The Polygamy Case: U.S. v. Reynolds (1879)
Prevailing Protestant norms, not sound judicial reasoning, were behind the Supreme Court's foundational religious-freedom case. And the effects still continue today.
Why This Case is of Particular Interest to Me
For my thesis in my graduate history program, I will be researching the Reynolds case and the influence that prevailing Protestant cultural and moral norms had on its decision, as well as how the same court ruled on similar issues over the eleven years that followed. The Supreme Court ruled in Reynolds that a law making polygamy a crime was constitutional. Looking back at the case through a presentism lens, it appears to be universally proper. There is no legitimate constituency (even the church whose practice was prosecuted) remaining to defend the practice. But what this acquiescence overlooks is the gross inadequacy of the legal reasoning behind the case: the legitimate religious practice of one religion was outlawed due to moral and cultural opposition and not by sound, objective judicial reasoning.
Putting polygamy aside, anyone with any religious beliefs should be appalled at the Supreme Court’s reasoning in Reynolds, yet most of Judeo-Christian America rests comfortably in the majority knowing that if such a case were decided today, it would be their belief system that would influence the Court.
Facts of the Case
George Reynolds was Brigham Young’s personal secretary. In 1865, he married Mary Ann Tuddenham. In 1874, while she was still living, he married Amelia Jane Schofield. Plural marriage was then a doctrine of the Church of Jesus Christ of Latter-day Saints, taught as a religious duty whose neglect carried eternal consequences.
The Morrill Anti-Bigamy Act of 1862, codified at section 5352 of the Revised Statutes, made bigamy a crime in any territory or place under exclusive federal jurisdiction, punishable by up to five years and a fine of up to $500. Utah was a territory, not a state, so Congress legislated there directly.
The most important fact about the case is one that rarely survives into the casebooks: Reynolds was not caught. He was volunteered. Church leadership, confident that the First Amendment would shield the practice, arranged a test case and selected Reynolds as the defendant. He cooperated with the prosecution, supplying the evidence of both marriages. The Church provided his counsel. The plan was to lose in Utah and win in Washington.
Issue
The issue was essentially whether an individual could be excused from any action if it was religiously motivated. The procedural issue this translated into, and the issue presented before the Supreme Court, was whether the lower trial court should have instructed the jury to acquit if Reynolds married under a religious duty? Other procedural issues were addressed, but only the religious duty issue survived.
The Court’s Conclusion
Affirmed on every point. Religious belief is not a defense to an otherwise criminal act. The Court was clear that Congress may not legislate against mere opinion, but it may legislate against actions that violate social duties or subvert good order, even if religiously motivated. A law of general application does not become unconstitutional simply because a defendant’s faith commands the conduct the law forbids.
It should be known that this was only the first case addressing religious freedom in America. The next case was decided in 1940, and a rich body of religious jurisprudence has developed since then. But Reynolds remains the inaugural case and continues to influence the law a century and a half later.
The Court’s (Inadequate) Reasoning
Chief Justice Waite began by observing that the First Amendment does not define religion, and went looking for the meaning in history. He landed on Virginia. He recited the fight over the general assessment, quoted Madison’s remonstrance in passing, and then reached for Jefferson: first the preamble to the Bill for Establishing Religious Freedom, which distinguishes opinions from overt acts against peace and good order, and then the 1802 letter to the Danbury Baptist Association describing a wall of separation between church and state. Waite called Jefferson’s letter almost an authoritative declaration of the scope and effect of the amendment, despite it being only an informal letter with no legal authority.
From that he drew the rule the case is known for. Laws govern actions. They cannot touch belief, and they may touch practice. To hold otherwise, Waite wrote, would make professed doctrine superior to the law of the land and permit every citizen to “become a law unto himself.”
He then tested the opposite rule against two examples. If belief excused practice, a man who believed human sacrifice a necessary part of worship could not be stopped, and a widow who believed it her duty to burn herself on her husband’s funeral pile could not be prevented from doing it. The Court treated both as obvious, and the argument stopped there.
Underneath sat a second line of reasoning that the Court did not hide, which makes this case particularly disturbing. Polygamy, Waite wrote, had always been odious among the northern and western nations of Europe and, until the Mormons, was almost exclusively a feature of Asiatic and African life. He went further. The form of marriage a society permits shapes the form of government it produces. Polygamy leads to the patriarchal principle, and the patriarchal principle, applied to large communities, fetters the people in stationary despotism. Marriage law was, in the Court’s telling, republican-government law. This application of prevailing Protestant cultural norms injected the subjective belief of only a subset of the American population into what should have been an objective analysis of a generally applicable issue.
Further, the historical method here does not hold up. Jefferson was in France while Congress framed the religion clauses in the summer of 1789, and he wrote the Danbury letter in 1802, more than a decade after ratification, as a sitting President, responding to a friendly congregation. Waite treated a piece of political correspondence as though it carried the supreme authority of the text.
Madison was the obvious source, standing right there in the opinion, quoted, and then set aside. The Memorial and Remonstrance grounds religious duty in a claim prior to civil society: what a person owes the Creator is owed before any obligation to the state, and is therefore exempt from its jurisdiction. That premise pushes toward a right that survives contact with an ordinary law. Waite preferred the source that pushed the other way.
The irony compounds. Reynolds is the first Supreme Court opinion to invoke the wall of separation, using Establishment Clause imagery to decide a free exercise claim against the believer. The metaphor most associated with keeping government out of religion entered American law as the reason a man went to prison for a religious practice.
The Faulty Reasoning Continues with Hypotheticals
Human sacrifice and widow burning are not arguments. They are a demonstration that some limit must exist, which nobody disputed. Reynolds never claimed that belief immunized all conduct. He claimed that this conduct, between consenting adults, in a territory where his church was the dominant institution, did not warrant a criminal prohibition.
Answering that claim requires comparing the weight of the burden against the strength of the government’s interest, and asking whether the interest could be served some other way. Waite’s framework never reaches those questions, because once conduct is classified as action rather than belief, the analysis is over. The extreme examples provide the intuition that a limit is needed, and the belief-action line then serves as the limit itself. A line that disposes of murder and a line that disposes of a marriage ceremony are treated as the same line.
The Judgment was Really About Which Religions Produce Good Citizens
Strip out the doctrinal language and the civilizational passage is what remains. The Court was not applying a neutral rule to an unfortunate claimant. It was holding that a particular religious practice generates a particular domestic order, that this order breeds despotism, and that a republic may therefore suppress the practice to protect its own character.
That is a serious argument, and it should be met rather than waved off. Marriage law does shape political culture; a regime that concentrates wives concentrates power, and the concern about coercion within closed communities was not invented. But it is not the neutral principle for which the case is usually cited, and its structure should worry anyone who values religious liberty. It licenses the state to evaluate a faith by the citizens it is thought to produce. Waite’s ranking, with Europe on one side and Asia and Africa on the other, shows what that evaluation looks like when a court actually performs it.
The belief-action distinction is not neutral among religions. It offers the most protection to faiths whose center of gravity is assent to propositions, and the least to faiths organized around conduct: rituals, diets, calendars, dress, ceremonies, the ordering of family and community life. A right to believe anything, so long as one does nothing about it, is a right shaped to fit a creedal, low-practice religion, and it leaves practice-heavy traditions bearing the full cost.
The pattern repeated. Reynolds fell on a communal, practice-centered church on the American frontier. A century later, the same reasoning fell on two members of the Native American Church fired for sacramental peyote use. The doctrine’s distributive effect is consistent, and it is not random.
The Damage: Reynolds Never Went Away
The formal law moved and then came back. The Free Exercise Clause was applied to the states in Cantwell v. Connecticut (1940). Sherbert v. Verner (1963) and Wisconsin v. Yoder (1972) built a regime in which a substantial burden on religious exercise required a compelling government interest, which is exactly the balancing Waite refused to perform. Then Employment Division v. Smith (1990) discarded it. Scalia’s opinion rests on Reynolds and restates its holding almost unchanged: a neutral law of general applicability raises no free exercise problem, whatever it does to a religious practice.
Congress answered with the Religious Freedom Restoration Act in 1993, which restored the compelling-interest standard by statute. City of Boerne v. Flores (1997) held Congress could not impose that standard on the states, leaving RFRA operative against the federal government and state legislatures to fill the gap. Fulton v. City of Philadelphia (2021) declined an invitation to overrule Smith while narrowing it, and several justices wrote separately to say the invitation should have been accepted.
So the fight over Reynolds is live, and both camps hold a piece of it. Separationists quote its wall. Religious claimants attack its belief-action line. The two are the same paragraph of the same opinion, written by the same Chief Justice on the same afternoon, and the case has spent a century and a half being cited by people who want half of it.
Conclusion
Reynolds is remembered as the case that said religious duty is no excuse. It did say that. The larger thing it did was decide who gets to classify a practice, and it gave that job to the government, subject to no test the believer can win. Everything since has been an argument about whether to take the job back.