A Brief Legal History of Polyamory in the United States

Polyamory has always been political. “…the debate about polygamy and the efforts to criminalize it were not exactly about polygamy, rather polygamy was a pretext.”[1]

Bigamy criminalization in early America was the primary tool to suppress the power of Mormon settlors in Utah[2]. Mormonism became the face of polyamory during the Utah War, and a campaign against polyamory justified much of the violence that occurred. This not to downplay the violence early Mormon settlors inflicted on not only American military, and civilians, but also indigenous peoples[3]. Although the pain of prosecuting bigamy, and the abhorrent displacement of communities can never be equivalent – many polygamous Mormons frequently leveraged the collective pain of government targeting of minority groups to underscore the persecution they felt in the early settlement days of Utah.

In 1843, Brigham Young asserted that Joseph Smith received a celestial revelation sanctioning polygamy – the validity of this assertion is disputed to this day[4]. There is evidence to suggest that Joseph Smith received no such revelation and prosecuted individuals with multiple wives -- denying he ever received such revelation and publicly condemning those who did practice polygamy[5], but other sources report Joseph Smith practiced polygamy during this time period[6]. Whether by nefarious plotting, or strategic opportunism – Brigham Young suddenly had an issue to rally his supporters under: the freedom to marry multiple wives and the persecution associated therewith[7]. By 1847 Brigham Young and a group of followers landed in what is now the state of Utah[8]. In 1850 the United State Congress established Utah as a territory and created a legislative-esque assembly to manage the affairs of the area and compromised with Mormon settlors to appoint Brigham Young as the governor[9]. For eight years Brigham Young served as Governor of the Territory, but created and managed the Territory contrary to the initial instructions in the legislative act[10]. In 1851 the Church of Latter-Day Saints was organized as a corporation by an act of Congress[11]. Towards the end of his term, the Mormons clashed several times with United States Troops and non-Mormon civilians – notably during the 1857 Mountain Meadows Massacre[12]. In 1859 the United States prosecuted those involved in the Mountain Meadows Massacre, but was unsuccessful:

But at every turn it has had to encounter difficulties and embarrassments. Men high in authority in the Mormon Church, as well as men holding civil authority under the territorial government, seem to have conspired to obstruct the course of public justice and to cripple the earnest efforts of the court[13].

The Deseret News would report on April 17, 1861 “The preparations that being made for war [between Young and the United States] indicate, with much certainty, that it is the intention of the opposing factions to resist each other, even to the shedding of blood.”[14] In 1862 congress passed the Morrill Act to “punish and prevent the Practice of Polygamy” in all US Territories – specifically identifying Utah, and its legislative assembly, for its practice of polygamy and in a broader campaign to disrupt the Mormon church political power in the area at that time[15]. In 1863 Brigham Young appeared before Chief Justice Kinney and grand jury for violating the Morrill Act. The Grand jury refused to indict him, in part it is believed because jurors were sympathetic or fearful of Brigham Young[16]. “Did this community then submit to that law, and obey it? Or have they since persistently lived in its open violation? Polygamy has alarmingly increased since the passage of the law.”[17].

After passage of the anti-polygamy laws, many Mormons, including Brigham Young (who was still active in politics) continued to practice polyamory -- flagrantly ignoring federal laws. Brigham’s unwillingness to follow the Morrill Act was a threat to American Hegemony in the west. If Congress could not control a territory they created (Utah), then other territories and states may question the ability of Congress to lead and expand the nation. Notably, this is during a very same time period that the American Civil War was being fought. The territory of Utah was ripe with resources, and “certainly good” but “polygamy is a stain on its social system, and should be abolished”[18]. Polyamory, and bigamy, became synonymous with Brigham Young’s defiance of federal authority, and to some extent this may have been intentional by the United States to get Brigham Young out of office, and ideally behind bars[19].

By 1882 the Edmunds Anti-Polygamy Act was passed, reaffirming America’s anti-polygamy sentiments, and further criminalizing nonmarital habitation[20]. In a final blow to the Mormon church, through the hook of their polyamorous illegal activities, the Supreme Court in 1889 entirely revoked the corporate charter of the Mormon church, found the trust holding its property defective, and escheated the majority of the almost $2 Million in real property, and $1 Million in personal property to the federal government they were still practicing polygyny which was now an illegal activity[21]. It was upon the church’s disavowal of polygyny that by a joint resolution from Congress the corporate charter and assets were reinstated.[22]

In revoking the Corporate charter, dissolving the corporation, and escheating assets to the state the Supreme Court stated:

“The organization of a community for the spread and practice of polygamy is, in a measure, a return to barbarism. It is contrary to the spirit of Christianity and of the civilization which Christianity has produce in the Western World.”[23].

“The State has a perfect right to prohibit polygamy, and all other open offences against the enlightened sentiment of mankind, notwithstanding the pretence [sic] of religious conviction by which they may be advocated and practiced.”[24].

The Mormon church may have rebranded in the ensuing decades, namely by denouncing polyamory and exiling those who continued to practice [25], but polyamory has much further to go before broader acceptance by society.

The author also does not want to give the impression that Mormon polygyny is the only type of polyamorous arrangement. Many polyamorous, and polyamorous adjacent arrangements experience marginalization from our legal structure. Current legal battles for polyamorous groupings stem from family courts, adoption, and domestic dissolutions – all of which exist at the District Court level. Today, polyamory is often presumed to be de facto ‘bad’, as is most notable in numerous same-sex marriage court opinions where some Justices invoke the fear of ‘what’s next polyamory?!’ to dismantle same-sex marriage recognition. Much of the modern polyamory legal discussion is saved for later in this blog, but a review of the relationship between anti-Mormonism political maneuver informs modern perceptions of polyamorous arrangements and certainly it's legal landscape.

Footnotes & Citations

[1] Shayna M. Sigman, Everything Lawyers Know About Polygamy is Wrong, Cornell Journal of Law and Public Policy: Vol. 16: Iss. 1, Article 3. http://scholarship.law.cornell.edu/cjlpp/vol16/iss1/3, page 95

[2] Id at 102-104

[3] Shelley Park, Polyamory Is to Polygamy as Queer is to Barbaric?, Radical Philosophy Review, May 2017, https://doi.org/DOI: 10.5840/radphilrev201751277.

[4] Id at 112

[5] Federal Report to the 41st Congress, House of Representatives, 2nd Session. Digest of Election Cases: Cases of Contested Election in the House of Representatives from 1865 to 1871, Inclusive. Document No. 152, Published July 13, 1870, at 273 (1870). Reprint of notice signed by Joseph Smith and Hyram Smith calling Hiram Brown to appear at a special conference to cut him off from the church regarding allegations of his practicing polyamory.

[6] M. Bradshaw Review of Brian C. Hales’, Joseph Smith’s Polygamy, BYU Studies Quarterly 53, No. 1 (2014). https://byustudies.byu.edu/wp-content/uploads/2020/01/53.1BradshawJosephSmithsPolygamy-1.pdf

[7] "Find fault with me because I have wives! They would corrupt every wife I have, if they had the power; and then they cry to the government, "You had better do something with the Mormons; they are deceitful and disloyal!!" I am disloyal to their sins and filthiness. Cleanse your hearts and the whole person, and make yourselves as pure as the angels, and then I will fellowship you.

Brigham Young, Journal of Discourses. Volume 10, Discourse 25.

[8] July 24 - Today in History, Library of Congress, www.loc.gov/item/today-in-history/july-24/#:~:text=Completing%20a%20treacherous%20thousand%2Dmile,Mormon%20homeland%2C%20hence%20Pioneer%20Day.

[9] About the Senate, Utah Senate, senate.utah.gov/about-the-senate/#:~:text=The%20Utah%20Territory%20was%20established,House%20of%20Representatives%20chosen%20annually%2C.

[10] Federal Report to the 41st Congress, House of Representatives, 2nd Session. Digest of Election Cases: Cases of Contested Election in the House of Representatives from 1865 to 1871, Inclusive. Document No. 152, Published July 13, 1870, at 273 (1870) at 233.

[11] Late Corp. of Church of Jesus Christ v. United States, 136 U.S. 1, 1, 10 S. Ct. 792, 34 L. Ed. 478 (1890)

[12] Walker, Ronald W., et al. Massacre at Mountain Meadows. Oxford University Press, 2011. 

[13] Id at 230.

[14] Federal Report to the 41st Congress, House of Representatives, 2nd Session. Digest of Election Cases: Cases of Contested Election in the House of Representatives from 1865 to 1871, Inclusive. Document No. 152, Published July 13, 1870, at 231 (1870).

[15] Walker, Ronald W., et al. Massacre at Mountain Meadows. Oxford University Press, 2011.

[16] Id at 231.

[17] Id at 235.

[18] Id at 237.

[19] “Since our visit to Utah, in June, the leaders among the Mormons have repudiated their profession of loyalty to the government, denied any disposition to yield the issue of polygamy,...” --  Speaker Colfax. 

Federal Report to the 41st Congress, House of Representatives, 2nd Session. Digest of Election Cases: Cases of Contested Election in the House of Representatives from 1865 to 1871, Inclusive. Document No. 152, Published July 13, 1870, at 273 (1870) at 233.

“The government has now the opportunity to guide and control the operation of natural causes to the overthrow of polygamy and the submission of the Mormon aristocracy without the shedding of blood, without the loss of a valuable population and their industry.”-- Samuel Bowles on his journey with Speaker Colfax 1866. Id at 279.

"I recommend a careful revision of the present laws of the Territory by Congress, and the enactment of such a law (the one proposed by Congress at its last session, for instance, or something similar to it) as will secure peace, the equality of all citizens before the law, and the ultimate extinguishment of polygamy."- 1872 Ulysses S. Grant

Journal of the Senate of the United States, 42d Cong., 3d Sess. (1872-1873), at 25 quoting Ulysses S. Grant report read into the record on December 2, 1872

“Polygamy, however, and other evidences of barbarism still exist and show themselves, but we think not quite so boldly as formerly. They have still very inadequate ideas in regard to chastity or obligations of the marriage relation.”-- J. J. Critchlow, Utah, 1874. Federal Report to the 41st Congress, House of Representatives, 2nd Session. Digest of Election Cases: Cases of Contested Election in the House of Representatives from 1865 to 1871, Inclusive. Document No. 152, Published July 13, 1870, at 273 (1870) at 584.

"These are fast passing away, and we trust all such old practices are destined soon to be numbered among the things and customs of the past. Although we bear with the old men in their unfortunate social alliances and embarrassments in this respect, we encourage the young men to marry only one woman each, and to keep themselves clear of all such social entanglements of the old pagan type. This social difficulty is one of the greatest hinderances to the progress and prosperity of this people." M.N. Adams, Dakota, 1874 United States. Department of the Interior. Office of Indian Affairs. Report of the Commissioner of Indian Affairs, dated November 1, 1874. Page 522, quote from M.N. Adams, United States Indian Agent to Hon. E. P. Smith, Commissioner of Indian Affairs, Washington DC.

[20] "Edmunds Anti-Polygamy Act of 1882." Legal Information Institute, Cornell Law School, www.law.cornell.edu/wex/edmunds_anti-polygamy_act_of_1882#:~:text=The%20Edmunds%20Act%20suppressed%20different,on%20juries%20in%20federal%20territories.

[21] Late Corp. of Church of Jesus Christ v. United States, 136 U.S. 1*.

[22]  Jt. Res 11., 53d Cong., 1st Sess., 28 Stat. 980

[23] Late Corp. of Church of Jesus Christ v. United States, 136 U.S. 1, at 49, 10 S. Ct. 792, 34 L. Ed. 478, 1890 U.S. LEXIS 2199

[24] Id at 50

[25] "Wilford Woodruff and the 1890 Manifesto." Mormon Fundamentalism, n.d., https://mormonfundamentalism.com/history/wilford-woodruff-and-the-1890-manifesto/#_ftnref1.