Mixed Race Studies

Race Treason: The Untold Story of America’s Ban on Polygamy

Columbia Journal of Gender and Law
Volume 19, Number 2 (2010)
pages 287-366

Martha M. Ertman, Carole & Hanan Sibel Research Professor of Law
University of Maryland

Today’s ban on polygamy grew out of nineteenth century Americans’ view that Mormons committed two types of treason. First, antipolygamists charged Mormons with political treason by establishing a separatist theocracy in Utah. Second, they saw a social treason against the nation of White citizens when Mormons adopted a supposedly barbaric marital form, one that was natural for “Asiatic and African” people, but so unnatural for Whites as to produce a new, degenerate species that threatened the project of white supremacy. This Article reveals how both kinds of treason provided the foundation of polygamy law through the discourse of legal, political and medical “experts, ” as well as, most vividly, cartoons of the day. This discourse designated the overwhelmingly White Mormons as non-White to justify depriving them of citizenship rights such as voting, holding office, and sitting on juries. Paralleling the Mormon question to miscegenation disputes also raging in the decades after the Civil War, the Article suggests two theoretical perspectives to understand the “blackening” of Mormons. First, postcolonial theorist Edward Said’s concept of Orientalism helps explain how designating Mormons a subject race rendered their subjection inevitable. Second, Sir Henry Maine’s 1864 observation that progressive societies move from status to contract reveals the visceral defense of status embedded in antipolygamy discourse. That defense of status may also have implicated other ways status was giving way to contract, such as wage labor replacing slavery and the partnership theory of marriage beginning to displace coverture. In either case, the Article contends, the racial foundations of American antipolygamy law require us to rethink our own often reflexive condemnation of the practice. It concludes by suggesting three questions to help us frame that inquiry, asking: (1) whether we need to rethink this rarely-enforced ban; (2) whether current antipolygamy law’ associates polygamy with barbarism, foreignness, and people of color; and (3) whether it is coincidental that the plain language of the Defense of Marriage Act prohibits both polygamy and same-sex marriage.

INTRODUCTION

Race is at the center of all of American history.
— Ken Burns

Many people think that American law bans polygamy to ensure women’s equality and shield teenage girls from marrying old men. But that notion is largely wrong, at least if we interpret the relevant cases and statutes in light of the intentions of the lawmakers who enacted four federal statutes and the courts that upheld them in a line of cases that are still cited as good law. They were hardly concerned with gender equality or protecting children’s safety. Instead, the statutes went far beyond criminalizing polygamy, depriving Mormon men and women of voting and other citizenship rights to achieve the larger goal of preventing the traitorous establishment of a separatist theocracy in Utah. Polygamy was merely a symptom, fascinatingly salacious and easily ridiculed, of the pathology that most Americans saw in Mormonism. However, knowing the treason-based genesis of antipolygamy law need not force us to rethink the ban on polygamy. Treason remains unlawful, making it a permissible justification for the law today.

But race is also at the center of antipolygamy law, in a way that forces us to rethink the ban itself. Many Americans, from the highest levels of government to political cartoonists, viewed the Mormons’ political treason as part of a larger, even more sinister offense that I call race treason. According to this view, polygamy was natural for people of color, but unnatural for White Americans of Northern European descent. When Whites engaged in this unnatural practice, antipolygamists contended, they produced a “peculiar race.”  Antipolygamists linked this physical degeneration to Mormons’ submission to despotism, reasoning that their primitive form of government was common among supposedly backward races. The Supreme Court accepted this argument in the leading antipolygamy case, Reynolds v. United States, in which it rejected Mormon claims that polygamy was protected as the free exercise of religion. The Court reasoned that polygamy was “odious among the northern and western nations of Europe,” “almost exclusively a feature of the life of Asiatic and of African people,” and ultimately “fetters the people in stationary despotism.” Well into the twentieth century, many Americans continued to associate White Mormons with people of color, as evidenced by a character’s quip in Jack London’s 1914 novel, “They ain’t whites; they’re Mormons.”

This racialization requires us to ask whether the polygamy ban today continues to import those white supremacist values. In another context, states criminalized cocaine and marijuana in the early twentieth century to police and generally demonize Chinese and Mexican immigrants as well as African Americans. By the late twentieth century, that policy, though officially rejected, found expression in federal sentencing guidelines that penalized offenses related to crack cocaine (more common in African American communities), more harshly than powder cocaine (more common in White communities). There, as here, virulent racial motivations that animated a legal rule requires us to examine the law’s current incarnation to ensure it has shed the taint of its origin.

Casting overwhelmingly White Mormons as non-White required rhetorical slights of hand. While Mormons’ distinctive theology and social organization were politically unsettling in many ways, the practice of polygamy justified the larger culture’s demotion of Mormons from full citizenship on the grounds of racial inferiority. This Article tells the story of race in polygamy law through the words of government actors and scholars, using political cartoons to literally illustrate the widespread view of Mormons as race traitors.

It then offers two theoretical frames through which to view nineteenth century perceptions of polygamy as race treason: Orientalism and jurisprudential insights about the tensions between status and contract. Edward Said’s work on Orientalism offer some clues as to why cartoonists might have portrayed Mormon polygamists as Black and Asian. Viewing the discourse as Orientalist—essentially an “us/them” rubric that primarily underpins colonialism—shows that antipolygamy discourse also spoke of Mormon polygamy in “us/them” terms, treating polygamists not as people, but as problems to be solved. The most valuable insight Orientalism offers here is that framing a group as Oriental—an inherently backward, sensual, and therefore subordinated Other—makes its subjection inevitable. Thus the public imagination’s construction of Mormons as members of subject racial groups (Asian and Black, mainly) played a crucial role in subjecting Mormons to federal control…

…This Article uses political cartoons of the day to demonstrate how viscerally the American polity fought against the Mormons’ attempt at private ordering, deploying images of domestic and governmental disorder to rail against the chaotic consequences of abandoning status in marriage. In the cartoons, race and gender served as shorthand for status, the notion of assigned, inherent and unchanging roles. Because marriage was deeply raced and gendered, and not coincidentally defined citizenship, antipolygamists’ equation of polygamy with Asian and Black foreignness reaffirmed the centrality of Whiteness to full citizenship. Equating Whiteness with citizenship mattered enormously in the time of which we speak. Abolitionists and Freedmen pushed hard for full civic membership for the freed slaves. The cartoons here oppose it, using polygamy to beat back African Americans’ claims to civil membership in the wake of the Civil War…

…The cartoon depicts a fierce eagle, stars and stripes on its wings representing the United States, protecting its nest, which is labeled “union.” Inside the nest are eaglets, all White, each labeled for a state. A “carrion crow” labeled “Utah” rises up in their midst, clutching a bone labeled “Mormonism.” Three things bear mentioning. First, the cartoon appeared less than a generation after the end of the Civil War, when most viewers would situate its imagery within the national catastrophe of Confederate Secession. Second, it labeled the bird representing Utah as “Carrion Crow.” This crow gets its name from its habit of eating dead animals, making its presence in the caption depict Mormonism as a harbinger of death. Moreover, the birds representing the other states seem to be eaglets, the same species as the eagle, while the crow represents a new species, black, holding its own bone and defiantly turning its back on the mother. In contrast, the eaglets either beg for food or look out as if guarding the nest.

Integrating these elements, we can interpret the single Black crow White eaglets as signaling political defiance against the Union, racial grounds for denying Utah statehood, and miscegenation. In the decades after Civil War, intense legal, political, and social battles raged over the citizenship of African Americans, generally resulting in severely limited social and political rights for the freed slaves. Consequently, this cartoon, published in that climate, seems to reference both the Civil War and the place of Blacks in America in the wake of emancipation. The Black crow symbolizing Utah, nestled among White eaglets symbolizing the other states, is akin to the Confederacy seceding to protect its own peculiar domestic institution. In this view, depicting Utah as a carrion crow would justify denying “black” Utah membership in the Union just as the Black Codes and other measures denied African Americans full citizenship. The mix of white and black baby birds in the cartoon also raises the specter of miscegenation, which animated the Black Codes.

The nation was struggling over the constitutionality of miscegenation laws at the very moment that Mormon polygamy attracted intense debate and regulation. Many southern states repealed their miscegenation statutes shortly after the Civil War, reasoning that the Civil Rights Act of 1866 and the 14th Amendment to the Constitution allowed African Americans to contract marriages just like White citizens. However, they reinstated miscegenation laws in the 1880s and 1890s, claiming that the ban on interracial marriage did not violate principles of equal protection, since it prevented both Blacks and Whites from marrying outside their race. Indeed, in 1883, a year after “The Carrion Crow,” the U.S. Supreme Court used this rationale to uphold miscegenation laws in Pace v. Alabama. As the sole Black child among White siblings, the crow signifies multiracial families produced by race-mixing. By linking Mormon polygamy with political treason and racialized political and familial degeneration, the cartoon triggers explosive issues far beyond polygamy as a marital variation…

Read the entire article here.