Activist Courts and the Legal Consequences of Temple Marriage

August 7, 2004 | 14 comments
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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.

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14 Responses to Activist Courts and the Legal Consequences of Temple Marriage

  1. john fowles on August 8, 2004 at 5:18 pm

    Kaimi wrote: (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.

    Wow. Congrats on a potent direct blow, Kaimi, to my view regarding the current situation with gay marriage that “this is a case of a liberal, activist elite pursuing a positive agenda through the courts in open spite of the legitimate democratic process” on another thread.

    That’s okay; I deserve it. I know how aggravating and downright backwards my opinion must be to supporters of gay marriage. I suppose I am still justified, however, in commenting a little on this Idaho situation.

    To me the situation with the religious bigotry that was written into the Idaho constitution is very different from prohibiting gay people from becoming “married,” rather than being satisfied with entering into civil unions. Proscribing “celestial marriage,” which is merely the Church’s way of seeing marriage, i.e. for time and eternity rather than ’till death do us part, is a direct violation of the First Amendment and its free exercise clause. The court was right in striking that state constitutional provision down as an indefensible restriction of free exercise. I am not saying that those are the actual grounds upon which the court struck the decision down (I have not read the entire opinion, only the section Kaimi quoted), but that it violated free exercise is in fact the case.

    Since the state constitutional provision constituted a violation of the first amendment, striking it down was not the act of an activist judge trying to force a questionable social agenda onto an unwilling society. Rather, it was a court very appropriately exercising its power of judicial review within the legitimate bounds of judicial discretion and the judicial office. Contrast that with a handful of current judges who want to create a brand new right not found in the Constitution without amending the actual Constitution. If there is any situation which illustrates the countermajoritarian difficulty of the federal judicial power, it is this issue of gay marriage.

    The question is, how much undemocratic power is a judge going to be allowed to wield? How can we trust a single activist judge with questionable morals (or a handful of such) to come to a correct decision in writing new rights into the Constitution and thus changing the identity and fabric of our society? These are questions that I am trying to figure out. Suffice it to say that as of yet, the behavior of these judges makes me very uncomfortable. We are very close to a day when the Church itself is going to be discriminated against because it follows God’s declaration that homosexuality is an abomination.

    Take for instance something as simple as the judicial rules of professional responsibility. A judge is not allowed to be a member of any organization that discriminates against certain classes of people. Right now, race, alienage, and gender are the suspect classes; a judge may belong to an organization that discriminates against age or sexual orientation as long as there is no local ordinance including those in the supsect classes. However, if these activist judges are able to use equal protection and due process to force states who have chosen, democratically, not to recognize gay marriages to recognize them anyway, then from that day any and all LDS judges will have one year either to persuade the Church to change its “discriminatory” position on gays or to leave the Church. With one swift stroke, these activist judges will rid society of LDS judges, unless the Church suddenly says that homosexualty is not a sin and abomination. It will truly become the case that the only form of discrimination that remains legitimate in our society will be discrimination against religious people who take the scriptures to mean what they say: that homosexuality is a perversion and an abomination in the sight of God. The Church will very likely fall into that latter category.

  2. Kaimi on August 8, 2004 at 10:15 pm

    John writes:

    “Proscribing “celestial marriage,” which is merely the Church’s way of seeing marriage, i.e. for time and eternity rather than ’till death do us part, is a direct violation of the First Amendment and its free exercise clause. The court was right in striking that state constitutional provision down as an indefensible restriction of free exercise. I am not saying that those are the actual grounds upon which the court struck the decision down (I have not read the entire opinion, only the section Kaimi quoted), but that it violated free exercise is in fact the case.”

    John, the case was decided in 1908. This was decades prior to the incorporation of (parts of) the bill of rights against the states. The First Amendment thus did not and could not apply. Remember Barron v. Baltimore? In 1908, the Bill of Rights bound only the federal government. State governments were free to act in ways that would have been violations of the Bill of Rights.

    Thus, at the very least — absent a creative interpretation by the court — Idahoans would need to wait until the 1940′s and the incorporation of the first amendment’s religion clauses. Until that time, the State Constitution pretty clearly prohibited office holding and voting from anyone who was celestially married.

    In addition, at least some conservative church members believe that incorporation was a mistake and should be retracted. (There was a lengthy series of articles about this in Meridian Magazine several months ago). Take away incorporation, and require courts to follow the text of laws and statutes, and the Idaho provision might still be on the books today, preventing any church member in a temple marriage from holding office or voting.

    Of course, the mantra goes, disgruntled minorities (like these church members) should simply try to change the law through the democratic process. Why not muster enough votes to amend the state constitution — and until then, simply choose between temple marriage and officeholding/voting?

  3. john fowles on August 8, 2004 at 11:21 pm

    Of course, the mantra goes, disgruntled minorities (like these church members) should simply try to change the law through the democratic process. Why not muster enough votes to amend the state constitution — and until then, simply choose between temple marriage and officeholding/voting?

    Yes, that would be the only recourse in a pre-incorporation system.

  4. Matt Evans on August 9, 2004 at 2:39 am

    The incorporation of the Bill of Rights against the states was not necessary to protect the religious freedom of Idaho Mormons. Their religious freedom was protected by the Idaho State Constition as approved in 1890.*

    The court in the Toncray case recognized that ‘celestial marriage’ can refer to either (1) polygamous marriage or (2) the belief that temple marriages are eternal. The justices rightly conclude that the constitution prohibits the first form of celestial marriage and protects the second.

    The court held that a monogamous couple who calls their union a ‘celestial marriage’ — because they believe it to be eternal — is protected by the guarantee of religious liberty. The couple can believe whatever they want about the nature of their marriage. The court specifically notes that constitutaional prohibition of “celestial marriage” was “against acts and practices and teachings, and not against beliefs.” The court upheld the political deprivations of those in private polygamous celestial marriages.

    I don’t see how this case is relevant to the Federal Marriage Amendment. The FMA does not prohibit any opinion or belief, nor does it deny the political rights of those in private same-sex marriages.

    * IDAHO STATE CONSTITUTION, ARTICLE I
    SECTION 4 – GUARANTY OF RELIGIOUS LIBERTY. The exercise and enjoyment of religious faith and worship shall forever be guaranteed; and no person shall be denied any civil or political right, privilege, or capacity on account of his religious opinions; but the liberty of conscience hereby secured shall not be construed to dispense with oaths or affirmations, or excuse acts of licentiousness or justify polygamous or other pernicious practices, inconsistent with morality or the peace or safety of the state; nor to permit any person, organization, or association to directly or indirectly aid or abet, counsel or advise any person to commit the crime of bigamy or polygamy, or any other crime *** Bigamy and polygamy are forever prohibited in the state, and the legislature shall provide by law for the punishment of such crimes.

  5. Kaimi on August 9, 2004 at 9:03 am

    Matt,

    As a matter of Constitutional or statutory interpretation, two contemporanous provisions are generally to be read in harmony, and the more specific generally controls.

    Thus, the United States Constitution, with its specific carve-outs for slavery, is generally recognized as permitting slavery, despite plausible arguments that provisions of the Bill of Rights (such as the Fifth amendment) would normally prohibit slavery.

    My larger point was not about the FMA, but about perceptions of courts. Everyone likes to criticize activist courts, except when those courts are striking clear language from a state constitution in a way that is beneficial to church members.

    As an aside: “The FMA does not prohibit any opinion or belief, nor does it deny the political rights of those in private same-sex marriages.” Is it your view that the loss of political rights changes the analysis? If so, do you believe that Lawrence was correctly decided?

  6. Kaimi on August 9, 2004 at 9:10 am

    I should note that I don’t think that “activist courts” really exist. I think they’re a bugbear created by certain conservative critics of the judiciary. And I don’t think that the Toncray court did anything it shouldn’t have. It engaged in a standard exercise of constitutional interpretation, the same as courts do all of the time.

    That said, if one applies standard formulae used by critics to define activist courts, I believe that a ruling like Toncray — one that clearly contravenes the unambiguous text of the state constitution, to arrive at a conclusio based on the court’s own common-sense opinion of what would be preferable — would probably be classified as activist.

  7. Chris Grant on August 9, 2004 at 11:18 am

    Is this a correct outline of the argument?

    (1) Actions which benefit the Saints are good.
    (2) The Saints benefited from an action that is as easily construed as judicial activism as any.
    (3) Therefore, we should stop criticizing so-called acts of judicial activism.

    If not, would someone correct it? If so, what if, instead of a ruling by the Idaho Supreme Court, the anti-celestial marriage provision of the Idaho Constitution had been dispensed with by a few well-chosen murders of supporters of that provision? Would we, then, be obligated to desist in our criticism of murder? Or, if you don’t like hypotheticals, can’t a case be made that the Saints benefited from an aggressive war of territorial acquisition, from mistreatment of indigenous peoples by the U.S., etc.? And haven’t the Lord’s covenant people in previous dispensations benefited from the actions of certain despots? Must it, therefore, be “three cheers for despotism”?

    If this outline is correct, the argument seems to go beyond the principle of “the ends justify the means” to the even more dubious principle of “the ends sanctify the means for use in achieving other ends”.

  8. john fowles on August 9, 2004 at 11:57 am

    Matt beat me to the punch on the state constitution analysis (I didn’t want to stay up past midnight just to write it). I fully agree with Matt on that and don’t see Kaimi’s response as a real comeback to it.

    Another thing: when courts fulfill the political role that they have been allotted, they are not engaging in judicial activism. I am not being a hypocrite because I think the Idaho court acted in a legitimate way but that the handful of judges trying to push their social agenda on the country are “activist.”

    That said, if one applies standard formulae used by critics to define activist courts, I believe that a ruling like Toncray — one that clearly contravenes the unambiguous text of the state constitution, to arrive at a conclusio based on the court’s own common-sense opinion of what would be preferable — would probably be classified as activist.

    This is just wrong Kaimi. The courts have the power of judicial review and in the Toncray case exercised it to enforce a right guaranteed by that constitution–the right of free exercise. I don’t know any conservative who would consider the Toncray court an activist court. However, creating, for example, a right to abortion out of a nebulous penumbra that emanates from an amendment created with an entirely different purpose is just sneaky–it is not a bread-and-butter “common-sense opinion of what would be preferable”; rather, it is an example of courts pursuing a positive agenda of their own. That is, in such a case, the court is exercising force and will, not merely judgment (Federalist 78).

    Let me add that not everyone who believes it is possible for a court to be activist in this sense, i.e. to leave its politically proper role and begin creating law for the sake of a type of social reform that the majority might not support, is someone who believes that the incorporation of the majority of the Bill of Rights was wrong. I for one do see a lot of judicial activism in our country; judges are pushing political agendas on society that are prudentially more suited for democratically elected legislatures. But I think that the incorporation of the Bill of Rights was good, and even think that the Second Amendment and others should also be incorporated.

    It is ironic, by the way, that many are eager to defend rights created in the last thirty years but choose to be less enthusiastic for rights that are written into the Constitution in black and white, e.g. the Second Amendment.

  9. Nate Oman on August 9, 2004 at 12:31 pm

    “I believe that a ruling like Toncray — one that clearly contravenes the unambiguous text of the state constitution, to arrive at a conclusio based on the court’s own common-sense opinion of what would be preferable — would probably be classified as activist.”

    Kaimi: I am less certain than you are that the concept of an activist judiciary was invented by under-handed conservatives. You remember the New Deal, the crusade against Lochner, and all of that from con law, right? I have a hard time thinking of someone like Louis Brandies as a reactionary conservative playing pointless word games. Roscoe Pound? Franklin D. Roosevelt?

    As for the constitutional provision at issue here, it is far from clear that the text is as unambigious as you suggest. The reason for this is that you are anachronistically reading the current meaning of “celestial marriage” into the 19th century constitutional provision. It is important to understand two things. First, 19th century Mormons seldom if ever made a distinction between “celestial marriage” and “plural marriage.” Second, 19th century Mormons engaged in a lot of (ultimately fruitless) word games in order to deny that their marriages were in fact bigamous. For example, when subsequent plural marriages were performed in temples and did not have any sort of legal sanction, they would deny that such marriages were “legal marriages” and claim that they were not legally bigamous. Rather, Mormons would claim that they were merely “celestial marriages.” (One also had all sorts of ambiguities involving the legal status of non-conjugal polygamous marriages, e.g. Eliza R. Snow and BY.) Seen in this light, the Idaho constitution can be read as simply forbidding plural marriages regardless of the name attached to them. After the Manifesto in 1890, the meaning of the term “celestial marriage” began to change subtley to refer to the concept of temple marriage, a concept that gradually became shorn of any necessary connnection to plural marriage. This new meaning, however, was not current when the anti-celestial marriage provision of the Idaho state constitution was passed. This seems to be exactly the point that the Idaho Supreme Court was making.

    Generally speaking, the language of a statute or constitution is read in the light of the context in which it was passed. When the meaning of a word changes over time, the meaning that the word had at the time of enactment is favored over the current meaning of the word. (but see Eskridge re dynamic statutory interpretation.) Consider for example, U.S. Const. art II, sec. 2, cl. 1, which makes the President Commander-in-Chief of “the militia of the several states.” We understand this to refer to the National Guard rather than folks in the hills of Montana. More dramatically, think about the term “common law” in the Seventh Amendment, which is read according to its 18th century meaning in order to limit the right to jury trials in civil cases.

    Finally, on the First Amendment issue. I believe that the provision in the Idaho State constitution was copied from a more or less identical provision in the Idaho Territorial Constitution. Territorial laws were subject to the First Amendment prior to its incorporation against the states under the 14th Amendment. The anti-celestial marriage provision was then upheld by the Supreme Court in Davis v. Beason. Interestly, Justice Scalia relied in part on Beason in his dissent in Romer v. Evans. Justice O’Connor wrote a concurrence responding to Scalia’s dissent in which she suggested that Beason is no longer good law.

  10. Kaimi on August 9, 2004 at 2:55 pm

    Nate,

    I’ll grant the ambiguity of the language, which was (as you note) brought about in part because of the church use of code words.

    I hadn’t realized the applicability of Beason, but it weighs even more in favor of the necessity of court action. After all, as you point out, under Beason the celestial marriage provision is not a violation of the First Amendment.

    Also, yes, the Horsemen are an early example of conservative courts behaving in a way that can be characterized as activist.

    On the other hand, I think that Toncray shows the problem with modern characterizations of activist courts.

    Ask the general question:

    “Would you be in favor of allowing courts to use their own judgment to contravene clear text in a state constitution, in order to modify the legal consequences of unusual kinds of marriages as performed by a particular minority group?”

  11. Matt Evans on August 9, 2004 at 3:17 pm

    Everyone likes to criticize activist courts, except when those courts are striking clear language from a state constitution in a way that is beneficial to church members.

    Though I prefer to decide our laws by the voice of the people, I agree that activist courts occasionally rule in a way I like.

    This case doesn’t appear to be one of them, however, as I don’t see an element of activism in the Toncray decision. It appears to me that the court simply read the constitution, noticed that both references to “celestial marriage” in the state constitution are used only as descriptors of polygamy, and ruled that a monogamous couple doesn’t become polygamous by virtue of their beliefs.

    The court says as much in this passage: “There was no objection at [at the Constitutional convention], 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. . .”

    The constitutional language I find more interesting is the denial of political rights to anyone “who is a member of, or contributes to the support [of any] organization . . . which teaches . . . or aids any person to enter into bigamy, polygamy or such patriarchal or plural marriage.” This language would clearly disenfrachise all Mormons pre-manifesto, and is clearly in conflict with the Article I guarantee of religious liberty.

    I know that in 1890 the SCOTUS upheld the 1885 Idaho Voting Test Oath that disenfranchised Mormons who believed in polygamy, but that law was modified in 1893 to apply only to Mormons who refused to renounce polygamy. So I don’t know what controversy was before the Idaho Supreme Court in 1908, but from what I can tell no one was being disenfrachised by virtue of their monogamous temple marriage.

  12. Nate Oman on August 9, 2004 at 4:13 pm

    “Also, yes, the Horsemen are an early example of conservative courts behaving in a way that can be characterized as activist.

    On the other hand, I think that Toncray shows the problem with modern characterizations of activist courts.”

    Kaimi: Why? I am sorry; I just don’t get it. What is the difference other than the ideological position of the ox getting gored? Why is it fine to characterize the Lochner court as activist, but not the Goodridge court? As it happens, I am less exercised by the spectre of judicial activism than some. (Ironically, I am also less impressed by the virtues of judicial review.) On the other hand, the charge that the Goodridge court was activist hardly seems like an incoherent or insincere position to take. Certainly, the Toncray court — which seems to have been apply pretty straight forward principles of statutory construction — hardly seems like some sort of shining bit of evidence about the hypocrisy or incoherence of those who question the legitimacy of the SJC’s decision.

  13. john fowles on August 9, 2004 at 6:06 pm

    Nate: Isn’t Kaimi saying that both the Lochner-era courts and the Goodridge court are activist and that he thinks that is a good thing; or rather he is saying that neither of them is activist because he says “I should note that I don’t think that ‘activist courts’ really exist. I think they’re a bugbear created by certain conservative critics of the judiciary.

  14. Rob Briggs on August 13, 2004 at 2:59 am

    My understanding is that legislation in the late 1880s effectively disenfranchised all Mormons in Idaho. To vote, each male of legal age had to deny affiliation with Mormonism, even if, like most Mormons, he was monogamous. In Davis vs. Beason (1890) a unanimous Supreme Court upheld the government position, noting that the free exercise clause was bounded by the concept of “general Christianity” and the recognition that legislatures could criminalize those acts “recognized by the general consent of the Christian [i.e., Protestant] world in modern times as proper matters for prohibitory legislation.”

    So from the early 1800s American courts read “general Christianity” (Protestantism) into the common law. And the Supreme Court read this “Protestant” common law into the Constitution.

    Strangely, the monogamous male Mormons (the large majority of Mormon males) were disenfranchised not for polygamy and not even for advocacy of polygamy (there was no evidence of either.) Rather the implicit reasoning of Beason seems to be either (a) monagomous Mormons were impliedly advocating polygamy or (b) they were members in a criminal organization advocating the practice of polygamy. Either one boils down to implied advocacy of a criminal act.

    That seems a weak basis for stripping them of all their civil rights.

    I’ve submitted a review of Sally Gordon’s “The Mormon Question” to John Whitmer Historical Association. I concluded:

    Former justice Harry A. Blackmun (1908-1999) of the United States Supreme Court once observed that the early twentieth century was the “Dark Age of Civil Rights” in America. But it was in the late nineteenth century that the channels were cut into which flowed this early twentieth-century apathy and neglect for civil rights. Examining the fate of Native Americans under the Daws Act of 1887, the same legal tools of disincorporation and escheat so effectively deployed against the Mormons were similarly wielded against Indian tribal governments on reservation lands. A comparison to African-Americans is also instructive. Busy dismantling Mormon polygamy, reformers ignored the plight of ex-slaves while Jim Crow laws heaped new legal, political and social disabilities on them. These efforts were contenanced and even encouraged in Plessy vs. Ferguson (1896) which enunciated the infamous “separate but equal” doctrine. How nineteenth-century lawmakers treated these and other American outsiders – Hispanics, Irish, Chinese, Catholics and Jews to name a few – deserves further study. Still, when we consider our treasured American civil liberties it is hard not to conclude that the Daws Act (1887), Davis vs. Beason (1890) and Plessy vs. Ferguson (1896) form the triple relics of legal barbarism from nineteenth-century America.

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