Reynolds v. United States

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Reynolds v. United States

Utah Polygamy Prosecution, 1888

Judicial decision

By: Morrison R. Waite

Date: October 1878

Source: Morrison R. Waite. "Reynolds v. United States." United States Reports. 95 (1878): 145.

About the Author: Morrison R. Waite (1816–1888) served as the Chief Justice of the Supreme Court of the United States from 1874 until his death in 1888. The Supreme Court is the nation's highest appellate court, composed of eight associate justices and a chief justice.


George Reynolds, a member of the early Church of Jesus Christ of Latter Day Saints, known as the Mormons, was prosecuted for bigamy in the Utah Territory in 1877. The federal authorities and the Mormon church had been at odds over the practice of polygamy since the sect's founding in 1830 by Joseph Smith, Jr. In 1844, Joseph Smith, Jr. himself was arrested and jailed for inciting a riot in Illinois after attempting to destroy a newspaper that exposed the Mormon practice of polygamy. He was murdered shortly afterward by a mob who broke into his jail cell. In 1846, after Smith's murder and fearful of more violence against Smith's followers, the Mormon leadership determined that its adherents would relocate to the then-remote Utah territory. The church established its headquarters in Salt Lake City, where Mormon leader Brigham Young was shortly thereafter established as the territorial governor.

The Mormons made a number of efforts to declare themselves free of English common law, the basis of the American legal system. Young believed that only statutes passed by an elected assembly could be binding upon its citizens. Polygamy had once been a capital offense in England, where common law had grown from Christian roots where marriage was an institution between one man and one woman.

Many Mormons who settled in the Utah territory after 1847 believed that polygamy was not merely permitted, but ordained by God, citing passages in the Old Testament to buttress their position. In 1857, after tensions with federal authorities over Young's insistence that common law was not applicable in Utah became sufficiently heated, troops were dispatched to Salt Lake City, starting the "Utah War." Despite this, a segment of the territorial population who practiced polygamy remained, with the tacit encouragement of the Mormon church.

George Reynolds was prosecuted on the basis of a federal law that rendered polygamy illegal; the first such statute was passed by Congress in 1862. While a number of procedural issues were raised by Reynolds in his appeal, most notably the manner in which jury selection occurred as well as the admissibility of prior sworn testimony in his trial, the heart of Reynolds's defense was his assertion that he was bound by a religious duty to practice polygamy.


                     U.S. Supreme Court

          REYNOLDS v. U.S., 98 U.S. 145 (1878)

                         98 U.S. 145

               REYNOLDS v. UNITED STATES.

                     October Term, 1878

This is an indictment found in the District Court for the third judicial district of the Territory of Utah, charging George Reynolds with bigamy, in violation of sect. 5352 of the Revised Statutes, which, omitting its exceptions, is as follows:—"Every person having a husband or wife living, who marries another, whether married or single, in a Territory, or other place over which the United States have exclusive jurisdiction, is guilty of bigamy, and shall be punished by a fine of not more than $500, and by imprisonment for a term of not more than five years." …

MR. CHIEF JUSTICE WAITE delivered the opinion of the court….

As to the defence of religious belief or duty.

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

Upon this proof he asked the court to instruct the jury that if they found from the evidence that he "was married as charged-if he was married-in pursuance of and in conformity with what he believed at the time to be a religious duty, that the verdict must be 'not guilty.'" This request was refused, and the court did charge "that there must have been a criminal intent, but that if the defendant, under the influence of a religious belief that it was right,—under an inspiration, if you please, that it was right,—deliberately married a second time, having a first wife living, the want of consciousness of evil intent—the want of understanding on his part that he was committing a crime—did not excuse him; but the law inexorably in such case implies the criminal intent."

Upon this charge and refusal to charge the question is raised, whether religious belief can be accepted as a justification of an overt act made criminal by the law of the land. The inquiry is not as to the power of Congress to prescribe criminal laws for the Territories, but as to the guilt of one who knowingly violates a law which has been properly enacted, if he entertains a religious belief that the law is wrong.

Congress cannot pass a law for the government of the Territories which shall prohibit the free exercise of religion. The first amendment to the Constitution expressly forbids such legislation. Religious freedom is guaranteed everywhere throughout the United States, so far as congressional interference is concerned. The question to be determined is, whether the law now under consideration comes within this prohibition. The word "religion" is not defined in the Constitution. We must go elsewhere, therefore, to ascertain its meaning, and nowhere more appropriately, we think, than to the history of the times in the midst of which the provision was adopted….

Five of the States, while adopting the Constitution, proposed amendments. Three—New Hampshire, New York, and Virginia—included in one form or another a declaration of religious freedom in the changes they desired to have made, as did also North Carolina, where the convention at first declined to ratify the Constitution until the proposed amendments were acted upon. Accordingly, at the first session of the first Congress the amendment now under consideration was proposed with others by Mr. Madison. It met the views of the advocates of religious freedom, and was adopted. Mr. Jefferson afterwards, in reply to an address to him by a committee of the Danbury Baptist Association (8 id. 113), took occasion to say: "Believing with you that religion is a matter which lies solely between man and his God; that he owes account to none other for his faith or his worship; that the legislative powers of the government reach actions only, and not opinions,—I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should 'make no law respecting an establishment of religion or prohibiting the free exercise thereof,' thus building a wall of separation between church and State. Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore man to all his natural rights, convinced he has no natural right in opposition to his social duties." Coming as this does from an acknowledged leader of the advocates of the measure, it may be accepted almost as an authoritative declaration of the scope and effect of the amendment thus secured. Congress was deprived of all legislative power over mere opinion, but was left free to reach actions which were in violation of social duties or subversive of good order.

Polygamy has always been odious among the northern and western nations of Europe, and, until the establishment of the Mormon Church, was almost exclusively a feature of the life of Asiatic and of African people. At common law, the second marriage was always void (2 Kent, Com. 79), and from the earliest history of England polygamy has been treated as an offence against society….

In connection with the case we are now considering, it is a significant fact that on the 8th of December, 1788, after the passage of the act establishing religious freedom, and after the convention of Virginia had recommended as an amendment to the Constitution of the United States the declaration in a bill of rights that "all men have an equal, natural, and unalienable right to the free exercise of religion, according to the dictates of conscience," the legislature of that State substantially enacted the statute of James I., death penalty included, because, as recited in the preamble, "it hath been doubted whether bigamy or poligamy be punishable by the laws of this Commonwealth."… From that day to this we think it may safely be said there never has been a time in any State of the Union when polygamy has not been an offence against society, cognizable by the civil courts and punishable with more or less severity. In the face of all this evidence, it is impossible to believe that the constitutional guaranty of religious freedom was intended to prohibit legislation in respect to this most important feature of social life. Marriage, while from its very nature a sacred obligation, is nevertheless, in most civilized nations, a civil contract, and usually regulated by law. Upon it society may be said to be built, and out of its fruits spring social relations and social obligations and duties, with which government is necessarily required to deal. In fact, according as monogamous or polygamous marriages are allowed, do we find the principles on which the government of the people, to a greater or less extent, rests…. An exceptional colony of polygamists under an exceptional leadership may sometimes exist for a time without appearing to disturb the social condition of the people who surround it; but there cannot be a doubt that, unless restricted by some form of constitution, it is within the legitimate scope of the power of every civil government to determine whether polygamy or monogamy shall be the law of social life under its dominion.

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

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

A criminal intent is generally an element of crime, but every man is presumed to intend the necessary and legitimate consequences of what he knowingly does. Here the accused knew he had been once married, and that his first wife was living. He also knew that his second marriage was forbidden by law. When, therefore, he married the second time, he is presumed to have intended to break the law. And the breaking of the law is the crime. Every act necessary to constitute the crime was knowingly done, and the crime was therefore knowingly committed. Ignorance of a fact may sometimes be taken as evidence of a want of criminal intent, but not ignorance of the law. The only defence of the accused in this case is his belief that the law ought not to have been enacted. It matters not that his belief was a part of his professed religion: it was still belief, and belief only….


In this opinion, Chief Justice Waite endeavored to address the issue of whether a person may deliberately violate the law on the strength of a religious belief. He was careful to specify the history of the Mormon tenets concerning polygamy, and included the additional visions attributed to its founder Joseph Smith in 1830.

The central constitutional question was the protection claimed by the First Amendment right to freedom of religion. Chief Justice Waite was careful not to suggest, either directly or indirectly, that the Mormon faith was bizarre or un-Christian, as many then viewed it, nor were Reynolds' First Amendment rights influenced by Mormonism's position outside the American mainstream. It is clear, however, that no religious practice or belief, accepted or fringe, could be protected if its practices violated the law of the land. Waite also emphasized the longstanding legal principle that everyone is presumed to intend the natural consequences of their own actions, such as deliberately entering into a second marriage while bound by a first.

The principles enunciated in Reynolds have been applied in modern times, including prosecutions for the consumption of peyote (an illegal hallucinogen), that is part of Hopi Indian religious ceremonies, as well as proceedings involving Rastafarians, a Jamaica-based religious sect who regard marijuana as a sacrament of their faith.

A series of federal polygamy convictions followed the Reynolds decision, and the issue became an impediment to Utah's desire for statehood. As a result, in 1890 Mormon leadership under Wilson Woodruff issued an official decree that polygamy was no longer a part of Mormon practice, as it was contrary to the laws of the land. Utah was admitted to the Union in 1896, but there is considerable evidence, that Woodruff himself entered into a polygamous marriage in 1897, as did Mormon leader Joseph F. Smith, who was convicted and fined for polygamy in 1906.

Despite the official edict against polygamy, a number of Mormons did not accept the ruling. These adherents, who became known as Mormon 'fundamentalists,' continued to practice polygamy. Many decided to leave Utah even before Woodruff's dictum; as early as 1885 fundamentalists had migrated to Mexico and Canada. Another group of fundamentalists established a colony in Short Creek, Arizona, in 1928. In 1953, law enforcement officials raided the settlement and arrested thirty-one men for polygamy, taking into custody over 200 women and children who formed extended polygamous families. Fundamentalists also settled in Bountiful, a town in British Columbia, Canada, in 1947. Although the group's polygamist practices were known to Canadian police, they were not prosecuted. Canadian authorities believed that the protections provided in the Canadian Charter of Rights and Freedoms would afford a defense to any charge of polygamy.

The fundamentalist Mormons in Bountiful are, in a sense, philosophical descendants of George Reynolds and the original Mormon settlers who went to Utah in 1847. Canada's federal Justice Department commissioned a study in 2005, which argued for the legalization of polygamy. The study stated, among other points, that there was little difference between the criminalization of polygamy and the criminalization of adultery. Conservative Christians argued that if polygamists were granted de facto immunity from prosecution on the basis of their religious beliefs, same-sex marriages, a contentious issue in both Canada and the United States, could not be prohibited.

The Bountiful polygamy allegations stirred renewed interest about similar groups in both Utah and Arizona. In 1998, the Mormon church reiterated its long-standing opposition to polygamy, indicating that any Mormon engaged in the practice would be excommunicated. In 2003, Utah passed a specific child bigamy law, providing lengthy jail terms for anyone who took a child under age eighteen as a second wife.

In 2006, Warren Jeffs, the leader of a Utah-based fundamentalist polygamist sect, the Fundamentalist Latter Day Saints (FLDS), was placed on the Federal Bureau of Investigation's (FBI's) Ten Most Wanted List, which lists among his crimes sexual assault on a minor and conspiracy to commit sexual misconduct with a minor. The federal government is offering $100,000 for information that leads to his arrest.



Gordon, Sarah Barringer. The Mormon Question: Polygamy and Constitutional Conflict in Nineteenth Century America. Chapel Hill, NC: University of North Carolina Press, 2001.

Van Wagoner, Richard S. Mormon Polygamy: A History. Salt Lake City: Signature Books, 2004.

Web sites

University of Utah. "Polygamy." 2006 〈〉 (accessed June 20, 2006).

Economist. "Polygamy in Canada: Hunting Bountiful." June 8, 2004 〈〉 (accessed June 20, 2006).

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Reynolds v. United States

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