“Religious Liberty and the Mormon Question” The American Sentinel 5, 35, pp. 273-275.

September 4, 1890

AN interesting question, and a very important one too, has been raised in connection with the Sunday-law controversy; it is this: How can any one oppose Sunday laws on the ground that they are religious, and at the same time favor laws forbidding polygamy, which the Mormons hold as a part of their religion? To many the question appears difficult; but the answer is direct and easy, for the two things are totally unlike in every essential particular.

It is urged, however, that the Sabbath and marriage are both divine institutions, and that therefore the same rule should apply to both. It is true that marriage is a divine institution, but in a widely different sense from the Sabbath. The Sabbath is a divine institution, not only in the sense that it was instituted by the Creator, but in the sense that its existence depends solely upon divine revelation. And this revelation is something with which civil government can have nothing to do. Marriage is a divine institution in quite another sense, namely, it is ordained of God, not only because it is a matter of revelation, but because the inherent sense of every man informs him that marriage is one of the objects of life; he is instinctively drawn into the marriage bond. It is a natural relation, not, like the Sabbath, dependent upon revelation for its very existence. The Sabbath has reference solely to God, and to man’s relation to him; marriage pertains wholly to the relations which the Creator designed should exist between man and woman. God has separated, not only in revelation but in nature, between the duties which man owes to him, and the duties which every man owes to his fellowmen; and a just regard for human rights demands that this distinction be respected.

The reason for the distinction between the duties which men owe to God, and the duties which they owe one to another, is so evident, that it needs only to be pointed out to be apparent to every one. God is the great moral Governor; to him every soul is responsible; to him every free moral agent must give account. To permit any power whatever to come between the individual and God, would destroy this individual responsibility to God. If it were the province of the State to enforce the law of God, the individual would naturally seek to know not the will of God, but the will of the State. And the effect would be to put the State in the place of God, just as the Papacy puts the Pope in the place of God, “so that he as God sitteth in the temple of God, showing himself that he is God.” But God has no vicegerent upon earth.

The original Sabbath is a memorial of the creation. It was instituted for that purpose, and its intelligent observance is a recognition of God as the Creator of the heavens and the earth. It does not pertain to our duties to our fellowmen, but solely to our recognition of God; and a failure to observe it imposes no financial burden upon the State. Likewise, Sunday, the day now generally kept, is observed as a memorial of the resurrection of Christ. Its significance is, therefore, wholly religious. Thus, look at it either from the standpoint of the seventh or of the first day, the keeping of a weekly rest, has reference to the recognition of God as the proper object of worship. Therefore, to require such observance under any pretext whatever, is to require the observance of a religious institution.

Moreover, if the State had the right to require the observance of the Sabbath, or of a Sabbath, it would of necessity, have also a right to say in what that observance should consist; and all would be in duty bound to obey its mandates, under penalty not only of the civil law but of the divine law as well, for to [274] disobey would be not only crime against the State, but sin against God. Thus, not the perfect, unchanging law of God, but the imperfect, ever-changing law of man would be the standard by which men would be judged, not only in earthly courts but in the court of heaven. It follows that the State has no right whatever to enact laws of any kind in reference to Sabbath observance.

But when we turn to the subject of marriage, we find that it is entirely different. Marriage means the union of man and woman as husband and wife. It relates, therefore, wholly to mankind, and is properly a subject of civil law, because, as we shall see, the conservation of human rights demands that the safeguards of civil law be thrown around it.

It is true, as previously stated, that marriage was given to man by the Creator, and to violate the divine law concerning it is sin; but that is not the reason that it is properly regulated by civil law. “Thou shalt not kill,” is a divine command, but that is not the reason the State punishes the murderer. The State punishes murder solely for the protection of life. The State knows no malice, and does not punish the murderer to revenge, but only to prevent repeated homicides by the same individual, and to deter others from following his example. Likewise, the State properly regulates marriage only because civil justice requires it.

The Declaration of Independence declares that “men are endowed by their Creator with certain inalienable rights,” and that “to secure these rights, governments are instituted among men.” An inalienable right is a natural right, a right that even though it may not be exercised cannot be surrendered, so that it ceases to be a right. An inalienable, or natural right, may not be exercised for a time, or despotic power may invade it, but justice confirms it, nevertheless, and just government will guarantee it. “Life, liberty, and the pursuit of happiness” are inalienable rights. A man may throw away his life, or he may sell himself into slavery, or he may bind himself not to seek happiness; but the State can in justice sanction none of these transactions. It is a contradiction of terms to say that “a man may be free not to be free;” for were the State to sanctions a permanent surrender of individual, personal liberty, the one making such surrender would, after he had made it, have no more choice in the matter; and there can be no liberty without freedom of choice. The State does not compel any man to exercise his natural rights; but it does refuse to become a party to a surrender of those rights. If one throws away his life, the State cannot restore it to him; but if he sells himself as a slave, or agrees to forego the pursuit of happiness, the State refuses to sanction the act; these rights are still his, and whenever he sees fit to do so he may exercise them. The Creator has endowed him with these rights, and he cannot be justly deprived of them except as punishment for crime.

Marriage carries with it certain rights that are just as sacred and inviolable as any of the rights with which God has endowed man. The Creator has ordained that every man may “have his own wife, and every woman her own husband.” These words are revelation, but they express a truth which is so evident that it must be accepted, whether one believes in inspiration or not. The framers of the Declaration of Independence set forth as a self-evident truth that “all men are created equal,” and that they are endowed by their Creator with certain rights. Here the word “men” is generic, and includes women; it follows that women have just the same rights that men have. Therefore, reasoning even from a purely secular standpoint, we must conclude that if every man has a right to his own wife, every women has a right to her own husband; for their rights are equal. The man who is willing that his wife should take one or more additional husbands, is the only man who can with even a shadow of consistency, defend the taking of more than one wife. Polygamy has its root in the assumed inferiority of women; it cannot live for a moment in an atmosphere of equal rights.

The natural right to have a wife or a husband, may not be exercised, or may be forfeited by violation of the marriage contract, just as life or liberty may be forfeited by crime; but it cannot be taken away by another; neither can the State properly sanction (and in such a case, to permit is, in effect, to sanction) any agreement or conflicting relation that would tend to invade or destroy that right. Polygamy does necessarily invade that right; therefore the State cannot sanction it, but is in duty bound to prohibit it.

If it be argued that the State may permit polygamy where all who engage in it do so willingly, the sufficient and just answer is, the State must refuse such permission in justice to those who having marriage in good faith have never given such consent; and who, were the State to legalize the relation, might be coerced into a consent, sufficient to meet the technical demands of any law that could be framed in regard to the matter, but coming very far short of that perfect liberty of action sought to be guaranteed by the law. It may be true that a majority of women in Utah, whose husbands are in polygamy, have freely given their consent; but because of the perfect equality of human rights the State must refuse its sanction. Justice says that the husband belongs to the first wife; she may at any time claim her rights as the only wife of her husband, and that her children are the only legitimate children of her husband, and the State must sustain her claim and vindicate her rights. But this it cannot do if it has in the meantime given its sanction to, or legalized, a conflicting relation. It follows that the State must forbid polygamy in every case, or else fail of the very object for which governments are instituted among men, namely, to preserve rights.

Again, the State must regulate marriage, because in its very nature it affects not only those who enter that relation, but the entire community as well. Marriage imposes upon those who enter it certain obligations, and they must not be permitted to escape those responsibilities, for if they do the burdens which they should carry will fall upon others. Ordinarily, marriage means offspring, and it is clearly the duty of those who bring children into the world, to support them until they are able to care for themselves. If they fail, or refuse, to perform this duty they thereby throw the burden upon the State, which is only to compel others to be taxed for the support of their children, and to pay for their negligence. And to protect the community from the imposition of this burden, the State insists that marriage shall not be transient, but permanent; and that it shall be so regulated that there shall be no question as to the paternity of children. It is therefore not only, the undeniable right but the bounden duty of the State to regulate marriage. This is not true of Sabbath keeping; for one man’s failure to keep a Sabbath does not deprive another of that privilege; neither does it burden the State. This is practically admitted by even the most zealous advocates of what they are pleased to term a “civil Sunday law.” In answering the question, “Should there not be a law to protect the Jew in the observance of his Sabbath?” Rev. W. F. Crafts well says: “It is not sufficiently emphasized that the Jew is left absolutely free to observe the seventh day. He can close his shop; he can refuse to work.” This is true; but it is no more true of the Jew and the seventh day, than it is of the Christian and the first day.

But since the State must regulate marriage, the State must likewise decide to what extent it will regulate it; and this decision must depend only upon the rights of the citizen, and the best interests of the State. The requirements of the divine law cannot enter into it at all, so far as the State is concerned; and this not because that law is not wise and just, but because the State cannot become a judge of that law; it must of necessity confine itself to things purely civil; and where civil justice is done the divine law will never be contravened.

But some may say, that while the State must of course regulate marriage, and may properly prohibit polygamy in general, it should make an exception in favor of those who, from religious motives, desire [275] to practice it. But it has already been shown that the State cannot, if faithful to its trust, permit plural marriages even among those who are agreed that such relations are proper. Were the State to make any such exception as this, it would afford opportunity for every man who wished to abandon his first wife, to practically do so simply by making a profession of Mormonism. He could then take as many wives as he saw fit, and might subsequently retain or renounce his new religion according to his own convenience. With polygamy legalized in any State or Territory, no woman in the United States would be legally secure in her marital rights. But, even leaving all that out of the question, the State cannot properly make any such exception. Such exception would only be to favor one class above another for religious reasons, and that would not be just; for laws should operate alike upon all. It would be manifestly unjust to imprison a “Gentile” for doing that which the Mormon is freely permitted to practice. And such laws would speedily bring all law into contempt, and make government an impossibility. It follows that if the State permits the Mormon to have more than one wife, it must grant the same privilege to the “Gentile;” and if it permits polygyny [sic.], it must in justice permit polyandry also. But this would cause utter confusion in families, and certainly burden the State with the care of numerous wards, whom it would have to supply not only with subsistence, but even with family names, as their paternity would be in doubt. And this would at one step plunge the State into absolute paternalism. Indeed the whole system of polygamy is inseparable from the idea of paternalism in government.

It is clear from these considerations, (1) That while marriage and the Sabbath are both divine institutions, they are essentially different in this, that whereas the Sabbath is dependent for its very existence upon revelation, and relates solely to the recognition of God as an object of worship, marriage is natural, and relates wholly to the proper relations of man and women to each other and to society; (2) That for civil government to regulate Sabbath-keeping would tend to destroy moral responsibility to God, and that, without in the least benefiting man; while on the other hand, for government not to regulate marriage would be to neglect the very work for which governments are instituted, namely, the securing of human rights; (3) That while the neglect or refusal of people to keep a Sabbath does not impose financial burdens upon the State, the practice of polygamy must inevitably burden the State with numerous wards of unknown paternity. The unavoidable conclusion is, that while polygamy is an invasion of natural rights, destructive of the very idea of civil government, ruinous to genuine civilization, and therefore, to be prohibited to all alike, the State has no right to either require or forbid Sabbath-keeping. [275]

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