July 8, 2011
The law banned bigamy and limited ownership by any church or non-profit in any territory of the United States to $50,000.
It was the first law to criminalize bigamy, and represented another volley in a series of federal actions against The Church of Jesus Christ of Latter-Day Saints, in that it was intended to curb the Mormon practice of polygamy and the property dominance of the LDS Church in the Utah Territory.
In fact, the history of armed conflict between Mormons and state and federal authorities led to the lack of the act’s enforcement.
Since it was passed during the Civil War, particularly at a time when Union forces weren’t faring well, Lincoln allowed Mormons to ignore the law in exchange for their neutrality during the War.
After the War ended, though, things changed.
First, Congress passed the Poland Act in 1874, which gave the Federal Government vastly increased jurisdictional powers that allowed for stricter enforcement of the Act.
In 1882, Congress passed the Edmunds Act, which made polygamy a felony, and revoked polygamists’ right to vote, made them ineligible for jury service, and prohibited them from holding political office.
Five years later, the Edmunds-Tucker Act was passed, which had the most sweeping impact of all.
In addition to providing further sanctions against polygamy, the law also dissolved of the LDS Church, required an oath of anti-polygamy for prospective voters, jurors and public officials, and invalidated territorial laws allowing illegitimate children to inherit.
This law was, of course, challenged on its constitutionality.
The law’s constitutionality was upheld, though, in Late Corporation of the Church of Jesus Christ of Latter-Day Saints v. United States.
While the Edmunds-Tucker Act was repealed in 1978, polygamy remains illegal in the United States, a legal tradition that began with Morrill.
While it and its successors were held as constitutional during the same time period that they were passed, there has been some significant development of Free Exercise Clause jurisprudence since then.
This development has moved in the direction of increased protections for religious practices against state action.
Under current circumstances, then, would the Morrill Anti-Bigamy Act still be upheld as constitutional?
The case which probably provides the best answer to that question is 1993’s Church of Lukumi Babalu Aye v. City of Hialeah.
The case involved the City of Hialeah outlawing ritual animal slaughters, which it did in response to Church of Lukumi Babalu Aye (which practices ritual animal slaughters) planning to move to the city.
The law was upheld in the lower courts because of a previous Supreme Court ruling that held a law which doesn’t explicitly target a religion doesn’t violate the Free Exercise Clause, even if the law incidentally interferes with a religious practice.
However, the Supreme Court unanimously overturned Hialeah’s law, finding that, even though neutrally written, it specifically targeted the church.
If that jurisprudence existed in 1862, it is unlikely the Morrill Act would have been ruled constitutional.
By now, though, there has been enough dissociation between the LDS Church and bigamy for any laws banning the practice to stand against legal challenges.
Nevertheless, the Morrill Act remains an example of the kind of religious discrimination previously allowed by the constitution