The State of New York is charging two Unitarian Universalist ministers with a misdemeanor for solemnizing a marriage without a liscense. (Story here) The Unitarians have long granted gay couples religious unions, but they have not exercised the power delegated to them by the state to create legal marriages. Given the ubiquitious comparisons between the gay marriage legal kerfuffle and the anti-polygamy crusades, is there a parallell here?
First you have to understand the legal status of Mormon polygamous marriages in the nineteenth century. They were note purely “private” or “religious” ceremonies. Rather the territorial legislature granted to the church a corporate charter that provided, among other things, that no marriage solemnized by the church could be questioned in any other forum. Thus, they didn’t go all the way to making polygamous marriages de jure valid, but instead allowed one to raise solemnization by the church as a complete defense. Furthermore, the legal status of these marriages mattered, especially because of inheritance issues. Under the 19th century common law, a bastard could not inherit property from his father. Thus, if a man died intestate and the children of the man’s later wives tried to claim an inheritance, in theory his first wife and her children could raise bastardy as a defense. The church corporate charter precluded this move. This did a couple of things. First, it no doubt helped to shunt a lot of potential litigation into the church court system by making a lot of potential legal claims worthless. Second, it no doubt provided a deterrent against a lot of litigation that would otherwise have taken place between sometimes fractious plural families, see, e.g., the mamouth litigation between the church, the estate of Brigham Young, and his various plural families.
To my knowledge, the federal government never attempted to prosecute anyone for solemnizing plural marriages. (If I am wrong on this, I would love to look at the cases — please tell me!) The federal government, however, did move to revoke the church’s corporate charter, first in the Morrill Act of 1862, and later in the Edmund’s Tucker Act. This, however, put the federal government in the position of skirting the very edges of its constitutional authority in the 19th century. In the Dartmouth College Case, 4 Wheat. 518, the Supreme Court had held that a corporate charter was a contract that could not be abrogated by the state because of the Contracts Clause of the Constitution. Some jurists thought that there was a similar limitation on federal power in the 19th century. In Late Corporation of the Church of Jesus Christ of Latter-day Saints, where the Court finally upheld the Edmunds-Tucker Act, you have one of the few vigorous dissents in any of the polygamy cases. As I recall (don’t have time to look up the case), it was by Justice Field and it was on the issue of congressional power to revoke a duly vested corporate contract.
In the context of this Unitarian Universalist case, it would be similar to revoking their ability to perform marriages rather than crimnally prosecuting them for the misuse of that authority.