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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