Same Sex Marriage, the Rule of Law, and the Absence of Religious Objectors in Utah: the Lesson the LDS Church Learned from Polygamy, by Angela Morrison

Since a Utah federal judge recognized marriage equality in Utah, there have been no public officials asserting “religious liberty” as a reason to refuse government services to same sex couples. This lack of resistance, especially given the Church of Jesus Christ of Latter-Day Saints’ very public support of Proposition 8 and subsequent advocacy against the recognition of same sex marriages, may be surprising. On the face of it, two laws passed in March 2015, the “Utah Compromise”, may explain the absence of legal battles over public officials asserting their personal religious beliefs to deny marriage rights to same sex couples. Nonetheless, the Church’s incorporation of obedience to the rule of law as a central tenet and the lessons it learned from polygamy better explain the absence of Kim Davis-like objectors in Utah.

The “Utah Compromise”

Passed in March 2015, the Utah Compromise amended Utah’s anti-discrimination laws to prohibit discrimination on the basis of sexual orientation or gender expression and addressed how counties should handle employees who object to same sex marriage. After the Church publicly supported the bills, they received almost unanimous support in the largely Republican legislature. One bill amended Utah’s anti-discrimination provisions to prohibit discrimination in employment opportunities and housing based on sexual orientation and gender expression. At the same time, the law exempts religious institutions and charities that are associated with religious institutions (which was aimed at carving out an exception for the Boy Scouts of America, of which the Church is the largest charter organization) from the prohibition. The other bill, also enacted, provides accommodation for government employees who object to issuing same sex marriage licenses by requiring counties to ensure that other employees are available to issue or officiate marriages.

This doesn’t mean there hasn’t been resistance in other ways. For example, a federal court recently ordered officials in the state health department to list the names of married mothers on their child’s birth certificate, after the department had refused to list the name of the mother who did not give birth to the child. Likewise, the state spent $1.2 million to defend its marriage ban prior to the Court’s decision in Obergefell. The difference in Utah is that no official has flouted a court order citing religious liberty.

Still, several commentators have pointed to the “Utah Compromise” as a surprising development in the primarily Mormon state and the reason for the lack of individual government employees refusing to perform their job based on their religious objections to same sex marriage. It also represents a departure from the Church’s long fought battle against marriage equality. So what explains the Church’s support of the compromise and, ultimately, the absence of unlawful resistance a lá Kim Davis to same sex marriage? In short, a major driving force behind the Church’s support is its belief in the rule of law.

Mormonism & the Rule of Law

Members of the Church believe that as faithful members of the Church, they should adhere to the rule of law. Joseph Smith, the Church’s founder, wrote thirteen “Articles of Faith” that explain the fundamental set of beliefs to which members of the church ascribe. The Church now views the Articles of Faith as scripture. The Twelfth Article of Faith states: “We believe in being subject to kings, presidents, rulers, and magistrates, in obeying, honoring, and sustaining the law.” Church leaders have used this article of faith as a basis for sermons urging the Church’s faithful to respect the rule of law in the localities in which they live.

Mormon leaders emphasize the role the rule of law plays in ensuring order and aiding cooperation. In a message to Church members on behalf of the Church’s presidency, Marion G. Romney discussed the reasons supporting the Church’s emphasis on the rule of law. He asserted that even unjust laws are better than anarchy and argued “[w]hen the ‘rule of law’ breaks down in a family, a community, a state, or a nation, chaos reigns.” The Church also has emphasized the importance of the rule of law in its lessons for children, telling children “The rules and laws in our countries are meant to help us live together in safety and peace with our neighbors.”

To the Church, then, the rule of law ensures both cooperation and order. The importance of these values to the Church is highlighted by the Church’s experience with polygamy. During the era in which the Church condoned polygamy, it attempted to assert religious liberty as a basis for flouting the law. In the end, the Church and its members chose order and cooperation over continued assertion of their perceived religious rights.

The Rule of Law & the Church’s Experience with Polygamy

Despite Joseph Smith’s assertion in the Twelfth Article of Faith that Mormons believed in the rule of law, the Church’s continued practice of polygamy even after the United States began outlawing it in 1862, was in contrast to the stated belief. Many members of the Church continued with the practice and argued that prohibiting it violated their religious liberties. The federal government cracked down on the practice. It prosecuted and imprisoned men who engaged in polygamy and as a result many men went into hiding, leaving their families behind. It also fined the Church and dissolved the Church’s corporation. Finally, in 1890, the President of the Church, Wilford Woodruff, issued the “Manifesto” which purported to end of the Church’s official sanction of polygamous marriages due to “laws . . . enacted by Congress forbidding plural marriages, which laws have been pronounced constitutional by the court of last resort.”

Despite the Manifesto, Church officials continued to secretly perform polygamous marriages, resulting in further scrutiny from Congress. The Church issued a second Manifesto in 1904. After the second Manifesto, the Church excommunicated some leaders who continued to perform polygamous marriages, although some Church members continued to live in polygamous marriages that predated the second Manifesto. As Professor Sarah Barringer Gordon stated in the PBS program The Mormons, “[w]hat [Mormons] learned through those polygamy cases was that the Constitution protects the freedom to believe but not necessarily the freedom to act.”

The Church’s experiment with flouting the rule of law failed. It undermined both order and cooperation. Families were forced to live apart or in hiding, and members became further isolated from mainstream America. And, the Church’s experience with polygamy served as a powerful lesson to the Church about the social and political consequences that can follow when the Church departs from those values. Thus, the centrality of the rule of law and the values it serves—order and cooperation—do much to explain both the Church’s support of the Utah compromise and the absence of Kim Davis-like protests on the part of local, Utah government officials. Others—like the presidential candidates who are encouraging Kim Davis in her lawlessness–would do well to learn from this lesson.

 

Picture Credit: By Bjørn Graabek (nl.wikipedia) [GFDL (http://www.gnu.org/copyleft/fdl.html) or CC-BY-SA-3.0 (http://creativecommons.org/licenses/by-sa/3.0/)], via Wikimedia Commons

Angela Morrison

Professor Morrison was previously the Legal Director of the Nevada Immigrant Resource Project (NIRP) at the William S. Boyd School of Law. As director of NIRP, she conducted outreach on immigration-related issues to community partners, immigrant communities, and governmental organizations. Prior to directing NIRP, Professor Morrison worked for the U.S. Equal Employment Opportunity Commission (EEOC) where she was the first EEOC trial attorney in Las Vegas. Before joining the EEOC, Professor Morrison was a law clerk for the Honorable Judge Philip M. Pro, United States District Court for the District of Nevada. She graduated from the William S. Boyd School of Law where she was the editor-in-chief of the Nevada Law Journal and was a student attorney in the Immigration Clinic. Professor Morrison teaches Lawyering Process, Immigration Law and Employment Discrimination.