in response to a large number of people who have specifically cited the church’s past opposition to the Federal Government’s interference in polygamous marriage as inconsistent with the church’s modern support of federal interference with regard to same-sex marriage. My point is that the appearance of inconsistency they cite in that regard is superficial and incorrect.

    It is unrealistic to suppose anyone capable of addressing every argument for or against a specific issue in a single post. We all pick and prioritize our points. The post was not meant to not address the arguments of those who see the church’s position as inconsistent with the church’s teachings of mercy, forgiveness, or charity, or with the possible reinstatement of polygamy.

    1. I see your point regarding the teachings of Jesus. It is interesting that you draw parallels to Jesus and the woman taken in adultery. In a previous post, I used a literary exploration of this tale by Orson Scott Card to examine issues of justice and mercy with regard to Illegal Immigration. The same ideas can, and should be applied to this issue. Go and read the excerpt from Card in my previous post here . My response to your thoughts relates to it.

    As Card so brilliantly illustrates, the challenge is to forgive the transgression and still maintain the law. The Book of Mormon asserts that Mercy cannot rob Justice (Alma 42:25 ). God sacrificed His Only Begotten so that he could be both perfectly merciful and perfectly just.

    While it is true that Jesus showed mercy to the woman taken in adultery, he also commanded her to “go and sin no more.” He demanded a change of behavior on her part. And yet, someone had to be punished to satisfy the demands of Justice for her recent sin. And he himself suffered death in her place so that the law could be maintained.

    What is the modern-day equivalent of “go and sin no more”?

    True, Jesus flouted the “conservative” societal norms by speaking with the Samaritan woman at the well. Not all establish norms should be conserved. Like modern racism, the racist norms against the Samaritans were immoral.

    2. I think that Jacob in the book of Mormon makes it clear that while polygamy may not be wrong in and of itself, it is not the ideal at least for earthly practice. It is permitted only when God commands it. I know that there has been some disagreement about that in the church’s history among its leaders. Personally I am glad that Polygamy is not now permitted in the earthly church. However, there is little doubt that God could reinstate it if it were his will. The position of the church in nations where polygamy is currently legal provides a weather vane as to whether or not polygamy would be reinstated should it become legal in the United States. Current church policy is that polygamists in nations where it is legal cannot be baptized (stated explicitly in the Preach My Gospel missionary guide).

    I certainly don’t begrudge anyone for being disturbed by polygamy. In no way do I seek for the its reinstatement or think it ideal. If the Lord were to reinstate it, it would be a sore trial and test of faith for me. However, I am less concerned with whether my statements will “handicap” my position than I am with whether they are accurate and true.

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