Race Treason: The Untold Story of America's Ban on Polygamy

Martha M. Ertman, University of Maryland School of Law

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Abstract

Today’s ban on polygamy grew out of nineteenth century Americans’ view that Mormons committed two types of treason. First, antipolygamists charged Mormons with political treason by establishing a separatist theocracy in Utah. Second, they saw a social treason against the nation of white citizens when Mormons adopted a supposedly barbaric marital form, one that was natural for “Asiatic and African” people, but so unnatural for whites as to produce a new, degenerate species that threatened the project of white supremacy. This Article reveals how both kinds of treason provided the foundation of polygamy law through the discourse of legal, political and , medical “experts,” as well as, and most vividly, cartoons of the day. Most striking is the way that this discourse designated the overwhelmingly white Mormons as non-white as a means to justify depriving them of citizenship rights such as voting, holding office, and sitting on juries. It then suggests two theoretical perspectives to understand this process. First, anthropologist Edward Said’s concept of Orientalism helps explain how designating Mormons a subject race rendered their subjection inevitable. Second, Sir Henry Maine’s 1864 observation that the move of progressive societies is from status to contract reveals ways that antipolygamy discourse viscerally defended racial and sexual status just as contractual thinking gained ground in the decades after the Civil War, when wage labor replaced slavery and the partnership theory of marriage began to displace coverture. In either case, the Article contends, the racial foundations of American antipolygamy law require us to rethink our own often reflexive condemnation of the practice. It concludes by suggesting three questions to help us frame that inquiry: (1) what justifies antipolygamy law today; (2) whether current antipolygamy law associates polygamy with barbarism, foreignness, and people of color; and (3) whether it is coincidental that the plain language of the Defense of Marriage Act prohibits both polygamy and same-sex marriage.