Mormonism as American Legal History

By October 31, 2007

In a recent post, the question was asked, “how significant is Mormon history to the larger narrative of American history?”

I think there are several ways it is significant, and I will just touch on one of them here. In Sarah Gordon’s book, The Mormon Question, she states that the Mormon situation helped re-define how the government interacts with local conflicts. She says that

For the first time in issues involving law and religion, the constitution in question was federal. Not only were the stakes arguably raised by the national (versus state) forum, but the contours of the challenge were enlarged and reconfigured in a more profound, more organized form of dissent. The Latter-day Saints, more effectively than other contemporary utopian sects of earlier freethinkers, achieved a degree of independence and influence that demanded attention. (pg. 77)

While there may have been similar issues before, this situation brought the idea to a new level.

Kathleen Flake, in her wonderful book on the seating of Reed Smoot, also points out that it was through the Smoot trial that America began changing their toleration towards religion. By the end of the trial, the government was ready to accept “the Latter-day Saints on the same denominational terms as other American religions: obedience, loyalty, and tolerance defined in political, not religious terms” (pg. 157).

So how else is Mormon history important in terms of American legal history? Is it important at all? Am I, along with these two authors, over-playing these historical events? Or, is this just hinting at a deeper significance?

Article filed under Methodology, Academic Issues


  1. Ben: Gordon’s book is no doubt a major contribution to both Mormon history, religious history, and legal history. Specifically, it was the 1879 Reynolds case that essentially defined the boundaries of religious freedom for Americans. We are free to believe what we choose, but we are not always free to act on our religious beliefs.

    Joseph Smith’s 1843 habeas corpus hearing before the U.S. Court in Springfield, Illinois, is also a moment when Mormon history made legal history. Essentially, JS was accused of being accessory before the fact to the assault with the intent to kill on Missouri Governor Lilburn W. Boggs. Missouri officials sought to extradite JS from Illinois, although he was not in Missouri at the time of the crime and therefore could not have fled from Missouri’s justice. Judge Nathaniel Pope ruled on January 5, 1843 that Missouri could not legally demand JS in the case. Ex Parte Joseph Smith, The Mormon Prophet was cited in extradition cases until the 1880s, and perhaps beyond. There’s really nothing good in print on this case or its place in American legal doctrine, at least not yet.

    Comment by David Grua — October 31, 2007 @ 5:57 pm

  2. Interesting post, Ben. I think we need to be careful that we don’t confuse legal history with political history, though. While the two often overlap, there is a clear difference. Gordon looks at the legal history of Mormon prosecution, while Flake distinctly looks at “the politics of religious idenitity.”

    Comment by Christopher — November 1, 2007 @ 11:22 am

  3. Good point, Chris. Flake is pretty clear that her argument is that legal solutions to the “Mormon Problem” failed, throwing the debate into the political sphere, where a compromise could be reached.

    Comment by David Grua — November 1, 2007 @ 11:25 am

  4. Very good point Chris, I’m glad you pointed that out. While both do have major implications on each other, they are separate problems and should be treated as such.

    Comment by Ben — November 1, 2007 @ 12:15 pm

  5. I personally think we tend to interject our Mormon historical connections onto the national scene too often.
    I would add that the Reynolds case was also significant in interpreting the 6th amendment.When Reynolds refused to produce his wives as witnesses, the high court made clear that our 6th amendment right to confrontation is waived when we are guilty of suppressing witnesses. In lawschool, our case book and class discussion on the confrontation clause started with Reynolds.

    One ugly legal history spot with a member of our church came in SFISD v. Jane Doe where LDS and Catholic public school students complained about evangelical prayers at football games. Indeed, harassment perpetuated the suit. Still, this case drove another nail in the coffin of public religious life.

    I would dare say that the Jehovah’s Witnesses have had the most profound effect on american legal history as a religion with a parade of first amendment cases establishing important first amendment freedoms.

    Comment by tiredmormon — November 1, 2007 @ 3:20 pm

  6. Tiredmormon: Very interesting points. Would you mind elaborating on the impact that the Jehovah’s Witnesses had with their first amendment cases?

    Comment by Ben — November 1, 2007 @ 3:36 pm

  7. It isn’t the Church per se but I understand that Ehat v. Tanner (1985) is cited as precedent in Copyright cases.

    I think Nate is writing a book on Mormonism and the law, isn’t he?

    Comment by J. Stapley — November 1, 2007 @ 3:50 pm

  8. Among dozens of cases, I would say the largest impact has been the right to solicit established in Cantwell and Stratton. They also fought against government compelled messages; such as being forced to salute the flag in West Virginia Board of Education and taking down New Hampshire license plates which carried a God message they disagreed with in Maynard. The Witnesses have been very successful fighting for independent speech rights. Although the ugly side (there is always an ugly side) came in Chaplinsky where a Witness insulted a cop and claimed free speech. The Court rejected that claim holding that ‘fighting words’ are not protected speech.

    I should clarify that I like the Witnesses legal history of challenging the gov but not their doctrine or theology. BTW, Harold Bloom has a wonderful commentary on the Witnesses in ‘The American Religion.’

    Comment by tiredmormon — November 1, 2007 @ 4:23 pm

  9. Here’s the wikipedia entry on U.S. Supreme Court Cases involving the Jehovah’s Witnesses.

    J., I’d heard Nate was writing a book, yes, but don’t know much besides that.

    Comment by Christopher — November 1, 2007 @ 4:35 pm

  10. Maybe if we talk about Nate enough he’ll come comment on this thread. Just from seeing some of his comments on various threads, I think that Nate’s primary interest at this point is the church’s development of an alternative court system. He seems to be fascinated with John L. Brooke’s transatlantic approach to Mormonism and is looking at the development of these alternative courts within a similar framework. But he’s also interested in JS’s cases and the polygamy cases, from what I’ve seen. When it’s done it should be the best book on Mormon legal history (not that there are many right now).

    Comment by David Grua — November 1, 2007 @ 4:58 pm


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