| Book Review | Law and History Review, 22.1

Book Review

Sarah Barringer Gordon, The Mormon Question: Polygamy and Constitutional Conflict in Nineteenth-Century America, Chapel Hill: University of North Carolina Press, 2002. Pp. 337 + xiv. $49.95 cloth (ISBN: 0–0878–2661–8); $19.95 paper (ISBN: 0–0878–4987–1).

Since colonial days, Americans have defined themselves as much by the religions they practice as by almost any other single marker of identity. In The Mormon Question: Polygamy and Constitutional Conflict in Nineteenth-Century America, Sarah Barringer Gordon trenchantly explains the power that religion held over American culture during a half-century of tumultuous constitutional change. Though the American constitutional order was grounded on the assumption that there be no state-established religion, certain faiths possessed subversive potential. Mormonism threatened to make good on that potential during the nineteenth century by its insistence on "the 'celestial' law of plural marriage" (1). The resulting crisis focused on the constitutional meaning of religious pluralism in secular society, but, as Gordon argues, the resolution of the Mormon question hardly ended divisions over the political meaning of religious difference.

Few religious declarations could have been better designed to inspire condemnation in mid-nineteenth-century America than Mormon president Brigham Young's 1852 announcement of polygamous marriage as a central tenet of church practice and belief. So many other relations fundamental to social order lead to and follow from marriage that it is difficult, nay impossible, to dispute Gordon's contention that this announcement touched off a firestorm equivalent nearly to slavery in its incendiary properties. She hammers home this point by marshaling an impressive array of sources testifying both to the contempt in which Mormon households were held and to the swiftness with which reformers turned to law to remake them. As Gordon observes, "Legal reform would both reaffirm the existing order and codify the political importance of marriage as the central site of Christian virtue" (54).

Little wonder, then, that antipolygamists readily turned to slavery for an image horrific enough to describe the impact of polygamy on American civic and domestic relationships. The book delves into this comparison at great length, plumbing the implications of polygamy (and antipolygamy reform) for governance of the territories, the rise of the third-party system, the balance of power in American federalism, and, perhaps most important of all, the way in which Northern responses to Utah's territorial practices were often spun as demonstrably justifiable intrusions upon local authority. In essence, Mormons gave federal politicians a handy target on which they could exercise plenary federal power over religious practice and beliefs without much opposition from Southern states-rights ideologues. The fact that the Morrill Act of 1862, Congress's first attempt at legislating away polygamy, was ineptly written and hardly enforced makes it characteristic of how Congress would exercise its power to regulate civil rights in the South after 1865.

But as Gordon then makes clear, arguments condemning polygamy often were met by demonstrations of their own hypocrisy. The end of radical Reconstruction in the South, for example, seemingly intensified Congress's desire to make an example of the stubborn Mormons. Even as what Gordon calls "the logic of Mormon resistance" (87) began to crumble in the face of federal prosecutions of polygamous husbands and their "victimized" plural wives, Mormons laid active claim to the same legal values and traditions—specifically, the First Amendment's guarantee of religious tolerance—that Americans of other Christian denominations deployed to revile them. Gordon's exploration of the ways in which Mormon theology dovetailed with American constitutionalism is simply brilliant, repositioning the meaning and contestation of religious faith at the center of constitutional explication (see, e.g., 89–96).

The constitutional crisis came to a head, ironically, as dissent from within the Mormon church began to undermine the solidarity that had been key to its perseverance. When Congress beefed up the Morrill Act with a new law passed in the twilight of Reconstruction, Mormon leaders set up a test case, believing that the federal courts would uphold the constitutional protections of the First Amendment even for them. Instead, the test case produced a resounding Supreme Court decision upholding the power of Congress to regulate religion in the territories, a decision that came in the midst of a series of decisions narrowing the constitutional protections afforded to former slaves in the South and racial minorities everywhere. But Gordon is hardly flummoxed by this result; the decision in Reynolds, the polygamy case, she says, "provides insight into the rejection of the new constitutional claims at issue in earlier cases" (121). The Court saw its task in Reynolds as upholding marriage against the nettlesome variability in territorial practices; to do this, the Court turned aside the Mormons' claim to higher law justifications for their religious acts, however much they wrapped such claims in the nominally nonsectarian political authority of the territory of Utah.

The Reynolds case marked the beginning of the end for legalized polygamy in Utah. Federal prosecutions against prominent church leaders during the 1880s led to the creation of an elaborate scheme to hide the indicted husbands (in yet another amazing parallel to the peculiar institution of slavery). These police actions exposed class cleavages within Mormon society, as only the wealthy could afford to go into hiding for prolonged periods of time. While some plural wives famously took turns on the lecture circuit to denounce their former husbands, many women defended their participation in polygamous marriages with ringing declarations of faith. Such protestations may have demonstrated their ability to act freely, but in embracing polygamy, they earned a demotion in status, from the sympathetic, passive victims that antipolygamists could only assume them to be to something even worse, "complicitous ... in their own sexual enslavement" (164). Even the radical move of granting women suffrage could neither rehabilitate women from such characterizations nor stave off the legal attack on polygamy. The equation of marriage with the nation's political economy and constitutional order doomed polygamy. In order to survive, the Mormon Church had to renounce competition within the home, while permitting more of it in its own business and corporate affairs (200).

This is a fascinating story, told compellingly and vividly by a scholar uniquely qualified for the task. Gordon, a lawyer, a historian, and a divinity-school trained scholar of religion, knits together her specialties in a colorful yarn that persuades thoroughly and provokes further inquiry. There can be no plausible denial of the relevance of the antipolygamy crusade for the formative questions of American constitutional development. Slavery, the women's movement, antimonopoly, and the New Deal all adorn the architecture of Gordon's history of the Mormon Church and its contested place in American legal culture. Indeed, the only question that remains is how so many generations could pass between the time when antipolygamy politics dominated the constitutional question of the day and Gordon's timely reminder that they once did so. Perhaps it is a measure of the Mormon Church's ability to assimilate itself within the legal and constitutional culture that once aimed to destroy it that Mormonism has ceased to provoke worries of an established religion undermining the contractual nature of marriage. Whatever the reason, Gordon's analysis will supply the benchmark for future consideration of the law and politics of domestic relations.

Victoria Saker Woeste

American Bar Foundation

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