The Republican Party platform of 1856 was founded to eradicate the “twin relics of barbarism: slavery & polygamy.”  Why would they link the two together?  Dr. Sally Gordon explains a political reason to tie the two together that you may not be aware of.

Twin Relics of Barbarism

GT: It’s so funny that Mormons are so Republican, because the Republican Party was founded on what? Why don’t you tell us?

Sally: Well, the Republican Party was founded, honestly, by the collapse of the second party system over slavery.  The Whig party virtually disappeared, and the Democrats flourished. The Republican Party was formed to try to begin to articulate some kind of pushback against the Democrats, and they were unsuccessful at first. They were formed in significant ways to begin to try to take control of what was a vastly expanding slave empire, moving west all the time. Slavery grew and grew and grew.  Almost $2 out of every $3 were made through the South. It was rich. It was powerful. It was growing, and very aggressive.

GT: So, there were the twin relics or barbarism, right?

Sally: Yes.

GT: What were those?

Sally: That was the first presidential party platform of the Republican Party.  [The Republican Party] dedicated itself to eradicating the twin relics of barbarism, polygamy and slavery in the territories. There was a real question about what Congress could do in the territories. It was not clear that they could ban either. So, it was wishful thinking. One of the reasons that there’s some connection between polygamy and slavery and traditional societies, they often were practiced side by side. But one reason that you can see as a political reason for including polygamy, even though it was just such a tiny group of people, is that it was immediately and uniformly unpopular. So, if you linked slavery to polygamy, maybe you could drag it down, slavery, a little bit and make it a little less popular.

GT: Oh, that’s interesting.

Sally: Right, even the southerners didn’t defend polygamy. So, that, I think, was expeditious in that sense.

GT:. That’s why they linked those together was to pull down slavery?

Sally:  Well, I think it had–there’s never one single reason for a political act. It’s more like a sausage, but you can definitely see polygamy– Buchanan sent the army out to Utah, because he and other Democrats were deeply worried that having a Mormon majority approving of polygamy in a territory made popular sovereignty look really bad.

GT:. States rights.

Sally: Exactly, and even Stephen Douglas, THE states’ rights Popular Sovereignty guy, supported sending the army to Utah.

GT: The same Stephen Douglas as in Lincoln-Douglas debates, right?

Sally:  Yes, exactly.

Were you surpised to hear why the 1856 Republican Party linked slavery & polygamy together? What are your thoughts?

What are the legal complications of polygamy? Kody Brown recently filed a lawsuit to make polygamy law legal.  While interracial marriage and even gay marriage are easily accomodated in U.S. law, Dr. Sally Gordon says polygamy law is much more complicated because it does not involve 2 people any longer.  We’ll talk more about the legal complications of polygamy.

Legal Complications of polygamy

GT: Well, so there was a case within the last five years. Kody Brown brought a case, because when Utah became a state, of course, the federal government said, “You’ve got to ban polygamy.” So, we’re the only state in the union that specifically bans polygamy. I know there was a case where, I want to say a federal judge struck it down, but then another one reinstated it. Can you give us more details on that?

Sally: Sure, I’d be happy to. But I think one of the things to remember is that–and I think that the Latter-day Saints often say, “Our religion is based on family.” But it’s also true to say that marriage is the foundation of most of our social structure, and many, many, thousands of laws are built around marriage.  [There are] all kinds of [laws:] employment, benefits of all kinds, just deep, deep protections for marriage, thousands and thousands and thousands of laws. When you got married, Rick, you probably didn’t feel all those laws settling on your head. But they were. I promise you; they were.  I tell my law students, “Just be careful. Because you can get in voluntarily, but you can’t get out voluntarily. You have to go to the government. You can’t just walk away.”

Sally: Marriage is very important, highly regulated, and deeply valuable to the society. When, for example, we think about interracial marriage beginning in the 1960s, with the Supreme Court saying it’s unconstitutional to maintain what are called miscegenation statutes, meaning statutes that ban interracial marriage, it was easy to fold those people into the system. Because everything is built for two people. It’s easy. In that sense, same sex marriage is easy, too. It’s the same system. The divorce works the same. Inheritance works the same. All those benefits, Social Security, everything fits with two people. If you’re going to bust that open, that’s a much, much bigger change than the two big constitutional changes we’ve seen in marriage: interracial marriage and same sex marriage. Those aren’t complicated as a matter of the functioning of bureaucracy at state or federal levels. So, that’s one thing I just want to say.

GT: That’s interesting.

Sally: Yeah. So, it’s very, very difficult. I will say that even in a case that was decided shortly after World War II, that involved something called the Mann Act, which was passed in 1910. It forbade bringing women across state lines for immoral purposes. It was often called the White Slavery Act. It was to try to prevent people [from] bringing, say Chinese women to the U.S. to become prostitutes, or women from Europe to become prostitutes. But a case was brought against a Mormon man in in the mid 1940s, for crossing state lines with two women, both of whom he had sexual relationships with. They were married to each other. The question became, would this count as transporting women across state lines for an immoral purpose? The Supreme Court said yes.

GT: Oh.

Sally: Yes, they did. Justice William Douglas, who was a bit of a cowboy himself [said yes.] But, there was a very thoughtful dissent by the Catholic justice, Frank Murphy, who said, “This is one well-recognized form of marriage around the world.”

What do you think of the legal complications of polygamy?  Do you support legalization, decriminalization, or neither?

Kody Brown is the polygamist and star of the tv show Sister Wives. He sued the state of Utah to remove the polygamy prohibition in the Utah Constitution. Kody Brown’s polygamy case won at the federal level, but lost on appeal. Dr. Sally Gordon tells us more about the judge’s reasoning, and why the judge said the 1890 Reynolds decision would be reversed if it happened today.

Sally: The district court said Reynolds would not be decided the same way today, and the 10th circuit reversed. So, that’s a trial level federal court, and then the intermediate level., It’s called the Court of Appeals. There are various circuits. This is the 10th one. I live in Philadelphia, that’s the third one. So the 10th one reversed, and that held up. It did not go to the Supreme Court. My guess is the justices would love not to have to decide a case like that. But I didn’t talk to them about it.

GT: Did they tried to send it to the Supreme Court?

Sally: Yeah, I think there was a cert petition. It’s years ago now, but I’m pretty [sure.]

GT:. The Supreme Court said we don’t want to deal with this.

Sally: Well, they just deny the cert petition.

GT:. Okay.

Sally: So, there are many, many, many thousands of cases that they don’t hear. Honestly, the cases that they do hear, there’s either a great moment: you’re trying to subpoena stuff from the President. That’s pretty important. Or there’s a developing line of cases where the circuits, meaning those 3rd and 10th, and 5th and 7th and 1st, are starting to disagree with each other, so that we have conflicting rules out in the country. And it needs to have the Supreme Court step in and resolve it. So, that’s another [reason.] Or there’s original jurisdiction in the Supreme Court, when two states sue each other. They start right there. [It’s] the lawyers equivalent of judgment, up there with THE court. It is THE court. It is the gorilla. You call in the big boys when you go there. So, one thing: I do think there’s been substantial movement in marriage. There has not been a commitment to pushing past that boundary of two. My own sense is that there are a group of people who want to do that and call it marriage and a larger group, if I’m right, although we don’t really have great numbers, but a larger group of people who want to be polyamorous and live in communities that maybe are explicitly not marital and are not exclusive in those ways.

We get into further details. What are your thoughts on the Kody Brown case?