Miscellaneous

What The Law Owes Diversity

By Anne Skove, Esq.

It's been said that if the Amish weren't so darn cute, Wisconsin v. Yoder might have turned out differently. (Picture a non-adorable Jerry Rubin in place of bonneted country children!)

Likewise, if Mormons were cuter, perhaps they would have left a different imprint on our legal system.

The thought that much current jurisprudence is a result of the government trying to deal with the early Mormons occurs to us while reading Vidmar & Hans's American Juries: The Verdict. The authors note the use of voir dire during a bigamy trial. When local prospective jurors think there is nothing wrong with polygamy, what's a prosecutor to do?

Voila: voir dire!

Vidmar & Hans describe the process as juror "de-selection." In the 1879 trial of John Miles, those who believed polygamy to be a God-given right were excused.

Similarly, the complicated affair between law and marriage owes much to the Mormons. Marriage had always been known as a contract between two people (or families) -- dowries, "giving away" the bride, engagement rings, the whole s/hebang.

Then came the Mormons with their divergent views about marriage and family. The Protestant tradition was turned on its ear. Like marriage? How about a whole lot of it! Family values? Meet the largest families around (remember, Catholics hadn't arrived in huge numbers yet, and although disliked they were perceived as a more containable threat).

What to do? Enact laws governing marriage. No polygamy. No marrying your close cousin. Take bigamists like George Reynolds to the Supreme Court of the United States.

Family is often seen as a microcosm of society, but perhaps more importantly for these reformers, society was a macrocosm of the family.

These stories help explain the curious phenomena of law, morality, and religion in the U.S. The U.S. experienced a unique combination of events and environment: slavery, Civil War, rapid westward expansion, the puzzle of recognition (or not) of law and policy from other states, federalism, a Bill of Rights, and the diversity of belief that a nation of immigrants brings to the table.

See The Mormon Question: Polygamy and Contitutional Conflict in Nineteenth-Century America, Sarah Barringer Gordon, UNC Press (2001); Taking Marriage Private, Stephanie Coontz, New York Times (November 20, 2007); The Story of Reynolds v. United States: Federal Hell Hounds Punishing Mormon Treason, Martha Ertman, Family Law Stories, ch. 3, Foundation Press (2008) (link is to SSRN abstract); and The Implied Spider, Wendy Doniger, Columbia University Press (1999), discussing viewing the world through telescopes and microscopes.

Full post as published by court-o-rama.org on March 13, 2008 (boomark / email).