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Memory Theory, Politics and Identity:
An Examination of Mormon Polygamy
Lauren V. Steinman
Faculty of Religious Studies
McGill University
3520 University Street
Montreal, Quebec
H3A 2A7
Steinman 1
From the earliest days until the present time, Western history has been pervaded by experiments in
communal living, as well as alternative marriage and sexual patterns. Although the “opportunities for social
and religious experimentation have never been without limits” (Foster v), the liberty to explore a variety of
different lifestyles has consistently been a significant aspect of the Western experience. In the United States
and Canada, there have been many attempts to introduce radically new ways of life. During the tumultuous
decades preceding the American Civil War, three controversial religious groups originated and reached
their pinnacle point of strength and influence. The Shakers, Oneida Perfectionists and Mormons each
repudiated monogamous marriage and the existing nuclear family structure. Alternatively, they organized
new communities around revolutionary models as diverse as celibacy, group marriage and polygamy (v).
Mormonism is recognized as the predominant religious tradition of the Latter Day Saints (LDS) movement.
Due to its close association with polygamy, many have regarded this sect of Christianity as a diversion from
conventional teachings, morals and values. The Christian tradition firmly entrenched monogamy as a
standard for holy matrimony. Therefore, any deviation from this principle is considered to be profoundly
heterodox. Since polygamy is outlawed throughout North America, Mormons have been perceived as
engaging in a conjugal lifestyle that is unethical, fundamentally corrupt and illegal.
v
The purpose of the present paper is to analyze the problem of polygamous marriage through the
United States Supreme Court case of Reynolds v. United States (1878). The accused, Mr. George Reynolds,
a member of the Church of Jesus Christ of Latter Day Saints, was charged with engaging in this atypical
conjugal practice. Reynolds defended his actions by appealing to the tradition’s Doctrine of Polygamy
found in Section 132 of Joseph Smith’s Doctrine and Covenants, as well as the Mormon precept of Celestial
Marriage. Arguably, the case presents some interesting controversial issues, most notably in relation to the
First Amendment right to freedom of religion. Verses 61-62 from Section 132 of the Doctrine and
Covenants outline the principle of polygamous marriage as a justified practice amongst male followers.
These selected verses will be interpreted in order to provide an overarching framework for some of the
Steinman 2
complex issues presented in the legal case.
The method that I have chosen to apply to the aforementioned texts is that of memory theory. The
scholars who will inform my argument are Christian Novetzke and Anne Whitehead. The binary distinction
between memory and history, as illustrated by Novetzke in his essay on “Memory”, will be discussed; these
concepts will be applied to aspects of Reynolds v. United States, emphasizing the relationship between past
and present. Arguably, George Reynolds employed resources from the history of Mormonism and the Holy
Bible in order to justify his autonomous choice to engage in a polygamous lifestyle. According to Novetzke,
memory allows the past and the present to coexist (Novetzke 235), which suggests that memory acts as a
bridge between these distinct modes of temporality, blurring the boundaries that would normally delineate
them. In light of the prevalence of polygamy as a conjugal structure across societies in different eras,
Novetzke’s theory conceivably enabled Reynolds to validate his plural marriages. By contending that the
doctrines of the Mormon tradition were legitimate and acceptable, given the evidence of their practice
throughout history, Reynolds effectively defended his commitment to polygamy, employing memory as a
device to meld the past with the present.
Within the text entitled Memory, Anne Whitehead’s exploration of Maurice Halbwachs’ theory of
collective memory plays an important role in understanding the way in which a given historical document
or text becomes incorporated into the shared consciousness of individuals. The right to freedom of religion
is an important principle of the First Amendment; it is a crucial part of the United States Constitution and
is deeply entrenched in American history. Similarly, the Mormon scriptures, written by founder Joseph
Smith, possess historical roots, given that these texts were composed during the religion’s formative years.
Through an examination of the concept of collective memory, it can be argued that the Doctrine of Plural
Marriage has, in effect, been memorialized by the fundamentalist Mormons through the practice of
polygamy. Similarly, the First Amendment has been memorialized by the American people, who
collectively as a society, refer to this document as a means of defending their rights when their identity is
under threat. Since there is a dialectic between history and memory, one can posit that the enumerated rights
Steinman 3
of the First Amendment and the Doctrine of Polygamy are historical texts that have become memorialized
and embedded within the collective consciousness of Americans and fundamentalist Mormons respectively.
This paper seeks to demonstrate that when memory theory is employed in the analysis of Reynolds v.
United States, it highlights the accused’s intent to justify his polygamous lifestyle through an appeal to
significant historical texts that form large components of the social, collective memory of Mormon
followers and American citizens more widely. From this discussion, it is evident that the concept of shared
memory possesses both a secular and religious nature. These complexities are all the more discernable when
these religious and secular forms of memory are brought into conflict with one another. This sense of
discord is illustrated by two distinct perceptions of polygamy that have been maintained over time: on one
hand, plural marriage is a criminal act in the eyes of the civil law, while within fundamentalist Mormon
circles, it is considered to be a religious obligation and a mandatory practice. George Reynolds justified his
transgression of engaging in plural marriage through an appeal to both the tenets of the Mormon tradition
and the First Amendment right to religious freedom. The charge of polygamy and the subsequent guilty
verdict brought against the accused represents the underlying schism between the foundational precepts of
the Church of Latter Day Saints and the principles of established civil law, each of which has become
memorialized and incorporated into the collective consciousness of Western culture. It is through an explicit
engagement with memory theory that the tension between Mormon doctrine and the prevailing secular legal
system is further illuminated.
The essay will begin with presenting the biblical context of polygamy accompanied by a discussion
of the founder of Mormonism, Joseph Smith and the central precepts of the religious tradition. Following
this, a section will be devoted to an examination of Smith’s Doctrine and Covenants, where the practice of
plural marriage is explicitly sanctioned. Subsequently, a discussion of the First Amendment of the United
States Constitution and the right to freedom of religion will be considered. Further to this review of the First
Amendment, background pertaining to the Supreme Court case of Reynolds v. United States will be
provided in conjunction with a summary of the primary principles of memory theory. The final section of
Steinman 4
the essay will be dedicated to the application of memory theory to the legal case of Reynolds v. United
States.
v
The practice of polygamy has its roots in biblical narratives. It was considered to be an acceptable
form of marriage in Ancient Israel. The majority of the stories in the Bible illustrate polygynous
relationships, where a man was permitted to have more than one wife. Many of the patriarchs in the Hebrew
Scriptures had multiple spouses; Abraham had three, Jacob had four and his brother Esau had five wives
(Coogan 78). It is with the authority of the Bible that early Mormons have argued in favour of the concept
of plural marriage. In contemporary society, fundamentalist Mormon sects continue to practice polygyny.
They justify such a lifestyle through the Bible, which provides a canonical model that upholds this distinct
form of conjugality. The line of reasoning used to defend such a practice follows the logic that if Abraham,
Jacob, David and other patriarchal figures had multiple wives in the absence of divine condemnation, then
the practice of polygyny should therefore be considered moral and acceptable (79).
In contrast to the Hebraic biblical narratives that discuss the issue of polygamous marriages, the New
Testament does not present the same colourful accounts that depict patriarchal figures in conjugal bonds
with multiple women. The early Church developed according to a philosophy of high sexual morality; there
was no possible tolerance for polygamy, but instead, a tendency to elevate unnatural celibacy was highly
commonplace (Parrinder 60). While celibate regulations applied to those individuals in holy orders,
traditional monogamous marriages were very much upheld by Christianity. The Orthodox Christian
tradition, as well as the branches of Eastern, Western, and Reformed Christianity, have been against
polygamy, “and in favour of full and unhesitating maintenance of monogamy, not only in Europe, but
throughout the whole world” (61-2). The doctrine of marriage is entrenched within the teachings of the
New Testament. Marriage in Christianity is essentially an open contract between two parties to receive one
another in mutual love as husband and wife. The Church established monogamy as a universal norm and
remained in strong opposition to “immorality, adultery, concubinage, and brothels” (62).
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Nineteenth-century church historian Philip Schaff contends that in the area concerning the regulation
of marriage and family, there is an overlapping jurisdiction of church and state. In 1888, Schaff noted that
the concept of total separation of church and state was impossible to attain; monogamy was perceived as a
compelling interest and institution that belonged to both church and state. Schaff believed that monogamy
was the only form of marriage that remained in accordance with the “’unanimous sentiment of all Christian
nations” (Weisbrod 239) and was the sole legitimate form of conjugality. Nonetheless, in every tradition,
diversion from the normative value system is a typical occurrence. Bigamy and polygamy represent
deviations in customary conjugal relationships. These unconventional forms of marriage were practiced
among some Anabaptists of the sixteenth century and the Mormons of modern America. The mainstream
Christian tradition perceives these sects as inherently heretical and even goes so far as to classify these
denominations as outside the realm of Orthodox Christianity (Parrinder 61). The close connection between
church and state presented obvious consequences for Mormons; in the context of polygamy, the churches
were not merely arguing that the state should be responsible for the enforcement of morality in general;
rather, the religious bodies were insisting more pointedly on congruence between the state law and the
Christian law of marriage as reflected in the New Testament (Weisbrod 239).
Joseph Smith is accredited as the founder of Mormonism; the beginnings of this religious tradition
were apparent in the 1820s. As a twelve-year-old boy, Smith began his “religious quest for certainty,
forgiveness and salvation amidst the Christianly informed culture of New York State” (Davies 2). In 1823,
Joseph received three visits from the angel Moroni, who told Joseph that he would become a person of great
importance, “that a book written on gold plates [would] be obtained and translated and that a priesthood
[would] be revealed to him; a ‘turning of hearts’ of fathers and children [would] also take place to avoid a
calamity of judgment upon earth” (3).
Smith’s egotism became highly apparent when he publicly announced that he uncovered golden
tablets buried in a hill, inscribed with an ancient history that was written in reformed Egyptian. Imbued with
God’s power, he professed to have been able to translate the hieroglyphics and thereby published the
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narrative in 1830 entitled, The Book of Mormon (Smith x-xi). The notion of plural marriage, which is central
to the Mormon tradition, was first mentioned in The Book of Mormon. A man’s right to have multiple wives
would soon become a central tenet of Mormon doctrine, as stated in Section 132 of Smith’s Doctrine and
Covenants, thereby validating numerous marriages that Smith had engaged in for quite some time. Old
Testament polygamous relationships were used as a template for Smith’s Church of Jesus Christ of Latter
Day Saints. In essence, Smith sought to emulate, revive and effectively memorialize the marital customs of
the biblical patriarchs. With the introduction of polygamy, the Mormon prophet prepared his followers for
the imminent apocalypse “to descend upon the world” (xii). Members of the Mormon Church spent twenty
years on the move from one state to the next, pioneering a novel lifestyle and founding new locations for
polygamous families to expand and flourish. The states of New York, Ohio and Missouri expelled many of
these individuals during the 1830s. The homes of friends or converts were sought as a form of shelter
throughout their journey. Evidently, the shunning of Smith’s followers demonstrates that polygamy was not
considered an acceptable form of conjugality in 19th
century American society (xii).
It was within these homes of refuge that Smith became acquainted with the young women he would
marry a decade later. If they maintained their loyalty to Smith, these wives and their polyandrous husbands
“were introduced into an inner circle which formed an aristocratic network of intermarried couples in the
elite hierarchy” (xii). Beyond his desire to accumulate many women, Smith utilized plural marriage to create
a complex system of relationships with the intention of obtaining eternal salvation in the afterlife. Smith
not only persuaded women to marry him, but he likewise convinced his male disciples to follow suit and
expand their own families, thereby increasing the number of wives to their respective households (xii).
Smith developed the Doctrine of Celestial Marriage to account for the male followers’ taking of
multiple wives. Celestial marriage is recognized as a central tenet of Mormonism, regulating the lives of
Mormon followers on earth as well as in the afterlife. Section 132 of Smith’s Doctrine and Covenants
clearly endorses the precept of celestial marriage in Verses 19 and 46:
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19 And again, verily I say unto you, if a man marry a wife by my word,
which is my law, and by the new and everlasting covenant, and it is
sealed unto them by the Holy Spirit of promise…and it shall be said
unto them—Ye shall come forth in the first resurrection; and if it be
after the first resurrection, in the next resurrection; and shall inherit
thrones, kingdoms, principalities, and powers, dominions, all heights
and depths…if ye abide in my covenant, and commit no murder
whereby to shed innocent blood, it shall be done unto them in all things
whatsoever my servant hath put upon them, in time, and through all
eternity; and shall be of full force when they are out of the world; and
they shall pass by the angels, and the gods, which are set there, to their
exaltation and glory in all things, as hath been sealed upon their heads,
which glory shall be a fulness and a continuation of the seeds forever
and ever. (D&C 132:19)
46 And verily, verily, I say unto you, that whatsoever you seal on
earth shall be sealed in heaven; and whatsoever you bind on earth, in
my name and by my word, saith the Lord, it shall be eternally bound
in the heavens; (D&C 132:46)
The preceding excerpts from Smith’s Doctrine and Covenants outlines the principle of celestial marriage
as a legal contract or covenant made between a man and a woman under the authority of the Holy Spirit,
who possesses the power to seal the matrimonial bond. On the condition that the marital ceremony is in
conformity with the lawful code of the Mormon tradition, it is presumed that the husband and wife joined
together for eternity. Individuals who adhere to this doctrine will undergo multiple resurrections and will
inherit “thrones, kingdoms, principalities, and powers, dominions, all heights and depths” (D&C 132:19).
In Verse 46, there is a sense of correspondence between the actions committed on earth and their affect
upon one’s fate in the afterlife; since all things are referred to as sealed, such a notion suggests that one’s
conduct produces permanent and lasting effects. In essence, if followers abide by the covenant and refrain
from committing sins in the earthly world, they will endure full exaltation and glory in the heavenly realm
and their genealogical lines will continue to flourish throughout eternity.
Under the precept of celestial marriage, the marriage of one man to multiple women is justified by
the example of the biblical figure Abraham. In order to validate this article of faith, supporters of polygamy
advance the argument that in modern times, the descendants of Abraham are commanded to work “for their
exaltation in the eternal worlds” (Gordon 22). Men who were called upon to obey the celestial principle
Steinman 8
were sanctified in their marital union with additional ‘virgin’ women for the purpose of procreation. Such
a conjugal structure emulated that of the righteous biblical patriarchs, who had numerous wives. In order
for a man to marry multiple women, his wife’s permission was required; however, wives who refused to
consent to their husbands’ polygamous lifestyle would be ‘damned’. The covenant of Celestial Marriage
celebrated throughout life on earth would endure for all eternity, “governing relations in heaven as in life,
and dictating the degree of exaltation achieved in the afterlife” (22). Only those marriages that were
celebrated in accordance with the Doctrine of Celestial Marriage would persist after death and those that
did not conform to the Word of God would be destroyed. Such a revelation asserted a certain form of control
over the marriages of church members, in the interest of their redemption from sin and as an indispensable
precondition to their “achievement of the kingdom of God” (22).
Mormonism, like any other religious tradition, upholds its own distinct ideology; this system of
theological values effectively separates the Latter Day Saints movement from numerous denominations of
Christianity. Fundamentalist beliefs are common amongst all world religions, emphasizing the infallible
nature of the Bible. Extremist groups, who maintain a strict interpretation of the Old and New Testament,
endorse these heartfelt convictions. This sense of literalism encompasses biblical narratives, doctrines,
prophecies and moral laws (Merriman Vol. II 463). Within the Mormon tradition, there are fundamentalist
sects that rigorously adhere to the religion’s principles and tenets, re-enacting the past through their
obedience to a variety of rituals and practices. Scholars uphold the belief that Mormonism is inherently
historical in nature; in essence, the religious tradition ‘‘does not have a theology; it has a history’’ (Bowman
720). Such a statement suggests that members of the Church of Jesus Christ of Latter-day Saints place less
significance on the “propositional doctrines of their faith than on the reality of certain events in the faith’s
past” (720), where Joseph Smith’s encounters with the divine and the ancient civilizations described in the
Book of Mormon are chiefly emphasized (720). Mormon fundamentalism upholds the validity of certain
foundational aspects of the Mormon tradition that were historically taught and practiced in the nineteenth
century, particularly during the administration of Brigham Young, an early leader of the Church of Jesus
Steinman 9
Christ of Latter Day Saints. Fundamentalist Mormons seek to sustain customs and tenets that are no longer
followed by those who identify with the mainstream tradition. Despite the 1890 Manifesto issued by
Mormon Church president Wilford Woodruff that disavowed plural marriage in the LDS Church, and the
subsequent schism that resulted within the Mormon tradition (Gordon 220), the fundamentalist sect
continued to preserve polygamy as an acceptable marital structure. Hence, from the year 1890 and onwards,
plural marriage became the defining feature of Mormon fundamentalism; all other factions within
Mormonism ceased to practice polygamy and instead, returned to an engagement with conventional forms
of conjugality.
v
The secular legal system defines polygamy as a criminal offense; however, from the perspective of
the Fundamentalist Church of Latter Day Saints (FLDS), it is a compulsory practice that is both endorsed
and upheld. In the case of Reynolds v. United States, the accused was charged with engaging in plural
marriage, which is rooted in the scriptures of the Mormon tradition. Arguably, the origins of polygamy can
be found in various verses of the Book of Mormon, or in Joseph Smith’s Doctrine and Covenants, where
the practice of polygamy is explicitly sanctioned. The latter text consists of Smith’s numerous revelations,
given that he believed himself to be the Prophet of the Mormon tradition. Section 132 of the Doctrine and
Covenants concerns a revelation that was given through the Prophet at Nauvoo, Illinois recorded on July
12, 1843 relating to the new and everlasting covenant, including the eternity of the marriage covenant and
the plurality of wives. Although the revelation was documented in 1843, it is evident from the historical
records that Smith had been aware of its doctrines and principles since 1831 (Smith D&C 132). Verses 61-
62 of Section 132 clearly put forth the practice of polygamous marriage:
61 And again, as pertaining to the law of the priesthood—if any man
espouse a virgin, and desire to espouse another, and the first give her
consent, and if he espouse the second, and they are virgins, and have
vowed to no other man, then is he justified; he cannot commit adultery
for they are given unto him; for he cannot commit adultery with that
that belongeth unto him and to no one else (D&C 132:61).
Steinman 10
62 And if he have ten virgins given unto him by this law, he cannot
commit adultery, for they belong to him, and they are given unto him;
therefore is he justified (D&C 132:62).
These verses express the principle of plural marriage as a warranted practice amongst male members of
fundamentalist Mormon communities. It is important for readers to comprehend that these passages are
aimed at a male audience, given that like other denominations of Christianity, Mormonism is an inherently
patriarchal tradition that places women in a subordinate position to their husbands. The Doctrine of
Polygamy is described as a “law of the priesthood” (D&C 132:61), which denotes that it is an essential
regulation that is engrained in the legal code of Mormonism. Moreover, there is the implication that the
tradition’s followers should not breach the law of plural marriage. Given the level of seriousness
surrounding this principle, coupled with the fact that polygamy is an obligatory duty amongst
fundamentalist Mormons, individuals should not contravene this law, since it is only through plural
marriage that one can be assured of their exaltation in the celestial kingdom.
Aside from the above verses being directed towards men, it appears that the atypical conjugal structure
of polygamy is justified on two grounds: that the women give their consent to the marriage and are virgins
at the time of their wedding. It is evident that Mormonism places great value on the concept of female
virginity; this abstinence from sexual activity signifies that the women are pure and is a central prerequisite
that determines the ethical status of these unions. In essence, polygamy cannot be considered an adulterous
form of marriage if all women abide by the Christian principle of premarital chastity and likewise agree to
their husband’s taking of additional wives. Furthermore, verse 62 suggests that a man can have as many as
ten wives without these marriages being considered illicit in nature; so long as the women are virgins, the
man’s actions are justified. Moreover, the notion that these women are given to their husbands indicates a
form of objectification where they ultimately become the man’s property, relinquishing control over their
own bodies and by extension, their larger sense of agency and personhood. The Mormon tradition does not
seek to protect the inviolability of women; rather, it is only through the secular legal system that their rights
are effectively safeguarded.
Steinman 11
v
The First Amendment of the United States Constitution protects four fundamental freedoms:
assembly, press, religion and speech. In contemporary society, the scope of the First Amendment is much
wider, particularly in the area of religion, than it has been in past years. In 1791, James Madison, the fourth
President of the United States, was responsible for drafting the U.S. Constitution. Congress proposed twelve
amendments to the Constitution and all but the first two were ratified and adopted, becoming what present-
day Americans recognize as the Bill of Rights. The Third Amendment, which ultimately became the First
Amendment, was written by Congress to read as follows: “Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of
the press; or the right of the people peaceably to assemble, and to petition the government for a redress of
grievances” (Merriman Vol. I 244-45). Many believe that the forefathers held the freedoms of the First
Amendment to be paramount and for this reason, assume that they placed them above all other enumerated
rights; however, their position in the First Amendment is, in reality, coincidental. The first significant test
of the First Amendment came in 1878, with the case of Reynolds v. United States, which concerned a federal
law that banned polygamy in the territories. The Supreme Court defended this statute against a religious
challenge, maintaining that religion does not provide individuals the freedom to engage in practices that are
otherwise deemed illegal (245).
Freedom of religion is considered to be one of the most significant and fundamental freedoms in
North American history. As a cornerstone right in our society, many individuals have appealed to religious
freedom in order to protect their specific cultural identity. Given the prevalence of Supreme Court cases
involving the right to freedom of religion, it is evident that the law has dealt with numerous problems of
this nature. Several cases that concern religious freedom demonstrate a conflict between the values and
precepts of religious groups and their relationship with the civil law of the land. Many of these cases focus
on the restrictions that can reasonably be placed on the foundational liberal right to freedom of religion. In
the 19th
century, the Supreme Court heard a variety of cases that were focused on religious freedom. This
Steinman 12
series of cases were concerned with the problem of polygamy in the state of Utah. After the founding of the
Mormon tradition, members of the Latter Day Saints movement relocated to Utah since they encountered
fierce opposition to their religion. Fundamentalist Mormon doctrine emphasized polygamous marriage,
which was a prevalent practice, particularly among the leaders of the tradition (17). The U.S. government
strongly opposed polygamy, primarily because of the moral and political issues that it generated. Congress
quickly placed a ban on polygamy and likewise created an act that functioned to disenfranchise those who
believed in the conjugal practice. Under President Abraham Lincoln, the United States Congress passed the
Morrill Anti-Bigamy Act in the year 1862, labeling plural marriage as a crime (Gordon 87). In 1887,
Congress finalized the anti-Mormon and anti-polygamy legislation, including the Edmunds-Tucker Act,
which effectively prohibited the practice of plural marriage, revoked the Mormon Church’s charter and
seized both its property and assets (Merriman Vol. I 17).
It is within this turbulent historical period, in the year 1878, that the Supreme Court of the Territory
of Utah heard the case of Reynolds v. United States. George Reynolds, who occupied the position of
secretary to Mormon Church leader Brigham Young, was convicted of engaging in plural marriage (Vol. II
433). Given the existence of the Morrill Anti-Bigamy Act, the Court was able to find George Reynolds as
guilty of the crime of polygamy (Gordon 115). Specifically, the case dealt with whether the federal
government could prohibit polygamy in the state of Utah without infringing on First Amendment rights. At
the time, the Mormon Church favored the practice of polygamy and thus wanted to challenge the prevailing
secular law (Merriman Vol. II 433). The Court held that the claim to free exercise of religion could not
trump the ban on criminal actions. Although laws did not regulate beliefs at this time in American history,
actions that ran contrary to the values of society were not permitted, since the Supreme Court maintained
that a state of chaotic anarchy would result if religious freedom was employed as a justification for illegal
conduct (Vol. I 17). The verdict of the case followed this logic: George Reynolds was found guilty by the
Supreme Court and was sentenced to two years hard labor in prison accompanied by a five hundred dollar
fine (Vol. II 433).
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v
The Supreme Court of the State of Utah convicted George Reynolds, secretary to the Mormon Church,
as guilty of the crime of polygamy. Chief Justice Waite delivered the opinion of the court by dividing the
assignments of error into six different categories. Three errors concern the nature of the jury; the first
questions whether the indictment was valid, given that the composition of the jury was less than sixteen
persons. The second category concerns the improper dismissal of the accused’s counterarguments against
the jury, while the third pertains to the irregular corroboration of the challenges made by the government
against certain jury members. The fourth area of contention concerns the conceivable inappropriate use of
the testimony of Amelia Jane Schofield, the accused’s second wife, given that it had been previously
employed as evidence in a former trial under separate indictment. The fifth category of error relates to the
question of religious freedom as it pertains to the overall judgment reached by the Court; and finally, the
sixth refers to the possible error on the part of the Court regarding whether it had mistakenly led the jury to
believe that polygamy possessed potential negative ramifications (Reynolds).
The fifth assignment of error regarding the defense of religious belief or duty is most relevant and
applicable to the field of memory studies and the methods outlined by Christian Novetzke and Anne
Whitehead. I devote my analysis of Reynolds v. United States to an examination of the arguments that
pertain to the concept of religious freedom and employ the methods of Novetzke and Whitehead to highlight
the underlying tensions within the legal case. In order to further frame this discussion, a brief summary of
the significant principles of memory theory will follow.
In the essay entitled, “Memory”, Christian Novetzke states that the study of memory from both a
social and cultural perspective has become extensive. Since the early twentieth century, memory emerged
as a central idea that was employed by scholars in the fields of anthropology, sociology, literature, folklore
and religion. Throughout the text, Novetzke suggests that there is a discernable tension between history and
the concept of memory; this dialectic remains the most basic point of contention in the field of Western
memory theory. Arguably, much of the discussion in Novetzke’s essay focuses on the dualistic opposition
Steinman 14
between the categories of memory and history. Novetzke argues that historians have had “an ambivalent
relationship to the notion of memory, many seeing it more as an enemy at the gates than a guest at the table”
(Novetzke 230). The antagonistic binary between memory and history is further illustrated by the idea that
memory and orality allow for the present and the past to co-exist, whereas writing and historiography create
a sense of distance between these distinct modes of temporality. Following this line of reasoning, it is
possible to conceive of memory as “the universal and public mode of recollection” (235), whereas history
is limited to societies that are literate and belongs to the domain of the upper class. Perhaps the most
significant point raised by Novetzke is his outlining of the fundamental difference between history and
memory. The former requires that all events be substantiated by rational proof. In other words, all claims
must rest on some grounding of actual verifiable evidence. The latter stands regardless of authenticated
facts, which demonstrates that memory and history are in a constant state of opposition, as illustrated
through this dialectical binary (236).
Novetzke posits that memory possesses an inherently social nature. Such a belief is in accordance
with the influential work of Durkheimian sociologist and philosopher, Maurice Halbwachs, who argued
that memory is an incessantly social and communal endeavour. Halbwachs’ understanding of memory runs
counter to other prevailing theses on the topic. More specifically, Halbwachs posed a challenge to two
significant interpretations of memory; the first theory, which is held by Freud, contends that “memory is an
individual, psychological affair” (230), while the second view perceives memory as an art that seeks to aid
education through reinforcing rhetoric or a “science of mnemonics” (230). Within the text entitled, Memory,
written by Anne Whitehead, this discussion of Maurice Halbwachs’ contributions to the field of memory
studies likewise surfaces; specifically, it appears in the fourth chapter of the text, which showcases the work
of this theorist and his principle of collective memory. According to Whitehead, the concept of collective
memory became an object of scholarly inquiry in the twentieth century due to the influence of Maurice
Halbwachs. His two publications entitled, The Social Frameworks of Memory and The Collective Memory
contend that memory is a phenomenon that is entirely social in nature. Scholars have perceived the
Steinman 15
development of the notion of collective memory as a response to certain late nineteenth and early twentieth-
century interpretations of the nature of recollection, regarding it as a solitary act. Halbwachs’ theory of
collective memory challenges the Romanticist conception of memory as an individual experience. In effect,
Halbwachs’ principle is based on a form of memory that is not concerned with the experiences of a solitary
person, but rather with the “practices of remembrance that are defined and shaped by the surrounding
culture” (Whitehead 124). Given the subject matter of this project, the notion of collective memory is of
central concern and will be implemented to highlight the complexities of the 1878 legal case, Reynolds v.
United States.
v
The nature of law is arguably rooted in history. Secular legal systems operate according to the
principle of stare decisis, which obliges judges to respect the precedents that are established in prior court
rulings. In effect, the definition of case law encapsulates this concept; in analyzing a set of previously
reported judicial decisions, new interpretations of the law are created. It is through the process of stare
decisis that they can be cited as legal precedents in future cases. The theoretical framework of case law can
be linked to the concept of history that is outlined by Christian Novetzke. In his essay on the nature of
“Memory”, Novetzke argues that events which can be substantiated by rational proof are classified into the
category of history. This is to suggest that all claims must rest on some grounding of actual verifiable
evidence in order to qualify as history (Novetzke 236). If this definition is applied to the nature of law as a
collection of statutes and regulations rooted in past cases, the connection to the concept of history is made
strikingly evident. The system of American jurisprudence exists due to its constant state of evolution where
laws are created or revised by means of harkening back to the rulings of former cases, which are documented
historically throughout the civil law canon. Hence, it can be argued that law possesses an inherently
historical nature, since the development of the legal system is founded upon the repository of previous
archived judgements.
Steinman 16
The case of Reynolds v. United States raises several complex problems that pertain to the domains of
law, religion and morality. In order to affirm the inherent dignity of the human person, the first ten
amendments of the United States Constitution entrench a range of civil, political, economic, social and
cultural rights so as to ensure a proper standard of life for all people. The right to freedom of religion plays
a substantial role in Chief Justice Waite’s reasoning and decision; more specifically, in his outline of the
primary assignments of error, the defense of religious belief or duty occupies a central position and is
subjected to careful scrutiny and consideration. The conflict between respecting the civil law and the right
to freedom of religion represents a significant subtextual theme within the Chief Justice’s judgement.
Ultimately, the case of Reynolds v. United States raises the question of whether George Reynolds should
have obeyed the secular law of the land and refrained from practicing polygamy, or if in fact the Court
should have protected his right to religious freedom under the First Amendment.
The binary opposition of history and memory, as illustrated by Novetzke, can be applied to a number
of aspects in the legal of case of Reynolds v. United States. At the time of his second marriage, George
Reynolds was, and had been, a member of the Church of Latter Day Saints for many years and believed in
the doctrines of said Church (Reynolds). Reynolds placed credence in the notion that male members had a
duty to practice polygamy. The accused believed that this was an accepted doctrine of the Mormon Church
and that this obligation was instructed by various texts which members of the LDS Church considered
divine in their origin. In addition, adherents of the Mormon faith were convinced 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” (Reynolds). The belief in Smith’s eminence as sacred
prophet serves to justify the polygamous lifestyle. By attributing divine qualities to the religion’s founder,
Smith’s personal connection with God functions to validate plural marriage as a justified practice amongst
male followers. The accused further rationalized his decision to engage in polygamy by contending that the
failure or refusal to practice plural marriage would result in a divine punishment; specifically, this form of
retribution would involve eternal damnation in the afterlife. Finally, Reynolds defended his actions in
Steinman 17
stating to the Court that he had received formal permission from recognized Mormon Church authorities to
enter into polygamous marriage: “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 [was] alleged to have been
committed, to some woman by the name of Schofield, and that such ceremony was performed under and
pursuant to the doctrines of said church” (Reynolds).
The above facts taken from the legal case illustrate the applicability of Novetzke’s theory. In Chief
Justice Waite’s aforementioned statements, the concept of history is implicitly invoked to suggest that
Reynolds’ choice to practice polygamy was informed by the accepted doctrines of Mormonism, specifically
those of plural and celestial marriage, which are explicitly recorded and sanctioned in Section 132 of
Smith’s Doctrine and Covenants. This text is of historical nature, since it was written during the period of
the religious tradition’s formation. The practice of polygamy can be justified through verifiable evidence
that is documented in written form in the Doctrine and Covenants. As such, the text falls within Novetzke’s
definition of history, which by extension suggests that plural marriage is a historically grounded practice.
Furthermore, the notion of history can relate more widely to the manner in which polygamy was perceived
from a legal perspective in Western culture. In the case of Reynolds v. United States, Chief Justice Waite
cites examples of how polygamy was viewed in other geographical areas of the world and contrasts this
impression with the perception of mainstream European societies: “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” (Reynolds). This statement
by Chief Justice Waite acts as a form of historical evidence that enables him to reason that polygamy was
not deemed an acceptable lifestyle in the Western sphere; in effect, plural marriage was only admissible in
Asian and African culture.
Moreover, according to the Chief Justice, second marriages were always treated as void under
common law, and from the earliest history of England, polygamy was considered a criminal offence
(Reynolds). These assertions demonstrate Chief Justice Waite’s use of history to validate his stance on the
Steinman 18
illegality of polygamy and to support his conviction of Reynolds as guilty of the crime of plural marriage.
In contrast, the accused does not uphold the historical secular treatment of polygamy. Reynolds makes no
reference to legal precedents in his defense, but rather utilizes history for a different outcome to support his
religious beliefs. He seeks to provide legitimacy for his actions by appealing to the historical nature of the
Mormon scriptures, the Holy Bible and the Prophet status of Joseph Smith. In order to add strength and
credence to their respective convictions, history is employed to bolster the agenda of both parties.
The discussion thus far has focused primarily on the application of the concept of history to the case
of Reynolds v. United States. However, since Novetzke’s theory possesses a dualistic structure that concerns
the opposition between history and memory, the implementation of the latter category to the legal case
likewise deserves proper consideration. In Section 132 of Smith’s Doctrine and Covenants, the accepted
doctrines of Mormonism pertaining to plural and celestial marriage are clearly articulated and endorsed. In
the preceding analysis, these principles were linked to the concept of history, based on the fact that the text
of the Doctrine and Covenants was composed during the formative years of the Mormon tradition.
Novetzke’s theoretical definition of history highlights that the practice of polygamy can be justified through
verifiable evidence that is documented in the written form of Smith’s scriptural canon. Nonetheless, the
notion of memory cannot be disregarded, since it plays a significant role in the assessment of George
Reynolds’ actions.
According to Novetzke, memory is placed in opposition to history; it is defined as existing
independent of rational proof and authenticated facts. In effect, memory stands alone, without any official
text or document that serves to underpin and validate its existence. Furthermore, Novetzke contends that
memory is an inherently social and communal endeavour (Novetzke 230). This argument follows the theory
of Maurice Halbwachs, whose principle of collective memory will be revisited in a later section of the essay.
Still, if Novetzke’s statement is analyzed, it suggests that memory is dependent upon a social environment
for its existence. Following this line of reasoning, one can ascertain that George Reynolds’ actions were
influenced by his own social milieu; in effect, Reynolds was arguably surrounded by individuals who were
Steinman 19
associated with Mormonism and who adhered to the same doctrines and practices. This communal setting
of shared values shaped the beliefs of members of the Mormon tradition; however, this notion of shared
memory cannot be perceived as entirely disassociated from the historical texts of the Mormon scriptural
canon. Hence, ensuing from this analysis, it can be argued that there is no strict delineation that separates
the concepts of memory and history. Essentially, there is a possible blurring of the boundaries that typically
retain memory and history as distinct categories. The resulting obscurity of this neatly defined binary
classification is confirmed by Novetzke, who contends that memory and orality allow for the present and
the past to co-exist (235). Mormon scriptures and doctrines are rooted in history and are recalled by George
Reynolds in his defense of his engagement with polygamy as a normative conjugal arrangement. By
contending that the doctrines of the Mormon tradition were legitimate and acceptable, given the evidence
of their practice throughout history, Reynolds effectively defended his commitment to polygamy,
employing memory as a device to meld the past with the present.
v
While the binary of history and memory highlights a number of significant issues in the legal case of
Reynolds v. United States, the concept of collective memory illuminates other distinct tensions that are
worthy of examination. In the text entitled Memory, Anne Whitehead discusses the notion of collective
memory, which was pioneered in the twentieth century by Durkheimian sociologist and philosopher
Maurice Halbwachs. Halbwachs was a student of Henri Bergson; this notable Continental French
philosopher arguably influenced much of Halbwachs’ work and thought. Whitehead notes that Halbwachs
later rejected Bergson’s “highly individualistic philosophy in favour of Emile Durkheim’s emphasis on
social psychology” (Whitehead 125). Bergson believed that all past human experience is retained by
memory; this is to suggest that the events of daily life are stored in the unconscious and are available for
future recollection. Following this theory, memory appears to be a repository that preserves experiences in
their complete form. Halbwachs, however, was not in total agreement with Bergson’s model of “ready-
made images stored in some subterranean gallery of thought” (126). This principle appears rather
Steinman 20
cumbersome, since it implies that human beings are persistently burdened by the past. Halbwachs’ theory
is a derivative of Bergson’s philosophy; his own model emphasizes “the partial and incomplete nature of
past recollections” (126) and he accredits the capacity for remembrance to external stimuli, which have the
ability to reawaken former experiences in the minds of individuals.
Halbwachs contends that human beings do not live in a state of solitude within the world; rather,
beginning in childhood, people are always enclosed within a group, whether it is familial, religious,
political, economic, or social in nature. Throughout the course of life, one will enter and form a wide variety
of groups; as such, one becomes immersed in its particular milieu and self-identifies with the common
values and thoughts of said group. In Halbwachs’ theory, the group provides the individual with a
‘framework’ into which their memories are entwined. One notable point is that these memories are not
stored within the mind; rather, what is retrieved in this process is “a schema, which [is comprised of]
incomplete, wavering, and imprecise impressions that can be fitted together under suitable stimuli” (126).
In essence, for Halbwachs, the act of remembering is rooted in the present reconstruction of minute,
scattered segments of the past; it is not a resurrection of past events.
Apart from Bergson’s philosophy of memory, French sociologist Emile Durkheim likewise
influenced the work of Maurice Halbwachs. The latter embarked on a project to understand the manner in
which social factors preserved and shaped the individual consciousness. Durkheim was particularly
interested in questions of religion, which represented “a manifestation of ‘the individual’s experience of
society as a moral force greater than himself, …requiring his allegiance” (128). Among Durkheim’s most
significant achievements was his account of “the periodic eruption of times of religious and cultural
effervescence, which are characterized by ceremonies involving prolonged social interaction” (128).
Durkheim believed these to be moments of heightened cultural creativity; contrary to prevailing theories,
he located this sense of imagination as a collective phenomenon rather than as a solitary accomplishment.
It is here that Halbwachs’ principle of collective memory engenders a distinct contribution, since it
demonstrates the ways in which periods of ostensible inactivity are replete with an array of ritual and
Steinman 21
ceremonial acts of commemoration that not only assist in the recollection of past events, but likewise serve
to maintain the unification of the community (128).
Halbwachs contends that every society is composed of numerous groups and that each group holds
its own distinct memories, which its members constructed over a lengthily period of time (128). Religious
traditions embody one type of group within a given culture that possess a unique system of beliefs and
doctrines; followers of a religion abide by its precepts, identifying with those values and ideas that have
widespread appeal. The social milieu of the group in turn provides a framework for the individual into
which their memories are woven. Mormonism possesses its own texts that serves to distinguish the tradition
from other denominations of Christianity. The foundation of the Mormon faith is not only rooted in the
Hebrew Bible and New Testament; rather, much of Mormon thought originates in the Book of Mormon and
the Doctrine and Covenants, which form a central component of the religion’s scriptural canon. Maurice
Halbwachs’ theory of collective memory has great pertinence to the Mormon faith, since it highlights the
manner in which a given historical document or text becomes incorporated into the collective consciousness
of individuals. Arguably, it is through an explicit engagement with the concept of shared memory that the
tension between Mormon doctrine and the prevailing secular legal system is illuminated in the case of
Reynolds v. United States.
George Reynolds was a member of the Church of Latter Day Saints for many years and was strongly
influenced by the doctrines of said Church (Reynolds). Reynolds placed credence in the notion that male
members had a duty to practice polygamy. The accused believed that plural marriage was an accepted tenet
of the Mormon Church and that this obligation was instructed by various texts which members of the LDS
Church considered divine in their origin. In addition, adherents of the Mormon faith were convinced 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” (Reynolds). Such a statement
demonstrates that the scriptural sources of the Mormon tradition were integrated into the psyche of George
Reynolds, who is representative of the larger collective memory of all fundamentalist Mormons that uphold
Steinman 22
the truth of the religion’s precepts. Arguably, the holy texts associated with Mormonism affected the
behaviour of Reynolds, who believed that it was his religious duty to engage in the practice of polygamous
marriage. Chief Justice Waite raises the question of whether “religious belief can be accepted as a
justification [for] an overt act made criminal by the law of the land” (Reynolds). The Chief Justice focused
his inquiry on the guilt of the accused, who knowingly violated the statute that prohibited plural marriage,
while entertaining a religious belief that enabled him to perceive the secular law as having no binding effect
on his actions (Reynolds).
Freedom of religion is a cornerstone right of the First Amendment and the United States Constitution.
Chief Justice Waite contends that “Congress cannot pass a law for the government of the Territories which
shall prohibit the free exercise of religion” (Reynolds), given that the First Amendment expressly forbids
such legislation. Religious freedom is a guaranteed right for all individuals living within the liberal
democratic society of the United States. While this statement is generally an accepted truism, the Chief
Justice seeks to determine whether the law that criminalizes polygamy falls within the prohibition that
restricts the free exercise of religion. Maurice Halbwachs’ theory of collective memory highlights the
tension that arises when historical documents, namely the First Amendment and Joseph Smith’s Doctrine
and Covenants, become memorialized into the shared consciousness of individuals who belong to distinct
social groups. To further this point, one can posit that citizens of the United States of America collectively
refer to the First Amendment in defense of their inalienable rights when their identity is under threat and
challenged by external forces. Similarly, fundamentalist Mormons, who are influenced by the written texts
of the Mormon scriptural canon, uphold the validity of their beliefs through an engagement with the
historical practice of polygamy. Such a conjecture is supported by Halbwachs, who argues that ritual and
ceremonial acts of commemoration not only assist in the recollection of past events, but likewise serve to
maintain the unification of the community (Whitehead 128). In effect, the custom of plural marriage
embodies a means by which Mormons partake in a remembrance of the past, enabling followers to reflect
on the tradition’s formative years and the pioneering founders who promoted polygamy as a distinct
Steinman 23
conjugal arrangement. Ultimately, engagement with this practice enables the adherents of Mormonism to
join together in recognition of their collective memory and identity.
In his judgment of the case, Chief Justice Waite reasons that Congress is not permitted to pass laws
that prohibit the free exercise of religion. If this legal concept is applied to Maurice Halbwachs’ theory of
collective memory, the following question is raised: should the shared memory of Mormonism be given
license to protect the free exercise of religion for its followers, or can the civil law legitimately interfere
with this collective consciousness and thereby restrict the individual rights of the tradition’s adherents?
Chief Justice Waite contends that “Laws are made for the government of actions, and while they cannot
interfere with mere religious belief and opinions, they may with practices” (Reynolds). This is to suggest
that the secular law cannot intervene with private convictions, but is permitted to place restrictions on public
practices that pose harm to society. Evidently, the law operates according to a binary of private and public;
while it cannot regulate undisclosed personal thoughts, the law may place reasonable limits on the conduct
that derives from these beliefs. It then follows from this argument that the law can rightfully interfere with
the actions of fundamentalist Mormons. Since plural marriages are not acceptable and sanctioned by law,
such a constraint on the customs of Mormon followers arguably represents a constraint on their beliefs,
which are intrinsically rooted in their collective memory.
While Maurice Halbwachs’ theory of remembrance sheds light on the complexities of collective
memory, the concept is indeed made further elaborate with the recognition that it possesses both secular
and religious dimensions. The legal perspective of shared memory consistently regards polygamy as a crime
that is worthy of proper punishment under the law, while Mormons believe that the practice of plural
marriage is a mandatory duty upheld by the right to religious freedom. Arguably, these secular and religious
forms of collective memory are in a perpetual state of antagonism and conflict; they remain locked within
a binary that places them in continual opposition. Chief Justice Waite reasons that to justify the practice of
polygamy through an appeal to religious belief would enable the professed doctrines of a religion to
outweigh the prevailing law of the land. As such, every citizen would be given free rein to create his or her
Steinman 24
own laws, notwithstanding the existing civil legal system. The Chief Justice’s interpretation of the
problematic of religious duty in the case of Reynolds v. United States illuminates the inherent, ubiquitous
tension amidst the secular law and the prevailing doctrines of a religious tradition. George Reynolds
justified his transgression of engaging in the practice of plural marriage through an appeal to both the tenets
of Mormonism and the First Amendment right to religious freedom. The charge of polygamy and the
subsequent guilty verdict brought against the accused represents the underlying schism between the
foundational precepts of the Church of Latter Day Saints and the principles of established civil law, each
of which has become memorialized and incorporated into the collective consciousness of Western culture.
Steinman 25
Bibliography
Bowman, Matthew. “Mormonism and its Historians: The State of the Field.” Religion Compass 5.12
(2011): 720–730. 5 Dec. 2011. <http://onlinelibrary.wiley.com/doi/10.1111/j.1749-
8171.2011.00321.x/pdf>.
Coogan, Michael. God and Sex: What the Bible Really Says. New York: Twelve, 2010.
Davies, Douglas J. An Introduction to Mormonism. New York: Cambridge University Press, 2003.
Foster, Lawrence. Religion and Sexuality: Three American Communal Experiments of the Nineteenth
Century. New York: Oxford University Press, 1981.
Gordon, Sarah Barringer. The Mormon Question: Polygamy and Constitutional Conflict in Nineteenth-
Century America. Chapel Hill, NC: University of North Carolina Press, 2002.
Merriman, Scott C., ed. Religion and the Law in America: An Encyclopedia of Personal Belief and Public
Policy. 2 Vols. Santa Barbara, CA: ABC-CLIO, 2007.
Novetzke, Christian Lee. “Memory.” In Studying Hinduism: Key Concepts and Methods. Ed.
Sushil Mittal and Gene Thursby. London: Routledge, 2008.
Parrinder, Geoffrey. The Bible and Polygamy: A Study of Hebrew and Christian Teaching. London:
SPCK, 1950.
Reynolds v. United States. 98 U.S. 145. Supreme Court of the U.S. 1878.
Smith, George D. Nauvoo Polygamy: “…but we called it celestial marriage.” Salt Lake City:
Signature Books, 2008.
Smith, Joseph. “The Doctrine and Covenants: Section 132.” The Church of Jesus Christ of
Latter-Day Saints. 2011. Intellectual Reserve, Inc. 6 Nov. 2011.
<http://lds.org/scriptures/dc-testament/dc/132?lang=eng>
Weisbrod, Carol. “Family, Church, and State: An Essay on Constitutionalism and Religious Authority.”
In Kindred Matters: Rethinking the Philosophy of the Family. Eds. Diana Tietjens Meyers, Kenneth
Kipnis and Cornelius F. Murphy Jr. Ithaca, NY: Cornell University Press, 1993. 228-56.
Whitehead, Anne. Memory. New York: Routledge, 2009.

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Memory Theory, Politics and Identity- An Examination of Mormon Polygamy

  • 1. Memory Theory, Politics and Identity: An Examination of Mormon Polygamy Lauren V. Steinman Faculty of Religious Studies McGill University 3520 University Street Montreal, Quebec H3A 2A7
  • 2. Steinman 1 From the earliest days until the present time, Western history has been pervaded by experiments in communal living, as well as alternative marriage and sexual patterns. Although the “opportunities for social and religious experimentation have never been without limits” (Foster v), the liberty to explore a variety of different lifestyles has consistently been a significant aspect of the Western experience. In the United States and Canada, there have been many attempts to introduce radically new ways of life. During the tumultuous decades preceding the American Civil War, three controversial religious groups originated and reached their pinnacle point of strength and influence. The Shakers, Oneida Perfectionists and Mormons each repudiated monogamous marriage and the existing nuclear family structure. Alternatively, they organized new communities around revolutionary models as diverse as celibacy, group marriage and polygamy (v). Mormonism is recognized as the predominant religious tradition of the Latter Day Saints (LDS) movement. Due to its close association with polygamy, many have regarded this sect of Christianity as a diversion from conventional teachings, morals and values. The Christian tradition firmly entrenched monogamy as a standard for holy matrimony. Therefore, any deviation from this principle is considered to be profoundly heterodox. Since polygamy is outlawed throughout North America, Mormons have been perceived as engaging in a conjugal lifestyle that is unethical, fundamentally corrupt and illegal. v The purpose of the present paper is to analyze the problem of polygamous marriage through the United States Supreme Court case of Reynolds v. United States (1878). The accused, Mr. George Reynolds, a member of the Church of Jesus Christ of Latter Day Saints, was charged with engaging in this atypical conjugal practice. Reynolds defended his actions by appealing to the tradition’s Doctrine of Polygamy found in Section 132 of Joseph Smith’s Doctrine and Covenants, as well as the Mormon precept of Celestial Marriage. Arguably, the case presents some interesting controversial issues, most notably in relation to the First Amendment right to freedom of religion. Verses 61-62 from Section 132 of the Doctrine and Covenants outline the principle of polygamous marriage as a justified practice amongst male followers. These selected verses will be interpreted in order to provide an overarching framework for some of the
  • 3. Steinman 2 complex issues presented in the legal case. The method that I have chosen to apply to the aforementioned texts is that of memory theory. The scholars who will inform my argument are Christian Novetzke and Anne Whitehead. The binary distinction between memory and history, as illustrated by Novetzke in his essay on “Memory”, will be discussed; these concepts will be applied to aspects of Reynolds v. United States, emphasizing the relationship between past and present. Arguably, George Reynolds employed resources from the history of Mormonism and the Holy Bible in order to justify his autonomous choice to engage in a polygamous lifestyle. According to Novetzke, memory allows the past and the present to coexist (Novetzke 235), which suggests that memory acts as a bridge between these distinct modes of temporality, blurring the boundaries that would normally delineate them. In light of the prevalence of polygamy as a conjugal structure across societies in different eras, Novetzke’s theory conceivably enabled Reynolds to validate his plural marriages. By contending that the doctrines of the Mormon tradition were legitimate and acceptable, given the evidence of their practice throughout history, Reynolds effectively defended his commitment to polygamy, employing memory as a device to meld the past with the present. Within the text entitled Memory, Anne Whitehead’s exploration of Maurice Halbwachs’ theory of collective memory plays an important role in understanding the way in which a given historical document or text becomes incorporated into the shared consciousness of individuals. The right to freedom of religion is an important principle of the First Amendment; it is a crucial part of the United States Constitution and is deeply entrenched in American history. Similarly, the Mormon scriptures, written by founder Joseph Smith, possess historical roots, given that these texts were composed during the religion’s formative years. Through an examination of the concept of collective memory, it can be argued that the Doctrine of Plural Marriage has, in effect, been memorialized by the fundamentalist Mormons through the practice of polygamy. Similarly, the First Amendment has been memorialized by the American people, who collectively as a society, refer to this document as a means of defending their rights when their identity is under threat. Since there is a dialectic between history and memory, one can posit that the enumerated rights
  • 4. Steinman 3 of the First Amendment and the Doctrine of Polygamy are historical texts that have become memorialized and embedded within the collective consciousness of Americans and fundamentalist Mormons respectively. This paper seeks to demonstrate that when memory theory is employed in the analysis of Reynolds v. United States, it highlights the accused’s intent to justify his polygamous lifestyle through an appeal to significant historical texts that form large components of the social, collective memory of Mormon followers and American citizens more widely. From this discussion, it is evident that the concept of shared memory possesses both a secular and religious nature. These complexities are all the more discernable when these religious and secular forms of memory are brought into conflict with one another. This sense of discord is illustrated by two distinct perceptions of polygamy that have been maintained over time: on one hand, plural marriage is a criminal act in the eyes of the civil law, while within fundamentalist Mormon circles, it is considered to be a religious obligation and a mandatory practice. George Reynolds justified his transgression of engaging in plural marriage through an appeal to both the tenets of the Mormon tradition and the First Amendment right to religious freedom. The charge of polygamy and the subsequent guilty verdict brought against the accused represents the underlying schism between the foundational precepts of the Church of Latter Day Saints and the principles of established civil law, each of which has become memorialized and incorporated into the collective consciousness of Western culture. It is through an explicit engagement with memory theory that the tension between Mormon doctrine and the prevailing secular legal system is further illuminated. The essay will begin with presenting the biblical context of polygamy accompanied by a discussion of the founder of Mormonism, Joseph Smith and the central precepts of the religious tradition. Following this, a section will be devoted to an examination of Smith’s Doctrine and Covenants, where the practice of plural marriage is explicitly sanctioned. Subsequently, a discussion of the First Amendment of the United States Constitution and the right to freedom of religion will be considered. Further to this review of the First Amendment, background pertaining to the Supreme Court case of Reynolds v. United States will be provided in conjunction with a summary of the primary principles of memory theory. The final section of
  • 5. Steinman 4 the essay will be dedicated to the application of memory theory to the legal case of Reynolds v. United States. v The practice of polygamy has its roots in biblical narratives. It was considered to be an acceptable form of marriage in Ancient Israel. The majority of the stories in the Bible illustrate polygynous relationships, where a man was permitted to have more than one wife. Many of the patriarchs in the Hebrew Scriptures had multiple spouses; Abraham had three, Jacob had four and his brother Esau had five wives (Coogan 78). It is with the authority of the Bible that early Mormons have argued in favour of the concept of plural marriage. In contemporary society, fundamentalist Mormon sects continue to practice polygyny. They justify such a lifestyle through the Bible, which provides a canonical model that upholds this distinct form of conjugality. The line of reasoning used to defend such a practice follows the logic that if Abraham, Jacob, David and other patriarchal figures had multiple wives in the absence of divine condemnation, then the practice of polygyny should therefore be considered moral and acceptable (79). In contrast to the Hebraic biblical narratives that discuss the issue of polygamous marriages, the New Testament does not present the same colourful accounts that depict patriarchal figures in conjugal bonds with multiple women. The early Church developed according to a philosophy of high sexual morality; there was no possible tolerance for polygamy, but instead, a tendency to elevate unnatural celibacy was highly commonplace (Parrinder 60). While celibate regulations applied to those individuals in holy orders, traditional monogamous marriages were very much upheld by Christianity. The Orthodox Christian tradition, as well as the branches of Eastern, Western, and Reformed Christianity, have been against polygamy, “and in favour of full and unhesitating maintenance of monogamy, not only in Europe, but throughout the whole world” (61-2). The doctrine of marriage is entrenched within the teachings of the New Testament. Marriage in Christianity is essentially an open contract between two parties to receive one another in mutual love as husband and wife. The Church established monogamy as a universal norm and remained in strong opposition to “immorality, adultery, concubinage, and brothels” (62).
  • 6. Steinman 5 Nineteenth-century church historian Philip Schaff contends that in the area concerning the regulation of marriage and family, there is an overlapping jurisdiction of church and state. In 1888, Schaff noted that the concept of total separation of church and state was impossible to attain; monogamy was perceived as a compelling interest and institution that belonged to both church and state. Schaff believed that monogamy was the only form of marriage that remained in accordance with the “’unanimous sentiment of all Christian nations” (Weisbrod 239) and was the sole legitimate form of conjugality. Nonetheless, in every tradition, diversion from the normative value system is a typical occurrence. Bigamy and polygamy represent deviations in customary conjugal relationships. These unconventional forms of marriage were practiced among some Anabaptists of the sixteenth century and the Mormons of modern America. The mainstream Christian tradition perceives these sects as inherently heretical and even goes so far as to classify these denominations as outside the realm of Orthodox Christianity (Parrinder 61). The close connection between church and state presented obvious consequences for Mormons; in the context of polygamy, the churches were not merely arguing that the state should be responsible for the enforcement of morality in general; rather, the religious bodies were insisting more pointedly on congruence between the state law and the Christian law of marriage as reflected in the New Testament (Weisbrod 239). Joseph Smith is accredited as the founder of Mormonism; the beginnings of this religious tradition were apparent in the 1820s. As a twelve-year-old boy, Smith began his “religious quest for certainty, forgiveness and salvation amidst the Christianly informed culture of New York State” (Davies 2). In 1823, Joseph received three visits from the angel Moroni, who told Joseph that he would become a person of great importance, “that a book written on gold plates [would] be obtained and translated and that a priesthood [would] be revealed to him; a ‘turning of hearts’ of fathers and children [would] also take place to avoid a calamity of judgment upon earth” (3). Smith’s egotism became highly apparent when he publicly announced that he uncovered golden tablets buried in a hill, inscribed with an ancient history that was written in reformed Egyptian. Imbued with God’s power, he professed to have been able to translate the hieroglyphics and thereby published the
  • 7. Steinman 6 narrative in 1830 entitled, The Book of Mormon (Smith x-xi). The notion of plural marriage, which is central to the Mormon tradition, was first mentioned in The Book of Mormon. A man’s right to have multiple wives would soon become a central tenet of Mormon doctrine, as stated in Section 132 of Smith’s Doctrine and Covenants, thereby validating numerous marriages that Smith had engaged in for quite some time. Old Testament polygamous relationships were used as a template for Smith’s Church of Jesus Christ of Latter Day Saints. In essence, Smith sought to emulate, revive and effectively memorialize the marital customs of the biblical patriarchs. With the introduction of polygamy, the Mormon prophet prepared his followers for the imminent apocalypse “to descend upon the world” (xii). Members of the Mormon Church spent twenty years on the move from one state to the next, pioneering a novel lifestyle and founding new locations for polygamous families to expand and flourish. The states of New York, Ohio and Missouri expelled many of these individuals during the 1830s. The homes of friends or converts were sought as a form of shelter throughout their journey. Evidently, the shunning of Smith’s followers demonstrates that polygamy was not considered an acceptable form of conjugality in 19th century American society (xii). It was within these homes of refuge that Smith became acquainted with the young women he would marry a decade later. If they maintained their loyalty to Smith, these wives and their polyandrous husbands “were introduced into an inner circle which formed an aristocratic network of intermarried couples in the elite hierarchy” (xii). Beyond his desire to accumulate many women, Smith utilized plural marriage to create a complex system of relationships with the intention of obtaining eternal salvation in the afterlife. Smith not only persuaded women to marry him, but he likewise convinced his male disciples to follow suit and expand their own families, thereby increasing the number of wives to their respective households (xii). Smith developed the Doctrine of Celestial Marriage to account for the male followers’ taking of multiple wives. Celestial marriage is recognized as a central tenet of Mormonism, regulating the lives of Mormon followers on earth as well as in the afterlife. Section 132 of Smith’s Doctrine and Covenants clearly endorses the precept of celestial marriage in Verses 19 and 46:
  • 8. Steinman 7 19 And again, verily I say unto you, if a man marry a wife by my word, which is my law, and by the new and everlasting covenant, and it is sealed unto them by the Holy Spirit of promise…and it shall be said unto them—Ye shall come forth in the first resurrection; and if it be after the first resurrection, in the next resurrection; and shall inherit thrones, kingdoms, principalities, and powers, dominions, all heights and depths…if ye abide in my covenant, and commit no murder whereby to shed innocent blood, it shall be done unto them in all things whatsoever my servant hath put upon them, in time, and through all eternity; and shall be of full force when they are out of the world; and they shall pass by the angels, and the gods, which are set there, to their exaltation and glory in all things, as hath been sealed upon their heads, which glory shall be a fulness and a continuation of the seeds forever and ever. (D&C 132:19) 46 And verily, verily, I say unto you, that whatsoever you seal on earth shall be sealed in heaven; and whatsoever you bind on earth, in my name and by my word, saith the Lord, it shall be eternally bound in the heavens; (D&C 132:46) The preceding excerpts from Smith’s Doctrine and Covenants outlines the principle of celestial marriage as a legal contract or covenant made between a man and a woman under the authority of the Holy Spirit, who possesses the power to seal the matrimonial bond. On the condition that the marital ceremony is in conformity with the lawful code of the Mormon tradition, it is presumed that the husband and wife joined together for eternity. Individuals who adhere to this doctrine will undergo multiple resurrections and will inherit “thrones, kingdoms, principalities, and powers, dominions, all heights and depths” (D&C 132:19). In Verse 46, there is a sense of correspondence between the actions committed on earth and their affect upon one’s fate in the afterlife; since all things are referred to as sealed, such a notion suggests that one’s conduct produces permanent and lasting effects. In essence, if followers abide by the covenant and refrain from committing sins in the earthly world, they will endure full exaltation and glory in the heavenly realm and their genealogical lines will continue to flourish throughout eternity. Under the precept of celestial marriage, the marriage of one man to multiple women is justified by the example of the biblical figure Abraham. In order to validate this article of faith, supporters of polygamy advance the argument that in modern times, the descendants of Abraham are commanded to work “for their exaltation in the eternal worlds” (Gordon 22). Men who were called upon to obey the celestial principle
  • 9. Steinman 8 were sanctified in their marital union with additional ‘virgin’ women for the purpose of procreation. Such a conjugal structure emulated that of the righteous biblical patriarchs, who had numerous wives. In order for a man to marry multiple women, his wife’s permission was required; however, wives who refused to consent to their husbands’ polygamous lifestyle would be ‘damned’. The covenant of Celestial Marriage celebrated throughout life on earth would endure for all eternity, “governing relations in heaven as in life, and dictating the degree of exaltation achieved in the afterlife” (22). Only those marriages that were celebrated in accordance with the Doctrine of Celestial Marriage would persist after death and those that did not conform to the Word of God would be destroyed. Such a revelation asserted a certain form of control over the marriages of church members, in the interest of their redemption from sin and as an indispensable precondition to their “achievement of the kingdom of God” (22). Mormonism, like any other religious tradition, upholds its own distinct ideology; this system of theological values effectively separates the Latter Day Saints movement from numerous denominations of Christianity. Fundamentalist beliefs are common amongst all world religions, emphasizing the infallible nature of the Bible. Extremist groups, who maintain a strict interpretation of the Old and New Testament, endorse these heartfelt convictions. This sense of literalism encompasses biblical narratives, doctrines, prophecies and moral laws (Merriman Vol. II 463). Within the Mormon tradition, there are fundamentalist sects that rigorously adhere to the religion’s principles and tenets, re-enacting the past through their obedience to a variety of rituals and practices. Scholars uphold the belief that Mormonism is inherently historical in nature; in essence, the religious tradition ‘‘does not have a theology; it has a history’’ (Bowman 720). Such a statement suggests that members of the Church of Jesus Christ of Latter-day Saints place less significance on the “propositional doctrines of their faith than on the reality of certain events in the faith’s past” (720), where Joseph Smith’s encounters with the divine and the ancient civilizations described in the Book of Mormon are chiefly emphasized (720). Mormon fundamentalism upholds the validity of certain foundational aspects of the Mormon tradition that were historically taught and practiced in the nineteenth century, particularly during the administration of Brigham Young, an early leader of the Church of Jesus
  • 10. Steinman 9 Christ of Latter Day Saints. Fundamentalist Mormons seek to sustain customs and tenets that are no longer followed by those who identify with the mainstream tradition. Despite the 1890 Manifesto issued by Mormon Church president Wilford Woodruff that disavowed plural marriage in the LDS Church, and the subsequent schism that resulted within the Mormon tradition (Gordon 220), the fundamentalist sect continued to preserve polygamy as an acceptable marital structure. Hence, from the year 1890 and onwards, plural marriage became the defining feature of Mormon fundamentalism; all other factions within Mormonism ceased to practice polygamy and instead, returned to an engagement with conventional forms of conjugality. v The secular legal system defines polygamy as a criminal offense; however, from the perspective of the Fundamentalist Church of Latter Day Saints (FLDS), it is a compulsory practice that is both endorsed and upheld. In the case of Reynolds v. United States, the accused was charged with engaging in plural marriage, which is rooted in the scriptures of the Mormon tradition. Arguably, the origins of polygamy can be found in various verses of the Book of Mormon, or in Joseph Smith’s Doctrine and Covenants, where the practice of polygamy is explicitly sanctioned. The latter text consists of Smith’s numerous revelations, given that he believed himself to be the Prophet of the Mormon tradition. Section 132 of the Doctrine and Covenants concerns a revelation that was given through the Prophet at Nauvoo, Illinois recorded on July 12, 1843 relating to the new and everlasting covenant, including the eternity of the marriage covenant and the plurality of wives. Although the revelation was documented in 1843, it is evident from the historical records that Smith had been aware of its doctrines and principles since 1831 (Smith D&C 132). Verses 61- 62 of Section 132 clearly put forth the practice of polygamous marriage: 61 And again, as pertaining to the law of the priesthood—if any man espouse a virgin, and desire to espouse another, and the first give her consent, and if he espouse the second, and they are virgins, and have vowed to no other man, then is he justified; he cannot commit adultery for they are given unto him; for he cannot commit adultery with that that belongeth unto him and to no one else (D&C 132:61).
  • 11. Steinman 10 62 And if he have ten virgins given unto him by this law, he cannot commit adultery, for they belong to him, and they are given unto him; therefore is he justified (D&C 132:62). These verses express the principle of plural marriage as a warranted practice amongst male members of fundamentalist Mormon communities. It is important for readers to comprehend that these passages are aimed at a male audience, given that like other denominations of Christianity, Mormonism is an inherently patriarchal tradition that places women in a subordinate position to their husbands. The Doctrine of Polygamy is described as a “law of the priesthood” (D&C 132:61), which denotes that it is an essential regulation that is engrained in the legal code of Mormonism. Moreover, there is the implication that the tradition’s followers should not breach the law of plural marriage. Given the level of seriousness surrounding this principle, coupled with the fact that polygamy is an obligatory duty amongst fundamentalist Mormons, individuals should not contravene this law, since it is only through plural marriage that one can be assured of their exaltation in the celestial kingdom. Aside from the above verses being directed towards men, it appears that the atypical conjugal structure of polygamy is justified on two grounds: that the women give their consent to the marriage and are virgins at the time of their wedding. It is evident that Mormonism places great value on the concept of female virginity; this abstinence from sexual activity signifies that the women are pure and is a central prerequisite that determines the ethical status of these unions. In essence, polygamy cannot be considered an adulterous form of marriage if all women abide by the Christian principle of premarital chastity and likewise agree to their husband’s taking of additional wives. Furthermore, verse 62 suggests that a man can have as many as ten wives without these marriages being considered illicit in nature; so long as the women are virgins, the man’s actions are justified. Moreover, the notion that these women are given to their husbands indicates a form of objectification where they ultimately become the man’s property, relinquishing control over their own bodies and by extension, their larger sense of agency and personhood. The Mormon tradition does not seek to protect the inviolability of women; rather, it is only through the secular legal system that their rights are effectively safeguarded.
  • 12. Steinman 11 v The First Amendment of the United States Constitution protects four fundamental freedoms: assembly, press, religion and speech. In contemporary society, the scope of the First Amendment is much wider, particularly in the area of religion, than it has been in past years. In 1791, James Madison, the fourth President of the United States, was responsible for drafting the U.S. Constitution. Congress proposed twelve amendments to the Constitution and all but the first two were ratified and adopted, becoming what present- day Americans recognize as the Bill of Rights. The Third Amendment, which ultimately became the First Amendment, was written by Congress to read as follows: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances” (Merriman Vol. I 244-45). Many believe that the forefathers held the freedoms of the First Amendment to be paramount and for this reason, assume that they placed them above all other enumerated rights; however, their position in the First Amendment is, in reality, coincidental. The first significant test of the First Amendment came in 1878, with the case of Reynolds v. United States, which concerned a federal law that banned polygamy in the territories. The Supreme Court defended this statute against a religious challenge, maintaining that religion does not provide individuals the freedom to engage in practices that are otherwise deemed illegal (245). Freedom of religion is considered to be one of the most significant and fundamental freedoms in North American history. As a cornerstone right in our society, many individuals have appealed to religious freedom in order to protect their specific cultural identity. Given the prevalence of Supreme Court cases involving the right to freedom of religion, it is evident that the law has dealt with numerous problems of this nature. Several cases that concern religious freedom demonstrate a conflict between the values and precepts of religious groups and their relationship with the civil law of the land. Many of these cases focus on the restrictions that can reasonably be placed on the foundational liberal right to freedom of religion. In the 19th century, the Supreme Court heard a variety of cases that were focused on religious freedom. This
  • 13. Steinman 12 series of cases were concerned with the problem of polygamy in the state of Utah. After the founding of the Mormon tradition, members of the Latter Day Saints movement relocated to Utah since they encountered fierce opposition to their religion. Fundamentalist Mormon doctrine emphasized polygamous marriage, which was a prevalent practice, particularly among the leaders of the tradition (17). The U.S. government strongly opposed polygamy, primarily because of the moral and political issues that it generated. Congress quickly placed a ban on polygamy and likewise created an act that functioned to disenfranchise those who believed in the conjugal practice. Under President Abraham Lincoln, the United States Congress passed the Morrill Anti-Bigamy Act in the year 1862, labeling plural marriage as a crime (Gordon 87). In 1887, Congress finalized the anti-Mormon and anti-polygamy legislation, including the Edmunds-Tucker Act, which effectively prohibited the practice of plural marriage, revoked the Mormon Church’s charter and seized both its property and assets (Merriman Vol. I 17). It is within this turbulent historical period, in the year 1878, that the Supreme Court of the Territory of Utah heard the case of Reynolds v. United States. George Reynolds, who occupied the position of secretary to Mormon Church leader Brigham Young, was convicted of engaging in plural marriage (Vol. II 433). Given the existence of the Morrill Anti-Bigamy Act, the Court was able to find George Reynolds as guilty of the crime of polygamy (Gordon 115). Specifically, the case dealt with whether the federal government could prohibit polygamy in the state of Utah without infringing on First Amendment rights. At the time, the Mormon Church favored the practice of polygamy and thus wanted to challenge the prevailing secular law (Merriman Vol. II 433). The Court held that the claim to free exercise of religion could not trump the ban on criminal actions. Although laws did not regulate beliefs at this time in American history, actions that ran contrary to the values of society were not permitted, since the Supreme Court maintained that a state of chaotic anarchy would result if religious freedom was employed as a justification for illegal conduct (Vol. I 17). The verdict of the case followed this logic: George Reynolds was found guilty by the Supreme Court and was sentenced to two years hard labor in prison accompanied by a five hundred dollar fine (Vol. II 433).
  • 14. Steinman 13 v The Supreme Court of the State of Utah convicted George Reynolds, secretary to the Mormon Church, as guilty of the crime of polygamy. Chief Justice Waite delivered the opinion of the court by dividing the assignments of error into six different categories. Three errors concern the nature of the jury; the first questions whether the indictment was valid, given that the composition of the jury was less than sixteen persons. The second category concerns the improper dismissal of the accused’s counterarguments against the jury, while the third pertains to the irregular corroboration of the challenges made by the government against certain jury members. The fourth area of contention concerns the conceivable inappropriate use of the testimony of Amelia Jane Schofield, the accused’s second wife, given that it had been previously employed as evidence in a former trial under separate indictment. The fifth category of error relates to the question of religious freedom as it pertains to the overall judgment reached by the Court; and finally, the sixth refers to the possible error on the part of the Court regarding whether it had mistakenly led the jury to believe that polygamy possessed potential negative ramifications (Reynolds). The fifth assignment of error regarding the defense of religious belief or duty is most relevant and applicable to the field of memory studies and the methods outlined by Christian Novetzke and Anne Whitehead. I devote my analysis of Reynolds v. United States to an examination of the arguments that pertain to the concept of religious freedom and employ the methods of Novetzke and Whitehead to highlight the underlying tensions within the legal case. In order to further frame this discussion, a brief summary of the significant principles of memory theory will follow. In the essay entitled, “Memory”, Christian Novetzke states that the study of memory from both a social and cultural perspective has become extensive. Since the early twentieth century, memory emerged as a central idea that was employed by scholars in the fields of anthropology, sociology, literature, folklore and religion. Throughout the text, Novetzke suggests that there is a discernable tension between history and the concept of memory; this dialectic remains the most basic point of contention in the field of Western memory theory. Arguably, much of the discussion in Novetzke’s essay focuses on the dualistic opposition
  • 15. Steinman 14 between the categories of memory and history. Novetzke argues that historians have had “an ambivalent relationship to the notion of memory, many seeing it more as an enemy at the gates than a guest at the table” (Novetzke 230). The antagonistic binary between memory and history is further illustrated by the idea that memory and orality allow for the present and the past to co-exist, whereas writing and historiography create a sense of distance between these distinct modes of temporality. Following this line of reasoning, it is possible to conceive of memory as “the universal and public mode of recollection” (235), whereas history is limited to societies that are literate and belongs to the domain of the upper class. Perhaps the most significant point raised by Novetzke is his outlining of the fundamental difference between history and memory. The former requires that all events be substantiated by rational proof. In other words, all claims must rest on some grounding of actual verifiable evidence. The latter stands regardless of authenticated facts, which demonstrates that memory and history are in a constant state of opposition, as illustrated through this dialectical binary (236). Novetzke posits that memory possesses an inherently social nature. Such a belief is in accordance with the influential work of Durkheimian sociologist and philosopher, Maurice Halbwachs, who argued that memory is an incessantly social and communal endeavour. Halbwachs’ understanding of memory runs counter to other prevailing theses on the topic. More specifically, Halbwachs posed a challenge to two significant interpretations of memory; the first theory, which is held by Freud, contends that “memory is an individual, psychological affair” (230), while the second view perceives memory as an art that seeks to aid education through reinforcing rhetoric or a “science of mnemonics” (230). Within the text entitled, Memory, written by Anne Whitehead, this discussion of Maurice Halbwachs’ contributions to the field of memory studies likewise surfaces; specifically, it appears in the fourth chapter of the text, which showcases the work of this theorist and his principle of collective memory. According to Whitehead, the concept of collective memory became an object of scholarly inquiry in the twentieth century due to the influence of Maurice Halbwachs. His two publications entitled, The Social Frameworks of Memory and The Collective Memory contend that memory is a phenomenon that is entirely social in nature. Scholars have perceived the
  • 16. Steinman 15 development of the notion of collective memory as a response to certain late nineteenth and early twentieth- century interpretations of the nature of recollection, regarding it as a solitary act. Halbwachs’ theory of collective memory challenges the Romanticist conception of memory as an individual experience. In effect, Halbwachs’ principle is based on a form of memory that is not concerned with the experiences of a solitary person, but rather with the “practices of remembrance that are defined and shaped by the surrounding culture” (Whitehead 124). Given the subject matter of this project, the notion of collective memory is of central concern and will be implemented to highlight the complexities of the 1878 legal case, Reynolds v. United States. v The nature of law is arguably rooted in history. Secular legal systems operate according to the principle of stare decisis, which obliges judges to respect the precedents that are established in prior court rulings. In effect, the definition of case law encapsulates this concept; in analyzing a set of previously reported judicial decisions, new interpretations of the law are created. It is through the process of stare decisis that they can be cited as legal precedents in future cases. The theoretical framework of case law can be linked to the concept of history that is outlined by Christian Novetzke. In his essay on the nature of “Memory”, Novetzke argues that events which can be substantiated by rational proof are classified into the category of history. This is to suggest that all claims must rest on some grounding of actual verifiable evidence in order to qualify as history (Novetzke 236). If this definition is applied to the nature of law as a collection of statutes and regulations rooted in past cases, the connection to the concept of history is made strikingly evident. The system of American jurisprudence exists due to its constant state of evolution where laws are created or revised by means of harkening back to the rulings of former cases, which are documented historically throughout the civil law canon. Hence, it can be argued that law possesses an inherently historical nature, since the development of the legal system is founded upon the repository of previous archived judgements.
  • 17. Steinman 16 The case of Reynolds v. United States raises several complex problems that pertain to the domains of law, religion and morality. In order to affirm the inherent dignity of the human person, the first ten amendments of the United States Constitution entrench a range of civil, political, economic, social and cultural rights so as to ensure a proper standard of life for all people. The right to freedom of religion plays a substantial role in Chief Justice Waite’s reasoning and decision; more specifically, in his outline of the primary assignments of error, the defense of religious belief or duty occupies a central position and is subjected to careful scrutiny and consideration. The conflict between respecting the civil law and the right to freedom of religion represents a significant subtextual theme within the Chief Justice’s judgement. Ultimately, the case of Reynolds v. United States raises the question of whether George Reynolds should have obeyed the secular law of the land and refrained from practicing polygamy, or if in fact the Court should have protected his right to religious freedom under the First Amendment. The binary opposition of history and memory, as illustrated by Novetzke, can be applied to a number of aspects in the legal of case of Reynolds v. United States. At the time of his second marriage, George Reynolds was, and had been, a member of the Church of Latter Day Saints for many years and believed in the doctrines of said Church (Reynolds). Reynolds placed credence in the notion that male members had a duty to practice polygamy. The accused believed that this was an accepted doctrine of the Mormon Church and that this obligation was instructed by various texts which members of the LDS Church considered divine in their origin. In addition, adherents of the Mormon faith were convinced 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” (Reynolds). The belief in Smith’s eminence as sacred prophet serves to justify the polygamous lifestyle. By attributing divine qualities to the religion’s founder, Smith’s personal connection with God functions to validate plural marriage as a justified practice amongst male followers. The accused further rationalized his decision to engage in polygamy by contending that the failure or refusal to practice plural marriage would result in a divine punishment; specifically, this form of retribution would involve eternal damnation in the afterlife. Finally, Reynolds defended his actions in
  • 18. Steinman 17 stating to the Court that he had received formal permission from recognized Mormon Church authorities to enter into polygamous marriage: “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 [was] alleged to have been committed, to some woman by the name of Schofield, and that such ceremony was performed under and pursuant to the doctrines of said church” (Reynolds). The above facts taken from the legal case illustrate the applicability of Novetzke’s theory. In Chief Justice Waite’s aforementioned statements, the concept of history is implicitly invoked to suggest that Reynolds’ choice to practice polygamy was informed by the accepted doctrines of Mormonism, specifically those of plural and celestial marriage, which are explicitly recorded and sanctioned in Section 132 of Smith’s Doctrine and Covenants. This text is of historical nature, since it was written during the period of the religious tradition’s formation. The practice of polygamy can be justified through verifiable evidence that is documented in written form in the Doctrine and Covenants. As such, the text falls within Novetzke’s definition of history, which by extension suggests that plural marriage is a historically grounded practice. Furthermore, the notion of history can relate more widely to the manner in which polygamy was perceived from a legal perspective in Western culture. In the case of Reynolds v. United States, Chief Justice Waite cites examples of how polygamy was viewed in other geographical areas of the world and contrasts this impression with the perception of mainstream European societies: “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” (Reynolds). This statement by Chief Justice Waite acts as a form of historical evidence that enables him to reason that polygamy was not deemed an acceptable lifestyle in the Western sphere; in effect, plural marriage was only admissible in Asian and African culture. Moreover, according to the Chief Justice, second marriages were always treated as void under common law, and from the earliest history of England, polygamy was considered a criminal offence (Reynolds). These assertions demonstrate Chief Justice Waite’s use of history to validate his stance on the
  • 19. Steinman 18 illegality of polygamy and to support his conviction of Reynolds as guilty of the crime of plural marriage. In contrast, the accused does not uphold the historical secular treatment of polygamy. Reynolds makes no reference to legal precedents in his defense, but rather utilizes history for a different outcome to support his religious beliefs. He seeks to provide legitimacy for his actions by appealing to the historical nature of the Mormon scriptures, the Holy Bible and the Prophet status of Joseph Smith. In order to add strength and credence to their respective convictions, history is employed to bolster the agenda of both parties. The discussion thus far has focused primarily on the application of the concept of history to the case of Reynolds v. United States. However, since Novetzke’s theory possesses a dualistic structure that concerns the opposition between history and memory, the implementation of the latter category to the legal case likewise deserves proper consideration. In Section 132 of Smith’s Doctrine and Covenants, the accepted doctrines of Mormonism pertaining to plural and celestial marriage are clearly articulated and endorsed. In the preceding analysis, these principles were linked to the concept of history, based on the fact that the text of the Doctrine and Covenants was composed during the formative years of the Mormon tradition. Novetzke’s theoretical definition of history highlights that the practice of polygamy can be justified through verifiable evidence that is documented in the written form of Smith’s scriptural canon. Nonetheless, the notion of memory cannot be disregarded, since it plays a significant role in the assessment of George Reynolds’ actions. According to Novetzke, memory is placed in opposition to history; it is defined as existing independent of rational proof and authenticated facts. In effect, memory stands alone, without any official text or document that serves to underpin and validate its existence. Furthermore, Novetzke contends that memory is an inherently social and communal endeavour (Novetzke 230). This argument follows the theory of Maurice Halbwachs, whose principle of collective memory will be revisited in a later section of the essay. Still, if Novetzke’s statement is analyzed, it suggests that memory is dependent upon a social environment for its existence. Following this line of reasoning, one can ascertain that George Reynolds’ actions were influenced by his own social milieu; in effect, Reynolds was arguably surrounded by individuals who were
  • 20. Steinman 19 associated with Mormonism and who adhered to the same doctrines and practices. This communal setting of shared values shaped the beliefs of members of the Mormon tradition; however, this notion of shared memory cannot be perceived as entirely disassociated from the historical texts of the Mormon scriptural canon. Hence, ensuing from this analysis, it can be argued that there is no strict delineation that separates the concepts of memory and history. Essentially, there is a possible blurring of the boundaries that typically retain memory and history as distinct categories. The resulting obscurity of this neatly defined binary classification is confirmed by Novetzke, who contends that memory and orality allow for the present and the past to co-exist (235). Mormon scriptures and doctrines are rooted in history and are recalled by George Reynolds in his defense of his engagement with polygamy as a normative conjugal arrangement. By contending that the doctrines of the Mormon tradition were legitimate and acceptable, given the evidence of their practice throughout history, Reynolds effectively defended his commitment to polygamy, employing memory as a device to meld the past with the present. v While the binary of history and memory highlights a number of significant issues in the legal case of Reynolds v. United States, the concept of collective memory illuminates other distinct tensions that are worthy of examination. In the text entitled Memory, Anne Whitehead discusses the notion of collective memory, which was pioneered in the twentieth century by Durkheimian sociologist and philosopher Maurice Halbwachs. Halbwachs was a student of Henri Bergson; this notable Continental French philosopher arguably influenced much of Halbwachs’ work and thought. Whitehead notes that Halbwachs later rejected Bergson’s “highly individualistic philosophy in favour of Emile Durkheim’s emphasis on social psychology” (Whitehead 125). Bergson believed that all past human experience is retained by memory; this is to suggest that the events of daily life are stored in the unconscious and are available for future recollection. Following this theory, memory appears to be a repository that preserves experiences in their complete form. Halbwachs, however, was not in total agreement with Bergson’s model of “ready- made images stored in some subterranean gallery of thought” (126). This principle appears rather
  • 21. Steinman 20 cumbersome, since it implies that human beings are persistently burdened by the past. Halbwachs’ theory is a derivative of Bergson’s philosophy; his own model emphasizes “the partial and incomplete nature of past recollections” (126) and he accredits the capacity for remembrance to external stimuli, which have the ability to reawaken former experiences in the minds of individuals. Halbwachs contends that human beings do not live in a state of solitude within the world; rather, beginning in childhood, people are always enclosed within a group, whether it is familial, religious, political, economic, or social in nature. Throughout the course of life, one will enter and form a wide variety of groups; as such, one becomes immersed in its particular milieu and self-identifies with the common values and thoughts of said group. In Halbwachs’ theory, the group provides the individual with a ‘framework’ into which their memories are entwined. One notable point is that these memories are not stored within the mind; rather, what is retrieved in this process is “a schema, which [is comprised of] incomplete, wavering, and imprecise impressions that can be fitted together under suitable stimuli” (126). In essence, for Halbwachs, the act of remembering is rooted in the present reconstruction of minute, scattered segments of the past; it is not a resurrection of past events. Apart from Bergson’s philosophy of memory, French sociologist Emile Durkheim likewise influenced the work of Maurice Halbwachs. The latter embarked on a project to understand the manner in which social factors preserved and shaped the individual consciousness. Durkheim was particularly interested in questions of religion, which represented “a manifestation of ‘the individual’s experience of society as a moral force greater than himself, …requiring his allegiance” (128). Among Durkheim’s most significant achievements was his account of “the periodic eruption of times of religious and cultural effervescence, which are characterized by ceremonies involving prolonged social interaction” (128). Durkheim believed these to be moments of heightened cultural creativity; contrary to prevailing theories, he located this sense of imagination as a collective phenomenon rather than as a solitary accomplishment. It is here that Halbwachs’ principle of collective memory engenders a distinct contribution, since it demonstrates the ways in which periods of ostensible inactivity are replete with an array of ritual and
  • 22. Steinman 21 ceremonial acts of commemoration that not only assist in the recollection of past events, but likewise serve to maintain the unification of the community (128). Halbwachs contends that every society is composed of numerous groups and that each group holds its own distinct memories, which its members constructed over a lengthily period of time (128). Religious traditions embody one type of group within a given culture that possess a unique system of beliefs and doctrines; followers of a religion abide by its precepts, identifying with those values and ideas that have widespread appeal. The social milieu of the group in turn provides a framework for the individual into which their memories are woven. Mormonism possesses its own texts that serves to distinguish the tradition from other denominations of Christianity. The foundation of the Mormon faith is not only rooted in the Hebrew Bible and New Testament; rather, much of Mormon thought originates in the Book of Mormon and the Doctrine and Covenants, which form a central component of the religion’s scriptural canon. Maurice Halbwachs’ theory of collective memory has great pertinence to the Mormon faith, since it highlights the manner in which a given historical document or text becomes incorporated into the collective consciousness of individuals. Arguably, it is through an explicit engagement with the concept of shared memory that the tension between Mormon doctrine and the prevailing secular legal system is illuminated in the case of Reynolds v. United States. George Reynolds was a member of the Church of Latter Day Saints for many years and was strongly influenced by the doctrines of said Church (Reynolds). Reynolds placed credence in the notion that male members had a duty to practice polygamy. The accused believed that plural marriage was an accepted tenet of the Mormon Church and that this obligation was instructed by various texts which members of the LDS Church considered divine in their origin. In addition, adherents of the Mormon faith were convinced 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” (Reynolds). Such a statement demonstrates that the scriptural sources of the Mormon tradition were integrated into the psyche of George Reynolds, who is representative of the larger collective memory of all fundamentalist Mormons that uphold
  • 23. Steinman 22 the truth of the religion’s precepts. Arguably, the holy texts associated with Mormonism affected the behaviour of Reynolds, who believed that it was his religious duty to engage in the practice of polygamous marriage. Chief Justice Waite raises the question of whether “religious belief can be accepted as a justification [for] an overt act made criminal by the law of the land” (Reynolds). The Chief Justice focused his inquiry on the guilt of the accused, who knowingly violated the statute that prohibited plural marriage, while entertaining a religious belief that enabled him to perceive the secular law as having no binding effect on his actions (Reynolds). Freedom of religion is a cornerstone right of the First Amendment and the United States Constitution. Chief Justice Waite contends that “Congress cannot pass a law for the government of the Territories which shall prohibit the free exercise of religion” (Reynolds), given that the First Amendment expressly forbids such legislation. Religious freedom is a guaranteed right for all individuals living within the liberal democratic society of the United States. While this statement is generally an accepted truism, the Chief Justice seeks to determine whether the law that criminalizes polygamy falls within the prohibition that restricts the free exercise of religion. Maurice Halbwachs’ theory of collective memory highlights the tension that arises when historical documents, namely the First Amendment and Joseph Smith’s Doctrine and Covenants, become memorialized into the shared consciousness of individuals who belong to distinct social groups. To further this point, one can posit that citizens of the United States of America collectively refer to the First Amendment in defense of their inalienable rights when their identity is under threat and challenged by external forces. Similarly, fundamentalist Mormons, who are influenced by the written texts of the Mormon scriptural canon, uphold the validity of their beliefs through an engagement with the historical practice of polygamy. Such a conjecture is supported by Halbwachs, who argues that ritual and ceremonial acts of commemoration not only assist in the recollection of past events, but likewise serve to maintain the unification of the community (Whitehead 128). In effect, the custom of plural marriage embodies a means by which Mormons partake in a remembrance of the past, enabling followers to reflect on the tradition’s formative years and the pioneering founders who promoted polygamy as a distinct
  • 24. Steinman 23 conjugal arrangement. Ultimately, engagement with this practice enables the adherents of Mormonism to join together in recognition of their collective memory and identity. In his judgment of the case, Chief Justice Waite reasons that Congress is not permitted to pass laws that prohibit the free exercise of religion. If this legal concept is applied to Maurice Halbwachs’ theory of collective memory, the following question is raised: should the shared memory of Mormonism be given license to protect the free exercise of religion for its followers, or can the civil law legitimately interfere with this collective consciousness and thereby restrict the individual rights of the tradition’s adherents? Chief Justice Waite contends that “Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices” (Reynolds). This is to suggest that the secular law cannot intervene with private convictions, but is permitted to place restrictions on public practices that pose harm to society. Evidently, the law operates according to a binary of private and public; while it cannot regulate undisclosed personal thoughts, the law may place reasonable limits on the conduct that derives from these beliefs. It then follows from this argument that the law can rightfully interfere with the actions of fundamentalist Mormons. Since plural marriages are not acceptable and sanctioned by law, such a constraint on the customs of Mormon followers arguably represents a constraint on their beliefs, which are intrinsically rooted in their collective memory. While Maurice Halbwachs’ theory of remembrance sheds light on the complexities of collective memory, the concept is indeed made further elaborate with the recognition that it possesses both secular and religious dimensions. The legal perspective of shared memory consistently regards polygamy as a crime that is worthy of proper punishment under the law, while Mormons believe that the practice of plural marriage is a mandatory duty upheld by the right to religious freedom. Arguably, these secular and religious forms of collective memory are in a perpetual state of antagonism and conflict; they remain locked within a binary that places them in continual opposition. Chief Justice Waite reasons that to justify the practice of polygamy through an appeal to religious belief would enable the professed doctrines of a religion to outweigh the prevailing law of the land. As such, every citizen would be given free rein to create his or her
  • 25. Steinman 24 own laws, notwithstanding the existing civil legal system. The Chief Justice’s interpretation of the problematic of religious duty in the case of Reynolds v. United States illuminates the inherent, ubiquitous tension amidst the secular law and the prevailing doctrines of a religious tradition. George Reynolds justified his transgression of engaging in the practice of plural marriage through an appeal to both the tenets of Mormonism and the First Amendment right to religious freedom. The charge of polygamy and the subsequent guilty verdict brought against the accused represents the underlying schism between the foundational precepts of the Church of Latter Day Saints and the principles of established civil law, each of which has become memorialized and incorporated into the collective consciousness of Western culture.
  • 26. Steinman 25 Bibliography Bowman, Matthew. “Mormonism and its Historians: The State of the Field.” Religion Compass 5.12 (2011): 720–730. 5 Dec. 2011. <http://onlinelibrary.wiley.com/doi/10.1111/j.1749- 8171.2011.00321.x/pdf>. Coogan, Michael. God and Sex: What the Bible Really Says. New York: Twelve, 2010. Davies, Douglas J. An Introduction to Mormonism. New York: Cambridge University Press, 2003. Foster, Lawrence. Religion and Sexuality: Three American Communal Experiments of the Nineteenth Century. New York: Oxford University Press, 1981. Gordon, Sarah Barringer. The Mormon Question: Polygamy and Constitutional Conflict in Nineteenth- Century America. Chapel Hill, NC: University of North Carolina Press, 2002. Merriman, Scott C., ed. Religion and the Law in America: An Encyclopedia of Personal Belief and Public Policy. 2 Vols. Santa Barbara, CA: ABC-CLIO, 2007. Novetzke, Christian Lee. “Memory.” In Studying Hinduism: Key Concepts and Methods. Ed. Sushil Mittal and Gene Thursby. London: Routledge, 2008. Parrinder, Geoffrey. The Bible and Polygamy: A Study of Hebrew and Christian Teaching. London: SPCK, 1950. Reynolds v. United States. 98 U.S. 145. Supreme Court of the U.S. 1878. Smith, George D. Nauvoo Polygamy: “…but we called it celestial marriage.” Salt Lake City: Signature Books, 2008. Smith, Joseph. “The Doctrine and Covenants: Section 132.” The Church of Jesus Christ of Latter-Day Saints. 2011. Intellectual Reserve, Inc. 6 Nov. 2011. <http://lds.org/scriptures/dc-testament/dc/132?lang=eng> Weisbrod, Carol. “Family, Church, and State: An Essay on Constitutionalism and Religious Authority.” In Kindred Matters: Rethinking the Philosophy of the Family. Eds. Diana Tietjens Meyers, Kenneth Kipnis and Cornelius F. Murphy Jr. Ithaca, NY: Cornell University Press, 1993. 228-56. Whitehead, Anne. Memory. New York: Routledge, 2009.