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Nevertheless, on April 28, 1985, Potter lost his case. The court argued that it "could find no authority for extending the constitutional right of privacy so far that it would protect polygamous marriages." Monogamy, declared the court, "is inextricably woven into the fabric of society. It is the bedrock upon which this culture is built."
Potter was understandably unhappy with the court's decision. How could it ignore the Briggs case of the cohabitating police officer? he asked in a recent interview. "It is ridiculous that a man and woman living together and having sexual intercourse, but not calling it marriage, is somehow different than those who live in plural marriage as a religious tenet."
The court, he noted, claims that government has a "compelling interest" in prohibiting polygamy. But Potter retorts with the classic individualist shot: "The state has no compelling interest when the rights of individuals are not infringed....It is not correct to dictate against human social relationships which cause no harm to individuals or society."
The court's opinion in the Potter case was based primarily on a landmark Supreme Court case, Reynolds v. United States, decided in 1879. In that year, George Reynolds, private secretary to Brigham Young, lost his appeal of a sentence to "two years at hard labor" for violating a federal law forbidding polygamy.
BRIGHAM YOUNG, the Mormon leader who had brought his followers westward, married 21 women in his lifetime. In 1871 he was arrested for "lascivious cohabitation" and brought before Judge James B. McKean.
In 1862 Congress had passed the Morrill Act banning polygamy in U.S. territories. But it wasn't enforced until 1871, when, fresh from their victory over the South's "relic of barbarism," the Radical Republicans of Congress turned their fire on Brigham Young and the Mormons.
Declared McKean, a New York judge installed as Utah's chief justice by antiMormon forces: "A system is on trial in the person of Brigham Young"-that of "federal authority versus polygamic theocracy." But the case was dismissed in early 1872; federal prosecutors had been so eager to convict the Mormon church president that they had improperly chosen the grand jury.
The next two decades saw the height of federal efforts to reconstruct and restrict the Mormons. The Poland Act of 1874 transferred control over all criminal and civil cases to U.S. territorial courts, thus stripping local Mormon judges of much of their power. Eight years later, the Edmunds Act made polygamists ineligible to vote, hold public office, or serve on juries and set the penalty for plural marriage at up to five years in prison.
The battle between polygamists and the federal government was now in full flower. Digging through history books reveals the extent of the war. "Polyg hunts" for "cohabs" became common in Utah, as federal judges set out to eliminate plural marriage. There were more than 1,000 convictions for polygamy under the Edmunds Act in the 10-year period following its passage, and in 1885 church president John Taylor reluctantly advised polygamists to go "underground" to avoid arrest and imprisonment. Though Brigham Young University historian Jessie Embry estimates that only 10 to 30 percent of Mormon men practiced plural marriage, nearly all the prominent church leaders did so, now underground. Church president Taylor died in hiding in 1887. He mourned the "shameless infringement of the Constitution" for which he had suffered.
The federal assault continued. In 1887 Congress passed the Edmunds-Tucker Act, which disincorporated the church and allowed the federal government to seize all church property in excess of $50,000, including the Salt Lake City temple block. The church appealed but lost a 5-4 Supreme Court decision in 1890. The court called polygamy "a crime against the laws and abhorrent to the sentiments and feelings of the civilized world." The Mormon church, said the court, was a "contumacious organization" that sought to "oppose, thwart, and subvert... the will of the government of the United States." (Interestingly, the Edmunds-Tucker Act of 1887 also outlawed female suffrage in Utah; women had been voting there since 1870.)
Church leaders now believed that the only alternative to extinction was surrender. Later that year, president Wilford Woodruff issued the Manifesto of 1890, also known as the Great Accommodation. Stating that "I am under the necessity of acting for the temporal salvation of the church," he announced: "My advice to the Latter-day Saints is to refrain from contracting any marriages forbidden by the law of the land." Thus began a long history of the Mormon church joining the government in rooting out polygamists and all manner of rebels against government doctrine.
By 1896, the federal government had returned the church property confiscated earlier. That same year, Utah was admitted to the Union as the 45th state with a constitution that, not coincidentally, prohibited polygamy. Although the connection has been a matter of some debate over the years, attorneys representing the state of Utah in Roy Potter's case in 1985 admitted that abolishing plural marriage was "the price of statehood."
"It's fine for the LDS church to give up their religious beliefs," declares the excommunicated Potter, but "it is not right to prevent other people from practicing theirs." Whereas early Mormons adopted "celestial marriage" as a revealed doctrine, Potter points out that "there was never a revelation to stop polygamy, much less to persecute and prosecute polygamists."
The Great Accommodation for the church and the government became the Great Capitulation for unreconstructed Mormons. When church president Taylor had advised polygamists to go underground in 1885, thousands had fled to new polygamist settlements throughout the remote areas of the desert Southwest. Many families living in plural marriages today trace their roots back five generations, to those early practitioners of passive resistance and civil disobedience.
The Mormon church supported federal raids-rhetorically-against polygamist settlements in Utah and northern Arizona in 1935, 1944, and 1953. The 1953 raid against the town of Short Creek, Arizona (now Colorado City), and its sister city Hildale, Utah, netted hundreds of residents, including 262 children, and "nearly broke the county in '53 putting all those people in jail," says Glenwood Humphries, chief deputy sheriff of Washington County, Utah. (Charges were eventually dropped.)Humphries told reporters last year that arresting polygamists these days is "like trying to arrest Indians for using peyote." It just isn't done anymore; since 1953, Utah has had fewer than 25 convictions for polygamy. But how many people have, like Roy Potter, lost their government jobs and been excommunicated by the Mormon church is unknown.