Affidavit of Matthew Davies, PHD, Disputing Dr. Beall

CURRICULUM VITAE
Matthew V. Davies
5383 South 900 East, Suite 290

Murray, Utah 84117
(801) 263-3335 Fax (801) 263-2845
drmattdavies@msn.com
drmattdavies.com
EDUCATION
Ph.D. University of Utah, Department of Educational Psychology,

Specialization in Counseling/Child Psychology
(APA Approved) Awarded August, 1985
M.S. University of Utah, Department of Educational Psychology,

Counseling Psychology (APA Approved) Awarded June,
1982
B.S. University of Utah, Department of Psychology, Major in

Psychology Awarded June, 1979
ACADEMIC HONORS AND AWARDS
1979 Magna Cum Laude; National Dean's List

1978-present Member, Phi Kappa Phi Honor Society
1975-76 Honors at Entrance Scholarship, University of Utah
PROFESSIONAL EXPERIENCE
1991 to present Private Practice, Family, Adolescent, Child Treatment

Services, Salt Lake City, Utah.
1994 to 1997,
2001 to present Consulting Psychologist, Third District Juvenile Court, Salt
Lake City, Utah.
1997 to 1999 Consulting Psychologist, Copper Hills Youth Center, Salt
Lake City, Utah.
1992 to 1999 Affiliate Staff Psychologist, CPC Olympus View Hospital,
Salt to Lake City, Utah.
1989 to present Consulting Psychologist, Utah State Division of Juvenile
Justice Services, Salt Lake City, Utah.
Curriculum Vitae
Matthew Davies, Ph.D.
Page 2
1990 to 1994 Consulting Psychologist, First Friends Daycare, Salt Lake

Veterans Administration Medical Center, Salt Lake City,
Utah.
1989 to 1994 Affiliate Staff Psychologist, Charter Summit Hospital,
Midvale, Utah.
1987 to 1991 Staff Psychologist, The Children's Center, Salt Lake City,
Utah.
1986 to 2003 Private Practice, Associated Behavior Consultants, Salt
Lake City, Utah.
1986 to 2003 Staff Psychologist, Lakeview Hospital, Bountiful, Utah.
1986 to 1987 Child Psychology Resident, Pathways Outpatient Clinic, St.
Benedict's Hospital, Ogden, Utah.
1986 Child Psychology Resident, Associated Behavior
Consultants, Salt Lake City, Utah.
1986 to present Consulting Psychologist, Division of Juvenile Justice
Services, Utah Dept of Human Services
1985 to 1986 Postdoctoral Resident, The Children's Center, Salt Lake
City, Utah.
1984 to 1985 Therapist, The Children's Center, Salt Lake City, Utah.
1983 to 1984 School Psychologist, Jordan School District, Sandy, Utah.
1982 to 1983 Psychology Intern, Veterans Administration Medical Center,
Salt Lake City, Utah. (APA Approved Internship)
1981 to 1982 Therapist, The Children's Center, Salt Lake City, Utah.
1981 to 1982 Graduate Teaching Assistant, Department of Educational
Psychology, University of Utah.
1979 to 1981 Assistant Therapist, The Children's Center, Salt Lake City,
Utah.
COURT EXPERIENCE*
Sept., 2003 Expert Witness, Fifth Judicial District Court, St. George,
Utah
Oct., 2001 Expert Witness, First Judicial District Court, Logan, Utah
July, 2001 Expert Witness, Fourth Judicial District Court, Provo, Utah
June, 2001 Expert Witness, Arizona Superior Court, Mojave County,
Kingman, Arizona
Jan., 1994 Expert Witness, Eighth District Judicial Court, Great Falls,
Montana.
Curriculum Vitae
Page 3
Jan., 1992 Expert Witness, Second District Judicial Court, Ogden, Utah
July, 1991 Expert Witness, Second District Juvenile Court, Farmington,
Utah
Sept., 1991 Expert Witness, Second District Judicial Court, Farmington,
Utah
Jan., 1989 Expert Witness, Third District Judicial Court, Salt Lake City,
Utah
March, 1989 Expert Witness, Fourth Judicial District Court, Price, Utah
June, 1987 Expert Witness, Third District Juvenile Court, Salt Lake City,
Utah
PROFESSIONAL AFFILIATIONS
NOJOS Approved Evaluator, 2007

Member, Utah Council on Conflict Resolution, March 2004
Member, Children and Family Law Standing Committee, Utah State Administrative
Office of the Courts Judicial Council, June 2000 to June 2002
Chair, Children and Family Law Custody Subcommittee, Children and Family Law
Standing Committee, June 2000 to June 2002
Member, Association of Family and Conciliation Courts, 1998
Member, Sex Offender Evaluation Task Force, Dept. of Youth Corrections, State of
Utah, December, 1996
Member, Utah Psychological Association, 1986-2004
Member, American Psychological Association, 1986-1998
Licensed Psychologist, State of Utah, 1986 to present
DISSERTATION AND THESIS
Davies, M.V., The relationship of narcissistic vulnerability to academic

achievement. Unpublished dissertation. University of Utah,
1985.
Davies, M.V. The estimated reliability of the Plenk Storytelling Test.
Unpublished thesis. University of Utah, 1982.
PUBLICATIONS, PRESENTATIONS AND MANUSCRIPTS
June, 2010 Workshop Presenter/Faculty Member, Best interest parent

time schedules: the intersection of developmental needs and
parenting style. Association of Family and Conciliation
Courts 47th Annual Conference, Denver, Colorado.
Curriculum Vitae
Page 4
June, 2010 Presenter/Faculty Member, Healthy sexual development in

children and adolescents. University of Utah School of
Social Work Summer Institute Salt Lake City, Utah.
June, 2009 Presenter/Faculty Member, Assessment of juvenile sex
offenders, University of Utah School of Social Work Summer
Institute Salt Lake City, Utah.
Nov., 2007 Invited presentation, Custody evaluations involving children
with special needs. Presented to District Court
Commissioner Education Conference, Salt Lake City, Utah.
Sept., 2006 Invited presentation, Getting what you want (and need) from
a psychological evaluation. Presented to Utah State
Guardian Ad Litem Training Seminar, Guardian Ad Litem
Office, Salt Lake City, Utah.
June, 2006 Workshop Presenter/Faculty Member, Topography of style
and the myth of objectivity: influences on the custody
evaluation process. Association of Family and Conciliation
Courts 43rd Annual Conference, Tampa Bay, Florida.
Jan., 2001 Invited presentation, Interviewing children and using custody
& evaluations as a volunteer Guardian Ad Litem. Presented to
Feb., 2002 volunteer Guardian Ad Litem Training, Utah State Guardian
Ad Litem Office, Salt Lake City, Utah.
Jan. 2001 Invited presentation (yearly), Crafting developmentally
to appropriate access schedules in mediation. Presented in
Nov. 2004 conjunction with Utah Dispute Resolution mediator training.
Salt Lake City, Utah.
(Presentations, Publications and Manuscripts prior to 2004 are available on request).
PROFESSIONAL SEMINARS/CONTINUING EDUCATION
May, 2010 Sexually explicit material among today’s youth. David

Burton, Ph.D., NOJOS Clinical Intensive Training, Snowbird,
Utah.
Feb., 2010 MMPI-2-RF: Introduction and interpretation. Paul A. Aribisi,
Ph.D., Utah Psychological Association, Salt Lake City, Utah
Oct., 2009 Legal and ethical risks and risk management in professional
psychological practice. Jeffrey N. Youngren, Ph.D., ABPP,
Utah Psychological Association, Salt Lake City, Utah.
May, 2009 Evidence supported treatment for abused and traumatized
children, Benjamin Saunders, Ph.D., NOJOS Clinical
Intensive Training, Snowbird, Utah.
May, 2009 Family resolution therapy in cases of child abuse, Benjamin
Saunders, Ph.D., NOJOS Clinical Intensive Training,
Snowbird, Utah.
Curriculum Vitae
Page 5
Sept., 2008 The many faces of domestic violence: the impact on the
family.17th Annual Utah domestic Violence Conference, Utah
Domestic Violence Council, Salt Lake City, Utah.
Feb., 2008 Advanced issues in parent coordination: functional co-
parenting for high conflict families. Matthew J. Sullivan,
Ph.D. AFCC Regional Training Conference, Dallas, Texas.
Oct., 2007 Understanding current research and providing best practice
with adolescent sex offenders, David S. Prescott, LICSW,
NOJOS, St. George, Utah.
Oct., 2007 Anxiety and OCD: early recognition and effective
intervention. Aureen Pinto Wagner, Ph.D., UASP
Conference, Salt Lake City, Utah.
Sept., 2007 Legal and ethical risks and risk management in professional
psychological practice. Jeffrey N. Youngren, Ph.D., ABPP,
Utah Psychological Association, Salt Lake City, Utah.
June, 2006 Juggling conflicts, crises and clients in family court.
Association of Family and Conciliation Courts 43rd Annual
Conference, Tampa Bay, Florida.
May, 2006 Assessment and treatment of juveniles who offend sexually.
Geral Blanchard, LPC, Utah Network on Juveniles Offending
Sexually, Salt Lake City, Utah.
Feb., 2006 Recent advances in attachment research: implications for
assessment and therapeutic work. Bridging the Gap
Symposia sponsored by The Children's Center, Salt Lake
City, Utah.
Nov., 2005 Optimizing ADHD treatment: subtypes and co-morbidity.
Russell Barkley, Ph.D. United Behavioral Health
Teleconference, Salt Lake City, Utah.
Sept., 2005 Testifying in court: surviving cross-examination. Honorable
William Fee, Phillip Stahl, Ph.D., Judith Stimson, J.D. AFCC
Regional Training Conference, Breckenridge, Colorado.
Sept., 2005 A practical, research-based approach to evaluating the re-
location case. William Austin, Ph.D. AFCC Regional Training
Conference, Breckenridge, Colorado.
Sept., 2005 Forensic interpretation of psychological testing in child
custody evaluations. Jonathan Gould, Ph.D. AFCC Regional
Training Conference, Breckenridge, Colorado.
Sept., 2005 Innovative custody evaluation models. Pamela Gagel, J.D.,
Honorable Lael Montgomery, Theresa Spahn, J.D. AFCC
Regional Training Conference, Breckenridge, Colorado.
May, 2005 Attachment and sexual offending: Understanding and
applying attachment theory to the treatment of juvenile
sexual offenders. Phil Rich, Ed.D., MSW, Utah Network on
Juveniles Offending Sexually, Salt Lake City, Utah.
Curriculum Vitae
Page 6
April, 2005 ADHD in children. Russell Barkley, Ph.D. United Behavioral

Health Teleconference, Salt Lake City, Utah.
Feb., 2005 Attention deficit hyperactivity disorder in children and
adolescents. Russell Barkley, Ph.D. Utah Association of
School Psychologists, Salt Lake City, Utah.
City, Utah.
Dec., 2004 Diagnostic and treatment issues in pediatric bipolar disorder.
Kiki Chang, MD., United Behavioral Health Teleconference,
July, 2004 Custody evaluation critique and assessment. Phillip Stahl,
Ph.D. American Bar Association Teleconference, Salt Lake
City, Utah.
April, 2004 Psychopharmacology: clinical update. Morgan Sammons,
Ph.D. Utah Psychological Association, Salt Lake City, Utah.
City, Utah.
Sept., 2002 The impact of witnessing and experiencing violence in the
developing child. Christine Ludy-Dobson, Ph.D., Utah
Domestic Violence Advisory Council Annual Treatment
Providers Conference, Provo, Utah.
Sept., 2002 Evidence in child abuse and neglect cases. John E.B.
Myers, Utah State Guardian Ad Litem Training, Park City,
Utah.
Nov., 2001 MMPI-2 and child custody evaluations. Alex B. Caldwell,
Ph.D., The Caldwell Report, Los Angeles, California
Nov., 2001 Basic and domestic mediation training. William Downes,
Esq. and Sue Petty, MS. Utah Dispute Resolution Center,
April, 2000 Recent advances in attachment research: implications for
assessment and therapeutic work. Miriam Steele, Ph.D.
Bridging the Gap Symposia sponsored by The Children's
Center, Salt Lake City, Utah.
Jan., 2000 New directions in infant mental health. Robert Emde, M.D.
Bridging the Gap Symposia sponsored by The Children's
Center, Salt Lake City, Utah.
(Professional Seminars/Continuing Education prior to 2000 are available on request)

Curriculum Vitae
Page 7
CLINICAL REFERENCES
Douglas Goldsmith, Ph.D., Executive Director, The Children Center, 1855 Medical
Circle, Salt Lake City, Utah 84112.
Eric Nielsen, D.S.W., Associated Behavior Consultants, 2040 East Murray-Holladay

Road, Suite 211, Salt Lake City, Utah 84117
Monica Christy, Ph.D., 5383 S 900 E, Suite 290, Murray, Utah 84117
*Date first qualified as expert. Dates of additional appearances available on request.

Bibliography
Anderson, S. The Polygamists, National Geographic Magazine, February 2010.
Arizona: The Great Love-Nest Raid. Time Magazine, August 3, 1953.
Vanden Auweele, Y., Opdenacker, J., Vertommen, T., Boen, F., Van Niekerk, L., De Martelaer,
K. and De Cuyper, B. (2008). Unwanted sexual experiences in sport: Perceptions and reported
prevalence among Flemish female student-athletes’, International Journal of Sport and Exercise
Psychology, Special Issue: Abuse and Harassment in Sport Implications for the Sport
Psychology Profession (Edited by T. Leahy), 16(4): 354-365.
Batchelor, M., Watson, M. & Wilde, A. (2000). Voices in harmony: contemporary women
celebrate plural marriage. Principle Voices, Salt Lake City, Utah.
Craven, S., Brown, S., Gilchrist, E., (2006). Journal of Sexual Aggression, (12), 3, p287-299.
Diagnostic and Statistical Manual of Mental Disorders DSM-IV-TR Fourth Edition (Text
Revision). (2000). American Psychiatric Publishing: Arlington, VA
Dohrenwend, B.P., Turner, J.B., Turse, N.A., Adams, B.G., Koen, K.C., Marshall, R. The
psychological risk of Vietnam for U.S. veterans: A revisit with new data and methods. Science.
2006; 313(5789):979-982.
Elliot, A. J., & Devine, P. G. (1994). On the motivational nature of cognitive dissonance:
Dissonance as psychological discomfort. Journal of Personality and Social Psychology, 67, 382-
394.
Erikson, E. H. (1950). Childhood and society. Norton: New York.
Festinger, L. (1957). A theory of cognitive dissonance. Stanford University, Stanford, Calif.
Festinger, L., Riecken, H. W., & Schachter, S. (1956). When prophecy fails. Minneapolis:
University of Minnesota Press.
Gross, F. L. (1987). Introducing Erik Erikson: An invitation to his thinking. University Press of
America: Lanham, MD.
Jessop, C. & Palmer, L. (2007). Escape. Broadway Books: New York
Mauss, Armand L. The angel and the beehive: the Mormon struggle with assimilation
Fazio, R., & Cooper, J. (1983). Arousal in the dissonance process. In J. Cacioppo & R. Petty
(Eds.), Social psychophysiology: A sourcebook (pp. 122-152). New York: Guilford Press.
Higgins, E. (1987). Self-discrepancy: A theory relating self and affect. Psychological Review,
94, 319-340.
Higgins, E., Rhodewalt, F., & Zanna, M. (1979). Dissonance motivation: Its nature, persistence,
and reinstatement. Journal of Experimental Social Psychology, 15, 16-34.
Kaiser Family Foundation, Generation M2: Media in the Lives of 8- to 18-Year-Olds, January
2010.
Kessler, R.C., Chiu, W.T., Demler, O., Walters, E.E. (2005). Prevalence, severity, and
comorbidity of twelve-month DSM-IV disorders in the National Comorbidity Survey
Replication (NCS-R). Archives of General Psychiatry, Jun;62(6):617-27.
Losch, M., & Cacioppo, J. (1990). Cognitive dissonance may enhance sympathetic tonis, but
attitudes are changed to reduce negative affect rather than arousal. Journal of Experimental
Social Psychology, 26, 289-304.
Nietzsche, F. Twilight of the Idols, 1888
* 2 years ago
Religion: Polygamy Battle. Time Magazine, January 23, 1956.
Reyna, V. F. (2004). How people make decisions that involve risk: A dual processes approach.
Current Directions in Psychological Science, 13, 60 –66.
Reyna, V., & Farley, F. (2006). Risk and rationality in adolescent decision making: implications
for theory, practice, and public policy. Psychological Science in the Public Interest, 7(1), 1–44.
Spano, S. (2003). Adolescent Brain. Youth Studies Australia, 22, 36-39.
The Polygamists. National Geographic Magazine, February 2010.
Zanna, M., Higgins, E., & Taves, P. (1976). Is dissonance phenomenologically aversive? Journal
of Experimental Social Psychology, 12, 530-538.
Wright, J. Eugene (1982). Erikson: Identity & Religion. Seabury Press: New York
Teachings of the Prophet Joseph Smith (Salt Lake City: Deseret Book Company, 1963), 346-
347.
Kessler RC, Chiu WT, Demler O, Walters EE. Prevalence, severity, and comorbidity of
twelve-month DSM-IV disorders in the National Comorbidity Survey Replication (NCS-R).
Archives of General Psychiatry, 2005 Jun;62(6):617-27.
Dohrenwend BP, Turner JB, Turse NA, Adams BG, Koen KC, Marshall R. The psychological
risk of Vietnam for U.S. veterans: A revist with new data and methods. Science. 2006;
313(5789):979-982.
Stanford Law Review
Once a Peculiar People: Cognitive Dissonance and the Suppression of Mormon Polygamy As a
Case Study Negating the Belief-Action Distinction
Author(s): Elizabeth Harmer-Dionne
Source: Stanford Law Review, Vol. 50, No. 4 (Apr., 1998), pp. 1295-1347
Published by: Stanford Law Review
Stable URL: http://www.jstor.org/stable/1229287
Accessed: 10/10/2010 13:36
Your use of the JSTOR archive indicates your acceptance of JSTOR's Terms and Conditions of Use, available at
http://www.jstor.org/page/info/about/policies/terms.jsp. JSTOR's Terms and Conditions of Use provides, in part, that unless
you have obtained prior permission, you may not download an entire issue of a journal or multiple copies of articles, and you
may use content in the JSTOR archive only for your personal, non-commercial use.
Please contact the publisher regarding any further use of this work. Publisher contact information may be obtained at
http://www.jstor.org/action/showPublisher?publisherCode=slr.
Each copy of any part of a JSTOR transmission must contain the same copyright notice that appears on the screen or printed
page of such transmission.
JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of
content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms
of scholarship. For more information about JSTOR, please contact support@jstor.org.
Stanford Law Review is collaborating with JSTOR to digitize, preserve and extend access to Stanford Law
Review.
http://www.jstor.org
NOTES
Oncea PeculiarPeople:Cognitive
Dissonanceandthe Suppressionof
MormonPolygamyAs a Case Study
Negatingthe Belief-ActionDistinction
ElizabethHarmer-Dionne*
In this note, Elizabeth Harmer-Dionne argues that the suppression of re-
ligious practice, under the guise of the Smith neutrality principle, actually
changes belief and that this comes dangerously close to violating the Free Exer-
cise Clause, which purportedly holds belief sacrosanct. Ms. Harmer-Dionne
reviews the history of Mormon polygamy and contrasts the once prominent po-
sition ofpolygamy with current Latter-day Saint theology, which largely ignores
the practice. According to Ms. Harmer-Dionne, this change accords with pre-
dictions made by cognitive dissonance theory and law and economics as to the
effects of external sanctions and pressures on belief. Consequently, she argues
that meaningful free exercise requires strict scrutiny of governmental actions
that outlaw unpopular religious behavior, particularly when that behavior has
no demonstrably detrimental societal effects.
To some extent this is a personal essay. I am a practicing Mormon

whose grandmotherregaled me with stories of the polygamous ancestors
who peopled her childhood. Like most Mormons,I have a general sense of
the early history of the Churchof Jesus Christof Latter-daySaints (the "LDS
Church"):its founders,forced removalto Mexican territory(now Utah), and
ultimatesurvival. Like most Mormons,I had no idea how centralpolygamy'
* Associate,Testa,Hurwitz& Thibeaultin
Boston,Mass. J.D., StanfordLaw School, 1998;
M.Phil.,Universityof Cambridge,1994; B.A., Wellesley College, 1992. I would like to thank
ProfessorThomasGreyandthe membersof the StanfordLegal StudiesColloquium,andProfessor
MitchPolinskyand the membersof his Law and EconomicsSeminar,all of whom offereduseful
criticismof the ideas containedin this note;MatthewWerdeger,EricaFranklin,JessicaGonzalez,
and the membersof the StanfordLaw Reviewfor theireditingand researchassistance;the many
Latter-daySaintswho have informedand nurturedmy faith;Johnand CarolynHarmerand Keith
Dionne for theirunfailingsupport;and finally, ClaudiaCannonJonas,in whose memoryI write
this.
1. Webster'sThirdNew InternationalDictionarydefines"polygamy"as "a marriageformin
whicha spouseof eithersex maypossessa pluralityof matesat the sametime." WEBSTER'S THIRD
1295
1296 STANFORD
LAWREVIEW [Vol. 50:1295
once was to the theology of the LDS Churchor of the civil disabilities im-
posed on its practitioners,persecutionswhich fully matchedthose that drove
the Latter-daySaints from the United States in the first place.2
As I have studied law and economics, American legal history, the soci-
ology of religion, and the First Amendment, the distinction made by the
United States Supreme Court between belief and action in the practice of
religion has appearedto me to be increasingly untenable. Many scholars
have written about both Reynolds v. UnitedStates3and the belief-action dis-
tinction,4but few outside the Mormon community can truly appreciatethe
impact that decision has had on Mormonbelief. As a Mormon practitioner
studying my own religion, I ponder how the SupremeCourt's role in Mor-
mon history influences its present theology. This essay representsmy at-
tempt to highlight an inherentconflict at the root of much free exercise juris-
prudence. To paraphraseJonathanBoyarin,sthis note also representsan at-
tempt both to be a practicingMormon and to practice being a Mormon-to
considermy beliefs in a systematicway.
INTRODUCTION
I was not alone in feeling palpableshock that the United States Supreme
Court favorably cited Reynolds in its controversialdecision in Employment
Division v. Smith.6 In a written statementto the House committee consider-
NEWINTERNATIONAL
DICTIONARY
1758 (1993). The relevant cases and literature actually use the
term"polygamy"to referto marriagebetweenone man and multiplewomen. I will use the term
accordingly.
2. The officialnameof the MormonChurchis the Churchof JesusChristof Latter-daySaints.
The term"saint"indicates"onewho wouldfollow Christ,"muchas Paulused the termin the New
Testament.See Romans1:7; 1 Corinthians1:2 (KingJames). Membersof the LDS Churchprefer
to be knownas Latter-daySaints. We areknowncolloquiallyas "Mormons," a namederivedfrom
one of ourbooksof scripture,TheBookof Mormon.I will use MormonandLatter-daySaintinter-
changeablythroughoutthispaper.
3. 98 U.S. 145 (1878) (denyingMormonsan exemptionfroma federallaw prohibitingpolyg-
amy).
4. See id. at 166 ("Lawsaremadefor the governmentof actions,andwhile they cannotinter-
ferewith merereligiousbelief andopinions,theymaywithpractices.").
5. See JONATHAN
BOYARIN,STORMFROMPARADISE:THEPOLITICS
OFJEWISHMEMORYat
ix (1992).
6. 494 U.S. 872 (1990) (holdingthatthe Free ExerciseClausedid not mandatean exception
froma generallyapplicableOregondruglaw for the sacramental use of peyote). The historyof and
decisionin Reynoldsare discussedin greaterdetailin text accompanyingnotes 202-231 infra. In
general,scholarshaveroundlycriticizedthe decision. See, e.g., KeithJaasma,Note, TheReligious
Freedom Restoration Act: Responding to Smith; Reconsidering Reynolds, 16 WHITTIER
L. REV.
211, 251-54 (1995) (summarizingthe criticismandjudicialunderminingof the Reynoldsdecision);
Orma Linford, The Mormons and the Law: The Polygamy Cases, 9 UTAH L. REV. 308, 340-41
(1964) (criticizingthe Reynoldsdecision for its lack of balanceand failureto adequatelyjustify
secularrationalesfor banningpolygamy);JeremyM. Miller,A Critiqueof the ReynoldsDecision,
11 W. ST. U. L. REV.165, 165 (1984) (arguingthatReynolds'actionswere exactly the types of
behavior that should be protected by the Free Exercise Clause); Rodney K. Smith, Getting
Off on
April1998] MORMONPOLYGAMY 1297
ing the Religious Freedom RestorationAct in 1991, Edward Gaffney, Jr.,

Dean of ValparaisoUniversity School of Law, comparedthe government's
treatmentof the Mormons to "the sort of dictatorialrule that one associates
with Henry VIII's dissolution of the monasteriesin sixteenth century Eng-
land, . . . not with the spirit of the First Amendment."7 Professor Douglas
Laycock has written that the antipolygamylaws were central to one "of the
worst persecutionsin our Nation's history."8 Even Justice Souter has ques-
tioned the historical understandingof the Free Exercise Clause adopted by
the Court in Smith and Reynolds.9 And yet the Court in Smith affirmatively
approveda decision thatupheld an oppressivelaw.
The First Amendment to the United States Constitutionstates, in part,
"Congressshall make no law respectingan establishmentof religion, or pro-
hibiting the free exercise thereof . . ."10 The meaning of the second clause
has fueled many First Amendmentdebates. According to ProfessorMichael
McConnell, the free exercise debate divides between two different concep-
tions of what religious freedom requires.11The first-the no-exemptionpo-
sition-argues that the Free Exercise Clause requires only that society and
the law not single out religion for discriminatoryor oppressive treatment.'2
In other words, formal neutralitysatisfies free exercise demands. The sec-
ond-a position favoring exemptions for religions-insists that formal neu-
tralitymay mask de facto discrimination: "The evil includes not only active
hostility, but also majoritarianpresuppositions,ignorance, and indifference.
The remedy generally is to leave the governmentpolicy in place, but to carve
out an exemption when the applicationof the policy impinges on religious
practices without adequatejustification."13This position favors strict scru-
tiny of laws that burden religion and requires the government to justify a
compelling interestbefore the particularlaw is upheld.
Caught in the midst of this debate are the religious practitionerswhose
fundamentalbeliefs and religious practicesbecome entangledin free exercise
the WrongFoot and Backon Again:A Reexamination of theHistoryof the Framingof the Religion
Clausesof the First Amendment and a Critiqueof the Reynoldsand EversonDecisions,20 WAKE
FOREST L. REV.569, 635-36 (1984) (statingthatthe Reynoldsdecisionmisconstruedthe intentions
of the framersof the FirstAmendment).
7. ReligiousFreedomRestorationAct of 1991: Hearingson H.R. 2797 Beforethe Subcomm.
on Civil and ConstitutionalRightsof the House Comm.on the Judiciary, 102d Cong. 153 (testi-
monyof EdwardMcGlynnGaffney,Jr.).
8. TheReligiousFreedomRestorationAct. Hearingson S. 2969 Beforethe SenateComm.on
theJudiciary,102dCong.63 (1993) (statementof Prof.DouglasLaycock).
9. See Churchof the LukumiBabaluAye, Inc. v. City of Hialeah,508 U.S. 520, 571-77
(1993) (Souter,J., concurring).
10. U.S. CONST. amendI.
11. See MichaelW. McConnell,TheOriginsand HistoricalUnderstandingof Free Exercise
of Religion,103 HARV.L. REV.1409, 1418(1990).
12. See id.
13. Id.
1298 LAWREVIEW
STANFORD [Vol. 50:1295
theory. When constitutionalwinds blow adversely, they wreak havoc with

civil liberties and individuallives. Among the most severely abused victims
of the free exercise debate were the nineteenth-centuryMormons who at-
temptedto build a latter-dayZion-survivors of an ambitiousbut ultimately
doomed attempt to circumvent the state and establish a religiously based
system of substantivejustice.14 Their history illustrateshow a hostile legal
environmentcan suppressa minoritycommunitythat attemptsto establish a
distinctivesocial structure.15EstablishingZion includedrestoringpolygamy,
an ancient orderof marriagein which one man took several wives.16 Despite
contemporaneousargumentsto the contrary,polygamy met any measure or
test of religious belief. Yet to gentiles17polygamy representeda bizarrere-
version to barbarismand provided a powerfuljustification for stamping out
the secularpower of the LDS Church.
The question of polygamy is not merely a historical one. Both African
Christiansand Moslems may currentlyengage in the practice.18But, despite
religious motivations for practicingpolygamy, they enjoy no constitutional
protectionin this countryfor doing so. As recently as 1984, a United States
districtcourt ruled that the Free Exercise Clause does not protectthe practice
of polygamy. In Potter v. MurrayCity,19the court upheld a Utah city's dis-
charge of a policeman for violating the state's antibigamylaw.20 The court
noted "a vast and convoluted network of other laws clearly establishing
[Utah's] compelling state interestin and commitmentto a system of domes-
tic relationsbased exclusively upon the practiceof monogamy as opposed to
plural marriage."21For good measure,the court reaffirmedthe belief-action
distinction first enunciatedin Reynolds: "Freedomto believe or not to be-
lieve is absolute. Freedom to act, however, is not absolute but limited or
qualified by the power of the state within reasonablelimits to protect society
14. See text accompanyingnotes 190-201infra.

15. See EDWINBROWNFIRMAGE
& RICHARDCOLLINMANGRUM,ZIONIN THECOURTS:A
LEGALHISTORYOFTHECHURCHOFJESUSCHRISTOFLATTER-DAY SAINTS,1830-1900 at xiv-xv
(1988).
16. See textaccompanyingnotes 159-179infra.
17. Mormonsuse the term"gentile"muchas Jews do-namely, to identifythose not consid-
eredto be covenantchildrenof God.
18. See JOHNCAIRNCROSS, AFTERPOLYGAMY WAS MADEA SIN: THESOCIALHISTORYOF
CHRISTIAN POLYGAMY 213 (1974). According to the Koran, a man may marry up to four women,
so long as he treats them all equally. See Miller, supra note 6, at 179. The Manusmriti, the book of
Hindu laws, also allows polygamy. See id. For a discussion of the problems faced by non-Western
immigrants confronting Protestant American culture, see generally Bill Ong Hing, Beyond the
Rhetoricof Assimilationand CulturalPluralism:Addressingthe Tensionof Separatismand Con-
flict in an Immigration-Driven
MultiracialSociety,81 CAL. L. REV. 863 (1993).
19. 585 F. Supp. 1126 (D. Utah 1984), aff'd, 760 F.2d 1065 (10th Cir. 1985).
20. See id. at 1142-43.
21. Id. at 1138. The court did not address the circularity of the argument that declaratory laws
establish a compelling state interest, thereby permitting similar laws to pass constitutional review.
April 1998] MORMONPOLYGAMY 1299
pursuantto a compelling state interest."22On appeal,the Tenth Circuitfound

that monogamy met the compelling interest test and affirmed the lower
court's grant of summaryjudgment in favor of the city.23 The court offered
no explanationas to why particularizedfree exercise exemptions would have
endangeredthe state interestin monogamy or why there was not a less bur-
densome way to achieve this interest.24
From its inception in Sherbertv. Verner,25the compelling interest doc-
trine has faced a strong challenge in free exercise cases.26 Recently, the Su-
preme Court has in principal opposed religious exemptions from neutral,
generally applicable laws. Since 1972, the Supreme Court has rejected all
claims for free exercise exemptions outside the context of unemployment
benefits as addressedin Sherbert.27In 1990, the Court formalizedits objec-
tion to religious exemptions,ruling in Smiththat a neutral,generally applica-
ble law that incidentally forbids the performanceof a religiously required
act-in this case, the sacramentalingestion of peyote-does not violate the
Free Exercise Clause of the FirstAmendment.28
Nonetheless, proponents of religious exemptions and a vigorous Free
Exercise Clause press forward. One argumentfavoring exemptions from
neutral,generally applicable laws is that such was the understandingof the
framersof the First Amendment. Professor McConnell notes, "Even oppo-
nents of originalismgenerally agree that the historicalunderstandingis rele-
vant . . .."29 He admits that the historical evidence around an interpretation
of the Free Exercise Clause favoring exemptions is not entirely dispositive,
22. Id. at 1137.

23. See Potterv. MurrayCity,760 F.2d 1065, 1071(10thCir. 1985).
24. See PenelopeW. Saltzman,Potterv. MurrayCity: AnotherInterpretationof Polygamy
and the First Amendment,1986 UTAHL. REV.345, 352. But see Barlowv. Blackburn,798 P.2d
1360, 1365-67(Ariz. Ct. App. 1990) (recognizinga free exerciseinterestin the practiceof polyg-
amy, but holdingthata state'sinterestin ensuringthatits police officersupholdthe laws andCon-
stitutionoverridesthatinterest). Some modemcourtsare sufficientlybroad-minded to believe that
the practiceof polygamydoes not handicapall civil rights. See Johnsonv. Fischer(In re Adoption
of W.A.T.),808 P.2d 1083, 1086 (Utah 1991)(suggestingthatpolygamousparentsmay at timesbe
an appropriate adoptionplacementchoice andholdingthatthe practiceof polygamyby a potential
adoptivecouplewas an insufficientbasis for denyinga hearingon an adoptionpetition);Sanderson
v. Tryon,739 P.2d 623, 627 (Utah1987)(holdingthatthe practiceof polygamyalonewas an insuf-
ficientgroundfordecidinga custodyissue).
25. 374 U.S. 398 (1963).
26. See id. at 403 (adoptingthe compellinginterestdoctrine,which mandatesthat the gov-
ernmentprovea compellingstateinterestthatcannotbe achievedby less burdensomemeansbefore
implementinggovernmentalactionthateffectivelysuppressesreligiouspractice).
27. See McConnell,supranote 11, at 1417;see also MarciA. Hamilton,TheBelief/Conduct
Paradigmin the SupremeCourt'sFree ExerciseJurisprudence: A TheologicalAccountof the Fail-
ure to ProtectReligiousConduct,54 OHIOST. L.J. 713, 714, 770 (1993) (depictingthe Supreme
Court'svision of the religiousexperienceas one involvingfaith,not action,andthereforejustifying
the suppressionof religiousactionin favorof socialcohesion).
28. See EmploymentDiv. v. Smith,494 U.S. 872, 878 (1990).
29. McConnell,supranote 11, at 1415.
1300 STANFORD
but insists that the evidence supportsan interpretationthat protects religious

conduct.30
One may also make a libertarianargumentfor a vigorous Free Exercise
Clause.31 A significant reason for incorporatingthe Bill of Rights into the
Constitutionwas to protect religionists from the very oppression a neutral,
generally applicablelaw may impose. One may disagreewith the practiceof
polygamy, consider it irrationaland even immoral,and still remain commit-
ted to an individual'sfreedomto practiceit.
A thirdargument-and the one advancedby this note-follows from the
libertarianargument. The state should allow religious exemptions not only
because freedom to practice one's religion is a fundamentalright, but also
because a refusal to do so has detrimentaleffects on belief-belief being the
one religious freedomthe SupremeCourthas consistently regardedas sacro-
sanct. In Reynolds and other religion cases, federal courts have reiterated
their commitmentto freedom of belief.32 If restrictionson religious practice
actually change religious beliefs, then the Supreme Court must consider,
more seriously than it recentlyhas, the protectionaccordedthose practices.
To supportthis contention, this note offers two different lines of argu-
ment. After a review of the genesis of the belief-action distinction in PartI,
Part II invokes the literatureof psychology and the sociology of religion to
argue that externalcoercion does indeed impact religious belief. In particu-
lar, Leon Festinger's theory of cognitive dissonance discounts the constitu-
tional distinction made between action and belief. In Part III, I present the
history of Mormon polygamy as a case study on the effects of suppressing
religious practice. Polygamy was once central to Mormon theology, a cor-
nerstone in the reestablishmentof Zion. The moder Churchhas abandoned
polygamy, both in practice and in theology. Such a change may have oc-
curredregardless,as the LDS Churchattemptedto expand its reach and in-
fluence.33 However, that is not a cogent point in the theory of the free exer-
30. See id.

31. See MaryAnn Glendon& Raul F. Yanes, StructuralFree Exercise, 90 MICH.L. REV.
477, 478 (1991) (arguingfor a "holistic,structural"
approachto the Court'schurch/statejurispru-
dence);John Witte,Jr., TheEssentialRightsand Libertiesof Religionin the AmericanConstitu-
tionalExperiment,71 NOTRE DAMEL. REV.371, 376 (1996) (callingfor "anintegratedframework
of religiouslibertyin America").
32. See Watsonv. Jones, 80 U.S. 679, 728 (1871) ("Thelaw knows no heresy,and is com-
mittedto the supportof no dogma,the establishmentof no sect."). This case involveda disputeas
to which side of a dividedcongregationowned the land occupiedby the congregation. The Su-
premeCourtdeferredto the judgmentof the churchhierarchyas to ownership. SubsequentSu-
premeCourtcases have quotedwith approvalWatson'sstatementregardingheresy. See SerbianE.
OrthodoxDiocese v. Milivojevich,426 U.S. 696, 710 (1976); PresbyterianChurchv. MaryEliza-
beth Blue Hull Mem'l PresbyterianChurch,393 U.S. 440, 446 (1969); Kedroffv. St. Nicholas
Cathedral,344 U.S. 94, 114-15(1952);UnitedStatesv. Ballard,322 U.S. 78, 86 (1944).
33. See PeterSteinfels,Despite Growth,MormonsFind New Hurdles,N.Y. TIMES,Sept. 15,
1991, at Al (notingthe phenomenalgrowthof the LDS Churchin recentdecades). See generally
cise of religion. Polygamy died an unnaturaldeath,not one which proceeded

from the organic evolution of Mormon belief. After repeated legal attacks
and decades of relentless persecution,the LDS Churchliterally and spiritu-
ally abandonedplural marriage. The Mormon experience indicates that not
only may laws "interferewith mere religious belief and opinions,"34but that
such laws may fundamentallychange them. For the doctrineof free exercise
to have substantivemeaning, it must account for this fact, a topic furtherex-
plored in PartIV.
I. THESUPREMECOURT'SFREEEXERCISE
CASES:FORGINGA BELIEF-
ACTIONDISTINCTION
In 1878, the United States Supreme Court ruled that the Free Exercise
Clause did not exempt polygamists from a federal law that criminalizedthe
practice of plural marriage.35George Reynolds, a Mormon polygamist, ap-
pealed his conviction for polygamy on several grounds.36His central claim
was that he could not be found guilty of violating the law against polygamy
because he was practicingplural marriageas a sincere belief, central to his
religious observance. Reynolds contended that the penalty for non-
compliancewould be "damnationin the life to come."37
The Courtbased its decision in Reynoldson several grounds. Under the
guise of originalism, the Court turned to the history of the Free Exercise
Clause and read into it a general proscriptionagainst legislating opinions or
religious belief.38 Quoting Thomas Jefferson,the Court stated that "the leg-
islative powers of the governmentreach actions only, and not opinions,"39
Donald Bowen, The Church Abroad, DIALOGUE:

JOURNAL
OFMORMONTHOUGHT,Winter 1970,
at 66 [hereinafterDIALOGUE]; GarthN. Jones, ExpandingLDS ChurchAbroad: Old Realities
Compounded, DIALOGUE, Spring1980, at 8; GarthN. Jones,SpiritualSearchings:The Churchon
Its InternationalMission,DIALOGUE, Summer1987,at 58.
34. Reynoldsv. UnitedStates,98 U.S. 145, 166 (1878) ("Lawsaremadefor the government
of actions,and while they cannotinterferewith merereligiousbelief and opinions,they may with
practices.").
35. The historicalbackgroundto Reynoldsis discussedat text accompanyingnotes 202-231
infra.
36. One of Reynolds' argumentson appeal was that the instructionsgiven the jury were
prejudicial.Thesejury instructionsreadas follows:
I thinkit not improper,
in the dischargeof yourdutiesin this case,thatyou shouldconsider
whatareto be theconsequences to theinnocentvictimsof thisdelusion.As thiscontestgoes
on, theymultiply,andtherearepure-minded womenandthereareinnocentchildren,- inno-
centin a senseevenbeyondthedegreeof the innocenceof childhooditself. Theseareto be
thesufferers;andasjurorsfailto do theirduty,andas thesecasescomeup in theTerritory of
Utah,justso do thesevictimsmultiplyandspreadthemselvesovertheland.
Reynolds,98 U.S. at 167-68. The CourtfoundthatJudgeWhitehadmerelycalled"theattentionof
thejury to thepeculiarcharacterof the crime."Id. at 168.
37. Id. at 161;see also text accompanyingnotes 159-179infra.
38. See Reynolds,98 U.S. at 162.
39. Id. at 164 (quotingJeffersonin replyto an addressto himby a religiousorganization).
1302 STANFORD
but that man "has no naturalright in opposition to his social duties."40 Al-
though the Court concluded that "Congresswas deprived of all legislative
power over mere opinion," Congress "was left free to reach actions which
were in violation of social duties or subversive of good order."41In other
words, the Court concluded that the Free Exercise Clause protects religious
belief, but that it offers no guaranteesfor religious action.
The Court disallowed the polygamy exemption for two other reasons:
the opprobriumwith which Americansociety viewed polygamy and its sup-
posedly deleterious moral effects. The Court considered the practice im-
moral, barbaric,and contraryto civilized maritalnorms.42Under the laws of
both Great Britain and the prerevolutionaryAmerican colonies, punishment
for the practicepurportedlyincludeddeath.43Given polygamy's history, the
Court found it "impossibleto believe that the constitutionalguarantyof re-
ligious freedom was intended to prohibit legislation in respect to this most
importantfeatureof social life."44
However, the most significant rationalethe Court offered for its ruling
was its belief thatpolygamy subvertsdemocraticideals.45The Courtreferred
to polygamy as an institutionthat "fetters the people in stationarydespot-
ism"46and declared that polygamy could not coexist with monogamy.47
Faced with this threatto its civil ideals, the governmentcould favor monog-
amy.48 Ignoringany ability of the courts to make analyticaldistinctions,the
Court asserted that if the government could not outlaw polygamy, then it
likewise could not prohibit human sacrifice or the actions of "a wife . . .
[who] believed it was her duty to bur herself upon the funeralpile [sic] of
her dead husband."49The Courtaddedthatto permitpolygamy "wouldbe to
make the professed doctrines of religious belief superiorto the law of the
land, and in effect to permit every citizen to become a law unto himself.
Governmentcould exist only in name undersuch circumstances."50
40. Id.
41. Id.
42. See id.
43. See id. at 165.
44. Id.
45. See text accompanyingnotes 190-201infra(discussingthe politicalconflictbetweenthe
UnitedStatesgovernmentandthe LDS Church).Polygamybecamea symbolof this conflict. By
suppressingpolygamy,the governmentbelieved it could also suppressthe secularpower of the
LDS Church.
46. Reynolds,98 U.S. at 166.
47. See id.
48. See id.
49. Id.
50. Id. at 167.
Consequently,the SupremeCourt denied Reynolds' free exercise claim

and upheld his conviction underthe antibigamylaw.5' In doing so, the Court
reacted to a concern that likewise informed the decision of the Court in
Smith-namely, how a nation maintainsthe rule of law in the face of a Free
Exercise Clause that may demandexemptions from the law. The concern is
a worthy one, but the Courtin Reynoldsand Smithansweredit in an inappro-
priateway, one which needlessly impinges on religious freedomand individ-
ual rights. The rule of law does not demand suppressionof religious liber-
ties. In fact, it often dictatesprecisely the opposite result. Although the bal-
ance between majoritarianlaw and the rights of minority religions may not
be an easy one, the Supreme Court has made some meaningful attemptsto
mediatebetween the two.
A. Cases RecognizingExemptionsfor Some ReligiouslyBased Actions
In 1940, the Supreme Court for the first time recognized that the Free
Exercise Clause may actuallyprotectsome religiously motivated actions. In
Cantwell v. Connecticut,52the Court held that an ordinancerequiringrelig-
ious groups to obtain permission from a designatedofficial before distribut-
ing religious literaturewas an invalid restrainton free exercise.53 Some crit-
ics have suggested that this case effectively overturnedthe distinction made
in Reynolds between belief and action. However, because the action in this
case involved freedomof speech as much as the free exercise of religion, it is
difficult to argue that the Courtin fact recognized a constitutionalexemption
for purely religious action.
The decision in Sherbert came closer to granting an exemption for re-
ligiously motivatedaction. In this case, Oregon denied unemploymentcom-
pensation benefits to a Seventh-day Adventist who refused to accept em-
ployment on Saturday, her religiously required Sabbath.54 The Supreme
Courtagreed that to force her to choose between disobeying her religion and
forfeiting state benefits violated her religious libertyunderthe Free Exercise
Clause.55 The case is most famous for its enunciationof the compelling in-
terest test, a four-parttest for determiningwhen a free exercise violation has
occurred. To make a prima facie free exercise argument,an individualmust
show that she has a sincere and truly religious practice and that the contem-
plated governmentalaction would truly injurethatpractice. The burdenthen
shifts to the state to show, first, that a compelling state interest necessitates
the state action and, second, that it has no alternativemeans, less burdensome
51. See id. at 168.

52. 310 U.S. 296 (1940).
53. See id. at 303-04.
54. See Sherbertv. Vemer,374 U.S. 398, 401 (1963).
55. See id. at 403-04.
1304 STANFORD
to religious liberty, for accomplishingthat interest.56The Courtheld that the

state's interests in limiting false unemploymentbenefit claims and not dis-
couraging Saturdaywork were not sufficiently compelling to justify the bur-
den on religion.57
The decision in Wisconsin v. Yoder58 marked the pinnacle of judicial
recognition of free exercise exemptions. Here the Court held that the state
could not compel Amish parentsto send their childrento school beyond the
eighth grade.59The Courtrecognized the state's strong interestin educating
children,but stated that the interestmust be balancedagainst the fundamen-
tal right to practice one's religion and the liberty interest of parents in the
upbringingof their children.60Citing Sherbertand Cantwell, Justice Burger
implicitly overruledReynolds-at least in part-when he recognized that the
Free Exercise Clause does protectat least some religious action:
[T]o agreethatreligiouslygroundedconductmustoften be subjectto the broad
police powerof the Stateis not to deny thatthereareareasof conductprotected
by the FreeExerciseClauseof the FirstAmendmentandthusbeyondthe power
of the State to control,even underregulationsof generalapplicability. This
case, therefore,does not becomeeasierbecauserespondentswere convictedfor
their "actions"in refusingto send their childrento the public high school; in
this contextbelief and actioncannotbe neatlyconfinedin logic-tightcompart-
ments.61
Justice Burger furthersuggested that forced action (and perhapsforced inac-
tion) can affect religious belief. He wrote that to apply compulsory educa-
tion laws to the Amish would seriously endangertheir religious beliefs by
exposing their childrento antitheticalvalues.62 This would unjustly interfere
with the religious developmentof the childrenand their integrationinto the
Amish community.63
56. See id. at 406-07.

57. See id. at 407.
58. 406 U.S. 205 (1972).
59. See id. at 214, 234.
60. See id. at 214.
61. Id. at 220 (citationsomitted).
62. See id. at 219.
63. See id. at 218; see also George W. Dent, Jr., Of God and Caesar: The Free Exercise
Rightsof Public SchoolStudents,43 CASEW. RES.L. REV.707, 713 (1993) ("Themost common
religiousobjectionto public schoolingis that it subjectsstudentsto indoctrinationhostile to their
faith.");StanleyIngber,ReligiousChildrenand the InevitableCompulsionof Public Schools, 43
CASEW. RES.L. REV.773, 775 (1993) ("Statecompulsionto participatein a curriculumsupporting
or even simplyproposingreligiouslyobjectionableperspectivesmayunderminereligiousvalues.").
B. TheSupremeCourt's Retreatfrom CompellingInterestto the

NeutralityTest
After the decision in Yoder,the SupremeCourt refused to grant further
exemptions underthe Free Exercise Clause for religious practicesoutside the
context of unemploymentcompensation.64In 1990, the Courtretreatedeven
further,holding in Smiththat if a law is rational,facially neutral,and gener-
ally applicable,then the state need not carve out a religious exemption.65
Alfred Smith and Galen Black, both members of the Native American
Church,lost theirjobs as drugcounselorsfor ingesting sacramentalpeyote at
a church ceremony. The Oregon Departmentof Human Resources found
them ineligible for unemploymentbenefits because they had been dismissed
for work-relatedmisconduct.66The Oregon Courtof Appeals overturnedthe
decision, declaringthat the state had failed to show a compelling state inter-
est in withholdingbenefits from those who ingested peyote for religious rea-
sons.67 The Oregon SupremeCourtaffirmed.68The United States Supreme
Court overruled the Oregon Supreme Court's decision69 and, in the process,
changed its doctrinalapproachto free exercise.
One of the most startlingaspects of Justice Scalia's opinion in Smith is
the enthusiasm with which he cites Minersville School District Board of
Education v. Gobitis70and Reynolds,two cases at the nadir of American re-
ligious tolerance. In doing so, he resoundinglyrestateda constitutionaldis-
tinctionbetween belief and action:
As describedsuccinctlyby JusticeFrankfurter in MinersvilleSchoolDist. Bd. of
Ed. v. Gobitis: "Conscientiousscrupleshave not, in the course of the long
struggle for religious toleration,relieved the individualfrom obedience to a
generallaw not aimedat the promotionor restrictionof religiousbeliefs. The
merepossessionof religiousconvictionswhichcontradictthe relevantconcerns
64. See text accompanyingnote27 supra. CompareBowenv. Roy, 476 U.S. 693, 712 (1986)
(holdingthat a governmentrequirementthat applicantsfor social benefits obtain social security
numbersdid not violatethe FreeExerciseClause);Goldmanv. Weinberger,475 U.S. 503, 509-10
(1986) (rejectingan OrthodoxJewishofficer'scontentionthatAir Forceregulationsthatprohibited
him fromwearinga yarmulkeviolatedhis free exerciserights);and UnitedStatesv. Lee, 455 U.S.
252, 260-61 (1982) (holdingthatthe state's overridinginterestin maintaininga nationwidesocial
securitysystem outweighedthe burdensplacedupon an Amish employer'sreligiousbeliefs), with
Thomasv. Review Bd. of the Ind.EmploymentSec. Div., 450 U.S. 707, 720 (1981) (holdingthat
the denialof unemploymentcompensationto a Jehovah'sWitnesswhose religiousbeliefs prohib-
itedhim fromworkingin a munitionsfactorywas a violationof his freeexerciserights).
65. See EmploymentDiv. v. Smith,494 U.S. 872, 876-90 (1990).
66. See id. at 874.
67. See Black v. Employment Div., 707 P.2d 1274, 1278 (Or. Ct. App. 1985), aff'd sub nom.
Smithv. EmploymentDiv., 721 P.2d445 (Or. 1986),overruledby 494 U.S. 872 (1990).
68. See Smithv. EmploymentDiv., 721 P.2d 445, 449-50 (Or. 1986), overruledby 494 U.S.
872 (1990).
69. See Smith,494 U.S. at 890.
70. 310 U.S. 586 (1940).
1306 STANFORD
of a politicalsociety does not relievethe citizen fromthe dischargeof political

responsibilities...." We firsthadoccasionto assertthatprinciplein Reynolds
v. UnitedStates.... "Laws,"we said, "aremadefor the governmentof actions,
and while they cannotinterferewith mere religious belief and opinions, they
may withpractices...."71
Justice Scalia claimed that this distinctionbetween belief and action and the
application of a neutralitystandardhad been reaffirmedin numerous other
decisions.72 He distinguishedSmith from the exemptions granted in Sher-
bert,73Thomas v. Review Board of the Indiana EmploymentSecurity Divi-
sion,74and Hobbie v. UnemploymentAppeals Commission75by noting that
none of these cases involved conduct prohibitedby law.76 He distinguished
cases grantingexemptions outside the unemploymentcontext as involving a
hybrid of rights, including speech, press, and parentalrights.77 Finally, Jus-
tice Scalia rejected the contention that the claim for a religious exemption
must be evaluated under the compelling interest test of Sherbert.78 Noting
how rarelythis test is applied, he concluded that the compelling interesttest
is inapplicable to free exercise challenges to neutral, generally applicable
laws, lest everyone with a religious objection to governmentlaws and regu-
lations "becomea law unto himself."79
71. Smith,494 U.S. at 879 (citationsomitted).

72. See id. at 879-80 (citingHernandezv. Commissioner,490 U.S. 680 (1989); UnitedStates
v. Lee, 455 U.S. 252 (1982) (Stevens, J., concurring);Gillettev. United States, 401 U.S. 437
(1971); Braunfeldv. Brown, 366 U.S. 599 (1961); and Prince v. Massachusetts,321 U.S. 158
(1944)).
73. See Sherbertv. Verer, 374 U.S. 398, 410 (1963) (holdingthatSouthCarolinacouldnot
deny unemploymentbenefits to a memberof the Seventh-dayAdventistChurchwho was dis-
chargedfromherjob becauseshe wouldnotworkon Saturday).
74. 450 U.S. 707, 720 (1981) (holdingthatIndianacouldnot deny unemploymentbenefitsto
a Jehovah'sWitnesswho quithis job at a munitionsfactorybecauseof his religiousobjectionsto
war).
75. 480 U.S. 136, 146 (1987) (holdingthatFloridacouldnot deny unemploymentbenefitsto
a Seventh-dayAdventistwho refusedto workon Saturdaysin orderto observethe Sabbath).
76. See Smith,494 U.S. at 876.
77. See id. at 881.
78. See id. at 883-84.
79. Id. at 885 (quotingReynoldsv. UnitedStates,98 U.S. 145, 167 (1878)). The Smithopin-
ion producedan immediateacademicoutcry. Morethan100 constitutionallaw scholarsjoined in a
petitionfor rehearing. The SupremeCourtdeniedthe petitionin EmploymentDivision v. Smith,
496 U.S. 913 (1990). See GERALDGUNTHER,CONSTITUTIONAL LAW1584 n.l (12th ed. 1991).
Many of the scholarssupportedthe petitionbecausenone of the briefs submittedto the Supreme
Courtin the Smithcase suggestedthatthe Courtchangeits free exercisedoctrine. See MichaelW.
McConnell,Free ExerciseRevisionismand the SmithDecision, 57 U. CHI.L. REV.1109, 1113
(1990). Numerouslaw reviewarticlesroundlycondemnedthe Court'sretreatfromthe compelling
interesttest. See, e.g., JamesD. GordonIII, Free Exerciseon the Mountaintop,79 CAL. L. REV.
91, 114-16(1991); DanielleA. Hess, Note, TheUndoingof MandatoryFree ExerciseAccommoda-
tion, 66 WASH. L. REV. 587, 595-96 (1991); KarinM. Rebescher,Note, TheIllusoryEnforcement
of First AmendmentFreedom:EmploymentDivision, Departmentof HumanResourcesv. Smith
and theAbandonment of the CompellingGovernmental InterestTest,69 N.C. L. REV.1332, 1353-
56 (1991);RichardK. Sherwin,RhetoricalPluralismand theDiscourseIdeal: CounteringDivision
At the heart of Justice Scalia's Smith opinion is a fear that very much
echoes that expressed in Reynolds-namely, thatto give full force to the Free
Exercise Clause would negate the rule of law. Justice Scalia first suggests
thatperhapsthe political process will rectify shortcomingsin his very narrow
interpretationof the Free Exercise Clause,80but then acknowledges the flaw
at the heart of this argument: "It may fairly be said that leaving accommo-
dation to the political process will place at a relative disadvantagethose re-
ligious practices that are not widely engaged in; but that unavoidableconse-
quence of democratic governmentmust be preferredto a system in which
each conscience is a law unto itself. . ."81 Justice Scalia fails to recognize
that there is a middle groundbetween the extremes of absolute accommoda-
tion of religious practiceand absolutesupremacyof popularlegislation. This
middle ground would recognize exemptions for religious practice, unless
doing so caused measurableharmto otherindividualsor the body politic.
As Justice Scalia predicted,a nation solicitous of the First Amendment
did pass legislation in an attemptto give it greater force.82 The Religious
Freedom RestorationAct of 1993 ("RFRA")was designed "to restore the
compelling interest test as set forth in Sherbertv. Verer and Wisconsin v.
Yoder and to guaranteeits applicationin all cases where free exercise of re-
ligion is substantiallyburdened."83RFRA declaresthat the governmentcan-
of Employmentv. Smith,A Parableof Pagans,Politics,andMajoritarianRule, 85 Nw. U. L. REV.

388, 393, 439-41 (1991). WilliamP. Marshallis unusualin arguingagainstreligiousexemptions
fromfaciallyneutrallaws andis one of the few scholarswho favormanyof the argumentsmadein
Smith. See WilliamP. Marshall,The Case Againstthe Constitutionally CompelledFree Exercise
Exemption,40 CASEW. RES.L. REV.357, 411-12 (1990).
80. See Smith,494 U.S. at 890. ProfessorMcConnellcriticizesJusticeScalia'srefusalto look
at the originalmeaningof the FirstAmendmentandcalls his use of precedent"troubling,bordering
on the shocking,"suggestingthatJusticeScalia inventedconstitutionaltheoryand misusedprece-
dentto distinguishcontrarycases. McConnell,supranote 79, at 1120-21;see also note 330 infra.
In particular,McConnellsuggeststhat JusticeScalia ignoredthe following declarationin Yoder:
"A regulationneutralon its face, may in its application,nonethelessoffend the constitutionalre-
quirementfor governmentneutralityif it undulyburdensthe freeexerciseof religion." McConnell,
supranote 79, at 1120(quotingWisconsinv. Yoder,406 U.S. 205, 220 (1972)).
81. Smith,494 U.S. at 890.
82. At leastone statecourthas disregardedthe Smithdecisionandhas interpreteda free exer-
cise case underthe morestringentrequirements of its stateconstitution.In Minnesotav. Hershber-
ger, 495 U.S. 901 (1990), the SupremeCourtvacatedStatev. Hershberger,444 N.W.2d282 (Minn.
1989), andremandedthe case for furtherconsiderationin lightof Smith. The statedecisionupheld
the rightof the Amish underthe FreeExerciseClausenot to displaytriangularemblemsoffensive
to theirreligiousbeliefs on theirvehicles. On remand,the MinnesotaSupremeCourtupheldthe
religious exemptionfor the Amish underthe state constitution. See State v. Hershberger,462
N.W.2d393, 399 (Minn.1990).
83. Pub. L. No. 103-141, ? 2(b)(1), 107 Stat. 1488, 1488 (codified at 42 U.S.C. ? 2000bb
(1994)) (citationsomitted). For a more completediscussionof the goals of and legislativeintent
behindRFRA,see generallyJaasma,supranote 6; DouglasLaycock,Free Exerciseand the Relig-
ious FreedomRestorationAct, 62 FORDHAM L. REV.883 (1994); Michelle L. Stuart,Note, The
ReligiousFreedomRestorationAct of 1993: RestoringReligiousFreedomAfterthe Destructionof
the Free Exercise Clause, 20 DAYTONL. REV. 383 (1994).
1308 STANFORD
not substantiallyburden freedom of religion, even by neutral,generally ap-

plicable laws.84 The only exception to this rule is that the governmentmay
burden an individual's "exercise of religion only if it demonstratesthat ap-
plication of the burden to the person (1) is in furtheranceof a compelling
governmentalinterest;and (2) is the least restrictivemeans of furtheringthat
compelling governmentalinterest."85
The sentimentbehind RFRA is commendable,but RFRA is a legislative
guaranteeof rights, not a constitutionalone. A mere statutoryprotection,
RFRA has no binding authorityshould Congress change its mind and either
repeal the statuteor overrideit. In addition,in City ofBoerne v. Flores86the
SupremeCourtrecently limited RFRA's applicationto federal statutesonly,
holding that Congress cannot mandatethat states protect free exercise rights
the Supreme Court does not recognize.87 The Court's opinion in City of
Boerne seriously discountsthe burdenson minorityreligions of neutral,gen-
erally applicable laws. It is legislative compulsion that sends religionists to
the courts in the first place. Consideringthe sometimes unfortunatehistory
of deviant religious groups in this country,it is disingenuouslyoptimistic to
suppose that misperceptionsand bias will not once again influence legisla-
tion on both state and federal levels. Under the SupremeCourt's currentin-
terpretationof free exercise rights,religious practitionershave no safe harbor
for theirreligiously motivatedactions.
RFRA also suffers from a definitionalproblem. The compelling interest
test of Sherbert and the pre-Smithlevel of free exercise protection are not
one and the same.88 Consequently,RFRA remains susceptible to different
interpretationsby various courts. In City of Boerne, however, the Court at-
tempted to clarify this confusion by insisting that the compelling interest
doctrine did not govern pre-Smithjurisprudence.89Although the Court may
be correct in its interpretationof the division of powers among state legisla-
tures, Congress, and the SupremeCourt, this is cold comfort for those dis-
turbed by the Court's callous attitudetoward minority and marginal relig-
ions. If nothing else, the City of Boerne opinion has highlightedthe desper-
ate need for more vigilantjudicial guardianshipof the Free Exercise Clause.
Although the Supreme Court's recent free exercise jurisprudence dis-
heartensreligionists, some of its actualholdings have been less harmfulthan
expected. And, given the outcomes in Smith and the more recent case of
84. See Pub.L. No. 103-141,? 3(a), 107 Stat.at 1488(codifiedat 42 U.S.C. ? 2000bb).
85. Id. ? 3(b), 107 Stat.at 1488-89(codifiedat 42 U.S.C. ? 2000bb-1).
86. 117 S. Ct. 2157 (1997).
87. See id. at 2170-72.
88. See McConnell,supranote 79, at 1127.
89. See City ofBoerne, 117 S. Ct. at 2160-62.
Church of the LukumiBabalu Aye, Inc. v. City of Hialeah,90Reynolds may

well have been decided much differentlytoday. In LukumiBabalu Aye, the
Court delved behind the surface of purportedlyneutralcity ordinances and,
on the basis of legislative history and particularterminology,determinedthat
ordinancesbanningreligiously motivatedanimalsacrifice had discriminatory
intent.91Likewise, if one delves behindthe 1862 Anti-Bigamy Act, one soon
realizes that it was neitherneutralnor generally applicable.92The House re-
port for an 1860 version of the Anti-BigamyAct read as follows:
[T]hemoralsense of ourown people,as well as of everyrefinedand intelligent
communityuponthe habitableearth,has been shockedby the open and defiant
license which, underthe name of religion and a latitudinousinterpretation of
our Constitution,has been given to this crime in one of our Territories...
[T]he citizens of Utah, "witha high hand and an outstretchedarm,"laugh to
scorn the sacrednessof the Bible and the majestyof our laws .... It would,
perhaps,requireno elaboratestatementto demonstratethat the framersof the
Constitution,. . . when they declared"Congressshall make no law respecting
the establishmentof religionor the free exercisethereof,"they did not meanto
dignify with the name of religion a tribe of LatterDay Saints disgracingthat
hallowedname .... [I]t is more thanprobablethatby the termreligionthey
meantonly to convey the idea of a belief foundeduponthe preceptsof the Bi-
ble; . . . surelythey neverintendedthatthe wild vagariesof the Hindooor the
ridiculousmummeriesof the Hottentotshouldbe ennobledby so honoredand
sacreda name.93
More than a centurylater,we indeed dignify the LDS Churchwith the name
of religion. Consideringthat such bias formed the basis of the belief-action
distinction,it is appropriateto reconsiderthe validity of that distinction.
II. SOCIOLOGICALARGUMENTS AGAINST THE BELIEF-ACTION DISTINCTION
Students of law and economics, sociology, and psychology have long

ponderedthe incentives behind religious belief and action. Contraryto ordi-
nary expectations,externalchallenge and resistancemay actually strengthen
an adherent'scommitmentto a particularreligious creed. Such challenges
90. 508 U.S. 520 (1993). The Courtin LakumiBabaluAye held thata city ordinanceprohib-
iting the ritualkilling of animalswithinthe city boundariesfor purposesotherthan consumption
violatedthe FirstAmendmentrightsof membersof the Santeriareligion. See id. at 547.
91. See id. at 534-38. The Courtlookedbehindthe faciallyneutrallanguageof the ordinance
to the legislativehistoryandheld thatthe mainobjectof the ordinancewas not animalwelfare,but
"suppressionof the centralelementof the Santeriaworshipservice." Id. at 534. Consequently,the
Court ruled that the ordinances were neither neutral nor of general applicability and were therefore
subjectto strictscrutiny. See id. at 546-47. Because the truepurposeof the ordinanceswas the
suppressionof FirstAmendmentrights,the ordinancesdid not pass the compellingstate interest
test. See id.
92. See Jaasma,supranote 6, at 262-66.
93. HOUSECOMM.ON THEJUDICIARY,POLYGAMYIN THETERRITORIES
OF THE UNITED
STATES,H.R. REP.NO. 36-83, at 2 (1860).
1310 STANFORD
are a means of solidifying group cohesiveness and allow adherentsto differ-

entiate themselves from those outside the sect. However, at a certaincritical
juncture, the opposition becomes too great. The costs of compliance force
the believer to make a choice between conformityand continuedobservance
in the face of adversity. This juncturefalls at differentpoints, dependingon
the strength of the group and the individuals within it. Some conform
quickly. Othersoffer impressiveresistance,but at some point they too must
conformor be pushedto the brinkof social and civil annihilation.
A. TheEffects of Positive and Negative Incentiveson Religious Practice

and Belief
1. Themainstreamresponse to marginalreligious movements.
A marginalreligious movement ("MRM")is one which challenges the

social and theological normsof the dominantcultureto such a degree that the
dominantculture feels compelled to marginalizeand sanction it, often with
startlingseverity. In the face of mainstreamopposition, MRMs tend to fol-
low one of two paths. On the first path, they may continue to defy the domi-
nant culture,in which case they remainin small enclaves and face continued
persecution,often leading to obliteration. If MRMs follow the second path,
they eventually capitulateto mainstreampressureand incorporatedominant
norms to a sufficient degree to survive as viable entities. The timing and
degree of capitulationdependvery much on the commitmentof the MRM to
its deviant practices and the externalcosts imposed by the outside culture.94
According to Charles Harperand Bryan LeBeau, a patternof "stormy,con-
flict-riddenbeginnings and subsequentaccommodation"describes many re-
ligious groups-including Mormons, Quakers, Shakers, and Roman Catho-
lics-that had marginalbeginnings, but that eventually gained acceptancein
the dominantculture.95
Sociologist ArmandMauss notes similaritiesbetween the early history of
the Mormon Churchand the legal challenges that have more recently faced
conspicuous and unpopularreligions such as the Moonies or Hare Krishnas,
two groups which certainlychallenge the normativeorderof American soci-
ety.96 The more serious and militant the deviant movement, writes Mauss,
the hardersociety will work to domesticate it. If the group does not suffi-
ciently assimilate, the host society resorts to persecution and repression,97
94. See Charles L. Harper & Bryan F. LeBeau, The Social Adaptation of Marginal Religious
Movements in America, 54 SOC.OF RELIGION 171, 173 (1993).
95. Id. at 175.
96. See ARMAND L. MAUSS, THE ANGEL AND THE BEEHIVE: THE MORMON STRUGGLE WITH
ASSIMILATION 4 (1994).
97. See id.
behavior which mirrorsthe nineteenth-centuryAmerican struggle with the

Mormons.
Sociologists Harperand LeBeau have identified an interestingphenome-
non in the persecutionof MRMs. The degree of accommodationdemanded
by the dominant culture depends less on the supposed heterodoxy of the
MRM's religious beliefs and more on the extent to which the MRM appar-
ently threatensnational, secular values.98 A group's religious beliefs may
incite popular opposition, but this opposition will generally not rise to the
level of effective, official, and civil persecutionunless the group's theology
and beliefs challenge the currentsocial order.99Mormonpolygamy provides
a pertinent example of this phenomenon. Although Americans waged an
intense legal and social battle over polygamy, their real concern was the per-
ceived power of the MormonChurchand the belief that Mormonswished to
establish a neotheocracy.?00
2. Religious responses to positive and negative incentives.
Law and economics scholar LaurenceIannacconehas noted one of the

elements of religion that greatly interestseconomists.'01 To the outside ob-
server, the stigma and sacrifice associated with membership in a marginal
religious group should render membershipmore costly and therefore less
desirable.102 However, these apparentlygratuitous costs serve a valuable
purposein thatthey mitigate free-riderproblemsby encouraginghalf-hearted
members to leave the group and inducing even greater involvement from
more committedmembers.103 In other words, religion is an ideal example of
"nonmarket"behavior, behaviorwhich respondsto beliefs and norms rather
thanto unmitigatedpersonaladvantage.'04
Critics of the applicationof law and economics to religion seize on non-
market,religious behavior as a basis for discountingthe study of incentives
in religion. According to Steve Bruce, religion cannotbe economic in nature
because religions themselves are not alternativesto one another.'05Each re-
98. See Harper& LeBeau,supranote 94, at 178-80.

99. See id.
100. See id. at 187;see also textaccompanyingnotes 190-201infra.
101. See Laurence A. Iannaccone, Progress in the Economics of Religion, 150 J.
INSTITUTIONAL
& THEORETICAL
ECON.737, 740-42 (1994).
102. See id. at 740.
103. See id.
104. See id. at 740-41.
105. See Steve Bruce,ReligionandRationalChoice.A Critiqueof EconomicExplanationsof
Religious Behavior, 54 SOC.OFRELIGION 193, 202-03 (1993). Paul Diesling writes:
Salvation is a definite end, so it can have means and a techniqueof achievement;but it is not
alternativeto any other end. It is priceless. The technical question, "Whatmust I do to be
saved?"makes sense and can be answered;but the economic question, "How much is salvation
worthto you?"does not.
1312 STANFORD
ligion claims a unique grasp of salvationaltruth. Salvation,being infinite in

value, is not subject to cost-benefit analysis and thereforenot subject to ra-
tional economic choice.'06
If religious choices are not subject to economic analysis, then we may
naively assume that the penalties society and governmentimpose on a prac-
titionerfor her religious beliefs will in fact have no effect on those beliefs. If
salvation is of infinite worth,then a person should be willing to pay any price
for it, regardless of the penalties imposed by mainstreamsociety. In fact,
such a conclusion ignores two realities. The first is that both positive and
negative incentives do impactpeople's religious commitments,regardlessof
their salvational beliefs. At the extremes, religious norms and actions do
respondto economic pressures. The second reality, discussed in PartII.B, is
that not only do religious actions correspondto incentives, but that religious
beliefs do so as well. According to the psychological theory of cognitive
dissonance, people both act and believe in orderto minimize the divergence
between action and belief.'07 This has serious implicationsfor the Supreme
Court'sassumptionin free exercise cases that action and belief are separable.
A similar assumptionhas long influenced various analyses of religious
change that posit that religious change occurs in response to the shifting de-
sires of religious consumers.'08 In contrast,Roger Finke and LaurenceIan-
naccone argue that religious developmentsmirrorthe changes in incentives
and opportunitiesfacing the producersof religion.109They chart how legal
restrictionshave ended various religious movements, such as the First Great
Awakening in the eighteenth century, and how easing legal restrictionshas
correspondinglyallowed various religious movements to flourish.1? Finke
and Iannaccone note with concern recent attempts to regulate religion
through litigation regardingpurportedkidnapping,fraud,tax evasion, brain-
washing, and clergy malpractice."' They posit that, in the post-Smith era,
the governmentmay pass "any numberof 'formally neutral' and 'generally
applicable' regulations that seriously constrainthe activities of specific re-
ligions" withoutregardto theirdetrimentaleffects on some religions. 12
Likewise, Michael McConnell and RichardPosner, arguing for an eco-
nomic approachto religious issues, offer an effective rebuttalto those who
PAULDIESING,REASONIN SOCIETY:FIVETYPESOF DECISIONS

ANDTHEIRSOCIALCONDITIONS
63 (1962).
106. See Bruce,supranote 105, at 202-03.
108. See Roger Finke & LaurenceR. Iannaccone,Supply-SideExplanationsfor Religious
Change,527 ANNALSAM.ACAD.POL.& SOC.SCI.27, 28 (1993).
109. See id.
110. See id. at 32-36.
111. See id. at 37-38.
112. Id. at 38.
April1998] MORMON
POLYGAMY 1313
believe that religious belief and behavior defy rational analysis: "Positive
economics is a science of means and not of ends. It does not tell us what to
value, but it can tell us the most efficient way to obtainwhat we value.""13 In
other words, a religious adherent'sbeliefs and preferencesmay not be objec-
tively rational,but she will attemptto fulfill those beliefs and achieve those
preferences through rational means. Because religious institutions require
money and members, both limited resources, they compete among them-
selves and also with secular institutions. Therefore, they are affected by
governmentpolicies that either tax or subsidize particularactions. Accord-
ingly, governmentalactions may inadvertentlyor purposelyfavor or disfavor
certaindenominations.14
Costs imposed on religious groups may therefore affect their member-
ship. If an individual member can more easily realize her beliefs through
anotherreligious organization,she may have an incentive to switch her alle-
giance. If no otherreligious organizationsatisfies the beliefs of the member,
she faces at least three choices: She may remaina faithful adherentand suf-
fer increased costs; she may forsake practice of her beliefs, but suffer guilt
for doing so; or she may change her beliefs entirely in order to avoid both
increasedcosts and the psychological discomfortof guilt. Depending on the
natureof the belief, any one of these outcomes is plausible. Religions some-
times derive positive benefit from moderatepersecution in that the faithful
adherentsgain the satisfactionof proving their loyalty-hence, the first op-
tion. As for the second option, people often live in some discord with their
beliefs. The greaterthe discrepancybetween belief and action, however, the
greaterthe associated psychological pain.15 This increases the incentive to
pursuethe thirdoption-an actualchange in belief.
Apartfrom concernswith one's ultimatesalvation,there are a numberof
positive reasons, both physical and psychological, for membership in par-
ticular religious groups.16 In particular,religious belief allows one to iden-
tify with or against various social groups. EdwardTiryakiannotes that fun-
damentalistmovements have a sense of collective purpose and being called
113. MichaelW. McConnell& RichardA. Posner,An EconomicApproachto Issues of Re-

ligiousFreedom,56 U. CHI.L. REV.1, 59 (1989).
114. See id. at 5.
116. Such benefitsmay includeincreasedendorphinlevels in the brain. Membershipin par-
ticularreligiousgroupsalso correlateswith superiorphysicalhealth. See VERNONREYNOLDS &
RALPHTANNER,THE SOCIALECOLOGYOF RELIGION6, 9, 17, 204, 288-96 (1995)
(noting that
Mormonshave a 35-38%lower mortalityrate from cardiovasculardisease than the non-Mormon
populationand that Mormonstend to live longerand healthierlives thanthe generalpopulation);
see also ROBERTH. THOULESS,AN INTRODUCTION
TOTHEPSYCHOLOGY
OFRELIGION58 (1971)
(discussingincompletesocial satisfactionas an impetusforreligiouslife).
1314 STANFORD
eitherto flee from or redeemcorruptcivilization."7Accordingto Robert

Higgs,as peopleinternalize"thevaluesandpreceptsof theircommunitiesof
sharedbelief, [they]not only feel betteraboutthemselvesbut becometrust-
worthyadherentswho will act in accordancewiththeirideologywithout,or
even in oppositionto, externalmaterialenticement,"'18 a stateof beingwhich
provides even greater self-esteem. The social isolation of ideologicallyho-
mogeneousgroupsultimatelyproducesextralegalcooperationand allows
thesegroupsto producecollectivebenefitsnot otherwiseavailable.19Timur
Kuranhas noted that fundamentalist movementsallow their adherentsto
identify the failuresof secular politicsand sociologyandto posit thatsuch
failureswouldbe mitigatedby a returnto religion.120
Accordingly,increasedcosts do not alwayscorrespondto decreasedre-
ligiousadherence.Rather,costsmayactuallybe a positiveindicatorthatan
individualis partof a select or chosengroup.'21Membersmay associate
othercosts-such as attendingservices,participating in functions,servingon
or
committees, paying tithes and offerings-with correspondingbenefits,
such as peace of conscienceandspiritualfellowship.'22As long as the ex-
pectedand perceivedbenefitsexceed the actualcosts, these costs will not
hindermembership.Again,theymayactuallyencourageit.
Socialpsychologypartiallyexplainsthisseeminglyirrational responseto
increasedcosts. Peoplecommitthemselvesto causesfor whichthey arere-
quiredto sacrifice.'23In fact, once MRMsenterthe mainstream, the most
successfulones maintainan "optimumtensionbetweenthe two opposing
strains"of assimilation/respectabilityandpeculiarity/militance.124 They se-
lectivelyadopttraitsthatmakethemmorepalatableto the mainstream, but
thatdo not abrogatetheirfundamental distinctiveness.'25
Nonetheless, even religious beliefs ultimatelyrespondto rationalincen-
tives and cost-benefitanalysis. Althoughsome social costs lead to an in-
creasedcommitment by the faithful,at a certaincriticalpointthe costs asso-
ciatedwith socialmarginalization becometoo greatto bear. Contraryto the
views of those who regardsalvationalbelief as sacrosanctand beyond
117. See EdwardA. Tiryakian,AmericanReligiousExceptionalism:A Reconsideration,527

ANNALSAM. ACAD. POL. & SOC. SCI. 40, 46-52 (1993) (observing this trend from a historical
studyof the Protestant,Catholic,andJewishexperiencesin America).
118. ROBERTHIGGS, CRISISAND LEVIATHAN:CRITICALEPISODESIN THE GROWTHOF
AMERICAN GOVERNMENT
43 (1987).
119. See id.
120. See Timur Kuran, Religious Economics and the Economics of Religion, 150 J.
INSTITUTIONAL
& THEORETICAL
ECON.769, 770 (1994).
121. See text accompanyingnotes 101-104supra.
122. See Iannaccone,supranote 101,at 740.
123. See MAUSS,supranote 96, at 6.
124. Id. at 6 (citationsomitted).
125. See id. at 5-6.
evaluation,'26 religiousadherentscontinuallycalibratetheirdegreeof adher-

ence to accordwiththeirperceptionsof whatsalvationrequires.Ultimately,
belief does respondto marketforces,a powerfulargumentagainstthe dis-
tinctiondrawnbetweenactionand belief. The Mormonexperience,dis-
cussedin PartIII,providesa well-documented exampleof bothadherenceto
polygamy in the face of socialcosts andultimateabandonment of polygamy
whenthecoststhreatened theverysurvivalof theLDSChurch.
As the persecutionsassociatedwithpolygamyintensified,Mormonsbe-
camea morecohesive,insularcommunity.To them,legal andsocialperse-
cutionindicatedthatthey were on the pathto sanctification.'27 Opposition
hardenedtheirresolve,unitingthemeven furtherin defenseof theirmarital
practices.128In fact,one Mormonhistorianhas suggestedthatthe opposition
to polygamyactuallylengthenedits survivalby endowingit with greater
theologicalimport.129Nonetheless,the persecutionultimatelyshiftedthe
balancefromprouddefianceto crushedcapitulation.TheUnitedStatesgov-
ernmentpunishedMormonsfortheirmassviolationof maritalnormsby sus-
pendingtheircivil rightsandeffectivelydismantlingtheirChurch.To save
theirChurch,regaintheircivil rights,and obtainstatehood,the Mormons
abandoned pluralmarriage.Theyassimilatedin orderto survive.130
To Mormons,polygamywas a belief andpracticefundamental to their
salvation. Governmentpersecution,however,causedMormonsto forsake
polygamy. I arguethatsuch abandonment ultimatelyresultedin a funda-
mentalchangein Mormonbelief,suchthatpolygamyno longerplays a sig-
nificantrolein Mormonnotionsof salvation.
B. CognitiveDissonance and Changein Belief
1. An outline of cognitive dissonance theory.
Previously,thisnote suggestedthreeoptionsfacedby a religionistwhen

persecutionfinallyforcesa changein religiouspractice:she may convertto
anotherfaiththatlargelyfulfillsherparticular belief;she may ceaseto prac-
tice the belief, but still retainit; or she may altogetherrelinquishthe belief.
In the event anotherreligiondoes not practicethe belief, the firstoptionis
not possible. If the belief is deeplyheld, thenthe secondoptionwill be a
painfulanddifficultone.
126. See note 105 supra.

127. See FIRMAGE & MANGRUM,
supra note 15, at xiii.
128. See RICHARDS. VAN WAGONER, MORMONPOLYGAMY: A HISTORY103, 109 (1986).
129. See B. CARMONHARDY,SOLEMNCOVENANT: THEMORMONPOLYGAMOUS PASSAGE
at xviii (1992).
130. See FIRMAGE & MANGRUM,
supra note 15, at xiv-xv.
1316 STANFORD
Should the person choose the thirdoption, abandoningthe belief entirely,

she would act in accordancewith what psychologists have termed the "the-
ory of cognitive dissonance." Defining cognitive elements as thoughts, atti-
tudes, and beliefs, this theory "assumesthat a personbehaves in a way which
will maximize the internalconsistency of his or her cognitive system."'31 If
any of the elements of a person's cognitive system are in conflict with one
another,then the person is in cognitive dissonance. "Because dissonance is
psychologically uncomfortable,its existence will motivate a person to reduce
it and achieve consonance."'32The theory of cognitive dissonance has suffi-
cient predictive ability133to bolster the argumentthat one cannot claim a
meaningfuldistinctionbetween suppressionof action and belief in free exer-
cise questions.
Leon Festinger first outlined the theory of cognitive dissonance in
1957.134 Stating that "the individualstrives toward consistency within him-
self," Festinger noted a general consistency among one's knowledge, atti-
tudes, beliefs, and actions.'35 Inconsistency among any of these elements
results in psychological discomfort,motivatingthe person to reduce the dis-
sonance.'36 As the importanceof the dissonant elements increases, so too
does the magnitudeof the dissonance the person feels.'37 Accordingly, the
person will work harderto reduce the dissonance and avoid situations that
might increase it.138 Festinger posited that, to reduce dissonance, one may
change one's own behavior, change one's environment,139 or most drasti-
cally, change the very cognition (i.e., belief or opinion) that is in conflict
with the behavior or the environment: "The dissonance may be reduced, or
perhapseven eliminatedcompletely, by changing one's own opinion so that
it correspondsmore closely with one's knowledge of what othersbelieve."140
Once one has made a particularlyimportantdecision, she may reduce
cognitive dissonance throughseveral means. She may reevaluatethe alter-
131. ENCYCLOPEDIC
DICTIONARY
OF PSYCHOLOGY
93 (Rom Marre & Roger Lamb eds.,
1983).
132. Id.
133. See Russell H. Fazio, MarkP. Zanna& Joel Cooper,Dissonanceand Self-Perception:
An IntegrativeViewof Each Theory'sProperDomainof Application,13 J. EXPERIMENTAL SOC.
PSYCHOL.464, 465-66 (1977) (stating that cognitive dissonance theory accurately characterizes
attitude change in the context of attitude-discrepantbehavior). See generally JACKW. BREHM&
ARTHURR. COHEN, EXPLORATIONS IN COGNITIVEDISSONANCE(1962); LEON FESTINGER,
COGNITIVEDISSONANCE(1962); LEON FESTINGER,CONFLICT,DECISION,AND DISSONANCE
(1964).
134. See generally LEONFESTINGER, A THEORYOFCOGNITIVE DISSONANCE (1957).
135. Id. at 1.
136. See id. at 2-3.
137. See id. at 16.
138. See id. at 18.
139. See id. at 18-20,34.
140. Id. at 182.
natives to reinforce the decision she made, deemphasizing some and reem-
phasizing others. She may also add elements to the entire decisionmaking
process that cast it in a broaderlight, such that elements that seemed to con-
flict with one another actually become part of a compatible whole.'41
Festingertermedthis lattertechnique"cognitiveoverlap."142
Cognitive dissonanceaddressesthe issue of coerced behavior,an issue of
particularinterest in consideringthe belief-action distinction. According to
Festinger,"Dissonancealmost always exists after an attempthas been made,
by offering rewardsor threateningpunishment,to elicit overt behaviorthat is
at variance with private opinion. If the overt behavior is successfully elic-
ited, the person's privateopinion is dissonantwith his knowledge concerning
his behavior . . ."'43 Significant reward or punishment decreases the disso-
nance associated with the behaviorbecause it offers externaljustification for
acting in a particularmanner. Still, if forced compliance has caused disso-
nance, one may reduce the dissonance by changing her private opinion to
accordwith her overt behavior.'44
Finally, groupdynamicslikewise involve cognitive dissonance. When in
disagreementwith others, one tends to reject those with whom one disagrees
and seek out those who share similar cognitions. This social support,on an
immediatelevel, tends to block the discomfortproducedby dissonance with
the largersociety.145
Robert Wicklund and Jack Brehm have refined Festinger's original the-
ory. They note that taking an overt position at odds with an earlierposition
is "a form of conversion."'46Following such a conversion, there is deep re-
luctance to reconvertfor fear of appearinghypocriticalor indecisive. Also,
once one has made a behavioralcommitment,one tends to filter out infor-
mation that would lead to a different commitment.'47 Finally, if one has
made a cognitive commitment prior to experiencing dissonance, changing
that commitmentis more difficult.'48
141. See id. at 44-46.

142. Id. at 44.
143. Id. at 261.
144. See id. at 263-64.
145. See id. at 265.
146. ROBERTA. WICKLUND
& JACKW. BREHM,PERSPECTIVES
ONCOGNITIVE
DISSONANCE
6 (1976).
147. See id. at 6-8.
148. See id. at 23-24.
1318 STANFORD
2. Applyingcognitive dissonance theoryto the Mormonexperience.
The stark contrast between the gentile rejection of polygamy and the
lengths to which Mormonswent to defend and practice itl49suggests a large
degree of cognitive dissonance between the Mormon community and main-
stream society. Before persecution forced the Mormons to concede defeat,
the disparitybetween theirbeliefs and that of Americansociety increasedthe
cohesiveness of their communityand actuallydeepened their commitmentto
polygamy.150 Once they succumbed to persecution and abandonedpolyg-
amy, the Mormonswere able to retainan active belief in polygamy for about
fifteen years.151Despite their inabilityto practicepluralmarriage,they could
point to external coercion as justification for their behavior and thus mini-
mize any dissonance they felt. However, as the United States Senate con-
ducted hearings on the continued practice of polygamy, hearings which
threatenedto penalize Mormonsonce again by denying office to their elected
representatives,152Mormonsfelt increasedpressureto bring their actions and
beliefs into conformity with one another. By 1920, they had largely done
so.'53 Because the final push to conform came from within the Mormon
community ratherthan from without,154Mormons could no longer point to
outside forces for this change in belief. They had become converts to mo-
nogamy and would now find it very difficult to reconvertto pluralmarriage.
To decreasethe cognitive dissonanceof such a drasticshift in action and
belief, Mormons went througha series of adjustmentsthat allowed for cog-
nitive overlap. The initial reasonfor abandoningpolygamy was to ensurethe
continuedexistence of the LDS Churchand enable membersto practiceother
aspects of their religion. Mormons regardedthe renewed commitment to
monogamy during the early part of this century as a necessary step to be-
coming good citizens and full members of the polity. With the passage of
time, polygamy has become a historicaland culturalphenomenonratherthan
a currenttheological reality. Mormonsnow explain polygamy as a practice
that was necessary for a time, but one the Lordno longer requiresof his peo-
ple.155
As predicted by Wicklund and Brehm, there is no adherentlike a con-
vert. Having convertedto monogamy, Mormonsare in no danger of revert-
ing to polygamous life. If anything,Mormonmoral stricturesagainst sexual
experience outside the bounds of monogamousmarriageare far more strict
149. See texts accompanying notes 159-179 & 264-326 infra.

150. See text accompanying notes 127-129 supra.
151. See text accompanying notes 272-303 infra.
153. See HARDY,supra note 129, at 284.
than that of the generalpopulation.156Mormonshave committedthemselves

to monogamy. Should cognitive dissonance once again visit this issue,
Mormons would have deep psychological incentives for remainingmonoga-
mous.
Currently,Mormons follow one last mode of dissonance reductionpre-
dicted by Wicklund and Brehm. As much as possible, Mormons simply ig-
nore the question of polygamy because, "[i]ndependentof adding consonant
elements, removing dissonant ones, or lowering the importance of either,
there is a mode of coping with dissonance that simply involves not thinking
about the dissonant relations."157For decades, Mormons have largely ig-
nored the issue of polygamy;it is simply not a currentquestion.158
III. THEMORMONPOLYGAMOUS A CASESTUDYOF

EXPERIENCE:
SUPPRESSED
ACTIONANDITSEFFECTSONBELIEF
Although polygamy is not partof currentmainstreamMormonculture,it

certainlyis a partof historicalMormonism. At one point, Mormontheology
maintainedthatpolygamy was a necessary-in fact, the central-practice for
eternal salvation. This vast evolution between past and present belief, the
result of suppressed religious practice, underminesthe jurisprudentialdis-
tinctionbetween belief and action.
A. The TheologicalFoundationsof MormonPolygamy
Mormonswere not the first or only ones to practicepolygamy.'59 How-

ever, Mormons endowed polygamy with unprecedentedmoral attributesby
incorporatingit into their eschatology.160Perhapsthe most radical doctrinal
156. See generallyElizabethHarmer-Dionne, OptimalEnforcementin the DisciplinaryPro-

ceedingsof the Churchof JesusChristof Latter-daySaints(1996) (unpublishedpaper,on file with
author)(examiningthe 1991 LDS Bishop's Handbookand discussingthe Church'sdisciplinary
system-including excommunications-topunishtransgressions).See also FlorenceWilliams,A
House, 10 Wives:Polygamyin Suburbia,N.Y. TIMES,Dec. 11, 1997, at F1 (notingthatthe LDS
Churchcurrentlysanctionsthepracticeof polygamythroughexcommunication).
157. WICKLUND & BREHM, supranote 146,at 138.
158. A review of several decades of the Church'sofficial magazine(the Ensign), official
weekly paper(the LDS ChurchNews), and the 1991 editionof the LDS Bishop's Handbookindi-
cates thatthe subjectof polygamyis largelyignoredby the hierarchyof the LDS Church. In fact,
the LDS Bishop'sHandbookdoes not even mentionpolygamyby name,insteadmerelyreferringto
any relationshipoutsideof monogamousmarriageas adulterous.UnofficialMormonpublications,
such as Sunstoneand Dialogue, more frequentlyaddresspolygamy,but even these publications
tendto focus on historicalratherthancurrentaspectsof pluralmarriage.For examples,see note 32
supra,notes 255 & 256 infra,andDialoguearticlesreferencedtherein.
159. Eighteenth-century treatisesrefutingpluralmarriageindicatesome popularadvocacyof
polygamyboth for philosophicalreasonsand as antidotesto social ills. See HARDY,supra note
129, at 2; see also VANWAGONER,supranote 128, at 38.
160. See HARDY, supranote 129, at 9-11.
1320 STANFORD
tenet of Mormonismis thatmankindcan achieve godhood and that God him-

self was once a mere mortal.16' The ProphetJoseph Smith explicitly taught
that a man would progressthrougheternityin proportionto the magnitudeof
his posterity on earth and that polygamy was a centralpart of the pursuitof
godhood. More wives ensured both increased progeny and greater future
glory.'62 Men who rejectedthe practiceof polygamy not only forfeited god-
hood, but were damned. Accordingly, the salvation of women depended on
theirunion with a righteous-by definition,polygamous-man.163
Joseph Smith evidently consideredpolygamy duringthe early 1830s and
began to practice it himself in 1841.164 Publicly the leaders of the young
Churchdenouncedpluralmarriage,but privatelythey practicedit and began
to test the reactionsof a select groupexposed to it.l65 Confrontedby a public
stance that contradictedwidespread rumors of polygamy, members of the
LDS Churchwere understandablyconfused. In 1843, Joseph Smith resolved
the confusion by announcingthe receiptof two revelations,now incorporated
into the Doctrine and Covenantsas sections 131 and 132,166that called for
the restorationof biblical polygamy within the frameworkof marriageto be
solemnized-or "sealed," in Mormon terminology-for eternity.167 Al-
161. See note 320 infra.

162. See VANWAGONER,supranote 128, at 54. As MormonhistorianRichardVan Wagoner
states:
Thisemphasison procreation becamethebasisfortheMormonconceptof man'sprog-
ressto divinity.All of Joseph'sNauvoodoctrinalinnovations
fell intoplacearoundthisnew
teaching.TheprophetexplainedthatGodwasanexaltedmanandthatmortalexistencewasa
testinggroundformento beginprogresstowardexaltedgodhood.Salvationbecamea family
affairrevolvingarounda husbandwhosepluralwives andchildrenwere sealedto him for
eternityunderthe"newandeverlasting covenant."
Id.; see also JESSIE L. EMBRY, MORMON POLYGAMOUS FAMILIES: LIFEINTHEPRINCIPLE 41-42
(1987).
163. See VAN WAGONER, supra note 128, at 45.
164. See Preface to DOCTRINEANDCOVENANTS? 132; VAN WAGONER,supra note 128, at
7.
165. See EUGENEE. CAMPBELL,ESTABLISHING
ZION: THE MORMONCHURCHIN THE
AMERICAN WEST,1847-1869,at 164 (1988). Less than 100 men took pluralwives duringthe pe-
riodthe Mormonswere basedin Nauvoo,Illinois,andthey did so only at the Prophet'sinstruction.
See id. Generally,thesemenwereLDS Churchleaderswith at leastfive yearsof membership.See
id. This was consistentwith the generalinstructiongiven in the Bookof Mormon,anotherbook of
Mormonscripture,thatpolygamyis not pleasingto the Lordunless done at his expresscommand:
"Forthereshall not any man amongyou have save it be one wife; and concubineshe shall have
none; ... For if I will, saiththe Lordof Hosts,raiseup seed untome, I will commandmy people;
otherwisethey shallhearkenuntothesethings."THEBOOKOFMORMON, Jacob 2:27, 2:30.
166. In additionto the Bible, Latter-daySaintsaccept three otherbooks as scripture: The
Bookof Mormon,ThePearl of GreatPrice, andDoctrineand Covenants.Doctrineand Covenants
containsrevelationsreceivedfromaroundthe time of the foundingof the LDS Churchto the pres-
ent day. JosephSmithpennedthe vast majorityof the revelationscontainedin the currentversion
of the book.
167. See HARDY, supranote 129, at 9-10. CharlesSmith,an elderduringthe Church'sresi-
dency in Nauvoo,Illinois,reportedthatJosephSmith'srevelationscame as a resultof his brother
HyrumSmith'sinsistence:
though rumorscirculatedoutside the LDS ChurchregardingMormonmarital

practices, the Church did not publicly declare its acceptance of polygamy
until 1852, when Brigham Young168accepted Joseph Smith's 1843 revela-
tions as partof the Church'sscripturalcanon.169
Once the LDS Church took a public stance on polygamy, vigorous
apologetics followed. Partiallyin response to persecution of the Mormons,
polygamy became the defining characteristicof faithful Latter-daySaints.
Orson Pratt,the foremost apologist for the polygamous cause, declared that
damnationfollowed rejection of the practice.170The practice of polygamy
was necessary to achieve godhood, a condition to which devout Latter-day
Saints aspired.171LDS Churchleaders presentedpolygamists as true Saints,
an elite cadre establishing a model by which other Saints should conduct
their lives. It quickly became clear that polygamous marriagebenefited men
who wished to advance through the LDS Churchhierarchy.172On a more
spiritualplane, LDS Churchleaders taughtthat the choicest spiritualsawait-
ing mortal existence would come to polygamous families.173 During the
Mormon Reformation of 1856-1857, Jedediah M. Grant, a counselor to
Brigham Young, stressed spiritualcleanliness, confession, repentance,self-
sufficiency, and a commitment to plural marriage.'74 As a result, couples
marriedin droves.175
Both my maternaland paternalfamily histories provide anecdotal sup-
port for the temporal and spiritualbenefits of plural marriage. George Q.
Cannon, my great-great-great-grandfather, was an apostle and a first coun-
selor to several LDS Churchpresidents. His youngest brother,Angus Munn
Cannon, also my great-great-great-grandfather,176 was president of the Salt
Lake City Stake for decades. Both were polygamists. AbrahamH. Cannon,
George's son, Angus' son-in-law, and my great-great-grandfather, was also
[T]hedoctrineof Pluralityof Wiveshadbotheredhimconsiderably

andhe felt constrained
to
askwhereinAbraham, Moses,David& otherscouldbejustifiedbeforeGodin practicingthis
to himrepugnantdoctrine-Heaskedhis brothertheProphetJosephto askthequestionof the
Lord-Josephdidso andtheRevelation given12July1843wastheanswer.
VAN WAGONER,supra note 128, at 53.
168. After JosephSmith'smartyrdomat the handsof a mob in Carthage,Illinois, Brigham
Youngassumedleadershipof the youngChurch.See LEONARD J. ARRINGTON, BRIGHAMYOUNG:
AMERICAN MOSES 3 (1985);HARDY, supranote 129, at 11.
169. See HARDY, supranote 129,at 15;VANWAGONER, supranote 128, at 84.
170. See HARDY, supranote 129,at 19.
171. See id. at 51,54.
172. See id. at 19;VANWAGONER, supranote 128,at 97.
173. See HARDY,supra note 129, at 15; BruceA. Van Orden,GeorgeReynolds:
Secretary,
SacrificialLamb,andSeventy304 (1986) (unpublishedPh.D.dissertation,BrighamYoungUniver-
sity) (on file with the StanfordLaw SchoolLibrary).
174. See VAN WAGONER,
supra note 128, at 91.
175. See id. at 91-92.
176. See note 258 infraandaccompanyingtext.
1322 STANFORD
an apostle who entered into polygamous marriages,one of them after the

Manifestopurportedlyabolished the practice. According to family tradition,
George Cannon,fatherof George Q. and Angus, was concernedthat the once
prominent Cannon name would become extinct. He and his wife, Anne
Quayle, signed a prenuptialagreementthat would have dissolved their mar-
riage had there been no issue. One rewardfor convertingto Mormonismand
leaving his beloved Englandin 1843 is the existence of over 21,000 Cannon
descendantscurrentlyliving in the United States, a testamentto the power of
polygamy in ensuringprogeny.177
Another ancestor, Loren HannibalHarmer,was a bishop in Springville,
Utah, for six years before being convicted of polygamy and imprisoned for
several years. He too engaged in a post-Manifestomarriage and fathered
many children. He latertestified in the 1903 Smoot Senate Hearings'78about
his conviction and imprisonment,declaringthat he had committed adultery
ratherthan admittingto the Senate that he had practicedpolygamy. By do-
ing so, he hoped to avoid impugning the LDS Church for the continued
practiceof polygamy.'79 The Harmername still dots the Mormon congrega-
tions and graveyardsof Springville.
B. A Peculiar People: Fears of MormonPolitical Dominance
1. The initialpublic reaction.
When the LDS Churchmade its 1852 announcementregardingpolyg-

amy, public opposition to the practice quickly coalesced. Clergymen,
women's leaders, and newspaper editors all called on national leaders to
wipe out the practice.180 In 1856, the newly formed RepublicanPartycalled
for the eradication of polygamy and slavery, the "twin relics of barba-
rism."'8' In 1857, PresidentBuchananauthorizeda $15 million invasion of
Utah intendedto intimidatethe Mormonleadershipand cause them to revoke
the practice.'82 In the face of Mormon quiescence, the invasion floundered,
earning the name "Buchanan's Blunder."'83 Soon thereafter, Congress
passed the 1862 Morrill Anti-Bigamy Act.'84 Yet, despite a series of bills
177. See CANNON FAMILY

HISTORICAL TREASURY 13-45 (BeatriceCannonEvans& Janath
RussellCannoneds., 1967)(discussingthe lives of the majorfiguresin the Cannonfamilyhistory).
178. See generallyS. DOC.No. 59-486 (1906).
179. See John L. Harmer,Elias HarmerFamilyHistory88-100 (1959) (unpublishedmanu-
script,on file with author).
181. Id. at 85; see also FIRMAGE
& MANGRUM, supra note 15, at 129.
182. See VAN WAGONER, supra note 128, at 86-87; see also CAMPBELL, supra note 165, at
233-52.
183. VAN WAGONER,
184. Act of July 1, 1862,ch. 126, ? 1, 12 Stat.501, 501-502(1862) (repealed1910).
passedin the late 1860s thatattemptedto strengthenthe Anti-BigamyAct,

laxjudicialenforcement enervatedthelaw.'85
Afterthe Civil War,the conflictbetweenMormonsandgentilesintensi-
fied. On January13, 1870,threethousandMormonwomengatheredin the
Salt Lake City Tabernacleto protestthe proposedCullomBill,186which
wouldhavevastlycurtailedthe civil libertiesof polygamists.Sanctionsfor
the practiceincludedsuspensionof the rightsto sit on juries,holdpublicof-
fice, vote, or becomea naturalizedcitizen.'87Whenthe CullomBill passed
the house,citizensof SaltLakeCitysenta desperatemessageto the Senate:
"We... arebelieversin theprincipleof pluralmarriageor polygamy... not
simplyas an elevatingsocialrelationshipanda preventiveof manyterrible
evils whichafflictourrace,but as a principlerevealedby god [sic], under-
lying our everyhope of eternalsalvationandhappinessin heaven."'88Mi-
raculously,thebill waskeptfromthe Senatefloor.'89
2. Establishinga literal, millennialZion.
To judge the persecutorsof Mormonismfairly,one mustrecognizethe

nineteenth-century perceptionof Mormonism andthe challengeposedby the
Latter-daySaintsto governmental authority.Mormonswere an incredibly
cohesivegroup,one which voted as a politicalblock and which answered
firstto theirecclesiasticalleaders.'90Passionatelycommittedto theircause,
Mormonsquicklyestablishedthemselveswhereverthey settled. Theywere
not loatheto announcethatthey had come to establisha new Zion-a city
and people devotedto God and committedto the establishmentof justice,
social and economicequality,and spiritualpurity.19'The 1844 martyrdom
185. See VAN WAGONER,supranote 128, at 108.

186. See id. at 109.
187. See id. at 108-09. The bill also wouldhave liftedthe prohibitionagainstwomentestify-
ing againsttheirhusbands.See id. at 109.
188. Id. at 109 (firstalterationin original).
189. See id. at 110.
190. See BERNARDDEVOTO, THE YEAR OF DECISION:1846, at 84-85 (1943); see also
LAWRENCE FOSTER,RELIGIONANDSEXUALITY:
THREEAMERICAN COMMUNAL EXPERIMENTS OF
THENINETEENTH CENTURY242 (1981).
191. See FIRMAGE & MANGRUM, supranote 15, at xii. Afteran extensivestudyof Mormon
legal history,Firmageand Mangrumconcludedthat one must understandthe conceptof Zion to
understandMormonmotivations:
Mormonism was devotedto the idealof Zion,a perfectedcommunityof Saintsorganizedin
economic, political, and social affairs by priesthooddirection and united by love of God and
of his SecondComing.Thistheologicalcommitment
expectation decisivelyinfluencedMor-
monlegalconflictswiththe stateandMormoneffortsto operatea churchcourtsystemwith
broadjurisdictional
powers.
Id. at ix.
Aftertheirforcedremovalto Utah,Mormonsonce againset aboutestablishingZion, this time
in the RockyMountains.Tens of thousandsof convertsfromaroundthe worldpouredinto the Salt
1324 STANFORD
of Joseph Smith was, in large part,the result of fears regardingthe extraordi-

nary powers grantedto Nauvoo, Illinois, in its city charter,including the es-
tablishmentof an independentmilitia of which Smith was the head.'92 Non-
believers viewed this Mormonquasi-theocracyas dictatorial.193In contrast,
Mormonsembraced"the Lord's right to rule throughhis priesthoodleaders"
and assumed that part of their democraticrights included their right, as be-
lievers, to accept or rejectdivine guidance.194
Despite their strong sense of being a people apart,the Latter-daySaints
had a staunchbelief in and commitmentto the rule of law and the Constitu-
tion. They passionatelymaintainedthatpolygamy, as a tenet of their religion
and an express commandfrom God, enjoyed constitutionalprotection.195In
a New YorkHerald articlepublishedon July 15, 1852, W.W. Phelps, a Mor-
mon editor, insisted that neither the United States governmentnor the Utah
territorial congress had control over religion, morality, or polygamy.196
Mattersof conscience answered solely to "the word of the Lord."197Thus,
LDS Churchleaders denouncedthe 1862 MorrillAnti-Bigamy Act as a pat-
ently unconstitutionalabrogationof theirFirstAmendmentrights.'98
United States authoritieswere not convinced. In 1856, while the Repub-
lican Partydenouncedpolygamy by equatingit with slavery, the real concern
of both Republicans and Democrats was the secular power of the LDS
Church. According to IdahoSenatorFrederickDubois:
Those of us who understandthe situation were not nearly so much opposed
to polygamy as we were to the political domination of the Church .... There
was a universal detestation of polygamy, and inasmuch as the Mormons openly
defended it we were given a very effective weapon with which to attack.199
Hoping to attainstatehoodand its concomitantprivileges and powers for
their territory, Latter-day Saints sided with the Democratic Party, which
strongly advocated states' rights. However, Stephen A. Douglas, then
Democratic Chair of the Senate Committeeon Territories,laid to rest Mor-
mon hopes of Democratic supportby declaringthat Mormons "were a trai-
torous group whose allegiance to BrighamYoung supersededtheir commit-
Lake Valley. See CAMPBELL, supranote 165, at 3. Fromthere,BrighamYoung sent themout to

California,Nevada,Colorado,Wyoming,andIdahoto colonizethe West. See id. at 73.
192. See DALLIN H. OAKS & MARVIN S. HILL, CARTHAGE CONSPIRACY: THE TRIAL OF THE
ACCUSEDASSASSINSOFJOSEPHSMITH6-23 (1975).
193. See id. at 11.
194. FIRMAGE & MANGRUM,supra note 15, at x, 12.
195. See HARDY,supra note 129, at 14.
197. Id.
198. See id. at 108.
199. KLAUS J. HANSEN, QUEST FOR EMPIRE: THE POLITICAL KINGDOM OF GOD AND THE
COUNCIL OF FIFTY IN MORMON HISTORY 170 (1967).
mentto the country."200BrighamYoungdid littleto defusethis statement.

He retortedthatneitherthe Presidentnor Congresshad any businessmed-
dlingwithpolygamyandthatMormonswouldbecome"a sovereignStatein
theUnion,or an independentnationby ourselves."201
3. TheSupremeCourt'sdistinctionbetweenbeliefandaction.
In 1874,GeorgeReynolds,BrighamYoung'spersonalsecretary,agreed
to be tried in a test case of the MorrillAnti-Bigamy Act.202An English con-
vert to Mormonism,Reynoldsspenthis life servingthe LDS Churchas a
scholar,theologian,author,missionary,andcofounderof its Sundayschool
program.203 He was also a devotedfatherand,at the time of his trial,hus-
band to two women.204Reynoldsstatedthat he enteredpluralmarriage
"mostthoroughlyconvinced"thatit was "theLaw of the Lord"andthathe
hadan affirmativeobligationto do so in orderto "escapecondemnation and
[God's] displeasure."205 Polygamywas an expressionof his "mostdeep
seatedreligiousconvictions."206 Earlyon, federalprosecutorsagreedto drop
chargesagainstLDS Churchleadersin exchangefor Reynolds'cooperation
in the test case.207Convincedthatthe Constitution wouldprotecttheirpecu-
liar institution,LDS Churchleadersencouragedthe trialto go forward.208
Theybelievedtheywouldwin on thebasisof theirsincerereligiousbeliefin
thecentralityof polygamyto theireternalsalvation.
After his initialconvictionwas overturnedon jury irregularities, Rey-
noldswas againfoundguiltyin a secondtrialone yearlater.209JudgeAlex-
anderWhite'schargeto thejurypresagedthe SupremeCourt'sultimaterul-
ing againstReynolds: "Inmattersof opinion,and especiallyin mattersof
religiousbelief, . . . all menarefree. Butparallelwith anddominatingover
this is the obligationwhich everymemberof society owes to that society;
thatis, obedienceto the law."210TheUnitedStatesSupremeCourtaffirmed
in 1878,upholdingtheMorrillAnti-BigamyAct.21
200. VAN WAGONER,

201. Id. at 86.
202. See Van Orden,supranote 173, at 53; see also VANWAGONER,supranote 128, at 110-
11.
203. See VanOrden,supranote 173, at vi-ix, 281-323.
204. See id. at 284.
205. Id. at 58.
206. Id. at 59.
207. See id. at 57-58.
208. See VANWAGONER,supranote 128, at 110-11.
209. See id. at 111.
210. Id.
211. See text accompanyingnotes35-51 supra.
1326 STANFORD
In each of Reynolds'prosecutions,the defensereliedon the argument

thatReynoldsshouldbe acquittedbecausehe marrieda secondwife out of
religious duty.212 Chief Justice Morrison R. Waite rejected this argument,
writingthatthe monogamousfamilyis thebasisof Westernsocietyandthat,
in the interestof socialorder,the government hasthepowerto preserveit by
suppressingpolygamy.213 Religious convictiondid not give one the rightto
defy the law and violate one's "social duties."214
Mormonsgreetedthe
Court'sdecisionwithshock. GeorgeReynolds'wordsreflectedthe feelings
of his community:
I regard [the decision] a nullification of the Constitution, so far as religious lib-
erty is concerned. To say the Constitution simply grants freedom of religious
opinion but not the exercise of that opinion is twaddle .... I should never have
taken a second wife had I not considered that in so doing I was obeying a law of
God, which I could not evade without just condemnation.215
CongressreadtheReynoldsdecisionas tacitpermissionto imposemore
stringentantipolygamylegislationand acted accordingly. The 1882 Ed-
mundsAct216facilitatedprosecutionof polygamyby creatinga new of-
fense-unlawful cohabitation-thatrequiredno proofof marriageand thus
closeda loopholein theMorrillAct.217TheEdmundsAct also imposedcivil
disabilitieson polygamists,cancelingtheirrightsto vote, holdpublicoffice,
and serve on juries.218Aftera markedincreasein polygamyprosecutions,
Mormonpolygamistsaccountedfor most of the Utah prison population.
Thoseluckyenoughto escapeimprisonment wentintohiding.219
212. See Reynoldsv. UnitedStates,98 U.S. 145, 161 (1878).

213. See id. at 166-67. The SupremeCourt'sdecisioneffectivelyupheldReynolds'sentence
of two yearsat hardlaborandfine of $500. See Linford,supranote 6, at 334.
214. Reynolds,98 U.S. at 164;see also Van Orden,supranote 173, at 73-82 (discussingthe
defense's testimonyat trial and the oral argumentsbefore the Utah and United States Supreme
Courts).
215. Van Orden,supranote 173,at 83 (firstalterationin original).
216. Act of Mar.22, 1882, ch. 47, ? 8, 22 Stat. 30 (1882) (repealed1983). The Supreme
Courtupheldthe Act in Murphyv. Ramsey,114 U.S. 15 (1885). For a review of anti-Mormon
legislationand courtdecisionsupholdingthose laws, see R. MichaelOtto, Comment,"Wait 'Til
YourMothersGetHome":AssessingtheRightsof PolygamistsAs CustodialandAdoptiveParents,
1991 UTAHL. REV. 881, 888-94.
Furtherchallengesto polygamylaws followed Reynolds. None were successful. See Late
Corp.of the Churchof Jesus Christof Latter-daySaintsv. United States, 136 U.S. 1, 45, 64-65
(1890); Davis v. Beason, 133 U.S. 333, 341, 345-47 (1890); In re Snow, 120 U.S. 274, 285-86
(1887); Cannonv. UnitedStates, 116 U.S. 55, 79 (1885); Clawsonv. UnitedStates, 114 U.S. 477,
482 (1885); Murphy v. Ramsey, 114 U.S. 15, 40-42,45 (1885).
217. See Act of July 1, 1862, ch. 126, ? 1, 12 Stat. 501,501 (1862) (repealed 1910).
218. See FIRMAGE & MANGRUM,supra note 15, at 161-62; VAN WAGONER,supra note 128,
at 117.
219. See HARDY,supra note 129, at 49. The threat of imprisonment was real. To this
day,
two houses standkitty-corneredin Kayesville,Utah. Familytraditionhas it that my great-great-
grandfather,JohnR. Barnes,used a secrettunnelthatranbeneaththe intersectionto bothhouse so
thathe couldpass back-and-forth
betweentwo of his families.
The 1887 Edmunds-TuckerAct220drove the knife deeper. It disenfran-

chised women under the assumptionthat they would vote only according to
their husbands' dictates.221The Act disincorporatedthe LDS Church,trans-
ferredall its propertyto the government,and dissolved the company that had
funded and overseen all Mormonemigrationto Utah.222Voters had to swear
to uphold the 1882 EdmundsAct before they were registered.223Witnesses
had to attend trials without benefit of subpoena.224Federal officials could
prosecuteadulterywhetheror not a spouse filed a complaint.225Wives could
be called to testify against their husbands.226Some have called this the most
intense campaign against any outlawed religious group in American his-
tory.227 In 1885, President Cleveland recommendedthat Congress prohibit
foreign-bor Mormons from entering the United States.228 Several years
later, Congress proposed the Cullom-Strubble Bill, which would have
strippedUtah Mormonsof theirrights as Americancitizens.229The 1890 bill
was a response to a SupremeCourtdecision that upheld the constitutionality
of the Idaho test oath, which disfranchisedIdaho Mormons.230 The LDS
Churchwas exhausted;that same year, it capitulatedand issued the Mani-
festo, commencingthe gradualeradicationof polygamy.231
C. A Peculiar People: Pseudo-ScientificClaims in the PolygamyDebate
Mormons and gentiles alike voiced exaggeratedclaims regardingpolyg-

amy. Mormonsclaimed that it would amelioratesocial ills. Gentiles insisted
that, to the contrary,polygamy was at the root of social ills and threatened
democraticgovernment. According to legal scholar Robert Dyer, the latter
view prevailed when the Supreme Court upheld Reynolds and allowed the
suppression of polygamy.232He contraststhe conclusory statements in the
Reynolds opinion with the detailed psychological studies that frequentlyac-
company moder briefs. Considering the lack of evidence regarding the
supposedly deleteriouseffects of polygamy, it is difficult to argue that it un-
220. Act of Mar.3, 1887,ch. 397, ?? 13, 17, 24 Stat.635, 637, 638 (1887) (repealed1978).
221. See id.
222. See FIRMAGE
& MANGRUM,
supra note 15, at 201-02.
223. See id. at 200.
224. See id. at 198.
225. See HARDY, supranote 129, at 49.
226. See id.
227. See Linford,supranote 6, at 370.
228. See FIRMAGE
& MANGRUM,supra note 15, at 202, 242.
229. See VAN WAGONER,
230. See Davis v. Beason, 133U.S. 333, 346-48 (1890).
231. See FIRMAGE
& MANGRUM,
232. See RobertG. Dyer, TheEvolutionof Social andJudicialAttitudesTowardsPolygamy,5
UTAHB.J. 35, 35 (1977). Dyer, of course, wrote his article before the decision in Smith.
1328 STANFORD
dermines societal order.233 Noting more tolerant attitudes toward sexual

practices, Dyer implies that a later SupremeCourt might have decided Rey-
nolds differently.234Dyer notes that duringthe second half of the eighteenth
century, Americans viewed polygamy as both a physical and spiritual
blight.235In 1860, Illinois CongressmanMcClerand echoed the sentiments
of much of the country: "As to polygamy,... I charge it to be a crying evil;
sapping not only the physical constitutionof the people practicingit, dwarf-
ing their physical proportionsand emasculating their energies, but at the
same time pervertingthe social virtues, and vitiating the morals of its vic-
tims."236Voicing concerns aboutthe Church'spolitical dominance,McCler-
nand equated polygamy with political despotism and further stated that it
"invariablybegets among the people who practice it the extremes of brutal
bloodthirstinessor timid and mean prevarication,"attributesin opposition to
vigorous democracy.237
Despite sensational descriptions of polygamy, Mormon polygamy was
essentially a puritanicalsystem introducedto people raised in a frameworkof
monogamy.238One demographicstudy suggests that, at most, twenty percent
of Mormon families practicedpolygamy and that of those, the vast majority
(roughly two-thirds)involved only two wives.239BrighamYoung wrote that
when Joseph Smith first revealed the practice to him, he "desired the
grave."240However, by 1865, he wrote, "God never introducedthe Patriar-
chal order of marriage[polygamy] with a view to please man in his carnal
desires, nor to punish females for anythingwhich they had done; but He in-
troducedit for the express purpose of raising up to His name a royal Priest-
hood, a peculiar people."241 It is a truism among Mormons that the most
faithful members of the early Churchcame from polygamous families and
233. MauraI. Strassberghas madea ratherodd argumentthatpolygamyshouldbe outlawed,

but that same-sexmarriagesshouldnot. She bases this conclusionon a Hegelianargumentthat
polygamyresultsin despotismto the individual.MauraI. Strassberg,Distinctionsof Formor Sub-
stance: Monogamy,Polygamy,and Same-SexMarriage,75 N.C. L. Rev. 1501, 1532-36 (1997).
However,in makingthis argument,ProfessorStrassbergoverstatesthe degreeto which Mormons
rely on authorityfor truthand appearsto be ignorantof the stronglyindividualistictendenciesin
muchMormontheology.
234. See Dyer,supranote232, at 41-45.
235. See id. at 37-38.
236. VAN WAGONER,
237. Id.
238. See id. at 89; StanleyS. Ivins,Notes on MormonPolygamy,10 W. HUMAN.REV. 229,
229 (1956). Even modemcommentators will focus on the sensuallyexcitingaspectsof polygamy.
See EINARANDERSON,HISTORYANDBELIEFSOFMORMONISM
35 (1981).
239. See Ivins,supranote238, at 230.
240. VAN WAGONER,supra note 128, at 89.
241. Id. Mormonsstill cling to the notion of being a "peculiarpeople,"a people set apart
fromthe worldby theirobservanceof a stringent,personalmoralanddietarycode.
that polygamists comprised a disproportionatenumberof the leaders of the

LDS Church.242
American society became aware of Mormon polygamy just as monog-
amy took root as the supposed pillar of Western civilization.243 Victorian
norms placed a female-centeredhome at the root of juvenile moral guidance,
female purity, and male citizenship and sexual self-restraint.244Threatening
monogamy threatenedthe nation's homes and thus its very foundations,put-
ting civilization itself in peril.245The preoccupationwas not with sexual be-
havior or deviance per se.246 Despite Mormon cries of hypocrisy in regards
to gentile attitudestoward adulteryand prostitution,there was no analogous
attack on these behaviors. Antipolygamy laws did not criminalize informal
sexual relationsbetween men and women, nor did they requireany proof of
sexual intimacy for criminalconviction. Rather,the laws attackeda marital
system that prima facie challenged the notion that monogamy was the only
acceptablesocial form of marriage.247
Just as the gentiles used social argumentsto attackpolygamy, Mormons
used social argumentsto defend it. Among the more hyperbolic were that
polygamous men were more vigorous and producedhealthieroffspring and
that more valiant spirits came to polygamous homes.248 Other arguments
sound more persuasive to moder ears. Traditionalmarriages were fre-
quently unhappy. Why not allow the Mormonsto attemptan improvement
by experimentingwith a differentform of marriage? Historically,many na-
tions of the world have practicedsome form of pluralmarriage.249Why then
is polygamy not the naturalsocial order? Wherethere is a surplusof women
and their status depends very much on being a wife and mother, why not
provide them with such status? Would this not eliminatethe evils of adultery
and prostitution?250In fact, the Mormonwomen who marriedinto polygamy
often did enjoy a higher social statusthanthose in monogamoussituations.251
The reality of polygamy very much reflected the reality of monogamy:
Sometimes it worked, and sometimes it didn't. It did provide a social net-
work and welfare system.252Often the women who marriedinto polygamy
242. See JESSIEL. EMBRY,MORMONPOLYGAMOUS

FAMILIES:
LIFEIN THEPRINCIPLE
8, 62-
65 (1987).
243. See HARDY, supranote 129,at 41-42.
244. See id.
245. See id.
246. See id. at 60.
247. See id. at 41-42, 59-60;see also FIRMAGE
& MANGRUM,supranote 15, at 129.
248. See HARDY, supranote 129, at 85.
249. See id. at 86.
250. See id. at xviii, 16, 56.
251. See KIMBALLYOUNG,ISN'TONEWIFEENOUGH?105 (1954).
252. See FIRMAGE& MANGRUM, supra note 15, at 175.
1330 STANFORD
wereimmigrants, widows,or spinsters.253Ideally,only menmorallyworthy

andfinanciallyabletookpluralwives, andthenonly with the permissionof
theirfirstwives andLDS Churchleaders.254 However,therewereno estab-
lishedrules. Themannerof courtship,the numberof wives, andthe manner
of supportall varied,as did the happinessof the participantsin these ar-
rangements.255 Manywives were very close, with well-adjustedchildren
who consideredthemselvespart of the generalfamily.256Accordingto
MarthaCragunCox, she andhertwo "sisterwives""lovedeachothermore
thansisters,childrenof one motherlove .... We enjoyedmanyprivileges
thatsinglewiferyneverknew,"suchas sharingchildcareandhousekeeping
duties.257
My own grandmother, ClaudiaCannonJonas,often spokeof the close-
ness between her grandmother,WilhelminaMousely Cannon Cannon
("Grandma Miney"),258 andher sisterwives (collectivelyreferredto by the
variousgrandchildren as the "auntgrandmas").Long aftertheircommon
husbandhaddied,the womenvisitedback-and-forth, caringfor one another
duringillness,mourningtogetherin the face of death,andrejoicingtogether
duringholidaysandjoyful times. On the otherhand,otherwomenendured
dreadfulsituations,riddenwithstrifeandjealousy,fromwhichtheirchildren
bore sensitivescars.259And muchas GrandmaMineyloved the otheraunt
grandmas,it is tellingthat,afterthe deathof her firsthusband,she chose to
marrya gentile.
253. See id.

254. See LAWRENCE FOSTER, RELIGION AND SEXUALITY: THREE AMERICAN COMMUNAL
EXPERIMENTS
OF THENINETEENTH
CENTURY204 (1981) (noting that the President of the LDS
Churchhadto approveall pluralmarriages);id. at 209 (notingthe greatdemandsplaceduponmen
by polygamyandthe sincerecommitmentrequiredto practiceit).
255. See generally IRWIN ALTMAN & JOSEPH GINAT, POLYGAMOUSFAMILIES IN
CONTEMPORARY SOCIETY(1996) (contrasting the experiences of contemporary families with those
of nineteenth-century
Mormons);Marie Cornwall,CamelaCourtright& Laga Van Beek, How
Commonthe Principle?WomenAs Plural Wivesin 1860, DIALOGUE, Summer1993, at 139 (com-
paringand contrastingvariousnormsfor householdestablishmentand customsamong women in
polygamousmarriagesin the SaltLakeValley);JefferyOgdenJohnson,Determiningand Defining
"Wife": The Brigham YoungHouseholds, DIALOGUE,
Fall 1987, at 57.
256. See CLARISSAYOUNGSPENSE& MABELHARMER,BRIGHAMYOUNGAT HOME65-86
(1940) (describingthe relationsand householdarrangementsamong BrighamYoung's various
wives). See generallyJulieHemmingSavage,HannahGroverHegstedand Post-ManifestoPlural
Marriage,DIALOGUE, Fall 1993, at 101 (describingone woman'sexperiencewith post-Manifesto
polygamy).
257. KENNETHW. GODFREY,AUDREYM. GODFREY& JILL MULVAYDERR, WOMEN'S
VOICES:AN UNTOLDHISTORYOFTHELATTER-DAY
SAINTS,1830-1900, at 15-16 (1982).
258. She was the daughterof AngusM. Cannon,wife of AbrahamH. Cannon,and daughter-
in-lawof GeorgeQ. Cannon.
259. See ANNIE CLARKTANNER,A MORMONMOTHER:AN AUTOBIOGRAPHY BY ANNIE
CLARKTANNER220-56 (1969); see also CAMPBELL,
Women in polygamous situationstruly did threatenthe domestic ideal in

that, by necessity, they had far greaterindependence. Many pursuedcareers
in business, medicine, politics, journalism, and writing.260 Emmeline B.
Wells declared that polygamy "gives women the highest opportunitiesfor
self-development,exercise of judgment, and arouses latent faculties, making
them more truly cultivatedin the actualrealities of life, more independentin
thought and mind, noble and unselfish."261As MarthaCannon,thirdwife of
Angus M. Cannon, more bluntly put it, "If [a woman's] husband has four
wives, ... she has threeweeks of freedomevery month."262
Nonetheless, polygamy required extraordinary dedication from the
women who practiced it, a deliberatesuppressionof monogamous expecta-
tions for the sake of religious conviction. Zina D. Jacobs Smith Young, a
plural wife of Brigham Young, speaking in 1869 and then 1876, described
polygamy as follows:
Much of the unhappinessfound in polygamousfamilies is due to the women
themselves.... Theyexpecttoo muchattentionfromthe husband,andbecause
they do not get it, or see a little attentionbestoweduponone of the otherwives,
they become sullen andmorose.... [A] successfulpolygamouswife mustre-
gardher husbandwith indifference,andwith no otherfeeling thanthatof rever-
ence, for love we regardas a false sentiment;a feeling which shouldhave no
existencein polygamy.263
Thus, in sum, polygamy was not the depravedand sensuous institution
envisioned by the United States, and there was insufficient evidence of its
detrimentaleffects to justify the very real civil disabilities and personal per-
secutions visited on its Mormonadherents. Polygamy did challenge the mo-
nogamous ideal, but it requiredsuch religious commitmentand suppression
of traditionaldesires from those willing to enter into it that it posed little
threatof supplantingtraditionalmaritalnorms.
D. The Victoryof Forced Inactionover Belief
1. Thenecessary abandonmentofplural marriage.
There is some evidence that Brigham Young began to back away from
polygamy duringthe 1870s.264However, Young died in 1877 and was suc-
260. See FOSTER,supra note 254, at 214-16 (noting Mormon women's professionalism, fiscal
independence, educational opportunities, and support for polygamy as a fundamentally liberating
institution); see also MARILYNWARENSKI,PATRIARCHS AND POLITICS:THE PLIGHTOF THE
MORMONWOMAN153, 156-57, 170-72 (1978).
261. Emmeline B. Wells, Woman Against Woman, WOMAN'SEXPONENT,May 1, 1879, at
284.
262. VAN WAGONER,
263. Id. at 102.
264. See id. at 113.
1332 STANFORD W
LAWREVIE [Vol. 50:1295
ceeded as President of the LDS Churchby John Taylor,265an ardent sup-

porterof polygamy who defied all pressureto abandonit. In 1885, George
Q. Cannon, First Counselor to PresidentTaylor and considered by many to
be the real leader of the LDS Church,invoked God's wrathas the reason for
rejecting the Cleveland administration'scall for a public statement aban-
doning polygamy.266A wanted man, Cannon finally turnedhimself over to
authoritiesin 1888 to demonstratehis commitment to the cause of polyg-
amy.267Not everyone was so hardy,however. With LDS Churchleaders in
hiding or imprisoned, the organized LDS Church outlawed, and federal
agents on the prowl, many polygamists either abandonedthe practice, fled
the United States, or faced jail time themselves.268Others chose to forsake
polygamy altogether.269
In 1888, Wilford Woodruff succeeded John Taylor as President of the
LDS Church. Woodruff, in contrast to Taylor, had a conciliatory attitude
towardthe government,and George Q. Cannonhad likewise begun to see the
necessity of capitulation. By April 1889, the First Presidency270began to
deny permissionfor pluralmarriages.271By September1890, Woodruffwas
preparedto abandon the practice altogether.272 On September 24, 1890,
Woodruffmet with Cannon,JosephF. Smith, and three othermembersof the
Council of the Twelve Apostles.273 Woodruff asked the Council to accept
and abide by the Manifesto,the documenthe had penned that announcedhis
intention to abandonpolygamy.274Cannonarguedthat Mormons were ulti-
mately requiredto obey the nation's laws and that they had exhaustedevery
means of salvaging polygamy for the LDS Church.275Cannondeclaredhim-
self "willing to do the will of the Lord. And since the Prophetof God, after
long season of prayer,had submittedthis revelation as the will of the Lord,
he was ready for the sacrifice."276The next day, Woodruffwrote in his jour-
nal:
265. Seeid.
266. See id. at 126.
267. See id. at 123.
268. See LEONARDJ. ARRINGTON& DAVIS BITTON, THE MORMONEXPERIENCE:A
HISTORYOF THELATTER-DAY SAINTS181-83 (1979); FIRMAGE& MANGRUM,supra note 15, at
168-169; VAN WAGONER,supra note 128, at 125-28.
269. See ANDERSON,supra note 238, at 37-38; VAN WAGONER,
270. To this day, the LDS Churchhas two governingbodiesthatact in conjunctionwith one
another: the Councilof the Twelve Apostlesand the FirstPresidency. The latteris composedof
the Presidentof the Churchandtwo counselors,both apostlesand formerlymembersof the Coun-
cil.
271. See VAN WAGONER, supra 128, at 137-38.
272. See id. at 141-43.
273. See id. at 141.
274. See id. at 143.
275. See id.
276. Id.
I have arrivedat a pointin the Historyof my life as the Presidentof the Church
of JesusChristof LatterDay SaintswhereI am underthe necessityof actingfor
the TemporalSalvationof the Church. The United State[s]Gover[n]menthas
takena Stand& passedLawsto destroythe Latterday Saintsuponthe Subje[c]t
of poligamy[sic] .... And afterprayingto the Lord& feeling inspiredby his
spiritI have issued the [Manifesto]which is sustainedby My Councillorsand
the 12 Apostles.277
In reality, Cannon and Woodruff forced the Manifesto through the Council.
Five of the apostles learnedof the Manifesto only throughits publication in
newspapersto which it had been distributed.278In pertinentpart, the Mani-
festo read:
Inasmuchas laws have been enactedby Congressforbiddingpluralmarriages,
whichlaws havebeenpronouncedconstitutionalby the courtof the last resort,I
herebydeclaremy intentionto submitto those laws, and to use my influence
with the membersof the Churchover which I presideto have them do like-
wise.... And now I publiclydeclarethatmy adviceto the Latter-daySaintsis
to refrainfromcontractinganymarriageforbiddenby the laws of the land.279
Gentiles correctlyperceived that unless the LDS Churchclaimed an un-
qualified, revelatory origin for the Manifesto, it would carry no weight
against the 1843 and 1882 revelations. Consequently,federal officials and
the notoriouslyanti-MormonSalt Lake Tribunecalled for presentationof the
Manifesto to and approvalby the entire LDS Churchbody.280 The govern-
ment refused to accept the Manifesto unless the First Presidency did so.281
Ultimately, the First Presidency again capitulated. They presented the
Manifesto to a formal GeneralConferenceand claimed unanimousapproval
for it.282 In reality, many LDS Churchmembers abstained from voting.283
Although some felt relief that the Churchhad finally agreed to abandonthis
troublesome practice, others felt tremendousgrief at relinquishinga belief
for which they had sacrificed so much.284 In the short term, gentiles re-
warded Mormons for accepting the Manifesto. The LDS Churchwas rein-
corporatedand its property returned.285In 1896, Utah achieved Brigham
Young's goal of admissionto the Union, an admissionconditionedon a pro-
vision in the Utah ConstitutionthatUtah would never approvethe practiceof
polygamy.286
277. Id. at 146 (alterationsin original).

278. See HARDY, supranote 129, at 131-32.
279. DOCTRINE
ANDCOVENANTS
official declaration 1.
280. See HARDY, supranote 129,at 134-35, 148-49.
281. See id. at 134.
282. See id. at 134-35.
283. See id. at 135.
284. See id. at 135-37.
285. See FIRMAGE & MANGRUM, supranote 15, at 205.
286. See id.; HARDY, supranote 129, at 152. The EnablingAct providingfor Utah's state-
hood instructedthe UtahConstitutional
Conventionto
1334 STANFORD
In fact, Mormons did not immediatelyabandonpolygamy. Many Mor-

mons viewed the Manifesto as a purely political proclamationthat was not
morallybinding.287The Manifestofalsely claimed thatpluralmarriageswere
no longer being performed.288Also, it was ambiguouson the status of future
cohabitationwith spouses who had already entered into polygamy.289 Fi-
nally, the First Presidencyitself sent a thinly veiled message that what it said
to the United States and its public advice to LDS Churchmembers did not
necessarily govern their private behavior.290A surprisingnumber of plural
marriages-at least 262 documentedbetween 1890 and 1910-occurred after
publicationof the Manifesto.29'Lorenzo Snow, who succeeded Woodruff as
President of the LDS Church, was willing to draw a line between LDS
Churchpolicy and privateactivity: He personallysubmittedto the law of the
land, but did not insist that LDS Churchpolicy should govern private con-
science, particularlyin referenceto cohabitationwith families already in ex-
istence.292 George Q. Cannon, still a member of the First Presidency,
authorized a number of post-Manifestomarriageswhile Snow observed a
tacit policy of neitherasking aboutthem nor forbiddingthem.293Faced with
this contradictionbetween public pronouncementand private action, most
Mormons were confused about the official policy of the Church regarding
polygamy.294
The Americanpublic was justifiably skepticalof Mormonassertionsthat
the practiceof polygamy had ceased. When polygamist BrighamH. Roberts
was elected to Congress in the late 1890s, more than seven million people
signed a petition demandingthathe be denied his seat.295The House of Rep-
provide,by ordinanceirrevocable withouttheconsentof the UnitedStatesandthe peopleof

saidState-First. Thatperfecttolerationof religioussentimentshallbe secured,andthatno
inhabitantof saidStateshalleverbe molestedin personor propertyon accountof his or her
modeof religiousworship:Provided,Thatpolygamousor pluralmarriages areforeverpro-
hibited.
Act of July 16, 1894, ch. 138, ? 3, 28 Stat. 107, 108 (1894). ArticleIII of the Utah Constitution
provides: "Perfecttolerationof religioussentimentis guaranteed.No inhabitantof this Stateshall
ever be molestedin personor propertyon accountof his or her mode of religiousworship;but po-
lygamousor pluralmarriagesare foreverprohibited."UTAHCONST. art.III, ? 1. The Utah Code
declaresbigamyto be a felony of the thirddegree: "A personis guilty of bigamywhen, knowing
he has a husbandor wife or knowingthe otherpersonhas a husbandor wife, the personpurportsto
marryanotherperson or cohabitswith anotherperson." UTAHCODEANN. ? 76-7-101(1), (2)
(1997).
287. See HARDY, supranote 129,at 139-41.
288. See id.
289. Seeid.
290. See id. at 144-45.
291. See id. app.II at 392.
292. See id. at 139-41.
293. See id. at 187-88.
294. See id. at 190.
295. See id. at 249.
resentatives voted accordingly.296In 1903, Reed Smoot was elected to the

Senate.297He was not a polygamist,but the public objectedto his election on
the basis of his membershipin a church that still countenanced an illegal
practice. For three years, the Senate held hearingsthat generatedmore than
3000 pages of printedtestimony regardingthe history, teleology, and culture
of Mormonism.298One commentatorhas called the Smoot hearingsthe most
searching and bigoted congressional investigation of any religious body in
Americanhistory.299
On the whole, LDS Churchleaders performedbadly during the Smoot
hearings. As it became clear that the Churchhad indeed not abandonedpo-
lygamy,300the subsequentembarrassmentpromptedthe LDS Churchleader-
ship to eradicatethe practice once and for all.301 By 1906, polygamists be-
gan to experience persecution both within and outside their Church. Two
polygamists, Matthias F. Cowley and John W. Taylor, were expelled from
the Council of the Twelve Apostles.302The Church'sefforts ensuredthat the
next generationof Mormons,those that came of age in the twentiethcentury,
were firmly committedto monogamy.303Polygamy, once the cornerstoneof
the Mormon faith-the markof a proudlypeculiarpeople-had finally been
obliterated.
2. A practical change in Mormontheology.
Devotees of plural marriagetoday consider themselves Mormon funda-

mentalists-the faithfulfew who continueto practicethe patriarchalorderof
marriage, following the divine mandate and everlasting covenant revealed
through Joseph Smith and confirmed by later prophets.304 As such, they
place themselves in a tiny minority. Critics of the LDS Church insist that
polygamy is still centralto Mormontheology. One such critic, EinarAnder-
son, wrote, "The importanceof Joseph Smith's polygamy revelation is such
that it is not possible to properlyevaluatethe doctrinesof this churchwithout
studying this teaching."305This may be true of a few fundamentalistswho
296. See id. at 249-50.

297. See id. at 250-51.
298. See id. at 251.
299. See id. at 251-52.
300. See id. at 252-53.
301. See id. at 253-64.
302. See id. at 264.
303. See id. at 253-64, 286.
304. See text accompanyingnotes 159-179supra;see also ElizabethJoseph,With
Polygamy,
Lawyer-Moms CanHaveIt All, L.A. DAILYJ., May28, 1991,at 6; Williams,supranote 156, at F1.
305. ANDERSON,supra note 238, at 35.
1336 LAWREVIEW
STANFORD [Vol. 50:1295
cling to plural marriage,but the large and growing body of the LDS Church
left polygamy behind decades ago.306
In general, years of Sunday school and seminaryrenderMormons well-
versed in LDS Churchhistory and doctrine. Yet most Mormonsdo not fully
appreciatethe centralityof polygamy to early Mormon notions of salvation
and the imminent establishmentof Zion, God's holy city and people.307 If
anything,Mormonsnow define themselves in opposition to polygamy rather
than in conjunctionwith it. In my experiencewith Mormonism,polygamy is
a historical issue-and a difficult one to explain away-rather than a moti-
vating factor for belief. For decades, polygamy has been, as it continues to
be, an offense meriting excommunication.308Part of Mormon worship in-
volves reiterationof a covenant to be faithfulto one's single, lawful spouse.
The Mormon focus on and enforcement of sexual abstinence, monogamy,
and fidelity now set Mormonsapartfrom their contemporaryenvironmentas
surely as polygamy did a centuryago.
The purpose of this note is not to defend polygamy, but ratherto high-
light the very real effect suppressionof religious practice has on belief. Af-
ter decades of persecution, Mormons abandonedtheir notions of polygamy
and Zion and instead turnedto a radicalprogramof assimilation. By 1922,
Mormon philosopher and sociologist E.E. Ericksen could conclude that the
repeatedconflicts with non-Mormonsduringthe nineteenthcentury had re-
shaped Mormonism's theology and social aspirations.309Historians have
noted that once the LDS Churchmade this massive switch, Mormons epito-
mized the progressive family ideals of the early twentieth century: They
were monogamous,patriarchal,thrifty,and fertile.310
Moreover, the LDS Churchactuallyjoined forces with gentiles to sup-
press polygamy. In 1918, Heber J. Grant,himself a formerpolygamist who
once attemptedto take a post-Manifestowife, began an effort to uproot po-
lygamy once and for all.31' In 1933, he issued a document reaffirmingthe
Manifesto, reiteratingLDS Churchsupportfor governmentalactions against
polygamy and distinguishingbetween polygamy and celestial or eternalmar-
306. See CAIRNCROSS,

supranote 18, at 215-18.
307. See HAROLDBLOOM,THE AMERICANRELIGION:THE EMERGENCE
OF THE POST-
CHRISTIANNATION 77-128 (1992) (identifyingMormonismas a uniquelyAmericanreligionand
polygamyas uniquelyMormon).
308. See Ken Driggs, After the Manifesto. Modern Polygamy and Fundamentalist Mormons,
32 J. CHURCH
& STATE
367, 374, 388 (1990) (discussingthe Church'sresponseto polygamy).
309. See 0. KENDALLWHITE,JR., MORMONNEO-ORTHODOXY:
A CRISISTHEOLOGY
at xv
(1987).
310. See, e.g., HARDY,
supranote 129, at 301; MAUSS,supranote 96, at 22.
311. See, e.g., HARDY,
supranote 129,at 341.
riage.312 During the 1940s, the Church actively supportedgovernment at-

tempts to suppresspolygamy in Utah, which resultedin the forced separation
of polygamous families.313
In my experience of over two decades of Mormon Sunday School, the
popularinterpretationof the Manifestois that it was a necessary and divinely
inspired response to circumstancesbeyond the control of the LDS Church.
The Twelfth Article of Faith lists being subject to "kings, presidents,rulers,
and magistrates"and "obeying, honoring, and sustainingthe law" as central
tenets of Mormon theology.314Accordingly, this forms the basis of an offi-
cial resolution between the divine revelation of polygamy and a current
practicevery much at odds with it. In 1922, PresidentJoseph Fielding Smith
wrote that the antipolygamylegislationwas a restrictionof religious rights to
which the LDS Churchhad been forced to submit. He maintained,however,
that no amount of legislation could invalidate a "commandmentgiven to
them by revelationfrom the Lord."315In 1937, despite his declaredcoopera-
tion with the government,PresidentHeberJ. Grantcould still say, "We never
believed polygamy was wrong and never will .... [O]ne of the cardinalrules
of the Church is to obey the law. So long as polygamy is illegal we our-
selves will strictlyenforce the law."316
It is difficult to measurehow this division between belief and action im-
pacted Mormon theology. The radical assimilationand accommodationne-
cessitated by the struggle over polygamy has had ramificationsfar beyond
merely forsakingthe practice of pluralmarriage. Kendall White has argued
that repeatedconflicts with society and the governmentsecularizedMormon
theology, turningit towardProtestantneoorthodoxy.317Mormonsare gener-
ally regardedas a very conservativereligious sect. To appreciatethe signifi-
cance of this turn to orthodoxy, one must understandthe liberalism and op-
timism at the core of Mormontheology. It completely rejects the notion of
the helpless, depravedhumanitypresentedby Calvinism in favor of the ra-
312. See id. at 342. Mormons now interpretthe "new and everlasting covenants of marriage"
to mean a marriage sealed in an LDS Church temple by proper priesthood authority. DOCTRINE
ANDCOVENANTS ?? 131-132.
313. See HARDY,supra note 129, at 343-45.
314. 4 HISTORYOFTHECHURCHOFJESUSCHRISTOFLATTER-DAY SAINTS541 (1908). Jo-
seph Smith penned 13 Articles of Faith. Commonly reprinted at the end of Doctrine and Cove-
nants, they are also found in History of the Church. See id. at 540-41.
315. JOSEPHFIELDING SMITH,ESSENTIALS INCHURCHHISTORY606 (1937).
316. Van Wagoner, supra note 128, at 192. Considering the struggle the United States gov-
ernment had in enforcing the antipolygamy laws, to claim that the LDS Church teaches its members
to obey the law seems disingenuous. However, when one considers that Mormons firmly believed
the antipolygamy laws to be unconstitutional and that they exhausted every legal resource in argu-
ing this (itself an indication that they accepted the legitimacy of the American legal system), their
commitment to the law seems more credible.
317. See WHITE,supra note 309, at xiv, 159-60.
1338 STANFORD
tional, liberal humanity that engendered the American founding.318 It not

only accepts but actively promotesthe notion that man can change both him-
self and the world for good-hence the attemptby the early Saints to estab-
lish a temporalZion and their fierce resistanceto the injustice inflicted upon
them. At the same time, there is a strongly arationalelement to Mormon
theology, an emphasison the emotionaland supernaturalin the form of faith,
personal revelation, and reliance on biblical and prophetic teachings.319
Thoughtful Mormons spend their lives navigating the uneasy tension be-
tween the humanisticand the divine.320According to White, Mormonsnow
emphasize the importanceof the divine at the expense of valuing the knowl-
edge and capacity of the human. He attributesthis movement, in large part,
to the repeated clashes with secular authoritiesand social norms, the same
clashes which forced the LDS Churchto abandonpolygamy.
White acknowledgesthat duringthe middle partof the twentiethcentury,
the LDS Churchembarkedon a worldwide quest for converts and that this
may explain its conservative shift.321 However, worldwide acceptance fol-
lowed conformity, not vice versa, particularlyin the case of polygamy. In-
terestingly, in recent decades Mormonismhas once again become a distinc-
tive religion based on its declaredbeliefs and indices of the commitmentof
its members, but this is more a reflection of a shift by other religions rather
than a shift in Mormontheology. As otherreligions have relaxedtheir moral
codes and theologies and have eased their efforts at proselytizing, the LDS
Churchhas held firm on such issues.322
There are many explanationsfor Mormonassimilationand conservatism,
but the suppressionof polygamy still standsas an obvious and centralcause.
Once Mormons forsook their peculiar institution and their corresponding
318. Mormonismplaces greatteleologicalsignificanceon Christ'sAtonement. It not only

freed man from original sin, but also allows him to pursue deification. See DOCTRINE AND
COVENANTS ?? 76, 93, 132. See generallyBlakeT. Ostler,TheDevelopmentof the MormonCon-
cept of Grace,DIALOGUE, Spring1991,at 57.
to
According philosopherSterlingW. McMurrin,"Themost interestingthing aboutMormon
theologyis thatit incorporatesa liberaldoctrineof mananda radicallyunorthodoxconceptof God
within the generalframeworkof historicChristianfundamentalism." STERLINGM. MCMURRIN,
Foreword to THETHEOLOGICAL
FOUNDATIONS
OFTHEMORMONRELIGION
(1965). In contrast to
the changelessand omnipotentGod of classicaltheism,the MormonGod is anthropomorphic, all
good, but subjectto universallaws and-like manhimself-capable of continuedgrowth. See id. at
14; see also FRANCISJ. BECKWITH & STEPHENE. PARRISH,THEMORMONCONCEPTOF GOD:A
PHILOSOPHICAL ANALYSIS35-39 (1991); WHITE,supra note 309, at 59-67.
319. For a discussion of these aspects of Mormon theology, see WHITE,supra note 309, at xi-
xxv, 57-58, 68-80, 159-64.
320. A quote from The Pearl of Great Price aptly illustrates this point. Pondering the fall,
Eve exclaims, "Were it not for our transgression we never should have had seed, and never should
have known good and evil, and the joy of our redemption, and the eternal life which God giveth
unto all the obedient." THEPEARLOFGREATPRICE,Moses 5:11.
321. See WHITE,
322. See MAUSS,supra note 96, at 15-16, 199.
dreamsof Zionandkingdombuilding,theybecamemodelsof patriotic,law-

abidingcitizenship.323 Mormonleadershipwas no longercomposedof radi-
cal visionaries,butratherwas drawnfromthe ranksof successfulbusiness-
men, attorneys,scholars,andLDS Churchbureaucrats.324 Accordingly,so-
ciologistArmand Mauss has noteda steady declinein the theologicalthemes
of polygamy,Zion,kingdombuilding,andMormondistinctiveness.325
None of these developmentsare inherentlynegative,andmost of them
mayhavebeennecessaryfor a churchthat,fromits inception,hadvisionsof
rollingforwardlike the stoneof Danielto coverthe earth.326 However,for a
liberalpolitysuchas the UnitedStatesthatpurportsto value freedomof re-
ligion, speech,and conscience,thereis a markedphilosophicaldifference
betweentheologicaldevelopmentsthat result from organicevolutionand
those that result from massivepersecutionand forcedcessationof social
customsandmaritalpractices.The sharpdividebetweenthe Church'shis-
toricalandcurrentconceptionsof bothZionandpolygamyhas unquestiona-
bly impactedMormontheologyandbelief. Ratherthanreachingindepend-
ent theologicalconclusions,the youngChurchwas forcedto acceptlaws in
oppositionto its then currentbeliefs andpractices. The issue of polygamy
hasneverreacheda naturalconclusion.
A strangetension colors moder Mormondiscussionsof polygamy.
SomeMormonsview it as a hugemistakeandwouldleavethe Churchrather
thanresumethe practice. Somechoosenot to considerpolygamyat all, ex-
pressingthe view thatit is a historicalissueandnot one thatreflectsthe cur-
rentdirectionof the Church.Finally,someMormonsexpresstheirwilling-
ness to practiceit shouldGodonce againcommandHis peopleto do so, and
othershave left the fold of the official MormonChurchto do just that. I
mightfall somewherebetweenthe lattertwo camps. To practicepluralmar-
riagewouldrequireme to uprootmy deep-seatedemotionalpreferencesand
conceptionsof happinessin marriage;yet my religiousconvictionswould
requireme to seriouslyconsiderthe adviceof a prophetassertingGod'swill
regardingmy eternalsalvationandhappiness.Polygamyis not centralto my
beliefs, nor is it a factorin my currentreasonsfor belongingto the LDS
Church. However,it was a significantpartof the Church'spast, and it re-
mains a live theologicalissue, if only an academicone. As such, any
thoughtfulMormonmustconsiderit.
323. See id. at 22; see also Peter Steinfels,supra note 33, at Al (noting the conservative
normsby whichMormonsconducttheirpersonallives).
324. See MAUSS,supranote 96, at 23.
325. See id. at 24.
326. See Daniel 2:34-35(KingJames)(recountingthe ProphetDaniel'sinterpretation of King
Nebuchadnezzar'sdreamof the statueand the stone rolling forthto cover the earth);DOCTRINE
ANDCOVENANTS ? 65 (relatingthe storyof the stoneto the establishmentof the LDS Church).
1340 STANFORD
The presence of theological tension is certainlynot an issue exclusive to

Mormonism. However, the extent of the Supreme Court's contributionin
heightening or diminishing this tension is probably unique in the case of
Mormon polygamy. Both the Court and public sentiment irremediablyim-
pacted the practices and beliefs of an entire religious body. This is a legacy
with which any devotee of the Free Exercise Clause-or general freedom of
conscience and belief-must grapple.
IV. IMPLICATIONSFOR JUDICIALREVIEW OF CASES BURDENING RELIGIOUS

ACTION
The purpose of this note is to highlight the flaw at the heart of the judi-
cial distinction between belief and action. Yet the argumentis incomplete
without some considerationof its ramifications. Despite the currentstate of
Supreme Court free exercise jurisprudence,327 discrediting the belief-action
distinctionmay encouragea returnto a compelling intereststandardcapable
of affordinggenuine protectionto religious belief. I would advocate a return
to the compelling interesttest as presentedin Sherbert.328 However, I offer
the following refinement: Before the governmentmay suppressor force any
action that would violate the salvational beliefs of a particularreligion, it
must provide compelling proof that the practiceharmsan individualor soci-
ety in a quantifiableway. In otherwords, as in the instanceof polygamy, the
religious practice cannot merely offend public morals or norms. It must
cause sufficient damage to justify the state's abrogationof the Free Exercise
Clause and the suppressionof someone's religious beliefs.
To prove a compelling interestin suppressingreligious action or taking
action that violates religious beliefs, the government should have to prove
one of three things. In some way, it must show that the action (1) signifi-
cantly infringes on another'sright to exercise her civil liberties, (2) presents
a meaningfulthreatto democraticlibertyor social welfare ratherthan merely
threatening or offending mainstream society's moral preferences, or (3)
causes actual physical or psychological harmto anotherperson. Under this
test, for example, the governmentmay certainlydisregardreligious justifica-
tions for abrogating another's civil rights, attemptingto overthrow demo-
cratic ideals, destroyingproperty,or subjectingchildrento malnutrition,sex-
ual abuse, or medical neglect.
To meet this compelling intereststandard,the governmentcould not rely
on groundlessassertions. For instance,it would not be sufficient to compare
polygamy to human sacrifice and suttee. Rather, the state would have to
prove that the religious practice inherentlyinvolved the verifiable abuse of
327. See text accompanyingnotes64-93 supra.

328. See textaccompanyingnotes52-63 supra.
women and children. In addition, should the governmentyield to parental

concerns and sanction the abductionand "deprogramming" of Scientologists
or Moonies, it would have to do more than assertthat adultchildrenhad been
brainwashed. The standardwould requiresome antecedentproof that such
individualshad not joined these groupsof their own free will before the gov-
ernmentcould abrogatetheirrightsof religious observanceand association.
This expansion of free exercise protection has a familiar philosophical
basis. We live in a polity founded on the notion that conscience and belief
are free, that the law knows no heresy. Action is a centralpart of belief be-
cause suppressingthe former may well change the latter.329Continuing to
distinguish between belief and action-and allowing suppressionof the lat-
ter-violates our historical commitment to individual liberty.330 Further-
more, this distinction favors one version of religion over another. Marci
Hamilton has argued that the belief-action distinctionreflects a tendency of
the SupremeCourtto define religion as an internal,purely intellectualexpe-
rience ratherthan as an experiencethat permeatesthe lives, choices, and ac-
tions of its adherents.331
That the belief-action distinction exists is certainly understandable.
From the inception of the Christianchurch,Paul and James argued over the
merits of faith versus action. Paul wrote that "by the deeds of the law there
shall no flesh be justified in his sight: .... Thereforewe conclude that a man
is justified by faith without the deeds of the law."332James tersely retorted
that "faith without works is dead."333Surely this debate over belief and ac-
tion is not confined to Christianityalone. In favoring belief, the Supreme
Courtprefersone side of a religious debate. Taking sides in this mannerex-
ceeds the Court's institutionalcompetence and violates our notions of civil
freedom.
In an expansive interpretationof the First Amendment,Professor Jesse
H. Choperproffers a rule of legislative review and religious exemptions en-
titled the "burdensomeeffect principle":
329. See text accompanyingnotes 131-158supra.

330. ProfessorMcConnellhas statedthat, at the time of the Americanfounding,the term
"freeexercise"was intendedto protect"religiouslymotivatedconductas well as belief." McCon-
nell, supranote 11, at 1488. Duringthe ratificationof the Bill of Rights,Congressconsideredtwo
differentversionsof the FirstAmendment:One protected"rightsof conscience"while the other
protectedthe "freeexerciseof religion." Id. But see generallyPhilipA. Hamburger,A Constitu-
tional Right of Religious Exemption:An HistoricalPerspective,60 GEO.WASH.L. REV.915
(1992). The choice of the latterphrasestronglysuggeststhatCongressintendedthe free exerciseof
religionto encompassactionas well as belief. See McConnell,supranote 11, at 1489-90;Smith,
331. See Hamilton,supranote 27, at 791-96.
332. Romans3:20, 3:28 (KingJames).
333. James2:26 (KingJames).
1342 STANFORDLAWREVIEW [Vol. 50:1295
If governmentregulationsof conductthatare generallyapplicableand enacted

for secular/neutralpurposes. . . conflictwith actionor inactionpursuantto the
tenets of a particularreligion,the Free ExerciseClause should be held to re-
quire an exemptionunderthe following circumstances:the claimanthas suf-
fered cognizable injury;the exemption does not violate the Establishment
Clause;the exemptiondoes not requirethe governmentto abandonits entire
regulatoryprogram;the individual'sbeliefs are sincerely held; violation of
those beliefs entailsextratemporal consequences;. . . and the governmentcan-
not demonstratethatdenialof the exemptionis necessaryto a compellinginter-
est.334
Choper'sprincipleis open to debate,but it providesa useful starting
pointto evaluatean expandedcompellinginteresttest. The mainargument
againststrictscrutiny-and one emphasizedby the Courtin bothReynolds
and Smith-is that requiringreligiousexemptionsfrom neutral,generally
applicablelaws wouldnegatethe ruleof law altogetherandinstigatesocial
chaos.335This is a speciousargument.First,laws with little social benefit
may imposeseriousburdenson religion.336Yet if the laws have littlesocial
benefit, providing exemptions to them will probablynot upset the entire so-
cial order. Second,therearesufficientlimitingfactorsto preventwholesale
social upheaval:Recognizingthe religiousrightsof some does not require
society to sanctionreligiouslymotivatedconductthat sacrificesthe civil
rightsof others. Forexample,whenthe physicalsafetyof abortiondoctors
andpatientsconflictwith religiouslybasedattemptsto stop abortions,pro-
tectingthe civil rightsof the formerjustifiessuppressingthe religiouslymo-
tivatedconductof the latter.337The SupremeCourthas provedcapableof
protectingsuchcivil rights. TheCourt,however,has not shownitself to be
as capableof defendingreligiousrights.Meaningfulfreeexerciseof religion
requiresthatwhenthe rightsandwell-beingof individualsor societyarenot
at stake,thebeliefsof religionistsbe accommodated.
The Constitution itselfprovidesthe firstlimitingfactorto an expansive
interpretationof the FreeExerciseClause: the Establishment Clause. The
two clausesdistinguishbetweenan accommodation of religionand the af-
firmativesupportof it. In otherwords,freeexerciseis a negativeright. The
fact thatthe governmentcannotcompelor suppressreligiousactionin no
way requirescertaingovernmental actionsin supportof religiouspractices.
Underthis interpretation of the FreeExerciseClause,the governmentwould
not have to recognizepolygamyor give it equalstatuswith monogamy. It
simply could not criminalize or otherwise attemptto suppress the practice.
334. JESSE H. CHOPER, SECURING RELIGIOUS LIBERTY: PRINCIPLES FOR JUDICIAL

INTERPRETATIONOF THE RELIGIONCLAUSES 54 (1995).
335. See textsaccompanyingnotes49-51 & 80-81supra.
336. See CHOPER,supra note 334, at 21.
337. See, e.g., American Life League, Inc. v. Reno, 855 F. Supp. 137 (E.D. Va. 1994) (up-
holding the Freedom of Access to Clinic Entrances Act of 1994).
April 1998] MORMON
POLYGAMY 1343
Although the governmentcould still requireanyone seeking social security

benefits to secure a social security number,338 it could not force those who
had religious objections to a social securitynumber,and who sought no wel-
fare or social security benefits from the government,to obtain such a num-
ber. Moreover, the governmentcould still build a road on propertythat it
owns339because the people who wish to worship on it have no legal right to
the land. Consequently, despite real spiritual suffering, the religionists in
question cannot compel the governmentto grant them an affirmativerelig-
ious benefit. On the otherhand,governmentalentities could not suppressthe
use of sacramentalwine or peyote, mandateeducationthat hinders religious
belief, or prohibitthe wearing of religious clothing, symbols, or accessories
because these activities generallydo not cause quantifiablesocietal harm,nor
do they requirethe governmentto confer a positive benefit.
By strictly defining religion in the context of free exercise, one may im-
pose a second limiting factor on the compelling interesttest. Professor Cho-
per sensibly notes that expansive interpretationsof constitutionalrights re-
quire some limiting principles, lest exemptions protecting those rights be
abused. The broaderthe protectionin theory, the more restrictiveit should
be in application.340Hence, he proposes limiting the definition of religion
for free exercise purposes. To claim an exemption under the Free Exercise
Clause, a religious adherentmust show that the belief in question has salva-
tional or extratemporalconsequences, that violating this belief involves su-
pernaturalpunishment.341Unfortunately,this restrictionwould discriminate
against those who merely have strongmoral scruples. But to allow everyone
an exemption from any law on the basis of moral scruplesreally would abro-
gate the rule of law. Because moral scruplespotentiallyhave a more expan-
sive scope than religious belief, they are less amenable to limiting princi-
ples.342
Choper offers several other justifications for a salvational definition of
religion. First, he notes that the religion clauses do favor religion over other
systems of moral belief, thus justifying discriminationin favor of religious
belief. To limit this preference,the definition of religion must have some
substantivecontent.343Second, Chopernotes that religious imperativeshold
unique sway over believers: "This makes it particularlycruel for the gov-
338. See Bowen v. Roy, 476 U.S. 693 (1986) (holdingthatthe statutoryrequirementthata
stateagencyutilize social securitynumbersin administeringits programsdoes not violate the Free
ExerciseClause).
339. See Lyng v. NorthwestIndianCemeteryProtectiveAss'n, 485 U.S. 439 (1988) (holding
that the FirstAmendmentdoes not precludethe governmentfrombuildinga road or authorizing
timberharvestingon landthatit owns,butthathas traditionallybeenused for worship).
340. See CHOPER,supranote 334, at 62-63.
341. See id. at 74.
342. See id. at 75.
343. See id. at 78.
1344 STANFORD
emmentto requirethemto choosebetweenviolatingthosedictatesandsuf-

feringmeaningfultangibledisabilities."344 Finally,Chopersuggeststhatthe
conceptof supernatural punishmentis a flexiblestandardthatcan incorpo-
ratebothnontraditional andemergingreligions.345
By definingfreeexerciserightsin thecontextof a religion'sextratempo-
ralconsequences,the SupremeCourtcouldimposemeaningfullimitsin free
exercisecases. Forexample,it couldhavereachedthe samedecisionin City
ofBoernewhilestillmaintaining a vigorousfreeexercisedoctrine.Theissue
in Cityof Boernewas whetheror not a city hadto granta churchan exemp-
tion fromhistoricaldistrictguidelines.346 Thelocationof a particular church
site is probablynot a salvationalissue. Therefore,the Courtwouldnot have
hadto applystrictscrutinyin declaringRFRA-the statutoryprotectionun-
derwhichthe churchbroughtsuit-unconstitutionalandcouldhave still re-
quiredthechurchto submitto a neutral,generallyapplicablezoninglaw.347
Oneargumentagainstdefining"religion" forthepurposeof freeexercise
exemptions is the of
difficulty doingjust that. Courtshave traditionally
avoidedjudgingthe contentof religiousbeliefs,348 the centralityof particular
religiousbeliefsto thepersonprofessingthem,349 or whetherthe beliefscor-
respondto those of a particularreligiousorganization.350 Consequently,
some worrythatunscrupulous individualswill professreligiousbeliefs to
gain the benefitsof a free exerciseexemption. This fear,however,should
not be dispositive.Courtsarecapableof recognizingfalse assertionsof re-
ligious beliefs andjudgingthem accordingly.One districtcourtdenieda
religiousexemptionfor marijuana possessionandtraffickingto a manwho
344. Id. at 74.

345. See id. at 78.
346. See City ofBoerne v. Flores,117 S. Ct. 2157, 2160 (1997).
347. A case involving similarzoning issues is WesternPresbyterianChurchv. Board
of
ZoningAdjustment,849 F. Supp.77 (D.D.C. 1994). In this case, the churcharguedthatfeedingthe
homelesswas a centralrequirement of its theology. See id. at 79. However,therewas no doctrinal
requirementthatit feed the homelessfroma particularbuilding-merely thatit feed the homeless.
The freeexercisedoctrineproposedin this note wouldnot requirethe governmentto forbid
feeding
the homeless altogether,but neitherdoes it requirethe governmentto providespecial
zoning ex-
emptionsif thereareotherplaceswherethe churchmay reasonablycarryout its missionin compli-
ancewith city laws.
348. See, e.g., UnitedStatesv. Ballard,322 U.S. 78, 86 (1944) ("[W]edo not agreethatthe
truthor verity of respondents'religiousdoctrinesor beliefs should have been submittedto the
jury.").
349. See, e.g., EmploymentDiv. v. Smith,494 U.S. 872, 886-87 (1990) ("Itis no more
ap-
propriateforjudges to determinethe 'centrality'of religiousbeliefs beforeapplyinga 'compelling
interest'test in the free exercise field, thanit would be for themto determinethe 'importance'of
ideasbeforeapplyingthe 'compellinginterest'test in the freespeechfield.").
350. See, e.g., Frazeev. IllinoisDep't of EmploymentSec., 489 U.S. 829, 834 (1989) ("[W]e
rejectthe notionthatto claimprotectionof the FreeExerciseClause,one mustbe respondingto the
commandsof a particularreligiousorganization.").
claimedto be a Reverendof the Churchof Marijuana.351

The courtoffered
the followingexplanation:
While it is difficult for the courts to establish precise standards by which the
bona fides of a religionmay be judged, such difficultieshave provedto be no
hindranceto denialsof FirstAmendmentprotectionto so-calledreligionswhich
tend to mock establishedinstitutionsand are obviously shams and absurdities
andwhose membersarepatentlydevoidof religioussincerity.352
Afterconsideringsuchfactorsas metaphysicalbeliefs,the moralandethical
system,teleology,and the accouterments
of religion-includingholy teach-
ers, importantwritings,and ceremonyandritual-the courtconcludedthat
the Churchof Marijuanawas in fact a sham and denied it free exercise pro-
tection.353
Another argumentagainst defining religion for the purpose of free exer-
cise exemptions is that people will join a bona fide religion for insincere or
opportunisticpurposes. For instance, the court in Potter posited that an ex-
emption for polygamy would lead to "false assertion[s]of religious motiva-
tion for physical gratification."354Frankly, I find this argument less than
convincing. If a man wants to satisfy his libido, he can surely find easier
ways of doing so than entering into a formal relationshipthat will expose
him to significantsocial censure. Despite the centralityof polygamy to early
Mormon theology, it seems unlikely that it was a motivating factor behind
most conversions, particularlygiven the persecutions its practitionerssuf-
fered. Likewise, an exemption for peyote would probably not inspire drug
addicts to join the Native AmericanChurch. As noted by Justice Blackmun
in his Smith dissent, the carefully circumscribeduse of peyote "is far re-
moved from the irresponsibleand unrestrictedrecreationaluse of unlawful
drugs."355Moreover, during Prohibition,Congress enacted a statutoryex-
emptionfor the use of wine for Eucharist.356
I wouldbe surprisedto learn
that this boosted attendanceat the local Catholic mass. Active religious ob-
servance generally imposes sufficient costs to counterany incentives offered
by particularexemptions.357
Even if exemptionsprovide some motivationto join a particularreligion,
the impactwould likely be minimal. By definition,minorityand/ormarginal
religions are relatively small in number. They also have less political clout
351. See UnitedStatesv. Meyers,906 F. Supp.1494(1995).

352. Id. at 1498(quotingTheriaultv. Carlson,495 F.2d390, 395 (5th Cir. 1974)).
353. See id. at 1505-09.
354. Potterv. MurrayCity, 585 F. Supp. 1126, 1139 (D. Utah 1984), a'd, 760 F.2d 1065
(10thCir. 1985).
355. EmploymentDiv. v. Smith,494 U.S. 872, 913 (1990).
356. See NationalProhibitionAct of 1919,ch. 85, tit. II, ? 3, 41 Stat.305, 308-09 (1919).
357. See generally JOHNHARTELY, DEMOCRACY
ANDDISTRUST(1980) (discussing the im-
portanceof constitutionalprotectionsto discreteand insularminoritiesin a majority-ruledemoc-
racy).
1346 STANFORD
thanmainstream religions. Consequently, they have a greaterneed for the

constitutionalprotections of the FreeExerciseClause,as theyareless ableto
influencelegislationthatmightnegativelyimpactthem. Accordingly,pro-
viding minorityreligionswith certainexemptionsis not likely to have a
widespreadimpacton thegeneralpopulation.
A final,admittedlytroublesome, argumentagainsta strongfree exercise
doctrineis thatit could actuallyencourageratherthandiscouragebelief-
potentiallya violationof the Establishment Clause. Thisquandarydoes not
have a clearanswer. Eitherreligionistsmustconformto laws or enjoy an
exemption.Thismeansthatthe government, purposefullyor not, will either
discourage belief or encourage it. Thereare strongargumentsthatthe Con-
a
stitution,although secular,humanisticdocument,nonethelessfavorsindi-
vidual belief and the "freedomto pursue(or not to choose) a religious
faith."358As long as the governmentdoes not proscribeparticular beliefs,it
seems entirelylegitimateandwithinthe readingof the religionclausesfor
thegovernment to favorbeliefin general.
CONCLUSION
Giventhecurrentclimateof constitutional jurisprudence, I fully appreci-

ate the improbabilityof an expansionof freeexerciseprotections.Nonethe-
less, I hopethathighlightingthe flawsat therootof thebelief-actiondistinc-
tionwill promotediscussionin furtherance of this end. Manyhaveattacked
thebelief-actiondistinctionandothershavediscussedthe centralityof action
to religiousbelief, but to my knowledgeno one has highlightedhow gov-
ernmentalimplementation of the belief-actiondoctrinehas fundamentally
changedreligiousbelief.
Consequently, I havearguedthatsuppression of religiouspractice,under
the guise of the Smithneutralityprinciple,actuallychangesbelief and that
this comesdangerouslyclose to violatingthe FreeExerciseClause. This is
particularly truefor churchesthatplaceas muchor greateremphasison ac-
tionas on faith. Forthem,to actis to believe.
The UnitedStatesSupremeCourt'scurrentseparationof belief and ac-
tioninadequately protectsthefreeexerciseof religion,particularly in lightof
the absoluteprotectionsupposedlygiven to belief. Adequateprotectionof
bothreligiousbeliefandactionrequiresthe reinstatement of a strictscrutiny
standardwheregovernmentregulationsimposea significantburdenon cen-
tralreligiouspractices,evenif thoseregulationsarefaciallyneutralones. To
preventmajoritarian biasesagainstminorityreligions,I proposethatthe gov-
ernmentcan only meet the compellinginteresttest when it affirmatively
demonstratessignificantthreatsto individualor democraticliberties. Ex-
358. CHOPER,supra note 334, at 11.

emptions granted under this compelling interest test would not require the
governmentto affirmativelysupportparticularreligious practices or institu-
tions. Rather,these exemptions would merely prevent the governmentfrom
suppressingsuch practices. In other words, this is not an argumentfor posi-
tive rights,but ratherfor the rightof religioniststo be left alone.
As a believer, I can attestthat religious life is a far from costless system.
Nonetheless, I recognize that all choices entail some cost, and it is legitimate
for religious choices to bear a cost as well. It is not, however, legitimate for
religious choices to bear a disproportionatecost, particularlywhen the cost is
the suppressionof religious belief and action. Currenttensions within Mor-
mon theology may no longer be a pressing concern of free exercise jurispru-
dence, but governmentalinterferencethat imposes similar tensions on other
religions should be. In the absence of a naturalevolution, I am curious as to
what contemporaryMormonismwould have to say regardingpolygamy and
why it would say so. Because of past governmentalinterference,this is not
an answerablequestion.
When I step back from the morassof competingfree exercise tests, I feel
both pride in and compassion for my pioneer ancestors. Committedto the
rule of law myself, I neverthelessadmirethe conviction that caused them to
push the law to its limits and their ultimate resilience in submittingto it. I
have a much greaterunderstandingthan I once did for what that surrender
cost them. A verse of an old Mormonhymn reads:
We'll findthe placewhichGod forus prepared,Farawayin the West,
Wherenone shallcome to hurtor makeafraid;Therethe Saintswill be blessed.
We'll makethe airwithmusicring,Shoutpraisesto ourGod andKing;
Above the rest, these words we'll tell-all is well, all is well.359
The struggle over polygamy negated the optimism and hope that the Latter-
day Saints felt in journeying to Utah. Nonetheless, they survived and con-
tinue to praise their God. Perhapsretelling the history of their persecution
will discourage government oppression of other religious sects, through a
heightened understandingof the inseparablerelationbetween belief and ac-
tion. Then, indeed, would much be well.
359. William Clayton, Come, Come Ye Saints, HYMNSOFTHECHURCHOFJESUSCHRISTOF

LATTER-DAYSAINTS30 (1985).

Affidavit of Matthew Davies, PHD, Disputing Dr. Beall

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Affidavit of Matthew Davies, PHD, Disputing Dr. Beall

Uploaded by

Copyright:

Available Formats

CURRICULUM VITAE

5383 South 900 East, Suite 290

Ph.D. University of Utah, Department of Educational Psychology,

M.S. University of Utah, Department of Educational Psychology,

B.S. University of Utah, Department of Psychology, Major in

ACADEMIC HONORS AND AWARDS

1979 Magna Cum Laude; National Dean's List

1991 to present Private Practice, Family, Adolescent, Child Treatment

1990 to 1994 Consulting Psychologist, First Friends Daycare, Salt Lake

NOJOS Approved Evaluator, 2007

DISSERTATION AND THESIS

Davies, M.V., The relationship of narcissistic vulnerability to academic

PUBLICATIONS, PRESENTATIONS AND MANUSCRIPTS

June, 2010 Workshop Presenter/Faculty Member, Best interest parent

June, 2010 Presenter/Faculty Member, Healthy sexual development in

(Presentations, Publications and Manuscripts prior to 2004 are available on request).

PROFESSIONAL SEMINARS/CONTINUING EDUCATION

May, 2010 Sexually explicit material among today’s youth. David

April, 2005 ADHD in children. Russell Barkley, Ph.D. United Behavioral

(Professional Seminars/Continuing Education prior to 2000 are available on request)

Eric Nielsen, D.S.W., Associated Behavior Consultants, 2040 East Murray-Holladay

*Date first qualified as expert. Dates of additional appearances available on request.

Anderson, S. The Polygamists, National Geographic Magazine, February 2010.

Arizona: The Great Love-Nest Raid. Time Magazine, August 3, 1953.

Erikson, E. H. (1950). Childhood and society. Norton: New York.

Festinger, L. (1957). A theory of cognitive dissonance. Stanford University, Stanford, Calif.

Jessop, C. & Palmer, L. (2007). Escape. Broadway Books: New York

Nietzsche, F. Twilight of the Idols, 1888

Religion: Polygamy Battle. Time Magazine, January 23, 1956.

Spano, S. (2003). Adolescent Brain. Youth Studies Australia, 22, 36-39.

The Polygamists. National Geographic Magazine, February 2010.

To some extent this is a personal essay. I am a practicing Mormon

ing the Religious Freedom RestorationAct in 1991, Edward Gaffney, Jr.,

theory. When constitutionalwinds blow adversely, they wreak havoc with

14. See text accompanyingnotes 190-201infra.

pursuantto a compelling state interest."22On appeal,the Tenth Circuitfound

22. Id. at 1137.

but insists that the evidence supportsan interpretationthat protects religious

30. See id.

cise of religion. Polygamy died an unnaturaldeath,not one which proceeded

Donald Bowen, The Church Abroad, DIALOGUE:

Consequently,the SupremeCourt denied Reynolds' free exercise claim

A. Cases RecognizingExemptionsfor Some ReligiouslyBased Actions

51. See id. at 168.

to religious liberty, for accomplishingthat interest.56The Courtheld that the

56. See id. at 406-07.

B. TheSupremeCourt's Retreatfrom CompellingInterestto the

of a politicalsociety does not relievethe citizen fromthe dischargeof political

71. Smith,494 U.S. at 879 (citationsomitted).

of Employmentv. Smith,A Parableof Pagans,Politics,andMajoritarianRule, 85 Nw. U. L. REV.

not substantiallyburden freedom of religion, even by neutral,generally ap-

Church of the LukumiBabalu Aye, Inc. v. City of Hialeah,90Reynolds may

II. SOCIOLOGICALARGUMENTS AGAINST THE BELIEF-ACTION DISTINCTION

Students of law and economics, sociology, and psychology have long

are a means of solidifying group cohesiveness and allow adherentsto differ-

A. TheEffects of Positive and Negative Incentiveson Religious Practice

1. Themainstreamresponse to marginalreligious movements.

A marginalreligious movement ("MRM")is one which challenges the

behavior which mirrorsthe nineteenth-centuryAmerican struggle with the

2. Religious responses to positive and negative incentives.

Law and economics scholar LaurenceIannacconehas noted one of the

98. See Harper& LeBeau,supranote 94, at 178-80.

ligion claims a unique grasp of salvationaltruth. Salvation,being infinite in