Mormons and the Law, an Email

March 4, 2005 | 21 comments
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Yesterday, my father, who is a currator at the Church Museum in Salt Lake City, asked me to respond to an email that he had recieved from a young man that he had met through his work who was investigating the Church. The young man had heard his LDS girl friend declare that Mormons believe that one should always obey the law, but the young man had heard something about Mormon resistence to polygamy in the 19th century and thought that Mormons had taught that Mormon law always trumped Gentile law. What follows is the email that I wrote to him:

Jim,

My father forwarded to me your message. The issue of how Mormons have coped with conflicts between their religious convictions and the law is enormously complicated and no simple formulation will adequately capture that meaning. Essentially, in the 19th century Mormons tended to take the position that they would obey all legitimate and constitutional laws, but that certain formally valid laws, ie laws passed by congress and the president, were illegitimate and need not be obeyed. The most striking example is the Mormon reaction to the anti-polygamy laws passed by Congress, beginning in 1862. Mormons took the position that the laws violated their right to practice their religion and refused to obey the laws. For nearly fifteen years the federal government made no real effort to enforce the laws. When they finally did, the Mormons took a case to the Supreme Court, which held that the laws did not violate the first amendment. The Mormons believed that the Supreme Court had misinterpreted the constitution, and continued to resist federal law enforcement — mainly by going in to hiding or through civil disobedience, ie by disobeying the law and then going to prison. The federal government responded with massive force: huge amounts of Mormon property — including the sacred Mormon temples — were confiscated by the federal government, literally thousands of Mormons were sent to prison, Mormon women were denied the right to vote, all Mormon polygamists were denied the right to vote, all Mormons in Idaho were denied the right to vote (this law was upheld by the Supreme Court in a case called Davis v. Beason), etc. etc. Eventually, the Mormons had no choice but to submit to federal law or be destroyed. Beginning in 1890 the Church began a long and torturous set of negotiations with the federal government that ended about 15 years later with the complete abandonment of polygamy, the admission of Utah as a state, the return of confiscated Mormon property, a Presidential pardon of Mormons for past violations of the law, and full political equality for Mormons. For a good history of this whole process I would suggest Ed Firmage & Collin Mangrum, Zion in the Courts, Sarah Barringer Gordon, The Mormon Question, and Kathleen Flake, The Politics of American Religious Identity: The Seating of Senator Reed Smoot, Mormon Apostle, probably in that order.

The relationship between Mormon law and federal law in territorial Utah is very complicated as well. When the Mormons settled in Utah it was outside of the territory of the United States, in the Mexican province of Upper California. Practically speaking, the closest Mexican legal authority was hundreds of miles away in Santa Fe, so there wasn’t really any law in Utah in 1847. The Mormons responded by creating their own government. Originally this took the form of a local ecclesiastical organization known as the High Council. In 1848, the United States and Mexico signed the Treaty of Guadalupe Hidalgo, which ceded Upper California (essentially the present day states of Arizona, New Mexico, Colorado, Nevada, Utah, and California) to the United States. The Mormons responded by organizing “The State of Deseret.” They wrote a constitution (more or less copied from the then Illinois constitution), held elections, and petitioned the U.S. Congress to join the Union as a state. Congress denied the petition but didn’t really do anything else. The result is that for several years (until 1850) there was no federal action of any kind for Utah. The area — it wasn’t even formally organized as a territory — was left in legal limbo. The Mormons continued to operate the state of Deseret as the de facto government. There were two reasons for this. First, they had no choice. There was no other government around, including the federal government. Second, they wanted to be admitted as a state. Their goal was to mirror Texas’s model, which was to create a government in fact that the Congress would then recognize as legitimate and admit as a state. This didn’t really work. In 1850, Congress organized the territory of Utah by basically co-opting the state of Deseret, complete with Brigham Young as governor. They did send out some federal officials to act as judges. These folks alienated the local Mormons, who refused to use their courts, acted in menacing ways, and generally made their (the judges’) lives unpleasant. The judges left, and gave the federal government exaggerated accounts of a Mormon rebellion against federal authority. President Buchanan responded, at least in part for cynical political reasons — the Mormons made a nice diversion from the battles over slavery that were threatening to rip the Union apart –by sending the bulk of the federal army to Utah to subdue the Mormons. Brigham Young and the Mormons first heard about this when Mormons on the plains reported that the U.S. Army was marching to Utah with orders to subdue or destroy the Mormons. The Mormons thought that they were going to witness a replay of the earlier persecutions against them in Missouri, only on a much vaster scale. Eventually, there was a negotiated settlement. The U.S. Army entered Utah, Brigham Young resigned as governor, and a gentile — but a largely friendly one to the Mormons — became governor. Thereafter, Utah was run the same way that most territories were run. There was a territorial legislature elected by the local people that could pass laws just like a state legislature. A federally appointed governor had a veto power, just like a state governor. The key difference was that Congress had the authority to revoke territorial laws (Congress cannot revoke state laws) and Congress had much greater authority to pass laws directly relating to affairs in the territory (although the scope of Congress’s power over the territories was hugely controversial and was ultimately one of the disputes leading to the Civil War).

You may have heard about the so-called “Ghost Government of Deseret.” This is not nearly as mysterious as it sounds. After the organization of Utah territory, the Mormons kept petitioning Congress for admission as a state. These petitions would take the form of a law (actually a resolution) passed by the territorial legislature, signed by the Governor and then conveyed to the Congress by him. The Mormon dominated territorial legislature (elected by the local people, who were overwhelmingly Mormon) passed a petition for statehood. The unelected, federally appointed governor refused to sign it or pass it along to the Congress on the grounds that the Mormons were unfit to be full American citizens, mainly on account of polygamy and Mormon political cohesiveness. The Mormons — especially Brigham Young — were understandably pissed off by this. The responded with hard ball tactics. They re-organized the defunct State of Deseret. It had a legislature that consisted of all of the people who were in the actual territorial legislature, as well as a Governor — Brigham Young — and other officers chosen by the “state” legislature. The idea was to circumvent the territorial governor by presenting Congress with a fait accompli, an already functioning state government that Congress would be forced to acknowledge. Again, the Mormons were loosely modeling themselves on the Texas experience. The “Ghost Government of Deseret,” however, only really existed on paper. The legislature of the territorial government and the legislature of the “State of Deseret” were composed of the same people and passed identical laws. Brigham Young, as “governor”, would give speeches to the “state” legislature, but other than that it never functioned as anything other than a political ploy. It remained in operation for several years, partly out of the hope that the political winds in Congress would change, and partly out of Mormon stubbornness and frustration. They found it difficult to see territories such as Oregon or Nevada admitted as states, despite that the fact that Utah had been settled longer and — at least in the case of Nevada — had a much larger population. Eventually the ghost government of the State of Deseret quietly shut down when it became clear that it was not going to work as a ploy for statehood. Other than this, legally speaking Utah operated much like another territory. It was basically self-governing, except when Congress chose to repeal or modify its laws, which Congress did with increasing frequency after 1862. In addition to the books by Firmage & Mangrum, Gordon, and Flake above, if you are interested in this period, I would suggest Dale Morgan’s The State of Deseret, and Leonard Arrington’s biography of Brigham Young.

OK, I am sure now that this is too long and more information than you really wanted, but I did want to convey to you some sense of how difficult it is going to be understand Mormon legal history with phrases like “Mormons always obey the law” or “Mormon law always trumped Gentile law.” Neither of these statements are true. Today, I think that by and large the Church teaches that one must obey the law. However, unlike in the 19th century, the Church is not faced with laws aimed at the destruction of the Mormon community, its practices, or the institutional Church. I suspect that faced with such extreme laws, the Church would once again revert to it’s past commitment to following a “higher law” in the face of conflicts with human law, a doctrine that continues to exist in Mormon scripture, particularly section 132 of the Doctrine and Covenants. Fortunately, modern Mormons and the modern Church do not face legal attacks that have anything like the intensity of the 19th century attacks on Mormonism. Furthermore, I think that the memory of the brutality and intensity of those attacks continues among Church leaders. Having been the target of overwhelming legal attacks in the past, the contemporary prophets are eager to spare contemporary Mormons such persecution, especially since most Mormons live as tiny religious minorities in their countries, many of which do not have strong traditions of religious liberty. Hence, the current emphasis on obeying and sustaining the law.

I hope that this helps you.

Best wishes,

Nate Oman

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21 Responses to Mormons and the Law, an Email

  1. Kevin Barney on March 4, 2005 at 12:01 pm

    A terrific letter, Nate. Your Dad knew just the right place to turn for this query.

  2. Sheri Lynn on March 4, 2005 at 12:33 pm

    I appreciate this letter more than anything else I’ve read on this site, and since I appreciate this site more than almost anything else on the internet, that puts you up pretty high on my list. Thank you, Brother Oman.

  3. Russell Arben Fox on March 4, 2005 at 12:51 pm

    “First, they had no choice. There was no other government around, including the federal government. Second, they wanted to be admitted as a state. Their goal was to mirror Texas’s model, which was to create a government in fact that the Congress would then recognize as legitimate and admit as a state.”

    Who are the “they” you’re talking about here, Nate? Obviously a lot of Mormons did want to follow the Texas model and be admitted to the union. But not all did. I’m not even certain it’s clear that a majority did, or at least not a majority of the general authorities at the time. The theocratic ambition, to create a Kingdom of God in the desert, may have been exaggerated historically (i.e., all the rumors about the Council of Fifty that have been put to rest in recent years), but that doesn’t mean it was absent. I don’t read Brigham Young as being a huge fan of making Utah a state: if they could do so under his preferred terms, yes, maybe, but not if they were to be under the Gentile’s thumb (and law). Correct me if I’m wrong (you know scads more about this topic than I), but I think the motivations of Mormons leaders were more ambiguous than all that.

  4. gst on March 4, 2005 at 12:54 pm

    Nate, you should write a nutshell history of Mormonism. In verse, if possible.

  5. John T. on March 4, 2005 at 1:07 pm

    I enjoyed your detailed explication, but a more pragmatic response would be : Your future Celestial wife is correct. Get used to it. :)

  6. Nate Oman on March 4, 2005 at 1:13 pm

    Russell: I don’t think that this is as murky as you make it out to be. There is very solid documentary evidence that in 1848 the Mormons were getting ready to petition the Congress for a territorial government. Brigham, and others, were advised by Bernheisal (the Mormon agent in DC) as well (I think) by Thomas Kane that the Mormons would be better off petitioning for a state government. The leading authorities of the Church then made the decision to go forward with the bid for statehood. Indeed, they probably went so far as to “fake” a constitutional convention in order to fast track their statehood petition. Thereafter, the bid for statehood was a consistent theme. There were discussions about trying to bolt even farther away from federal control but these were ultimately scrapped as unworkable. I think that by 1850, it was pretty clear to Brigham et al that they were not going to get an independent Mormon country and that their best course of action was to negotiate for maximum regional autonomy within the American system. It is by no means obvious that the Mormon leadership saw this statehood in a stable United States as their final destiny. They didn’t have a great deal of hope for the continuation of the United States in the mid-19th century, and may well have expected a Mormon state in the Union to evolve eventually into a seperate nation. At the end of the day, however, I think that Brigham et al, for all of the firey rhetoric — especially during the Reformation of the 1850s — were ultimately fairly realisitc. I don’t think that they wanted radical institutional innovation in government. They were content with operating within more or less “American” institutional structures so long as Church authorities held high office and could direct political affairs. I think that this is what the envisioned as the State of Deseret, at least until God intervened in more dramatic ways immediately prior to his second coming, which was just around the corner.

  7. Russell Arben Fox on March 4, 2005 at 1:38 pm

    Good point(s), Nate. You’re right that the belief in the imminent destruction of the U.S. needs to color our estimation of Mormon politics at the time. Why not become a state, when the Lord is returning to judge the wicked in a few decades anyway? It makes sense as a way to ride out the storm. That helps me put Brigham’s milleniarianism and pragmatism in the same context; thanks.

  8. Jed on March 4, 2005 at 1:56 pm

    Russell says: “I don’t read Brigham Young as being a huge fan of making Utah a state: if they could do so under his preferred terms, yes, maybe, but not if they were to be under the Gentile’s thumb (and law).”

    Utah wanted statehood precisely _because_ they thought it would get them out from under the Gentile thumb. They applied six times before the 1895 convention, and the second time, 1856, came during a time when the in rhetoric against Gentiles was especially fiery. The yoke was the federal officials who stocked the territorial offices, not the affiliation with a family of states. BY believed statehood meant liberty–Mormons voting for Mormons, Mormons voting against Gentiles.

  9. Jed on March 4, 2005 at 2:05 pm

    I think the truth is somewhere in between Nate and Russell. It isn’t wanted theocracy or they wanted statehood. They wanted to have it all just as Mormons want it all today: they wanted acceptance and difference at the same time. Take the term Gentile, e.g. Mormons talking between themselves sometimes spoke of Gentiles as everyone who is not Mormon. But in a more public setting they might speak of Gentiles as anyone who was an enemy to Mormonism. One could be born a Gentile, but one could also become a Gentile.

    Just because Mormons wanted statehood does not mean that Mormons had the same idea of statehood as everyone else. They still wanted theodemocracy–a place where all the office holders had Mormon interests in mind, a place where BY could say, as he did say, to the apostles, we want that man in office, and it would be done.

  10. Nate Oman on March 4, 2005 at 2:45 pm

    “Just because Mormons wanted statehood does not mean that Mormons had the same idea of statehood as everyone else. They still wanted theodemocracy?a place where all the office holders had Mormon interests in mind, a place where BY could say, as he did say, to the apostles, we want that man in office, and it would be done. ”

    Jed: I don’t think that I said anything contradicting this point. My arguement with regard to institutional innovation has to do with constitutional structures. With one or two exceptions, the Mormons simply did not propose unique constitutional structures. They essentially were asking for the Illinois constitution, and then later the Nevada constitution, and finally got (mostly) the Washington constiution. Theocracy was not so much a matter of unique legal structures as a unique political culture. In a sense this is how they wanted to be different and the same, as you say. They would have essentially analogous legal structures — formal seperation of powers, periodic elections, etc. — but undergirded by a uniquely Mormon (theocratic) method of political (as opposed to legal) organization.

  11. Nate Oman on March 4, 2005 at 2:49 pm

    Even with regard to the imminent destruction of the United States in anticipation of the second coming, Brigham et al ultimately played a cagey and pragmatic game. There were lots of sermons about how seccession and rebellion were the beginning of the end etc. etc. However, Brigham was also very careful to make it clear that the Mormons were not throwing in their lot with the Confederates or interested in seceeding themselve. (Of course they had Connor’s troops crawling all over SLC.)

  12. Jed on March 4, 2005 at 2:58 pm

    “With one or two exceptions, the Mormons simply did not propose unique constitutional structures. They essentially were asking for the Illinois constitution, and then later the Nevada constitution, and finally got (mostly) the Washington constiution.”

    This is very interesting.

    In Conner, you’ve put your finger on the pulse. BY wanted the soldiers out. They were corrupting the moral environment, stealing the Mormon women, introducing new markets, etc. They represented everything ugly in Mormon memory.

    Why do you think BY lobbied for the Transcontinental RR in the middle of the Civil War? That is a puzzle to me….

  13. Nate Oman on March 4, 2005 at 3:26 pm

    Jed: My guess, and it is only a guess, is that it became clear to Brigham that the North would win the war and that the moment for the Mormons to pick up the pieces of the shattered nation had not come. He probably also realized that the transcontinental railroad was inevitable and it was better to co-opt it that futilely fight it. (Smart move by the way; the UP consistently acted as a political buffer of sorts for the Church for the remainder of the 19th century.)

    I think that in interpreting Brigham Young you have to look not only at what he said but also at what he did. Frankly, I think that he regularlly dealt in hyperbole that he understood to be hyperbole. His actions, on the whole, tended to be cagey and pragmatic, although he was clearly willing to engage in hard ball brinksmanship and high stakes political gambles when he thought it would pay off. He had a vision of creating a unique Mormon commonwealth that he pursued with extreme diligence, but he tended to be realistic and pragmatic both with regard to means and achievable ends.

    Random Note: Does anyone have any idea what the Mormon response — if any — was to the Civil War draft. Did it matter at all in the territories?

  14. A. Greenwood on March 4, 2005 at 3:41 pm

    All I remember is that the Feds turned away Mormon volunteers early in the war (course, the volunteers wanted to be assigned to protecting Utah and the Great Plains mail routes from Indians and marauders, which the Mormons were essentially doing anyway, so its understandable that the Feds decided not to pick up the tab for all this).

  15. fred on March 4, 2005 at 4:21 pm

    I’ve always been intrigued by that tricky little phrase in D&C 134:5. No one seems to notice it much:

    “We believe that all men are bound to sustain and uphold the respective government in which they reside, *****while protected in their inherent and inalienable rights by the laws of such government****”

    It seems to me that it’s saying that when you’re *not* protected in your inherent and inalienable rights, you’re not bound to sustain the government. I often wonder what sorts of governmental intrusion would qualify to allow people to refrain from sustaining and upholding.

    Maybe that’s what the polygamist brethren were thinking when unconstitutional laws were passed to their detriment.

  16. Elisabeth on March 4, 2005 at 4:29 pm

    Nate,

    Excellent, excellent discussion of polygamy’s historical perspective. Thanks. I would be interested to hear your interpretation of the U.S. Supreme Court’s decision in Employment Division vs. Smith (the peyote case), and how this case relates to the current Mormon thinking on obedience to civil laws (against the backdrop of the stated illegality of polygamy).

    Elisabeth

  17. Rob Briggs on March 5, 2005 at 3:56 am

    Nate, very nice summary of a complex subject. Here are a couple of additional observations.

    Territorial status. We forget how rapidly Americans expanded across the continent in the mid-19th century in pursuit of their Manifest Destiny. Frankly, they gobbled up more land & territory than they could afford to manage. So, for example, they had (somewhat) enlightened policies about Indians and reservations and permanent indemnities for them. But the enormous task of managing the West overwhelmed whatever enlightened sentiments motivated them. Think of Eastern tax payers being asked to send tax revenues to the west. Not a popular sentiment. It was a huge tax drain.

    As a consequence the Indians on reservations and white settlers in the western territories had similar complaints. Where’s the $$ that you, Congress, promised us?? All the territories complained of Congress not fulfilling its obligations to properly finance the territorial governments. What’s more, like all Americans, westerners in the territories (including the Mormons) perceived a sacred right to elect their own leaders. Thus, they were frequently dissatisfied with the slate of federal appointees (executive and judicial) sent to govern them. All of these antipathies were magnified in the Mormon case.

    Railroad. The costs of the Perpetual Emig. Fund was a significant drain on scarce Mormon resources. B. Young developed a sophisticated down-and-back wagon system in which Mormon teamsters left SLC in the spring and returned in the late summer with the new emigrants so that Mormon personnel and equipment handled the whole operation. But regardless of what they saved over using gentile freight companies, it was still costly and it still took many months. How much better if a transcontinental railroad shortened the trip to weeks? So once again cagey and pragmatic Brigham saw an opportunity.

  18. Larry on March 5, 2005 at 1:45 pm

    Nate,

    With respect to the tactic of attacking the Mormons, and polygamy, by Buchanan, was this a result of genuine anti-polygamy sentiment or an excuse for creating a diversion to the real problems he was facing? If it was genuine, what was the source of the sentiment, since (if memory serves me correctly) so many in Congress were not averse to having mistresses?

  19. David Rodger on March 6, 2005 at 3:48 am

    “Nate, you should write a nutshell history of Mormonism. In verse, if possible. ”

    Well, I gave Nate a few hours to do so, but since he apparently exhausted himself with his brilliant exposition, I thought I would try my hand at it.

    The Mormons went out west,
    Fleeing outward I confess,
    The heavy Gentile hand
    That always settled o’er their land.

    But once they got there
    They soon found
    The Gentiles still
    Came flocking ‘round.

    There ever was the sweet temptation
    To build the Kingdom; God’s own nation.
    But that meant legal dissolution
    And throwing out the Constitution.

    So back and forth they always went
    Between the horns of argument
    And civil disobedience spread
    Until the Saints that Brigham led
    Became enough that Congress knew
    They’d better let the State go through.

  20. Jeff Lindsay on March 6, 2005 at 8:40 am

    Great insights and nicely written. Thanks! (I also mention your post at Mormanity.)

    I can imagine a future day in which politically incorrect Mormon views result in renewed political pressures and even hostile Federal actions against the Church. Are there lessons from the days of polygamy that can help us prepare for such times, or avert them without abandoning our principles?

  21. Jay Beswick on June 16, 2005 at 3:00 pm

    If you want to hear the Fundamentalist Teachings in the voice of the FLDS prophet Warren Jeffs, I have over 500 of such audio cassettes. Discussing or debating what the press has used, can only be countered by what is actually taught and what scriptures Jeffs uses to justify his take on polygamy.

    I have sold several and this is debated in earnest on the Texas Polygamy Blog with active FLDS members. Having what NPR has is helpful in establishing a counter response.

    patches@as.net