12 Questions for Sarah Barringer Gordon, part one

Without further ado, we are pleased to present Professor Gordon’s responses to questions submitted by the T&S community. Questions are in bold; her preface and responses are in plain text. Look for the second half Friday. (For background on Professor Gordon and her work, click here.)

* * *

First and most important, I would like to thank Nate Oman, Greg Call and other member of Times and Seasons for your interest in my work and for the opportunity to participate in the forum. I will try to keep my answers short, but the questions you all have posed are challenging (in the best sense of the word) and thought-provoking. I apologize in advance for any long-windedness. Most of all, I look forward to engaging in a dialogue about the meaning and worth of scholarship with a new group of people, and especially to learning from the process. Last, a warning: I am typing my responses on a laptop while traveling in a large van up to Cape Breton Island, Canada, to participate in a relay race on the 185-mile Cabot Trail. Please excuse any and all typos! Here goes.

1. As a non-Mormon who has studied Mormon history, what aspects of the Mormon past do you think are of most interest to the broader, non-Mormon community?

This question raises some of the most intriguing aspects of how the LDS community has interacted with the broader society for the past 175 years (almost!), and when and under what circumstances the interaction has proven significant to those outside the faith.

There can be many approaches to answering this question, but my own approach focuses on taking a broad swath of the Mormon experience as relevant. The LDS Church and its members, after all, are a part of American life and history, and should be of interest to any student of American religion, culture, politics, and law. My particular focus, of course, is on religion and it relates to law and legal thought, where Mormons played a key role in the nineteenth century. Utah Territory’s rejection of the common law, for example, marked a distinctive yet not unique decision that judge-made precedent and technical legal argument were not in fact in the interests of the people. Mormons were not alone in their distrust of the common law system and its practitioners, but students of the codification and other anti-common law movements of the nineteenth century have not included Mormons in their work. This is just one example of how scholarly studies of Mormon history have been segregated from broader American history. This gap is unwarranted and unfortunate, I believe. There is important new work in the field of Mormon studies, however, which integrates Mormonism with non-Mormon forces. Kathleen Flake’s new book on the resolution of the “Mormon problem” through the Smoot hearings (The Politics of American Religious Identity, 2004), for example, ties questions of LDS history firmly to developments in the political and legal life of early twentieth-century America.

There is a great deal of work left to be done, however. LDS historians and non-Mormon students of the field, especially renowned scholars such as Jan Shipps, have set a high standard for those outside the field. I have every hope for continued innovation in interpretation of the American past and the role of Mormonism in history.

2. In the Preface to The Mormon Question, you write that your dual scholarly commitment to law and religion led to you interest in studying the conflicts between the two. What initiated your examination of Mormon polygamy in particular as a site of such conflict?

Thinking about the conflicts between governments and religious believers, several groups spring to mind as having endured extensive contact and often discrimination, especially at the hands of judges and lawyers. The Jehovah’s Witnesses, Scientologists, Eastern Orthodox, Satmar Hassidim, members of the Native American Church and many more spring to mind. But the elephant in the room, one might say, is Mormon polygamy. The Jehovah’s Witnesses had as many cases reach the United States Supreme Court, but neither they nor any of the other groups mentioned above endured the level of legal reconstruction that the Mormons did at the hands of an unsympathetic government in the nineteenth century. Equally important, Mormons formed a distinct political and geographic entity, a territory. This meant that they had real political power as well as deep religious conviction. And Mormon leaders and politicians fought every step of the way, holding on ferociously to each privilege and perquisite. This protracted struggle created a phenomenal (and under-appreciated) public record, and generated mountains of paper from private sources, including sermons, editorials, cartoons, novels, journals, and so on.

When I read the secondary literature on the conflict, I was struck by what had been left out, as well as by what was included. This is not meant as a criticism of the superb scholarship that characterizes Mormon historical work. Instead, it is to say that sometimes a new perspective and new disciplinary tools lead us to ask different questions of the past, and draw fresh insight from the record. In the case of my own work, most studies of antipolygamy law and theory did not treat non-Mormon society as every bit as complex and important to the story as, say, Salt Lake. I distinctly remember talking with the excellent archivist and scholar Ron Barney as I was beginning my research. Quite rightly, he asked me outright what I had to contribute that had not already been researched by more senior and expert scholars in the field. He was most welcoming when I explained that I was interested in how a new legal regime was constructed outside Utah from arguments that drew as much on antislavery and antitrust theory, family law and Reconstruction, as on anything unique to antipolygamy. I don’t know whether he remembers this conversation, but it meant a great deal to me as a young graduate student! Connecting the vital history of nineteenth-century Mormonism to this broader social and legal history — especially showing how American history for the period cannot be truly understood without taking Mormonism into account — has been my over-riding goal.

3. Very little has been written on Mormon legal history. What subjects would you like to see researched?

It would almost be easier to answer this question by talking about the few areas that have been studied, rather than those left relatively untouched, because there are so many of the latter. First of all, we need to agree on a working definition of what counts as “law.” Do informal (that is, non-legislative or judicial) rules count? Do religious and cultural pronouncements about God’s law also count? Does custom and what one scholar has usefully called “law-mindedness” count? (For those who are interested, see John Phillip Reid, Law for the Elephant: Society and Property on the Overland Trail, 1980 title approximate!) Do claims and theories about legal and political reform count? My own training and belief lead me to say yes to all of these questions, and to think that legal historians can add an important dimension to our understanding of Mormon legal history (and American history in general) if they grapple with law in this broad sense.

With this preface, my own curiosity is sparked especially by how conflict is managed in communities of faith. As Colleen McDannell said at the Provo Mormon History Association annual meeting in May, religion is “messy.” She meant that people rub against each other in faith as they do in life, and that human interaction is fraught with tension. Lawyers, of course, tell themselves that they specialize in cleaning up messes, or at least in bringing some kind of resolution to conflicts between people. Seeing conflict resolution as a form of lawyering and law as broadly as it was treated above would allow us to treat many aspects of Utah and Mormon history as subjects of legal history.

Ok, so what topics in particular do I want to see treated? I won’t review here the excellent work that has already been done by Ed Firmage, Tom Alexander, and others. Instead, I’ll focus on a few topics that I see as having escaped much notice, and that are ripe for new work. I am interested in property law and its turbulent history in Utah, especially property relations in different kinds of jurisdictions, including but not limited to United Order communities. I am also interested in non-judicial forms of discipline, and changing understandings of what counts as dissent, both within and outside LDS church structures. I am also intrigued by Utah’s economic history, and the ways that entrepreneurship in combination with corporate law and structures have influenced political life and aspirations, especially of the Wasatch Front. I remain interested in the law of the family, as well, and am particularly pleased to see sophisticated treatments in the new scholarship, especially the work of Kathryn Daynes, whose study of Manti treats law and custom with great sensitivity and clarity. (See her More Wives than One, 2003). Last, see my answer to #5 for another area that I have been especially concerned about for the past 5 years or so.

4. How does the Mormon legal experience fit into the broader story of law, religion and society in America?

I will take the liberty of answering this question primarily as it relates to the nineteenth century, which is the period I know best, and which will make for a relatively succinct answer, I hope.

For many Mormons, the pain of the antipolygamy crusade remains fresh. They feel that the country betrayed its commitment to religious freedom when it crushed plural marriage. Any discussion of the LDS legal experience must begin with an acknowledgment of this pain, and a commitment to understanding the complexity of the relationship between Mormon history on the one hand, and law and religion outside the faith on the other. It is my hope that shifting the lens to the place of Mormonism within the broader society can bring some relief, by which I mean not that we will change our understanding of what happened or whether it was a good idea to punish Mormon polygamists and their church. Instead, I think it is vital to understand what anti-Mormonism (especially antipolygamy) meant and why it made sense to many people who looked to those on the inside like nothing more than raw bigots.

By taking those outside the faith as seriously as we do those on the inside, it is possible to see how they drew on ideas and currents of the broader society, and how they developed a moral logic that seemed to them to justify what one nineteenth-century cartoonist called “harsh measures.” The full sweep of antipolygamy thinking, of course, is beyond this brief response, but it is important to grasp the essential point: in the antipolygamy crusade, both sides were convinced that they were defending their rights as Americans. There is a famous question that professors of American history like to ask their students (for example, James McPherson of Princeton is known for his interest in this line of inquiry), viz: How could the North and the South claim to be fighting for the same thing in the Civil War? Both Northerners and Southerners believed they were defending their right to be free from tyranny and to live as full-standing citizens of a country dedicated to the protection of the rights of citizens.

If we think of the Mormon history in the nineteenth century in this same light, we can see the long and bitter struggle for control of Utah as an extension of fraternal conflict of the Civil War, as well as a unique series of contests. The battles over polygamy were fought within the family, as it were. The conflict acquired added bitterness because of the closeness of the relationship.

It is also important to remember, however, that a victory for one side is often far less complete than it may at first appear to be, and that Mormon losses should not be the exclusive focus of our investigations. There were important victories, and survival was not purchased at the price of utter humiliation. Equally important, there were of course antipolygamists who were nothing more than hypocrites and/or bigots. Even those who sincerely claimed to be operating on humanitarian principles did not always behave humanely. But it is also true that opponents of the Church and its members claimed that they had been betrayed, and that Mormons abused and exploited religious liberty. Each side accused the other of pretty much the same thing: hypocrisy, abuse, betrayal of the ideals of the country. The internecine quality of the debate is what strikes me most about the relationship between Mormons’ legal experience and their relationship to the broader society.

In this sense, we can see that the country – both LDS and non-Mormon – debated what religious freedom means when they fought over polygamy. They got a lot done – not all of it pretty or easy to read about, even in documents well over a century old. And the debates have not stopped, although the protagonists change rapidly. If I was to hope for anything from the study of Mormons’ nineteenth-century legal experience, it would be that by integrating Mormon experience into our understanding of broader American history we would broaden our understanding and sympathy for religious dissent throughout American history and especially in the early twenty-first century.

5. You are currently collaborating with Kathryn Daynes on another book dealing with Mormon history. Could you tell us a bit about that new project?

Thanks so much for this question! Kathy Daynes and I are working on a social and legal history of the prosecutions undertaken by federal officials in Utah Territory in the late nineteenth century. The records of the territorial courts comprise approximately 2,500 separate prosecutions, and are the single most complete source of information about the antipolygamy raids. The records have not been previously studied in any depth, certainly not in their entirety. They contain many, many treasures, including whole categories of criminal prosecution that have escaped notice and comment. Equally important, the records contain family histories and patterns that are otherwise obscured from view.

Although we are at a very early stage in our analysis, we are convinced that our combined training in law and social history will allow us to draw new conclusions about how the prosecutions were conducted (both in terms of prosecution and defense) and how family life was affected by the crusade. Currently, we have divided our analysis into categories that track the criminal label attached to a given prosecution (unlawful cohabitation, adultery, fornication, incest, and so on).

We hope to have completed our research over the next two years, and to do much of the writing as we go along, with a submission date to our publisher (Univ. of Illinois Press) at the end of 2006.

6. A counterfactual: If the Mormons had simply never practiced polygamy, how do you think constitutional meaning might have evolved differently, if at all?

This is one of those questions that make historians nervous. But I will take the plunge…. One of the readers on my dissertation once remarked that if Mormon polygamy hadn’t existed, non-Mormons would have had to invent it. Certainly, it is true that the reaction against polygamy demonstrates that it was easy to hate, even if it was extraordinarily difficult to do anything about it.

The question then becomes one that historians of Mormonism and Mormons themselves have debated for a very long time: was polygamy really the animating cause of the antipolygamy crusade and the constitutional jurisprudence that resulted from the campaign, or was the campaign hypocritical — a veiled grab for wealth, power and prestige at the expense of an embattled religious minority?

There have been different ways of defending the latter proposition – for example by arguing that there were more women than men in Utah, or that the polygamy was practiced by a tiny percentage of the Mormon population, or that it was on the wane when antipolygamy laws went into effect, or that antipolygamists in candid moments admitted that they used popular sentiment as a screen. One can debate the merits of these arguments, but on the whole they don’t hold up to scrutiny, however valuable they have been heuristically.

My own conclusion is that plural marriage was indeed the proximate cause of the legal reconstruction of Utah Territory. I also believe that defense of the Principle went hand-in-hand with late nineteenth-century Mormon identity. In this way, I am convinced that polygamy was key to both the defense of Mormonism and the attack on it, if I may put it so baldly. Other historians who have worked in the field recently have reached the same or similar conclusions, and have freed us up to think about the substantive arguments made on both sides, rather than obsessing about which side was lying. Indeed, it is likely that there was disingenuousness in debates over polygamy as there are in all human interactions. But that should not get in the way of acknowledging the sincerity and conviction underlying the basic positions of both sides.