Earlier this week the Utah Supreme Court issued its opinion in State v. Holm. If you are interested in Mormonism, law, history, or (best of all!) Mormon legal history, you ought to read it. DMI has a very nice summary of the case. The case had three big issues. First, does the Utah anti-bigamy statute extend to religious ceremonies that are not intended to have any legal effect? Second, if the anti-bigamy statute does extend to such marriages, does it violate the Utah constitution? Third, does the statute violate the federal constitution? Not surprisingly, the court ruled that the statute applied to plural marriages by Mormon fundamentalists and this did not violate the state or federal constitutions. The real fireworks in the case came in Chief Justice Durham’s dissent. Holm is the latest installment of an argument that has been brewing in the Utah Supreme Court for a while. The bottom line is that Chief Justice Durham is extremely uncomfortable with the criminalization of religious polygamy, and in her dissent she very forcefully argued that the Utah bigamy statute did not apply to religious polygamy, that if it did apply it violates the Utah constitution, and that in any case the Supreme Court’s recent decision in Texas v. Lawrence, striking down Texas’s anti-sodomy statute, renders anti-polygamy laws unconstitutional. On the legal merits, with all due respect I think that Chief Justice Durham is wrong on all three of her conclusions. (Although, I think that the Texas v. Lawrence argument is a very close call.)
One of the striking things about the opinion was the extent to which the scholarship on Mormon legal history was on display in the case. Both the majority and the dissent relied heavily on Sarah Barringer Gordon’s recent book The Mormon Question: Polygamy and Constitutional Conflict in Nineteenth Century America. A concurrence in the case discussed the Smoot hearings and Kathleen Flake’s The Politics of Religious Identity discussing them. Dale Morgan, one of the earliest modern historian of Mormonism and the source of most of Fawn Brodie’s research was cited by Chief Justice Durham. Even Ken Driggs, who has written a number of excellent articles on Mormon legal history, made a brief cameo. He was retained by the polygamist defendant as an expert witness, but the trial court refused to allow him to testify. Interestingly, the only book that might have made and appearance but didn’t was Ed Firmage & Collin Mangrum’s Zion in the Courts. To the extent that the New Mormon History can make law, it was on display in Holm.
The ironic thing, of course, is that the opinion that made the most out of the history — Chief Justice Durham’s dissent — got the history wrong. The crux of the Chief Justice’s argument is that the anti-polygamy crusades of the late nineteenth century were not directed at the celebration of plural religious marriages, but rather were aimed primarily at suppressing the legal recognition of such marriages in Territorial Utah. The point is legally significant for two reasons. First, the anti-polygamy crusades led directly to provisions in the Utah Bill of Rights outlawing “polygamy” forever. The question is whether the “polygamy” referred to in the clause is what we would think of as plural marriage, or if it was directed more narrowly at the mere legal recognition of plural marriage. Second, Utah’s anti-bigamy statute is a lineal descendent of the federal and territorial anti-bigamy statutes, so the anti-polygamy crusades provide the context for understanding the meaning of the statute.* In support of her narrow reading of the statute, the Chief Justice — entirely correctly — points out that the Mormons in territorial Utah passed laws granting legal recognition to plural marriages. She also — entirely correctly — points out that in 1862 Congress moved decisively to suppress the legal recognition of plural marriages. At this point, however, her historical argument breaks down. She goes on to argue that the rest of the anti-polygamy crusades were simply variations on this theme. The problem, of course, is that they were much more than that. In 1862 Congress did more than refuse to allow plural marriages to get recognition. It also moved to criminalized Mormon plural marriages. Indeed, the repeal of territorial laws recognizing plural marriage and the criminalization of bigamy were two separate sections of the 1862 law. Furthermore, from the beginning, 19th century Mormon polygamists offered exactly the argument that the Holm dissent endorsed, namely that their plural religious sealing ceremonies were not marriages within the meaning of the anti-bigamy statute. This argument got nowhere in the 19th century, and everyone involved in the anti-polygamy crusades knew what Congress was trying to do from 1862 on: Criminalize the Mormon marriage system. In this sense, Chief Justice Durham’s opinion — for all of its laudable historical erudition — is trying to make an historically untenable argument.
Holm is a wonderful illustration of the power of history in the law. It is also, however, a great illustration of how the law is always about more than history. Frankly, I suspect that Chief Justice Durham, who is an exceptionally smart and well-informed woman, knows that her historical arguments in Holm are ultimately tendentious. However, she also realizes that as a judge she is much more than a historian in robes.
*The Chief Justice also argues that Utah’s current anti-bigamy statute was not passed until 1973 and therefore the territorial history is irrelevant. I think that this argument, however, is a makeweight. There have been bigamy laws in Utah since statehood and before, and it looks as though the 1973 enactment was simply a recodification. The usual rule of statutory construction is that recodification does not import a new legislative intent. Furthermore, the dissent does not marshal any legislative history in support of the contention that the 1973 enactment meant to strike out in new directions in Utah bigamy law.