Free exercise and reynolds v. u.s. and latter day saints and polygamy and utah territory and 1878 and Waite and thomas jefferson

This very old case is, in some ways, very new because it poses the question of whether conduct that is branded criminal by the larger civil society (in this case, a federal statute) may nevertheless be protected as a religious expression under the Free Exercise Clause of the First Amendment. What happens, then, when not simply an individual's but an entire community's religious practice contravenes an express federal statute?

The Issue and Facts

The Reynolds case arose out of the Utah Territory (statehood in 1896) and had to do with a formerly accepted practice of the Latter-Day Saints: polygamy. Section 5352 of the Revised Statutes of the United States provided: "Every person having a husband or wife living, who married another, whether married or single, in a Territory or other place over which the United States have exclusive jurisdiction, is guilty of bigamy, and shall be punished by a fine of not more than $500, and by imprisonment for a term of not more than five years." The grand jury in the District Court of the Utah Territory's third judicial district indicted George Reynolds and a petit jury convicted him of the charge. Six issues were pressed on appeal to the Supreme Court, issues having to do with the empaneling of the grand jury (whether Utah or US law applied as to the number of jurors), the defendant's challenges to two jurors, the government's challenges to jurors, admissibility of testimony of one of the wives in a previous trial, the "defence of religious belief or duty," and the charge to the jury about polygamy. Our focus is on the fifth challenge.

"The Defence of Religious Belief or Duty"

Reynolds had asked that the territorial court charge the jury that if he was married pursuant and in conformity with what he believed to be his religious duty, that his verdict should be "not guilty." Since Reynolds introduced evidence at trial that the religious duty of male members of the Latter-Day Saints in those days was to practice polygamy, and that this practice was a divine duty, he hoped for an acquittal. The judge, however, charged the jury that if the defendant, under the influence of a religious belief he thought was correct, deliberately married a second time without the consciousness of evil intent, the want of such understanding did not excuse him; in fact, the law inexorably in this case implied a criminal intent. Since the statute was a criminal statute, we recognize this as the method the court used to get over the hurdle of criminal intent.

Despite what some might see as the problematic character of the charge (the Supreme Court refused to find fault with it), the issue was squarely presented. On the one hand, "Congress cannot pass a law for the government of the Territories which shall prohibit free exercise of religion." On the other hand, the problem was whether "religious belief can be accepted as a justification of an overt act made crminal by the law of the land." How is the tension to be resolved?

Resolving the Issue

The Court decided to do some historical research to determine "what is the religious freedom which has been guaranteed." After reviewing the struggle for religious liberty in Virginia (citing the bill establishing provision for teachers of Christianity, Madison's Memorial and Remonstrance in response and Jefferson's bill for establishing religious liberty) and then adding a few lines on the passage of the First Amendment, the opinion of Chief Justice Waite quoted extensively from Thomas Jefferson's letter to the ministers in the Danbury Baptist Association which introduced the phrase "wall of separation" between church and state. However, the Chief Justice's interest was not in that phrase but in language preceding that famous phrase. Jefferson made a distinction between religious belief and action that flowed from religious belief. The former "lies solely between man and his God," whereas "the legislative powers of the government reach actions only, and not opinions."

Thus, with Jefferson's help, the Court scrutinized the religious actions of Mr. Reynolds, over which Congress did have authority. Once the issue was defined in this way, the Court had no difficulty showing that polygamy was roundly condemned at common law and in all American states. The statute, therefore "is constitutional and valid as prescribing a rule for action for all those residing in the Territories, and in places over which the United States have exclusive control." Then the Chief Justice gave the most horrible of the parade of horribles: "Suppose one believed that human sacrifices were a necessary part of religious worship, would it be seriously contended that the civil government...could not interfere to prevent a sacrifice?"

Conclusion

You get the impression on reading the opinion that this case was a "slam dunk" for the Court. Jefferson's principle spoke so clearly. However, what if the religious practice was the refusal to salute of the flag? the smoking of marijuana? the sacrifice of animals? Does calling something "religious" save it, so to speak? The Court would have to deal with these issues in the 20th and, now, the 21st centuries.