Document Type

Article

Publication Date

2019

Abstract

In Reynolds v. United States, 98 U.S. 145 (1878), Chief Justice Morrison Waite, writing for a unanimous Supreme Court, upheld the federal Morrill Anti-Bigamy Act outlawing polygamy in the federal territories and providing criminal penalties for it. This is a re-writing of that opinion, presented in the form of a dissent, available in Feminist Judgments: Family Law Opinions Rewritten (Cambridge University Press, forthcoming 2020). Unlike the Court’s opinion, this dissent concludes that religious practice, as well as belief, is protected by the First Amendment. It therefore holds that a religious duty to engage in an unlawful practice may be a defense to a criminal charge absent evidence of harm to others or disruption of the public order. It further demonstrates that the common law crime of polygamy was intended to penalize fraud and deception rather than consensual conduct. Finally, the opinion addresses head-on the implicit religious freedom claims of the wives of the defendant. It finds that polygamy is no better and no worse for women than monogamous marriage under coverture and that overturning the defendant’s conviction would further the religious freedom and equality of the defendant’s wives and the female citizens in the Territory of Utah. The aims of the dissent are to make visible the women erased by the Court's opinion and to create a more free and egalitarian law of marriage for all women in the United States in the late 19th century.

Download

Share

COinS