With all of the fuss lately over marriage, it can be fun to think back to the good old days. The years prior to 1908, for instance — when temple marriage was a disqualification for voting or office-holding in one heavily Mormon state.
Yes, that’s right. This was not merely law — it was the (state) Constitution. Talk about defending marriage. (!)
The Idaho Constitution, section 3, article 6, stated:
No person is permitted to vote, serve as a juror, or hold any civil office who is under guardianship, idiotic or insane, or who has at any place been convicted of treason, felony, embezzlement of public funds, bartering or selling or offering to barter or sell his vote, or purchasing or offering to purchase the vote of another, or other infamous crime, and who has not been restored to the rights of citizenship, or who at the time of such election is confined in prison on conviction of a criminal offense, or who is a bigamist or polygamist, or is living in what is known as ‘patriarchal or celestial marriage,’ or in violation of any law of this state, or of the United States, forbidding any such crime; or who in any manner, teaches, advises, counsels, aids or encourages any person to enter into bigamy, polygamy, or such patriarchal, plural or celestial marriage, or to live in violation of any such law or to commit any such crime; or who is a member of, or contributes to the support, aid, or encouragement of, any order, organization, association, corporation, or society, which teaches, advises, counsels, encourages or aids any person to enter into bigamy, polygamy or such patriarchal or plural marriage, or which teaches or advises that the law of this state prescribing rules of civil conduct, are not the supreme law of the state; nor shall Chinese or persons of Mongolian descent not born in the United States, nor Indians not taxed, who have not severed their tribal relations and adopted the habits of civilization, either vote or serve as jurors, or hold any civil office. (emphasis added)
(Un?)fortunately, the elitist, liberal, and activist judges on the Idaho Supreme Court in 1908 read their own activist agenda into the state Constitution, in the process contravening its clear language. The issue arose in Toncray v. Budge, 95 P. 26 (Idaho 1908). The defendant was charged not with bigamy, but with “living in what is known as ‘celestial marriage,’ and with ‘teaching, advising, counseling, and encouraging persons to enter into what is known as ‘celestial marriage.”” (Id. at 28). Analyzing the provision in question, the court wrote:
Now, celestial and patriarchal marriages, to be participated in in the next world, or a future life, cannot be crimes here and in this life under a civil and man-made government; but, whenever they are practiced, in this present life, to the extent of more than one at a time, they become bigamous or polygamous, and are prohibited by the organic law of the state. It therefore clearly appears that the convention itself was guarding against acts and practices and teachings, and not against beliefs. There was no objection at that time, and can be no constitutional one now, to a man believing that the wife to whom he is married in this life will be his wife in the hereafter, and there can be no objection to his marrying her for both “time and eternity”; but what the Constitution objects to and forbids is a man having more than one wife at any one time, whether he be united, joined, or married to her by a celestial marriage ceremony for “all time and eternity” or by a purely civil marriage ceremony by a justice of the peace, or other civil officer, “for time only.” Nor does the fact that a man belongs to a church that teaches that marriage ceremonies, celebrated by its duly authorized officers and ecclesiastics, remain in force and effect during both this life and all eternity disqualify him for an elector, so long as it does not teach or countenance more than one of such marriages for the same person, during the same period of time, so as to make such marriages bigamous or polygamous.
Post-Toncray, Idahoans have been permitted to hold public office or vote, even if they were married in the temple. So perhaps the defend-marriage crowd is right — nothing short of a federal Constitutional amendment will keep the courts from tinkering with marriage and its consequences. After all, if a clear state constitutional provision like that in Toncray can be flouted by those activist turn-of-the-century judges in a liberal bastion like Idaho– allowing a minority group to use its own strange definitions of “celestial marriage” and avoid the legal consequences — then anything can happen.
Even temple-married Mormons being permitted to hold public office.