Mitt Romney’s “Freedom of Religion” Problem

The Reynolds? (photo: robfromamersfoort/flickr)

While the Catholic bishops have been shouting “Freedom of Religion” over the mandate for employers to cover contraception, Mitt Romney has been treading carefully. While Gingrich and Santorum have been vocal about religious freedom on the campaign trail, and Roy Blunt, John Boehner, and others have been equally vocal on Capitol Hill, Romney has tried to keep the religious freedom language measured and nuanced.

Maybe it’s because he knows his Mormon history.

When it comes to Supreme Court cases on religious freedom, the discussion starts with Reynolds v US (98 US 145) in 1878. George Reynolds was the secretary to Brigham Young, and fought the US in court for trying to prohibit him from living according to his religious beliefs — namely, practicing polygamy. Reynolds made exactly — exactly! the same argument that the USCCB and their partners are making now over contraception.

Let the record show that Reynolds lost.

Chief Justice Morrison Waite, writing for a unanimous court, put it like this:

[Having addressed all the other issues in the case,] the only question which remains is whether those who make polygamy a part of their religion are excepted from the operation of the statute. If they are, then those who do not make polygamy a part of their religious belief may be found guilty and punished, while those who do, must be acquitted and go free. This would be introducing a new element into criminal law. Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. Suppose one believed that human sacrifices were a necessary part of religious worship; would it be seriously contended that the civil government under which he lived could not interfere to prevent a sacrifice? Or if a wife religiously believed it was her duty to burn herself upon the funeral pile of her dead husband; would it be beyond the power of the civil government to prevent her carrying her belief into practice?

So here, as a law of the organization of society under the exclusive dominion of the United States [the then-territory of Utah], it is provided that plural marriages shall not be allowed. Can a man excuse his practices to the contrary because of his religious belief?

To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and, in effect, to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances.

As UMKC law professor Doug Linder lays out, the history of freedom of religion cases has ebbed and flowed since 1878. Even so, this part of Waite’s opinion has continued to resonate as later courts have wrestled with how the state can regulate religiously motivated behavior. The question, you will note, is “how” and not “if”. The position put forward by the USCCB in their sermons, letters, press releases, and testimony and by Roy Blunt in his legislation has been found unconstitutional repeatedly by successive Supreme Court cases, with rulings authored and supported by a wide range of justices.

But the more that folks like the Catholic bishops and Roy Blunt want to talk about contraception and religious freedom, the more likely it is that folks will be looking at George Reynolds and his two wives.

And the last thing Romney wants to do is for people to start to talk about polygamy.

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