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Joseph Smith/Polygamy/Essays/Illegal marriages in Ohio
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Did Joseph Smith violate marriage laws in Ohio by performing marriages?
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Questions
Did Joseph Smith violate marriage laws in Ohio by performing marriages?
To see citations to the critical sources for these claims, click here
Answer
Joseph did not knowingly violate marriage laws in Ohio, and seems to have used his prophetic gifts to spare victims of the nineteenth-century's legal and bureaucratic immaturity unnecessary suffering. The secular powers honored Joseph's marriages, and provided documentation to ratify his acts. As happens so often, critics condemn Joseph Smith and the early Saints without providing the proper context for their legal choices or moral actions. As we consider the wider implementation of plural marriage in Nauvoo, such context will become increasingly important.
Important introductory material on plural marriage available here
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Detailed Analysis
Plural marriage would eventually involve a complex collision of religious belief, secular law, and personal conscience. Many historians have presumed that Joseph Smith always had a cavalier attitude toward civil laws which conflicted with his marital concepts. Even before the broad implementation of plural marriage, critics point to marriages performed by Joseph in Ohio as evidence that he would readily violate secular laws.
As John Brooke put it:
- Specifically prohibited from performing the marriage ceremony by the local county court, Smith brushed aside a state-licensed church elder to perform the rites of marriage between Newel [Knight] and Lydia [Bailey] himself. She was not divorced from her non-Mormon husband, so this technically bigamous marriage also challenged a broader moral code…Over the next two months Joseph Smith performed five more illegal marriages.[1]
Brooke claims Joseph was forbidden to perform marriages, that he performed a bigamous marriage, and that he repeatedly disobeyed state marriage laws.
Michael Quinn makes the same type of claim when he opines that
- in November 1835 [Joseph] announced a doctrine I call “theocratic ethics.” He used this theology of justify his violation of Ohio’s marriage laws by performing a marriage for Newel Knight and the undivorced Lydia Goldthwaite without legal authority to do so…Theocratic ethics justified LDS leaders and (by extension) regular Mormons in actions which were contrary to conventional ethics and sometimes in violation of criminal laws.[2]
Quinn's introduction of the expression "theocratic ethics" is an excellent example of his regrettable tendency to coin an expression, and then proceed as if his act of definition proves that the phenomenon he has labeled actually exists.[3] In another context, one non-LDS reviewer of Quinn regretted this use of "rather artificial categories that acquire an aura of scholarly respectability through the magic of 'Quinnspeak.'"[4]
Quinn's vocabulary implies that Joseph was using a different sort of ethical standard as most people—and, the term "theocratic" is loaded, since it generally has negative associations. Quinn also makes the entirely unwarranted conclusion "by extension" that Joseph's supposed irregular actions meant that a "regular Mormon" would be likewise justified in following a novel ethical scheme.
Despite such confident claims, the historical record regarding Ohio marriages disagrees with this portrait in almost every particular.[5] Newel Knight, a young widower, wished to marry Lydia Bailey. Lydia was married to an abusive drunkard, who had abandoned her years before. Sidney Rigdon had been refused a license to marry as a Mormon minister, and so many concluded that Mormon elders would not receive state sanction to perform marriages.
Because Seymour Brunson had been a preacher prior to being a Mormon, he held a license to solemnize marriages. Brunson was thus about to perform the Knight-Bailey wedding. In what Van Wagoner calls "a bold display of civil disobedience,"[6] Joseph Smith stepped forward and announced that he would perform the marriage.
Illegal for Mormons to Perform Marriages?
On the surface, it appears that the critics are justified in arguing that Joseph had no right to perform marriages, and chose to do so anyway. Scott Bradshaw's research, however, found that refusing Rigdon permission to marry was "not justifiable from a legal point of view." Such a legal decision in Ohio "was rare in the 1830s, perhaps even unheard of."[7] The court's refusal to grant Rigdon a license to marry as a Mormon minister likely stemmed from religious prejudice.
The Knight-Bailey wedding was not illegal, since Newel Knight obtained a marriage license from the secular authorities. The state of Ohio did not contest Joseph's performance of the marriage, since it then issued a marriage certificate for the Knights' marriage. Joseph later performed other marriages in Ohio, and these couples likewise received marriage certificates after Joseph submitted the necessary paperwork.
A review of Ohio state law demonstrates that Joseph's decision to marry—and his prophesy that he had the right to marry, and that his enemies would never prosecute him for marrying—was correct. Ohio's 1824 marriage law stated that "a religious society…could perform marriages without a license so long as the ceremony was done ‘agreeable to the rules and regulations of their respective churches.’"[8]
The "rules and regulations" regarding marriage for the Church had been established since the publication of what was then D&C 101 in September 1835.[9] The Knight-Bailey wedding did not occur until 24 November 1835, and Joseph Smith surely had the authority to perform weddings in the Church if anyone did, especially since D&C 101 declared that marriage "should be performed by a presiding high priest, bishop, elder, or priest."[10]
When applying to the county clerk for marriage certificates of other marriages which he performed, Joseph specifically noted that they were solemnized "agreeably to the rules and regulations of the Church…on matrimony," a clear reference to the 1824 Ohio statute.
- REDIRECTPlural marriage and the law
See also
Gospel Topics: "Divorce was therefore available to women who were unhappy in their marriages"
"Plural Marriage and Families in Early Utah," Gospel Topics on LDS.org:
Church leaders recognized that plural marriages could be particularly difficult for women. Divorce was therefore available to women who were unhappy in their marriages; remarriage was also readily available.[11]
How were divorces formalized among Mormons on the frontier in the 19th century?
Some members of the Church remarried without obtaining a formal legal divorce
Some members of the Church remarried without obtaining a formal legal divorce. Was this adultery? Remarriage without a formal, legal divorce was the norm for the period, especially on the frontier and among the poor. These were the legal realities faced by nineteenth century Americans.
"Presentism" is an analytical fallacy in which past behavior is evaluated by modern standards or mores. Even worse than a historian's presentism is a historian exploiting the presentism of his readers. Critics do this repeatedly when they speak about legal issues. "Presentism," observed American Historical Association president Lynn Hunt, "at its worst, encourages a kind of moral complacency and self-congratulation. Interpreting the past in terms of present concerns usually leads us to find ourselves morally superior. . . . Our forbears constantly fail to measure up to our present-day standards." [12]
To remarry without a formal divorce was not an unusual thing in antebellum America
Louisa Rising married Edwin Woolley "without first divorcing her legal husband," the dust jacket of George D. Smith's Nauvoo Polygamy teases. We are reminded later that "though she was not divorced from her legal husband, she agreed to marry" (p. 345). Eleanor McLean also married Parley Pratt without divorcing her first husband. It appears that G. D. Smith hopes to capitalize on ignorance about nineteenth-century laws and practices regarding marriage and divorce. "From the standpoint of the legal historian," wrote one expert who is not a Latter-day Saint, "it is perhaps surprising that anyone prosecuted bigamy at all. Given the confusion over conflicting state laws on marriage, there were many ways to escape notice, if not conviction." [13] To remarry without a formal divorce was not an unusual thing in antebellum America.
Bigamy or, rather, serial monogamy (without divorce or death) was a common social experience in early America. Much of the time, serial monogamists were poor and transient people, for whom the property rights that came with a recognized marriage would not have been much of a concern, people whose lives only rarely intersected with the law of marriage. [14]
The legal apparatus for performing divorces was not always readily available
The Saints were often poor and spent most of their time on the frontier, where the legal apparatus of the state was particularly feeble. Women who had joined the church and traveled to Zion without their husbands were particularly likely to be poor, and also unlikely to be worried about property rights. Nor, not incidentally, were their husbands available for a formal divorce.
Does this mean that marriage in America was a free-for-all? Hardly, notes Nancy Cott:
When couples married informally, or reversed the order of divorce and remarriage, they were not simply acting privately, taking the law into their own hands. . . . A couple about to join or leave an intimate relationship looked for communal sanction. The surrounding local community provided the public oversight necessary. Without resort to the state apparatus, local informal policing by the community affirmed that marriage was a well-defined public institution as well as a contract made by consent. Carrying out the standard obligations of the marriage bargain—cohabitation, husband's support, wife's service—seems to have been much more central to the approbation of local communities at this time than how or when the marriage took place, and whether one of the partners had been married elsewhere before. [15]
It also should be remembered that because Joseph Smith, Brigham Young, and other Latter-day Saint leaders exercised exclusive jurisdiction over celestial or plural marriages, marriages conducted under their supervision had as much (or more) formal oversight as many traditional marriages in America during the first half of the nineteenth century. Critics of the Church offer us none of this information or perspective—with the result that some readers might be horrified by the "loose" marriage practices of the Saints.
Was it normal not to obtain a formal civil divorce in 19th century America?
To remarry without a formal divorce was not an unusual thing in pre-Civil War America
Some critics of Mormonism like to emphasize that some LDS members did not receive civil divorces before remarrying—either monogamously or polygamously. They either state or imply that this shows the Saints' cavalier attitude toward the law.
The Saints were often poor and spent most of their time on the frontier, where the legal apparatus of the state was particularly feeble. Women who had joined the church and traveled to Zion without their husbands were particularly likely to be poor, and also unlikely to be worried about property rights. Critics usually tell us nothing of all this—with the result that some credulous readers might be horrified by the "loose" marriage practices of the Saints. It also should be remembered that because Joseph Smith, Brigham Young, and other Latter-day Saint leaders exercised exclusive jurisdiction over celestial or plural marriages, marriages conducted under their supervision had as much (or more) formal oversight as many traditional marriages in America during the first half of the nineteenth century.
"From the standpoint of the legal historian," wrote one expert who is not a Latter-day Saint, "it is perhaps surprising that anyone prosecuted bigamy at all. Given the confusion over conflicting state laws on marriage, there were many ways to escape notice, if not conviction." [16]
Bigamy or, rather, serial monogamy (without divorce or death) was a common social experience in early America. Much of the time, serial monogamists were poor and transient people, for whom the property rights that came with a recognized marriage would not have been much of a concern, people whose lives only rarely intersected with the law of marriage. [17]
Nor, not incidentally, were their husbands available for a formal divorce.
Marriage in 19th century America was not a "free-for-all"
Does this mean that marriage in America was a free-for-all? Hardly, notes Nancy Cott:
When couples married informally, or reversed the order of divorce and remarriage, they were not simply acting privately, taking the law into their own hands. . . . A couple about to join or leave an intimate relationship looked for communal sanction. The surrounding local community provided the public oversight necessary. Without resort to the state apparatus, local informal policing by the community affirmed that marriage was a well-defined public institution as well as a contract made by consent. Carrying out the standard obligations of the marriage bargain—cohabitation, husband’s support, wife’s service—seems to have been much more central to the approbation of local communities at this time than how or when the marriage took place, and whether one of the partners had been married elsewhere before. [18]
Critical sources |
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Was polygamy illegal in Nauvoo in the 1840s?
Summary: Contrary to popular belief, the plural marriages in Illinois were not illegal under the adultery statutes of the dayDid Joseph Smith violate marriage laws in Ohio by performing marriages for members who had not received formal divorces?
Summary: Formal divorces from the government were not required. That said, the marriage which receives the most criticism—of Newel Knight and Lydia Bailey—could not have been improper, since it was conducted after obtaining a license from the secular authorities and because Lydia's husband (who had abandoned her) later proved to be dead at the time. Ohio law also allowed spouses to consider themselves divorced and to remarry three years after an abandonment.Notes
- ↑ John L. Brooke, The Refiner's Fire : The Making of Mormon Cosmology, 1644-1844 (Cambridge ; New York: Cambridge University Press, 1994), 212.
- ↑ D. Michael Quinn, The Mormon Hierarchy: Origins of Power (Signature Books, 1994), 88.
- ↑ For a critique of Quinn's concept of "theocratic ethics," see Dean C. Jessee, "Review of D. Michael Quinn's the Mormon Hierarchy: Origins of Power," Journal of Mormon History 22/2 (Fall 1996): 163–165. Jessee also treats the matter of Joseph Smith performing marriages in Ohio on pp. 166–167.
- ↑ Klaus J. Hansen, "Quinnspeak (Review of Same-Sex Dynamics among Nineteenth-Century Americans: A Mormon Example by D. Michael Quinn)," FARMS Review of Books 10/1 (1998): 132–140. off-site
- ↑ Unless otherwise indicated, the facts in this chapter are drawn from M. Scott Bradshaw, "Joseph Smith’s Performance of Marriages in Ohio," Brigham Young University Studies 39 no. 4 (2000), 7–22. See also William G. Hartley, "Newel and Lydia Bailey Knight’s Kirtland Love Story and Historic Wedding," Brigham Young University Studies 39 no. 4 (2000), 22–69.
- ↑ Richard S. Van Wagoner, Mormon Polygamy: A History (Salt Lake City: Signature Books, 1989), 7.
- ↑ Bradshaw, "Joseph Smith’s Performance of Marriages in Ohio," 43, 45.
- ↑ Ohio's "Act Regulating Marriages," (1824); cited in Hartley, "Newel and Lydia Bailey Knight’s Kirtland Love Story and Historic Wedding," 18.
- ↑ See Doctrine and Covenants (1835 edition), Section CI. . (In 1876, this section was eventually removed, and replaced with the plural marriage revelation as D&C 132.) We must remember that at this point in Church history, the concept of a "temple sealing" or "eternal" marriage was certainly not being taught, and may well not have even been known to Joseph Smith. All Church marriages at the time were what modern members would call "civil marriages," such as those performed by an LDS bishop today.
- ↑ Doctrine and Covenants (1835 edition), Section CI [DC 101꞉1].
- ↑ "Plural Marriage and Families in Early Utah," Gospel Topics on LDS.org (2013)
- ↑ Lynn Hunt, "Against Presentism," Perspectives 40/5 (May 2002); available online at http://www.historians.org/perspectives/issues/2002/0205/ (accessed 2 December 2008).
- ↑ Beverly J. Schwartzberg, "Grass Widows, Barbarians, and Bigamists: Fluid Marriage in Late Nineteenth-Century America" (PhD diss., University of California, Santa Barbara, 2001), 51–52.
- ↑ Hendrik Harlog, Man & Wife in America: A History (Cambridge, MA: Harvard University Press, 2000), 87.
- ↑ Nancy F. Cott, Public Vows: A History of Marriage and the Nation (Cambridge, MA: Harvard University Press, 2000), 37.
- ↑ Beverly J. Schwartzberg, "Grass Widows, Barbarians, and Bigamists: Fluid Marriage in Late Nineteenth-Century America" (Ph.D. diss., University of California, Santa Barbara, 2001), 51–52.
- ↑ Hendrik Harlog, Man & Wife in America: A History (Cambridge, MA: Harvard University Press, 2000), 87
- ↑ Nancy F. Cott, Public Vows: A History of Marriage and the Nation (Cambridge, MA: Harvard University Press, 2000), 37.
Notes