Constitutional Opinions

Ghost of the Nauvoo

Mormans, massacres, and marriage.

By From the March 2014 issue

The Battle of Nauvoo by C.C.A. Christensen (Wikimedia Commons)
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What might be the chances that the fracas over gay marriage in Utah could result in war? Utah enacted its ban on same-sex marriage in 2004 by amending its constitution. In December, a federal district court in Salt Lake ruled that the ban violates the equal protection and due process clauses of the United States Constitution. As fast as one can say “Do you take this person to be your lawfully wedded spouse?” more than 2,000 Utahans plighted their troth to a person of the same sex.

Then, on January 6, the Supreme Court stayed that ruling while the matter goes to the judges who ride the 10th United States Circuit. Utah Governor Gary Herbert promptly trans-supposed that the state would refrain from recognizing the same-sex marriages already entered into. The ink wasn’t dry on the Deseret News when the U.S. attorney general, Eric Holder, announced that the Obama administration would recognize the very same-sex marriages that Utah won’t.

So could this mean war? Almost certainly not in the gunpowder sense, and for good reason: Levying war against the United States doesn’t just smack of treason; it is the constitutional definition of treason. Both The American Spectator and I would be against it. But if things did come to cordite with the Beehive State over doctrinal differences in respect of marriage, it wouldn’t be the first time. This is owing to a rarely-read-about episode in American history known as the “Utah War.”

The fight is sometimes dubbed “Buchanan’s Blunder,” after our 15th president. James Buchanan, the only bachelor to preside from the White House, was alarmed mainly by general lawlessness but also at the prevalence of “plural marriage” in the Utah territory. So in 1857, he cashiered its governor, Brigham Young, and dispatched thence from Fort Leavenworth an expedition of United States forces. The expedition involved a lesser force than might have otherwise been sent because Kansas, rent by the question of slavery, was in the midst of its bleeding.

Something like 2,500 troops marched to Utah. The aim was not to attack the Mormons, but to occupy the region and back up the new territorial governor, a non-Mormon named Alfred Cumming. Didn’t anybody but the newspapers tell Young that he’d been relieved, however, and the Mormon leader began organizing his followers to confront the invaders. Missionaries were recalled, arms were made, scythes were converted to bayonets, and people were moved to safer areas.

In August, Brigham Young re-activated the militia known as the Nauvoo Legion, which had been founded by the Mormon prophet Joseph Smith when he was mayor of Nauvoo, Illinois. In September, Young declared martial law, forbidding “all armed forces of every description from coming into this Territory, under any pretense whatsoever” and ordering “all the forces” in Utah to “hold themselves in readiness to march at a moment’s notice” to “repel” an invasion.

The fighting, if that’s what one would call it, began in late September; it would eventually involve up to a third of the American army. By the standards of, say, the Civil War, it was relatively sedate, starting with the Nauvoo burning grass along the route of the invading troops and stampeding their cattle. The Mormons burned one of their own posts to prevent it from falling to the American army. At Salt Lake, the Mormons actually hid in the foundation of their future temple the stones that had been cut for the vast structure. Then they covered over the area so it would look like a field. Eventually 30,000 people would be evacuated.

Buchanan, in his first State of the Union address in December 1857, took a hard line. He denounced Brigham Young by name, complaining that his power as both governor and leader of the Church of Jesus Christ of the Latter-day Saints was “absolute.” A Presbyterian lawyer from the Quaker State, Buchanan told the Congress he was concerned only with the Mormon’s vow to resort to force. He had “no right to interfere” with the “religious opinions of the Mormons,” he conceded, “as long as they remained mere opinions, however deplorable in themselves and revolting to the moral and religious sentiments of all Christendom.”

In other words, Buchanan had a view of the Mormon religion similar to that maintained by Attorney General Eric Holder. The feud today centers on the rules of marriage. Washington can no more countenance laws limiting marriage to opposite-sex couples than Washington at the time of the Utah War could abide the marriage plurality then permitted by Mormon doctrine. But here in the 21st century, the struggle between the federal government and the states is conducted not with military expeditions, but with phalanxes of lawyers.

It is not my intention here to get between the Mormons and other Christians or between anyone, of whatever religion or sexual orientation, and the Constitution of the United States. It is my intention to remark upon the depth and duration of these passions—and their explosiveness. The historical record has lost the exact count of casualties in the contest. Deaths among U.S. soldiers were mostly from illness, brawls, and accidents, scholar William MacKinnon reports; he puts civilian casualties at about 130, on par with Bleeding Kansas. Most of them were slain by the Nauvoo in a massacre of non-Mormon civilians at Mountain Meadows.

A commission set up by Buchanan ended the war, but the president did not fare well in the big eastern papers. The New York Times issued a sarcastic editorial in which it said the president “demolished Brigham Young by plying him with rhetoric and bayonets simultaneously, and pardoned him at the same moment.” The rest of the Mormons also got an amnesty for sedition and treason so long as they were prepared to accept the authority of the United States. It was a historic bow to America and to a Constitution that establishes itself—and all laws made by the Congress it created—as the supreme law of the land.

That historic bow eventually led to statehood, though it would be an arduous road still. In September 1890, the president of the Latter-day Saints, Wilford Woodruff, declared that he would advise his fellow Mormons “to refrain from contracting any marriage forbidden by the law of the land.” The declaration finally cleared the way forward, though even then the statehood-enabling legislation enacted by the Congress required that Utah establish a constitution declaring that “polygamous or plural marriages are forever prohibited.” 

And so it did. But Congress was still not mollified. For four years it refused to seat one of Utah’s duly elected senators, Reed Smoot, for fear of the fact that he was also an apostle of the Latter-day Saints. In formal hearings it delved into his religion and Mormon marriage laws. Smoot himself didn’t even practice polygamy, which may have ignited the famous jibe by one sympathetic legislator who said: “I would rather have a senator seated next to me who was a polyg who didn’t polyg than a monog who didn’t monog.”

Here in modern times, regiments of lawyers, armed with writs, are in the field. They fight on every front. At their urging, the Nine have put paid the Defense of Marriage Act. That law might have halted federal recognition of the same-sex marriages that were licensed in Utah before the Supreme Court stepped in. The case is currently before the 10th Circuit, but it’s not hard to imagine the Nine will be asked to rule. Will the justices take on the case and, if so, will they dare to tempt the Nauvoo?

A long life in the newspaper line has taught me to refrain from predictions of this sort. But it would not be surprising were the shade of Brigham Young to present himself at the bar. For there is one more astounding irony in the war welling up in Utah. It happens that only one week before Judge Robert Shelby, in Kitchen v. Herbert, struck down Utah’s ban on same sex marriage, a different federal judge in Utah, Clark Waddoups, acting in a case known as Brown v. Buhman, struck down the key part of the ban on polygamy that had been a condition of Utah getting statehood in the first place.

Whether either of these cases will end up at the Supreme Court isn’t yet clear. But what an astounding tangle of federal and constitutional mandates to unravel. It was only 11 years ago that Justice Antonin Scalia, dissenting in the case that ended the application of anti-sodomy laws to consenting adults, issued his famous warning that the result would be that the laws against bigamy and other matters of morals would come before the court.

Might the Nine insist that Utah bow to a federal authority and end its ban on same-sex marriage while also insisting that Utah no longer bow to a federal mandate that it outlaw polygamy? Will the religious people of Utah be asked—metaphorically—to dig up from the vault in which they buried their promulgations on polygamy and bury instead their sanctions on same-sex marriage? One doesn’t have to favor one opinion over the other in order to be on the alert for the ghost of the Nauvoo. 

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About the Author

Seth Lipsky, founding editor of the New York Sun, is the author of The Citizen's Constitution: An Annotated Guide (Basic Books).