Last edited: March 21, 2005

The Constitution Does Not Permit Polygamy or Same-Sex Marriage, March 18, 2005 (Extreme Conservative)

By Michael J. Gaynor

The San Francisco judge who ruled that prohibiting same-sex marriages is irrational and invoked the California Constitution’s equal protection clause to permit them is guilty of both judicial activism and historical ignorance.

Had he studied the case law on polygamy, he might have developed a greater appreciation for “the sanctity of marriage” and avoided his grievous error.

The United States Supreme Court was unanimous.

The Constitution does not permit polygamy.

So the Court ruled in Reynolds v. United States, 98 U.S. 145.

In 1879.

George Reynolds had been convicted of bigamy in the then territory of Utah.

The federal statute under which he was convicted stated:

“Every person having a husband or wife living, who marries 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 trial court declined to instruct the jury that if they found that Reynolds had married in pursuance of and conformity with what he believed at the time to be a religious duty, their verdict should be “not guilty.”

Instead, the trial court instructed that if Reynolds, under the influence of a religious belief that it was right, had “deliberately married a second time, having a first wife living, the want of consciousness of evil intent—the want of understanding on his part that he was committing crime—did not excuse him, but the law inexorably, in such cases, implies criminal intent.”

And added: “I think it not improper, in the discharge of your duties in this case, that you should consider what are to be the consequences to the innocent victims of this delusion. As this contest goes on, they multiply, and there are pure-minded women and there are innocent children,—innocent in a sense even beyond the degree of the innocence of childhood itself. These are to be the sufferers; and as jurors fail to do their duty, and as these cases come up in the Territory, just so do these victims multiply and spread themselves over the lane.”

The jury found Reynolds guilty.

Reynolds was sentenced to imprisonment at hard labor for a term of two years and fined $500.

The Supreme Court of the Territory affirmed.

And so did the United States Supreme Court.


Reynolds’ religious belief or duty defense was rejected, even though his sincerity was accepted:

“On the trial, [Reynolds] proved that at the time of his alleged second marriage he was, and for many years before had been, a member of the Church of Jesus Christ of Latter-Day Saints, commonly called the Mormon Church, and a believer in its doctrines; that it was an accepted doctrine of that church ‘that it was the duty of male members of said church, circumstances permitting, to practise polygamy; . . . that this duty was enjoined by different books which the members of said church believed to be to divine origin, and among others the Holy Bible, and also that the members of the church believed that the practice of polygamy was directly enjoined upon the male members thereof by the Almighty God, in a revelation to Joseph Smith, the founder and prophet of said church; that the failing or refusing to practise polygamy by such male members of said church, when circumstances would admit, would be punished, and that the penalty for such failure and refusal would be damnation in the life to come.’ He also proved ‘that he had received permission from the recognized authorities in said church to enter into polygamous marriage; . . . that Daniel H. Wells, one having authority in said church to perform the marriage ceremony, married the said defendant on or about the time the crime is alleged to have been committed, to some woman by the name of Schofield, and that such marriage ceremony was performed under and pursuant to the doctrines of said church.’”

The Court of course acknowledged that the Constitution prohibits Congress from prohibiting the free exercise of religion:

“Congress cannot pass a law for the government of the Territories which shall prohibit the free exercise of religion. The first amendment to the Constitution expressly forbids such legislation. Religious freedom is guaranteed everywhere throughout the United States, so far as congressional interference is concerned.”

Then the Court explained that the question presented to it was “whether the law...under consideration comes within this prohibition.”

That depended upon what “religion” meant.


The Court noted that the word “religion” is not defined in the Constitution.

And then explained what activist judges should, but don’t, do in deciding constitutional questions:

“We must...ascertain its meaning, and nowhere more appropriately, we think, than to the history of the times in the midst of which the provision was adopted. The precise point of the inquiry is, what is the religious freedom which has been guaranteed.... “

So the Court carefully reviewed the relevant history:

“Before the adoption of the Constitution, attempts were made in some of the colonies and States to legislate not only in respect to the establishment of religion, but in respect to its doctrines and precepts as well. The people were taxed, against their will, for the support of religion, and sometimes for the support of particular sects to whose tenets they could not and did not subscribe. Punishments were prescribed for a failure to attend upon public worship, and sometimes for entertaining heretical opinions.

“This brought out a determined opposition. Amongst others, Mr. Madison prepared a ‘Memorial and Remonstrance,’ which was widely circulated and signed, and in which he demonstrated ‘that religion, or the duty we owe the Creator,’ was not within the cognizance of civil government. At the next session the proposed bill was not only defeated, but another, ‘for establishing religious freedom,’ drafted by Mr. Jefferson, was passed. In the preamble of this act religious freedom is defined; and after a recital ‘that to suffer the civil magistrate to intrude his powers into the field of opinion, and to restrain the profession or propagation of principles on supposition of their ill tendency, is a dangerous fallacy which at once destroys all religious liberty,’ it is declared ‘that it is time enough for the rightful purposes of civil government for its officers to interfere when principles break out into overt acts against peace and good order.’ In these two sentences is found the true distinction between what properly belongs to the church and what to the State.

“In a little more than a year after the passage of this statute the convention met which prepared the Constitution of the United States. Of this convention Mr. Jefferson was not a member, he being then absent as minister to France. As soon as he saw the draft of the Constitution proposed for adoption, he, in a letter to a friend, expressed his disappointment at the absence of an express declaration insuring the freedom of religion (2 Jeff. Works, 355), but was willing to accept it as it was, trusting that the good sense and honest intentions of the people would bring about the necessary alterations. 1 Jeff. Works, 79. Five of the States, while adopting the Constitution, proposed amendments. Three—New Hampshire, New York, and Virginia—included in one form or another a declaration of religious freedom in the changes they desired to have made, as did also North Carolina, where the convention at first declined to ratify the Constitution until the proposed amendments were acted upon. Accordingly, at the first session of the first Congress the amendment now under consideration was proposed with others by Mr. Madison. It met the views of the advocates of religious freedom, and was adopted. Mr. Jefferson afterwards, in reply to an address to him by a committee of the Danbury Baptist Association, took occasion to say: ‘Believing with you that religion is a matter which lies solely between man and his god; that he owes account to none other for his faith or his worship; that the legislative powers of the government reach actions only, and not opinions,—I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should “make no law respecting an establishment of religion or prohibiting the free exercise thereof,” thus building a wall of separation between church and State.’ Coming as this does from an acknowledged leader of the advocates of the measure, it may be accepted almost as an authoritative declaration of the scope and effect of the amendment thus secured. Congress was deprived of all legislative power over mere opinion, but was left free to reach actions which were in violation of social duties or subversive of good order.”

Then the Court examined the historical attitude toward polygamy:

“Polygamy has always been odious among the northern and western nations of Europe, and, until the establishment of the Mormon Church, was almost exclusively a feature of the life of Asiatic and of African people. At common law, the second marriage was always void, and from the earliest history of England polygamy has been treated as an offence against society. After the establishment of the ecclesiastical courts, and until the time of James I, it was punished through the instrumentality of those tribunals, not merely because ecclesiastical rights had been violated, but because upon the separation of the ecclesiastical courts from the civil the ecclesiastical were supposed to be the most appropriate for the trial of matrimonial causes and offences against the rights By the statute of 1 James I (c. 11), the offence, if committed in England or Wales, was made punishable in the civil courts, and the penalty was death. As this statute was limited in its operation to England and Wales, it was at a very early period re-enacted, generally with some modifications, in all the colonies. In connection with the case we are now considering, it is a significant fact that on the 8th of December, 1788, after the passage of the act establishing religious freedom, and after the convention of Virginia had recommended as an amendment to the Constitution of the United States the declaration in a bill of rights that ‘all men have an equal, natural, and unalienable right to the free exercise of religion, according to the dictates of conscience,’ the legislature of that State substantially enacted the statute of James I., death penalty included, because, as recited in the preamble, ‘it hath been doubted whether bigamy or poligamy be punishable by the laws of this Commonwealth.’ 12 Hening’s Stat. 691. From that day to this we think it may safely be said there never has been a time in any State of the Union when polygamy has not been an offence against society, cognizable by the civil courts and punishable with more or less severity.”

And concluded:

“In the face of all this evidence, it is impossible to believe that the constitutional guaranty of religious freedom was intended to prohibit legislation in respect to this most important feature of social life. Marriage, while from its very nature a sacred obligation, is nevertheless, in most civilized nations, a civil contract, and usually regulated by law. Upon it society may be said to be built, and out of its fruits spring social relations and social obligations and duties, with which government is necessarily required to deal. In fact, according as monogamous or polygamous marriages are allowed, do we find the principles on which the government of the people, to a greater or less extent, rests. Professor Lieber says, polygamy leads to the patriarchal principle, and which, when applied to large communities, fetters the people in stationary despotism, while that principle cannot long exist in connection with monogamy. Chancellor Kent observes that this remark is equally striking and profound. 2 Kent, Com. 81, note (e). An exceptional colony of polygamists under an exceptional leadership may sometimes exist for a time without appearing to disturb the social condition of the people who surround it; but there cannot be a doubt that, unless restricted by some form of constitution, it is within the legitimate scope of the power of every civil government to determine whether polygamy or monogamy shall be the law of social life under its dominion of marriage, just as they were for testamentary causes and the settlement of the estate of Deceased persons.

“In our opinion, the statute immediately under consideration is within the legislative power of Congress. It is constitutional and valid as prescribing a rule of action for all those residing in the Territories, and in places over which the United States have exclusive control. This being so, the only question which remains is, whether those who make polygamy a part of their religion are excepted from the operation of the statute. If they are, then those who do not make polygamy a part of their religious belief may be found guilty and punished, while those who do, must be acquitted and go free. This would be introducing a new element into criminal law. Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. Suppose one believed that human sacrifices were a necessary part of religious worship, would it be seriously contended that the civil government under which he lived could not interfere to prevent a sacrifice? Or if a wife religiously believed it was her duty to burn herself upon the funeral pile of her dead husband, would it be beyond the power of the civil government to prevent her carrying her belief into practice?

“So here, as a law of the organization of society under the exclusive dominion of the United States, it is provided that plural marriages shall not be allowed. Can a man excuse his practices to the contrary because of his religious belief? The permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances.”

Reynolds’ objection to the trial court’s charge insofar as it focused on the consequences of polygamy was unavailing as well:

“While every appeal by the court to the passions or the prejudices of a jury should be promptly rebuked, and while it is the imperative duty of a reviewing court to take care that wrong is not done in this way, we see no just cause for complaint in this case. Congress, in 1862 (12 Stat. 501), saw fit to make bigamy a crime in the Territories. This was done because of the evil consequences that were supposed to flow from plural marriages. All the court did was to call the attention of the jury to the peculiar character of the crime for which the accused was on trial, and to remind them of the duty they had to perform. There was no appeal to the passions, no instigation of prejudice. Upon the showing made by the accused himself, he was guilty of a violation of the law under which he had been indicted: and the effort of the court seems to have been not to withdraw the minds of the jury from the issue to be tried, but to bring them to it; not to make them partial, but to keep them impartial.”

That San Francisco judge should have reflected on these key words:

“Marriage, while from its very nature a sacred obligation, is nevertheless, in most civilized nations, a civil contract, and usually regulated by law. Upon it society may be said to be built, and out of its fruits spring social relations and social obligations and duties, with which government is necessarily required to deal.”

Society surely has a right to regulate marriage.

And “same-sex marriage” was not considered to be marriage.

Rather, homosexuality was viewed as criminal by the Founders and Framers.

Jefferson and the other Founders distinguished between liberty and license and surely did not conceive of the pursuit of happiness as an authorization for “gay marriage.”

Look at Jefferson’s writings on sodomy.

Such as Jefferson’s letter to Edmund Pendleton, written on August 26, 1776.

“The fantastical idea of virtue and the public good being a sufficient security to the state against the commission of crimes...was never mine. It is only the sanguinary hue of our penal laws which I meant to object to. Punishments I know are necessary, and I would provide them strict and inflexible, but proportioned to the crime. Death might be inflicted for murder and perhaps for treason, [but I] would take out of the description of treason all crimes which are not such in their nature. Rape, buggery, etc., punish by castration. All other crimes by working on high roads, rivers, gallies, etc., a certain time proportioned to the offence... Laws thus proportionate and mild should never be dispensed with. Let mercy be the character of the lawgiver, but let the judge be a mere machine. The mercies of the law will be dispensed equally and impartially to every description of men; those of the judge or of the executive power will be the eccentric impulses of whimsical, capricious designing man.” —Thomas Jefferson to Edmund Pendleton, 1776. Papers 1:505 (Emphasis added.)

Three years later, Jefferson drafted a bill concerning Virginia’s criminal law providing that the penalty for sodomy should be castration. See Thomas Jefferson, The Writings of Thomas Jefferson, Andrew A. Lipscomb, ed. (Washington, Thomas Jefferson Memorial Association, 1904) Vol. I, pp.226-27, from Jefferson’s “For Proportioning Crimes and Punishments.”

The bill read: “Whosoever shall be guilty of rape, polygamy, or sodomy with a man or woman, shall be punished; if a man, by castration, a woman, by boring through the cartilage of her nose a hole of one half inch in diameter at the least.” (Virginia Bill number 64; authored by Jefferson; 18 June 1779)(Emphasis added.)

When the Constitution was ratified, a majority of the states (New York, North Carolina, South Carolina, Connecticut, Virginia, Rhode Island, Massachusetts and New Jersey) provided the death penalty for those who committed sodomy.  All states prohibited it. [Except Georgia -Bob]

What IS irrational is finding that the Constitution prohibits criminalizing behavior viewed as criminal by the people who drafted and ratified the Constitution. [Like helping slaves escape -Bob]

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