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Sometimes the aim of public policy seems so important that almost any means to achieve it wins approval. When the majority’s passions are inflamed, invoking constitutional limits to protect the rights of an unpopular minority may fall on deaf ears, even at the court of last resort. Such was the case in 1890, when the United States Supreme Court unanimously upheld an Idaho law that disfranchised all members of The Church of Jesus Christ of Latter-day Saints. The ruling effectively equated Church membership with criminality and approved Idaho’s policy as an acceptable way to help eliminate plural marriage, despite important objections raised against it. This chapter explores the origins of the law, the constitutional arguments put forth against it by attorneys for Samuel Davis and his coreligionists, and the court’s unwillingness to engage those arguments amid mounting political pressure from elected lawmakers and a majority of Americans. It then describes the process by which principles overlooked or rejected at that time came to influence jurisprudence in the twentieth century, culminating in a 1996 ruling where the Supreme Court repudiated its prior approval of Idaho’s law.

Origins of Idaho’s Test Oath

On the third day of the Territorial Council in December 1884, newly elected Harvey W. Smith announced his intent to “introduce a bill to regulate and purify elections” in Idaho. Enacted two months later, the law prohibited all Latter-day Saints from voting or holding office and required election registrars to administer a test oath to that effect. When he defended its legality before the nation’s Supreme Court in 1889, Smith called it “a law enacted to discourage the practice of crime.”[1] Polygamy, not voting irregularities, was the crime that preoccupied the nation and its courts, and federal law against forbidden marriages had been and would continue to be enforced in Idaho Territory for years.[2] But citizens and courts seemed willing to defer to legislators’ judgment about other appropriate methods to suppress a “foreign” religious practice. Disfranchising all Latter-day Saints—polygamous and monogamous—raised constitutional questions about religious expression, association, and equal treatment before the law, but it would be decades before judicial review scrutinized such questions strictly. In the short run, what mattered most was conformity with marital law; only over time would other principles rise to greater prominence.

In his memoirs, Fred T. Dubois said the test oath was about much more than polygamy. He thought it combatted “the close union of church and state” in Latter-day Saint communities and “political domination of [Church] leaders over followers.”[3] Though his chief responsibility as United States marshal was prosecuting criminals, Dubois also assembled an “anti-Mormon” political convention in Malad in October 1884 to nominate rival candidates to those announced by local Church leader Thomas E. Ricks. Dubois proclaimed that “John Taylor and his lieutenants shall [no] longer . . . smother the independence of men’s individual actions with impunity.”[4] This cross-party alliance helped elect Smith and push his bill through both chambers of the legislature, fueled by a “pronounced and irresistible” anti-Mormon “sentiment” that Smith and Dubois had fed in recent years by their “propaganda.” Even decades later, Dubois made no apologies for such tactics, asserting that Governor William Bunn signed the election bill with a “ringing and patriotic message” that commended the legislators’ “wisdom and broad Americanism.”[5]

The Conspirator and His Appeal

Idaho’s Latter-day Saints generally avoided electoral politics in 1886, but as the next elections approached in 1888, they sought to recover a voice in territorial politics. That year the Idaho Territorial Supreme Court upheld the so-called test oath, and Saints desperately pursued ways around what seemed to them a discriminatory law. Some resigned their Church membership in the fall of 1888 in a bid to register for the upcoming election. Seeking reelection to Congress, Dubois believed such efforts were carefully orchestrated from the top of the Church with unanimous compliance throughout the ranks, but the record suggests messier deliberations and clumsier maneuvers to regain a voice at the polls, including mixed messages from territorial officials and Church leaders. Local registrars responded variously to these contestable voters, sometimes making partisan rather than legal judgments, and it appears that the effort had little or no effect on election outcomes.[6]

Top and Bottom: Samuel Deer and Mary Jane Davis of Samaria, Idaho. Courtesy of Dean Grow.

Samuel D. Davis was a member of the Samaria Ward and practiced law in Malad. He and his only wife, Mary Jane, were parents of two children when he and seventeen other Samaritans circumvented the test oath by resigning their Church membership to register as voters in October 1888. Five months after the election, fifty-five men from three area precincts were indicted for conspiracy in the district court. The indictment said they “unlawfully, wickedly, maliciously, and corruptly [did] conspire, combine, confederate, and agree together . . . to commit acts for the perversion and obstruction of the due administration of the laws of Idaho Territory” when they tried to register.[7]

Only two men were tried after the indictments, and only Davis was convicted, making him a remarkable one-man syndicate. He was sentenced to 250 days in prison in lieu of a five-hundred-dollar fine. His call to serve as a counselor to Bishop Jonah Evans in the months between indictment and trial may well have clinched the case, because it showed his withdrawal from the Church had not been lasting.[8] On denial of a writ of habeas corpus, Davis’s conviction went straight to the nation’s Supreme Court for appeal. After two failed “test cases” in Idaho, this would be the final constitutional challenge to Idaho’s extraordinary election rules. The form of the appeal allowed the court to ignore some significant questions of the case, most notably the question of whether Church leaders in Idaho had “taught and counselled” polygamy in recent years. But attorneys on each side would make their best case for and against the constitutional validity of the statute.

Forty-year-old Franklin S. Richards (the son of apostle Franklin D. Richards) had previously appealed Church-related cases before the Supreme Court, with mixed success. He was joined on the case by two veteran attorneys, Jeremiah Wilson and Samuel Shellabarger, former Congressmen from Midwestern states who had taken up practice in the nation’s capital. They also drew on arguments put forth by Richard Z. Johnson, a Boise attorney, who had unsuccessfully challenged the law on behalf of Latter-day Saint clients before Idaho’s highest court in 1888 before becoming the territorial attorney general.[9]

Harvey Smith, author of the statute, represented Idaho’s interests before the US Supreme Court in 1889. Earlier that year, he and Richard Johnson had defeated a second challenge to the law in Idaho’s Territorial Supreme Court. Dubois recalled admiringly the performance of his thirty-two-year-old friend before the court of last resort in Washington. Younger, underfunded, and outmanned, Smith nonetheless “made the opposing panel look like pigmies.”[10] Smith did indeed prevail, but a vital feature of the contest (or lack thereof) was the standard judges used to review the law’s validity. In “religious freedom claims,” as Cole Durham has said, “the central drama” is “constitutional decisions that decide the standards of review that will be applied” in court.[11] In 1889 the justices followed Smith’s cues, both in deferring to legislators and in their stated reasons for such deference. For their part, Richards and his colleagues on the losing team articulated arguments that gained no traction at that time but presaged legal developments of the twentieth century.

Idaho’s Defense of the Law

Repeatedly citing the court’s rulings in Reynolds v. US (1879) and Murphy v. Ramsey (1885), Smith argued for the legislature’s unfettered authority to regulate the franchise. True liberty, like society itself, required “regulations and restraints,” and nothing in the court’s previous rulings suggested that Idaho’s law went too far. Surely, he asserted, lawmakers had power to “prescribe, by general and uniform law, the classes who should” and should not vote.[12]

Harvey W. Smith authored Idaho's test oath and defended it before the courts. J.P. Clough Photograph Collection, Idaho State Archives. Used by permission.

Regarding the First Amendment’s constraints on government, he said that voting itself could not be called a religious act; therefore, the test oath did nothing to prohibit free exercise nor establish a religion. Instead, it excluded a class deemed “unworthy and improper” to exercise the franchise. And they were unworthy because of the Church’s long insistence on its right to violate antipolygamy laws in the name of religion. Reynolds had rejected that claim, and Murphy upheld the legislature’s right to specify classes for disfranchisement.[13]

In Murphy, the court said a statute limiting the franchise to married men would be permissible. Smith exploited that point. Such a restriction would disfranchise Catholic clergy and Shakers without violating free exercise, he said (presumably as incidental burdens of a neutral and general law). Likewise, many laws deprived Chinese-born residents and citizens of civil and political rights. He observed that even if such laws effectively burdened Confucians, no challenge citing the First or Fourteenth Amendments could be expected to prevail.[14]

He said Murphy established that disqualifying a class from the vote was consistent with the promise of equal protection (and due process) under the Fourteenth Amendment. Whether construed as punishment or simply as denial of privilege, Congress had, by section 8 of the 1882 Edmunds Act, excluded polygamists and those cohabiting unlawfully from voter registration or officeholding. By their voluntary association in the same church, he reasoned (rather loosely), all members were liable to exclusion. He read section 24 of the 1887 Edmunds-Tucker Act as essentially consistent with this view.[15]

Of course, Smith studiously ignored section 9 of the 1882 act, which allowed those with favorable opinions toward polygamy to vote; that meant that coreligionists retained the franchise unless they committed the “overt acts” penalized in the law. Leaning once more on Murphy, he said the court approved “denial of the elective franchise on account of the act or status,” deliberately blurring the distinction between act and status that had actually been part of the congressional law.[16]

But Smith could afford some slips and shortcuts as he urged judicial restraint, for the other side faced a steeper path to victory. And current events lent momentum to his arguments. Everyone knew just how unpopular the Saints and their distinctive practices had become. They had been singled out in presidential messages to Congress, congressional words and acts, national news media and book tours, and even in lower courts. Just days before the case was heard in Washington, federal judges in Utah refused to naturalize any Church members. They cited a litany of alleged Church failings and offenses to conclude that Saints could not be loyal and virtuous citizens. Smith included this development in his brief.[17]

Meanwhile, Dubois’s congressional allies had prepared legislation to admit Idaho as a state, contingent only on the outcome of the case—which mattered because the new state’s constitution also excluded Church members from the franchise and office. Debate on the bills began after oral arguments (not even waiting for a decision). And other members of Congress were concocting federal legislation patterned after Idaho’s wholesale exclusions, to be applied in Utah and other territories. When Harvey Smith spoke, a chorus of voices backed him up.[18]

Arguments against the Law’s Validity

Franklin S. richards represented Samuel Davis and the the Church in contesting the constitutionality of Idaho's test oath in Davis v. Beason. Church History Library.

Smith’s brief in defense of the law had been twenty-six pages long. By contrast, the Church’s three-man team assembled a sixty-six-page collection of arguments. They were not simply more thorough or verbose than Smith. They bore a heavier burden of proof than the government. The court’s past rulings had upheld laws to punish polygamy, including various legislative, administrative, or judicial practices to suppress illegal marriages. To win a judgment against the constitutional validity of the Idaho law, Davis’s advocates would have to prove that disfranchising all Church members was an unreasonable or disproportionate method to pursue the government’s legitimate interest in the prevention of crime.[19]

The court had never reviewed a law that barred all Church members from the ballot or office, so it was not immediately clear if that was a reasonable means to deter illegal marriages. And it was clear that Idaho’s voter qualifications went further than those in federal law, notably the 1882 Edmunds Act and the 1887 Edmunds-Tucker Act. Some observers thought that one or more of the constitutional arguments advanced by Richards and his colleagues could prevail.

Law partners Samuel Shellabarger (above) and Jeremiah M. Wilson (below) assisted Richards in Davis v. Beason. Wikimedia Commons.

First Amendment

First, they used twenty-seven pages (longer than Smith’s entire brief) to lay out a First Amendment challenge to the test oath. Constrained by the court’s recent precedents, they emphasized whatever they could to make the case that the court should preserve significant space for the “free exercise” of religion—certainly more than simply protecting private opinion or belief. The court’s initial polygamy decision, Reynolds v. US (1879), is sometimes glossed as making a “belief-action” distinction, where inward belief is fully protected but outward expression may be regulated, but there was more to the distinction. In Reynolds, the court invoked Thomas Jefferson as a (debatable) authority on the meaning of free exercise in the First Amendment. Thus, Richards cited Jefferson’s Virginia Statute to show that “our civil rights have no dependence on our religious opinions.” As the court had previously observed, Jefferson justified legal “interference” only when “principles break out into overt acts against peace and good order.” The court held that practicing polygamists sufficiently threatened “peace and good order” to merit criminal penalties, but why were belief, membership, or political participation by members comparable threats? Should a man who “has exhibited every quality of good citizenship” be disfranchised for no “offense” other than belonging to a church? Neither federal nor territorial law treated church membership as a crime (an “overt [act] against peace and good order”). If free exercise meant anything, it must protect legal acts like joining a church and worshipping with coreligionists.[20]

With little First Amendment case law at their disposal beyond Reynolds, Davis’s team relied on quotations from state constitutions, founders, and scholars about the need to shield peaceable religious conduct so as not to punish opinion and belief. They cited state court decisions and scholarly comments to affirm that all religions, not simply Protestant Christians, stood equal before the law. This equality of treatment, resting on some separation between civil and ecclesiastical authority, sustained social unity amid religious plurality. When they highlighted the dangers of discriminatory treatment of unpopular religions, they sounded a note that went unheard in 1889 but would resonate decades later in judicial interpretation of both the “free exercise” and “no establishment” clauses of the First Amendment.[21]

At oral argument, Richards lamented “how preposterous” it was that Church members “could not partake of the Lord’s supper . . . without losing the elective franchise and the right to hold office,” or that “a convert could not be baptized for the remission of sins . . . without forfeiting the franchise.” Surely “such a discrimination because of membership in a church” should be incompatible with the requirements of the First Amendment.[22]

Richards and his colleagues also emphasized that Idaho lawmakers crossed lines Congress had been unwilling to trespass. They thus questioned how proportional and well-tailored widespread electoral exclusions were to end polygamy. Section 9 of the 1882 law forbade officials from excluding voters based on their beliefs about polygamy. Section 24 of the 1887 law required that voters would not “directly or indirectly, aid or abet, counsel or advise, any other person to commit” polygamy or unlawful cohabitation. But did that equate to Idaho’s exclusions? Quoting an exchange between Senators George F. Hoar and George F. Edmunds during debate of the 1887 law and its test oath, they showed it did not. When Senator Hoar asked if Edmunds intended that “no Mormon . . . shall be clothed with the suffrage,” Edmunds replied, “I am not in favor of anything of the kind.” If Congress had eschewed such measures, did Idaho have authority to take them?[23]

Fourteenth Amendment

Davis’s attorneys paired an appeal to free exercise principles with a call for equal protection of Church members as citizens under the Fourteenth Amendment. This Reconstruction amendment prohibited state laws that “abridge the privileges or immunities of citizens” and promised to protect “life, liberty, or property” by ensuring “due process of law” and “the equal protection of the laws,” using federal authority if necessary. Law and jurisprudence in the twentieth century would show how important such principles became when religious outsiders and other vulnerable groups contested laws that served majorities better than minorities. To the extent that Idaho’s exclusion discriminated against a religious class, surely that should be a problem, especially if the amendment embodied a “fundamental principle of the Government.”[24]

The amendment’s primary purpose had been to fight discrimination against Black Americans. But counsel cited cases to show that it had also been used to protect White appellants (including Irish American citizens). In addition, just that year the court had applied it to bar discrimination by national origin, ruling that the administration of a facially neutral law unfairly burdened Chinese-born residents. Why not include religion as a prohibited class of state discrimination? If Church members had committed no offense codified in Idaho law, depriving them of suffrage unfairly stigmatized them and deprived them of privileges.[25]

Counsel faced two hurdles to a successful appeal drawn from the Fourteenth Amendment. First, it was directed at the states, not at Congress or the territories. Nonetheless, they asserted that it evinced “far-reaching” and “fundamental” principles that must constrain “any legislative body” in the country. As the court had said in Yick Wo v. Hopkins, the amendment did not “leave room for the play and action of purely personal and arbitrary power” by any law-making body. Surely this “far-reaching” principle was “broad . . . and comprehensive enough to protect every right of the citizen, civil, political and religious” against “any discrimination by the State.”[26]

The second and higher hurdle may surprise us today, but judicial protection of voting rights was not robust. The most immediate problem, which Smith exploited in his brief, was the court’s 1885 decision in Murphy v. Ramsey. There the majority specifically approved disfranchisement for those who trespassed the 1882 law against “unlawful cohabitation” and provided little redress for Saints who thought the Utah Commission excluded excessive numbers of voters when they implemented the law. The bigger problem was that the court’s ruling also upheld wide discretion for legislatures to set the qualifications to vote or hold office, including exclusions by marital status and by sex.

Seeking help from an unlikely case, counsel revisited Minor v. Happersett. Virginia Minor had attempted to register to vote in Missouri, invoking her “privileges and immunities” as a citizen in accordance with the Fourteenth Amendment. When denied that privilege, she and her husband appealed to the Supreme Court, where she lost: her citizenship did not guarantee her suffrage. The ruling meant that a vote was not among the “privileges and immunities” that states or Congress were obliged to secure for all citizens; discrimination by sex was acceptable. But the court had said that the franchise was so vital that citizens, once franchised, such as male Latter-day Saints in Idaho, could not be “deprived of it without due process.” Despite this principle, officials seeking to restrict the pool of eligible voters were more likely to rely on Minor v. Happersett in that era. Not till the 1960s (as discussed below) would courts protect universal voting rights more assertively. Richards cited eloquent authorities on the importance of the vote and the dangers of disfranchisement using “arbitrary” test oaths, including Alexander Hamilton and Daniel Webster, but supportive developments in case law lay far in the future.[27]

Article 6

Article 6 promised that “no religious test shall ever be required as a qualification to any office or public trust under the United States,” and it seemed obvious that Idaho’s law excluded members of a religious organization from office. But there was no precedent for a challenge to registration rules based on this clause. Harvey Smith observed that the appellant’s brief “cites no authority” and urged that this was not the “time” to “discover” its application to the officeholding exclusions of his law. Yet Richards and his colleagues argued that this constitutional language reinforced the principle that all religious groups should be equal before the law. As Jefferson’s Virginia statute had said, religion should not affect “the political rights of the citizen.” The brief also pointed out that Idaho’s law seemed to be written to assure that members of only one religious group would be excluded, a more invidious kind of inequity.[28]

Still, the clause said nothing specific about voter qualifications. Another weakness of the argument was the widespread view that Article 6 applied only to federal officers. Still, election ballots routinely listed federal and local offices together, connecting franchise and officeholding across jurisdictions. Surely it was “anomalous” and “hostile” to equal protection of the law for a man to be eligible for the highest office and yet excluded from casting a ballot. If nothing else, a bar on religious tests for office supported the claim that laws aimed at religious classes were problematic for any level of government under the Fourteenth Amendment. Yet, as Smith advised, the court ignored this line of argument. Even today, Article 6 has not been used as a successful basis to challenge law.[29]

A Unanimous Decision for Idaho in Davis v. Beason

When their ruling came in February 1890, the court vindicated Idaho’s remarkable law and its author-turned-advocate. The law “is not open to any constitutional or legal objection,” wrote Justice Stephen Field for a unanimous court. “[The] legislature was authorized to prescribe any qualifications . . . calculated to secure obedience to its laws. . . . They have the power . . . to prescribe any reasonable qualifications of voters and for holding office.” As far as the court was concerned, the law “simply excludes . . . those who have been convicted of certain offences, and those who advocate a practical resistance to the laws of the Territory and justify and approve the commission of crimes.”[30]

In Davis v. Beason (1890), the Supreme Court unanimously rejected the Church's arguments against the Idaho test oath. Wikimedia Commons.

The court overlooked a key premise of the law: that all Church members should be disqualified because all members necessarily advocated, justified, or approved the crimes of their polygamist brothers and sisters. Field gave little attention to questions of religious association or expression, except as they collided with marriage law, reducing Davis’s religion to a single tenet of polygamy. The court cared most about crime and its prevention, though not the crime of conspiracy for which Samuel Davis sat imprisoned in the Oneida County Jail. The ruling referred twenty times to crime or criminal matters, almost always in reference to bigamy and polygamy, “crimes by the laws of all civilized and Christian countries.” Much of Field’s opinion retraced Reynolds and Murphy to sustain one main point: claims of “religion” could never justify a “pernicious” crime that would “destroy” marriage, “disturb” family peace, “degrade woman and . . . debase man.” And the demands of “free exercise” could never protect such criminals.[31]

Of course, Davis had never been a polygamist, so these fulminations had no application to him, except to show how wrong or dangerous his religion must be. The court showed scant interest in the beliefs or actions of monogamous Church members, except to assume that they “held and advocated” the same religious “tenets” as polygamists, tenets unworthy of First or Fourteenth Amendment protection because they “sanctioned” or “justify and approve” crime. In other words, Idaho had made a commendable choice when it excluded from votes or office anyone who might “teach, advise, or counsel” polygamous practice. It seemed reasonable that members taught or advised plural marriage and thus should be excluded for “aiding and abetting” crime, lest they “defeat the criminal laws” by their votes. Equating Church membership with such advocacy was constitutionally defensible, at least for the exclusions at hand.[32]

The language of “reasonable qualifications” is crucial to the case. The court assumed that Idaho, like Congress, had a legitimate reason for its law, presumably the suppression of polygamy. And statutory limits on voting rights were considered a “reasonable” exercise of constitutional powers. It made no difference that the rules discriminated against a certain religion, in part because the franchise was not an inherent right of citizenship. Restricting Church members’ right to vote or hold office was apparently not direct enough a burden on belief or association or conduct to violate the First Amendment either, though the court never engaged the question that way. Perhaps if Idaho had been a state, the court would have examined whether its law “abridged the privileges or immunities” of certain citizens, or whether it denied Davis or any other person “the equal protection of the laws.” These important complaints raised by Church attorneys were largely ignored. Instead, the court echoed Smith when he used Reynolds and Murphy to affirm wide legislative power to regulate the franchise in line with government’s interest in preventing crime.[33]

The unanimous ruling showed how little sympathy an unpopular religious minority could expect from the court of last resort. The justices discerned no breach of constitutional promises regarding free exercise, religious tests for office, or equal protection or due process for the privileges and immunities of citizens. Three months later, a divided Supreme Court upheld the Church’s loss of corporate status and property, and four months after that Wilford Woodruff issued a Manifesto.[34] The government achieved its stated aim: the Saints would comply with the laws against polygamy. Almost any means that pushed the Church toward compliance with the majority’s demands passed constitutional muster.

Evolving Norms in the Century after Davis

It took time for the court to assert a stronger role as defender of minority rights; just six years after Samuel Davis lost his appeal, some of the same justices upheld state laws that discriminated against Black citizens, despite the obvious intent of the Fourteenth Amendment to prevent such injustices.[35] Even today, judges often defer to the people and their representatives when First Amendment claims go to court. But the intervening decades brought new litigants, new pressures, and new principles that improved the odds for unpopular minorities in court.

Ironically, judicial solicitude toward individual and group civil liberties emerged about the same time as the court began to allow more regulation of property rights. Growth of government at any level can threaten individual liberty, but for much of the twentieth century it seems to have spurred the courts into greater vigilance. Judicial review increasingly protected vulnerable minorities, opening space for religious and political diversity and dissent, often in ways that stirred anxieties for traditional majorities. Today we who enjoy constitutional protection of religious commitments do well to remember that we enjoy such shelter in company with a “motley crew” of outsiders and dissenters—even with criminals—in the name of “fundamental rights,” “due process,” and “equal protection of the laws.”

In an otherwise unremarkable 1938 decision about milk regulations, Justice Harlan F. Stone authored the “most important footnote in constitutional history.” He signaled the court’s intention to take a closer look at the groups affected and the liberties restricted by law. When its action implicated the Bill of Rights or impacted “discrete and insular minorities,” government should expect “more exacting judicial scrutiny” and “more searching judicial inquiry” in accord with the promises of the Fourteenth Amendment.[36]

That same year the court reversed prior rulings against members of Communist organizations. DeJonge v. Oregon declared that free speech and assembly should be shielded from state sanctions, even when members of an organization advocated crime, so long as there was no “clear and present danger” of imminent incitement. When they decided that “criminal syndicalism” laws failed the demands of the Fourteenth and First Amendments, the justices echoed arguments advanced on behalf of Davis and Church members more than forty years before, often citing similar precedents such as Yick Wo v. Hopkins. In coming years, with some wobbles, the court more fully protected citizens’ rights to associate and advocate from legal penalties. Some of these cases specifically rejected the notion of guilt by association when some of a group’s members violated criminal law.[37]

Meanwhile, the protection of First Amendment rights for religious outsiders also advanced. In 1940, Jehovah’s Witnesses challenged a Connecticut law requiring licenses to sell religious literature. The law singled out no group, but the court rejected a rule that officials determine a group’s “religious” status before granting a permit. To do so laid “a forbidden burden upon the exercise of liberty protected” by the First Amendment. The ruling “incorporated” free exercise protections against state law via the Fourteenth Amendment, concluding that it was part of a “fundamental concept of liberty,” just as Richards and his colleagues had asserted in 1889. Seven years later, the court incorporated the establishment clause by the same logic: “State power is no more to be used to handicap religions, than it is to favor them,” the majority said.[38]

The court read free exercise even more expansively in 1963, when a Seventh-day Adventist challenged South Carolina’s unemployment insurance regulations. The majority reasoned that the state could not “force her to choose between following the precepts of her religion and forfeiting benefits,” even if the burden seemed rather indirect. Such linkage “imposed an unconstitutional penalty,” for “it is too late in the day to doubt that the liberties of religion and expression may be infringed by the denial of or placing of conditions upon a benefit or privilege.”[39]

Adell Sherbert’s victory established the principle that in such situations, the government must show that its rules were the least burdensome method to achieve a compelling interest. Faced with that burden of proof, state officials sometimes lost in court. On the same day as the Sherbert decision, the Warren Court outraged some religionists by barring prayer and Bible study in Pennsylvania’s public schools as a violation of the establishment clause. Yet both cases showed similar commitments: to protect “discrete and insular minorities” from the demands of majority rule, after those minorities looked to the courts for relief from laws that intentionally or inadvertently burdened their participation in public life.[40]

The 1960s and 1970s also saw a series of divided rulings that elevated the status of the vote among our civil rights. When a majority of justices declared that voting is “a fundamental political right . . . preservative of all rights,” they echoed arguments put forth on behalf of the Saints in Idaho Territory in 1889. This meant that restrictions on the franchise faced stricter and stricter scrutiny in the court, placing a “heavy burden of justification” upon the government, which was obliged to show how its rules were necessary to achieve a compelling interest and did not “unnecessarily burden or restrict constitutionally protected activity.”[41] All these trends suggested a judicial system increasingly attuned to the protection of fundamental liberties for members of “suspect classes,” often in the name of equal protection or due process.

Turning Back? Employment Division v. Smith

Free exercise advocates came to expect judicial relief when laws burdened religious practices or affected religious groups disparately. And governments who knew their policies could be subject to stricter scrutiny sometimes worked harder to accommodate the needs of religious outsiders. But majorities still shape the law, and religious petitioners still lost in court, even when government was obliged to show that its policy served a compelling interest and was narrowly tailored to that end. In two notable Supreme Court cases of the 1980s, First Amendment claims failed to win relief from government demands because the government did not coerce “individuals . . . into violating their religious beliefs,” nor did it “penalize religious activity by denying any person an equal share of the rights, benefits, and privileges enjoyed by other citizens.” If its action passed these tests, the government need not accommodate religious petitions at odds with its own legal interests.[42]

In 1990, one hundred years after Davis lost his appeal against Idaho’s law, the court jolted observers and advocates when it announced a more deferential standard of review for laws that unintentionally burdened religious practices. Attorneys for Al Smith and Galen Black had twice persuaded Oregon’s highest court that they should be eligible for unemployment benefits after being fired for sacramental use of peyote in the Native American Church.[43] But the Supreme Court reversed the decision. Justice Antonin Scalia and four of his colleagues rolled back use of the compelling interest test when religious practice collided with criminal law. Sherbert’s strict standard of review only applied in a narrow set of cases; employing it too often “would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind,” the majority asserted.[44]

A variety of religious and legal advocates were disappointed by the decision (including leaders of The Church of Jesus Christ of Latter-day Saints). But Justice Scalia said that the rule of law in America would be weakened if courts too frequently applied strict scrutiny to a host of laws that incidentally burden religious practice. Citing Reynolds (the polygamy case that first set bounds to free exercise), he said it would defy “constitutional tradition and common sense” to let individuals invoke religious beliefs to disobey “neutral” laws of “general applicability,” like those that prohibited use of certain drugs. Scalia reached back decades to quote Justice Felix Frankfurter (from a ruling that was subsequently reversed by the court): “Conscientious scruples have not . . . relieved the individual from obedience to a general law not aimed at the promotion or restriction of religious beliefs.” So long as laws had not targeted religion for “promotion or restriction,” courts should defer to governmental needs and arguments. Like Frankfurter, Scalia called for judicial restraint and encouraged religious citizens to petition the “political branches” for accommodation—cold comfort for the obscure and unpopular.[45]

The Court Repudiates Davis v. Beason

The Smith decision continued to shape judicial interpretations of free exercise after 1990, but its application showed the influence of other elements of jurisprudence that had emerged over the decades. In 1993 the court applied principles from Smith when Santeríans appealed city ordinances in Hialeah, Florida, that prevented their sacrifice of animals. Justices found that laws ostensibly enacted to protect public health and prevent animal cruelty were neither neutral nor of general application. “To satisfy . . . the First Amendment,” wrote Justice Anthony Kennedy, such laws “must advance ‘interests of the highest order’ and must be narrowly tailored in pursuit of those interests.” Instead, the laws had been written to rule out Santeria’s unpopular practices, and “the Free Exercise clause protects against hostility which is masked as well as overt.” Concurring in the judgment, Justice Scalia said that a law that “singles out a religious practice for special burdens” is not neutral, regardless of the motives of the lawmakers.[46]

Interpreting the free exercise promise of the First Amendment in light of the equal protection principle of the Fourteenth Amendment had not been enough to win the day in 1890. But it held significant legal weight before and after 1990, and in 1996 the court found occasion to explain why Idaho’s law would face a different fate if argued then. In this case, it was the political standing of another group of “outsiders,” gay and lesbian citizens in Colorado, that led the court to identify the constitutional failings of Idaho’s old election law. Colorado voters had amended their constitution to prevent state or local government adding sexual orientation to their nondiscrimination statutes. This action raised questions about “a discrete and insular minority” and rights that secured their place in public life, so the courts examined it more strictly. In doing so, they found that the amendment failed to provide equal protection for members of a sexual minority and violated the Federal Constitution.[47]

Justice Scalia dissented. In his view, Colorado sought to “preserve” a majority view of “sexual morality statewide, against the efforts of a geographically concentrated and politically powerful minority.” Looking to the past, he showed that the court had approved similar but even harsher measures to achieve such ends by its unanimous ruling in Davis v. Beason (as well as Murphy v. Ramsey). Scalia noted that his colleagues had recently cited Davis in their decision against the city of Hialeah when they acknowledged that “adverse impact will not always lead to a finding of impermissible targeting” because “social harm” might be a “legitimate concern of government for reasons quite apart from discrimination.”[48]

In Romer v. Evans (1996), the Supreme Court repudiated its ruling in Davis v. Beason. Wikimedia Commons.

Scalia’s dissent obliged Justice Kennedy and the majority to address what had changed to make the 1890 Davis ruling legally obsolete. First, “to the extent [it] held that persons advocating a certain practice may be denied the right to vote, it is no longer good law.” Though the court had once commended Idaho’s statute for penalizing advocacy of polygamy, subsequent rulings had extended protection to a wide range of unpopular expression, even advocacy of criminal conduct. Conditioning the franchise on “proper” religious expression was now unacceptable, as Davis’s attorneys had unsuccessfully argued more than a century before.

Second, “to the extent it held that the groups designated in the statute may be deprived of the right to vote because of their status, its ruling could not stand without surviving strict scrutiny, a most doubtful outcome.” Idaho had blurred the distinction between action and status by disfranchising all Latter-day Saints, polygamous and monogamous, even when congressional laws acknowledged the distinction. Over time, courts had come to treat the franchise as seriously as Richards and his colleagues had asserted they should in 1889. In addition, equal protection principles made it increasingly indefensible to single out a religious minority (or other vulnerable group) for exclusion from a core civil right. In a case remembered for advancing the civil rights of gay and lesbian citizens, Samuel Davis, his coreligionists, and their advocates found vindication too.[49]

The Drama of Law and Religious Freedom

Harvey Smith’s victory for Idaho at the Supreme Court was part of a string of success from the mid-1880s to mid-1890s. Elected to the Territorial Council at the age of twenty-seven, he authored a law that shaped the next decade of Idaho politics and was incorporated into the founding constitution of the state in 1890. Moving his law practice from Idaho to Utah, Smith successfully defended his statute before the territorial and national courts, then helped defend Idaho’s new state constitution before Congress. At thirty-five he was appointed by the president to Utah’s Territorial Supreme Court. Only death interrupted his meteoric rise, at thirty-eight. Meanwhile, his friend and ally Fred Dubois won election as Idaho’s territorial delegate to Congress in 1886, brokered statehood for Idaho in 1889–90, and in 1891 went back to Washington, DC, as a senator. Dubois outlived Smith by almost thirty-five years and witnessed significant changes in the relationship between Latter-day Saints, Idaho, and the United States.[50]

Less than a year after Dubois’s death, the Idaho Statesman published a story shared by Samuel H. Hays, former state attorney general, who named Dubois among his sources. A bold headline spanned the entire width of page two: “Now It Can Be Told, The Most Dramatic Incident in Idaho’s History.” Hays thought the story would help tolerant readers of 1931 to “understand the seething undercurrent of excitement and hatred that characterized those early days . . . [on] questions of religion.” He then recounted the terms of the test oath bill and disclosed a version of its signing never shared before with the public. Governor Bunn had held the bill, reluctant to sign it into law. Smith, Dubois, and two colleagues called to see him. After lengthy discussion, the governor said he intended to veto the legislation. This remark prompted a short, heated controversy. Then “Smith arose, and pulling a gun from his pocket said: ‘Governor, you will not leave this room alive unless you sign that bill and sign it at once.’ The governor signed, and thus the test oath became part of Idaho’s statutes.” Hays attributed the story to Dubois, who had recounted it to Henry Z. Johnson “shortly before his death.” Now that all parties were deceased, Hays thought it should be preserved as “one of the most remarkable incidents in Idaho’s history.” He wondered if “it might have affected the validity of the act” had the event been known when the law was litigated.[51]

Perhaps it would! But the burden of proof always matters, shaped by standards of review. In 1889 attorneys for Samuel Davis and his church struggled to persuade judges to examine potentially unconstitutional means employed to achieve an end the court had already approved (the suppression of polygamy). In a legal war against marital crime, judges seemed willing to countenance almost any method. Even if evidence suggested the law manipulated the electorate for political purposes, prevailing precedent could persuade judges to defer to the rationale offered by lawmakers. But, as we have seen, that deference diminished in subsequent decades.

All would agree that Idaho’s election law lacked neutrality—it burdened members of a specific organization with a specific “doctrinal rite.” With or without religious hostility, the law introduced discriminatory treatment. Could that be justified? Under today’s principles of constitutional review, Idaho’s election law would be subject to strict scrutiny in court: did it use the least restrictive means to achieve a compelling government interest? We should be thankful that it seems so likely that the law would fail that searching review. But we should also be vigilant when lawmakers or opinion leaders wax careless about evils to be checked or the measures required to check them. On the “Mormon question,” officials and activists sometimes failed to specify the end in mind: Did they mean to punish a practice or a people? Suppress one tenet or a whole religion? Lawmakers and judges alike invoked analogies and caricatures that justified action but sometimes obscured relevant distinctions or evidence. As a result, legal and social burdens weighed down a vulnerable community, often in the name of law, morality, even liberty. Looking back, we can discern the “tyrannical and arbitrary” or discriminatory elements of Idaho’s law. Better still to recognize and contest similar injustices today.

Notes

[1] Journal of the Council of the Thirteenth Legislative Assembly of the Territory of Idaho, Convened on the Eighth day of December, AD 1884, and adjourned on the Fifth Day of February, AD 1885 at Boise City (Boise: Jas. A. Pinney, Territorial Printer, 1885), 10. H. W. Smith, Brief for Appellee, Samuel D. Davis, Appellant, vs. H.G. Beason, Sheriff of Oneida County, Idaho, Appellee (Washington: Judd & Detweiler, 1890), 12. Section 501 excluded from voting or office polygamists and bigamists, any who “teaches, advises, counsels, or encourages” the practice, “or to enter into what is known as plural or celestial marriage, or who is a member of any order, organization, or association which teaches, advises, counsels, or encourages its members, devotees, or [others]” to do so, “either as a rite or ceremony of such order, organization, or association.” The oath in section 504 disqualified the same classes with some additional language: “as a doctrinal rite of such organization”; “as a religious duty or otherwise.” It also required that “I do not, and will not, publicly or privately, or in any matter whatever, teach, advise, counsel, or encourage any person” to commit any crime and “that I do regard the Constitution of the United States and the laws of thereof, and of this Territory, as interpreted by the courts, as the supreme law of the land,” notwithstanding any teachings to the contrary. In Davis v. Beason, 133 U.S. 333, 335–36 (1890).

[2] On arrests and imprisonment for those who violated antipolygamy laws in Idaho, see Fred E. Woods and Merle W. Wells, “Inmates of Honor: Mormon Cohabs in Idaho Penitentiary, 1885–1890,” Idaho Yesterdays 40, no. 3 (Fall 1996): 13–22; and Melvin L. Bashore and Fred E. Woods, “Consigned to a Distant Prison: Idaho Mormons in the South Dakota Penitentiary,” South Dakota History 27, nos. 1–2 (Spring–Summer 1997): 21–40.

[3] Fred T. Dubois, The Making of a State, ed. Louis J. Clements (Rexburg: Eastern Idaho Publishing, 1971), 84.

[4] “Speech of Fred T. Dubois on accepting the chairmanship of the anti-Mormon convention at Malad, Idaho, Oneida County, October 15th, 1884,” Fred T Dubois Papers, MC 004, box 43, folder 4, Idaho State University Special Collections.

[5] Dubois, Making of a State, 90–91. The legislature amended the law over time to better assure the Saints’ disfranchisement. Delegates then wrote the law into the state’s first constitution. Though the manuscript and published version of his memoirs are not dated, internal evidence suggests they were written in the early 1920s. Scholars have contested Dubois’s stated reasons for the law and constitutional measures, highlighting political advantages selective disfranchisement secured for him and his allies. See Merle W. Wells, Anti-Mormonism in Idaho, 1872–92 (Provo, UT: Brigham Young University Press, 1978).

[6] John S. Dinger, “Resigned to Fate or Resigning to Vote: The Idaho Test Oath and Woolley v. Watkins,” Journal of Mormon History 46, no. 4 (2020): 60–89; see also Wells, Anti-Mormonism in Idaho, 112–23, 138.

[7] Franklin S. Richards, Jeremiah M. Wilson, Samuel Shellabarger, Brief for Appellant, Samuel D. Davis, Appellant, vs. H. G. Beason, Sheriff of Oneida County, Idaho, Appellee, 3. For background on Samuel Davis, see Dean G. Grow, “Samuel Deer Davis: A Pivotal figure in The Church of Jesus Christ of Latter-day Saints History” (n.d.), MS 23674, Church History Library.

[8] “Conspiracy Cases,” Salt Lake Herald, September 15, 1889; Samaria Ward manuscript history and historical reports, LR 7849 2, Church History Library.

[9] See The Idaho Test Oath, Argument Delivered in the Supreme Court of Idaho Territory, Feb. 10, 1888, by Hon. Richard Z. Johnson, in the cases of William Heyward, Appellant, vs. Henry Bolton, et al., Respondents, and James B. Innis, Appellant, vs. Same Respondents, Appeals from Bear Lake County (Salt Lake City: Deseret News, 1888); Dinger, “Resigned to Fate or Resigning to Vote,” 85; Franklin S. Richards, letter to R. Z. Johnson, October 12, 1889, in Richard Z. Johnson Papers, MS 14, box 1, folder 2, Idaho State Archives. They may have consulted with Joseph Rawlins and Benjamin Sheeks, who had contested the law before Idaho’s bench earlier in 1889.

[10] Dubois, Making of a State, 176–77.

[11] W. Cole Durham Jr., “Religious Freedom in a Worldwide Setting: Comparative Reflections,” address at the Seventeenth Plenary Session of the Pontifical Academy of Social Science, Rome, Italy, April 30, 2011, 9, https://classic.iclrs.org/content/blurb/files/Religious%20Freedom%20in%20a%20Worldwide%20Setting.pdf.

[12] Smith, Brief for Appellee, 7–8, 14.

[13] Smith, Brief for Appellee, 8–11.

[14] Smith, Brief for Appellee, 8–9.

[15] Smith, Brief for Appellee, 9, 14–16. Compare John Dinger’s discussion of Murphy and other cases in this volume.

[16] Smith, Brief for Appellee, 16.

[17] Smith, Brief for Appellee, 21–22.

[18] See Wells, Anti-Mormonism in Idaho, 136–47.

[19] Indeed, the justices were then sitting on an opinion that would soon approve Congress’s measures against the Church’s legal incorporation and properties. The so-called “Church suit” cases had been argued eleven months earlier, but the ruling was not released until May 1890, three months after the decision in Davis v. Beason. See Late Corporation of the Church of Jesus Christ of Latter-Day Saints v. United States, 136 U.S. 1 (1890). As Brian J. Grim and Roger Finke observe, “The religious outsiders of each era have tested [the] boundaries” of constitutional promises. The Price of Freedom Denied: Religious Persecution and Conflict in the 21st Century (New York: Cambridge University Press, 2011), 52.

[20] Richards, Wilson, Shellabarger, Brief for Appellant, 14–19, 35.

[21] Richards, Wilson, Shellabarger, Brief for Appellant, 24, 29–31, 34.

[22] “Mormons in Idaho,” Salt Lake Herald, December 11, 1889, 1.

[23] Richards, Wilson, Shellabarger, Brief for Appellant, 35–36.

[24] Richards, Wilson, Shellabarger, Brief for Appellant, 39.

[25] Richards, Wilson, Shellabarger, Brief for Appellant, 41–42.

[26] Richards, Wilson, Shellabarger, Brief for Appellant, 39, 43–44.

[27] Richards, Wilson, Shellabarger, Brief for Appellant, 44–49.

[28] Richards, Wilson, Shellabarger, Brief for Appellant, 51–52; compare Smith, Brief for Appellee, 16.

[29] The most notable challenge to invoke Article 6 was instead decided in favor of an atheist’s petition on First Amendment grounds; see Torcaso v. Watkins, 367 U.S. 488 (1961).

[30] Davis v. Beason, 133 U.S. 333, 346–47 (1890).

[31] Davis v. Beason, 341–45. To repeat, Davis was a monogamous Church member who was indicted, convicted, and jailed for conspiracy related to resigning membership and seeking to register to vote. In all he served 150 days in jail and paid $190 in property or cash to satisfy the sentence. Register of Prisoners Confined in County Jail, Book A, Oneida County Records, 1865–1985, microfilm, Idaho State Archives.

[32] Davis v. Beason, 133 U.S. 333, 345, 347, 348 (1890).

[33] Smith, Brief for Appellee, 21–22.

[34] See Late Corporation . . . , 136 U.S. 1 (1890); Doctrine and Covenants, Official Declaration 1. Disfranchisement of Idaho Church members continued after the Manifesto, indicating that concerns about the Saints’ political participation (as stated above by Dubois) mattered as much as did discouraging crime.

[35] See Plessy v. Ferguson, 163 U.S. 537 (1896).

[36] David Schultz, “Carolene Products Footnote Four,” in The First Amendment Encyclopedia, ; United States v. Carolene Products Co., 304 U.S. 144 (1938).

[37] See United States v. Brown, 381 U.S. 437 (1965); United States v. Robel, 389 U.S. 258 (1967); Brandenburg v. Ohio, 395 U.S. 444 (1969). These rulings shielded Communists and Ku Klux Klan leaders from legal penalties despite the disreputable aims and potentially violent methods of members of their associations.

[38] Cantwell v. Connecticut, 310 U.S. 296 (1940); Everson v. Board of Education, 330 U.S. 1 (1947).

[39] Sherbert v. Verner, 374 U.S. 398 (1963).

[40] Sherbert v. Verner, 374 U.S. 398 (1963); Abington School District v. Schempp, 374 U.S. 203 (1963); the principle advanced in Sherbert again applied when a Jehovah’s Witness appealed another state’s eligibility rules for unemployment benefits in Thomas v. Review Bd., Ind. Empl. Sec. Div., 450 U.S. 707 (1981).

[41] Dunn v. Blumstein, 405 U.S. 330 (1972); compare Reynolds v. Sims, 377 U.S. 533 (1964); Kramer v. Union Free School Dist., 395 U.S. 621 (1969).

[42] United States v. Lee, 455 U.S. 252 (1982) denied an Amish employer’s suit to be excused from social security taxes; Lyng v. Northwest Indian Cemetery Prot. Assn., 485 U.S. 439 (1988) rejected an appeal against road construction that encroached sacred lands of Native Americans; quotations from 449 (majority) and 459 (Brennan, J., dissenting). Note that even the looser standard of the court’s majority would have challenged the registration requirements in Idaho’s former laws because they denied “an equal share” of some privileges to Church members.

[43] See the references to rulings by the Oregon Supreme Court in 1986 and 1988, both of which held that the US Constitution’s free exercise clause protected the petitioners, in Employment Division, Department of Human Resources of Oregon, et al. v. Smith et al., 494 U.S. 872, 875 (1990).

[44] Employment Division, Department of Human Resources of Oregon, et al. v. Smith et al., 494 U.S. 872, 875, 888 (1990).

[45] Employment Division, Department of Human Resources of Oregon, et al. v. Smith et al., 494 U.S. 872, 875 (1990), 879, 890. Frankfurter wrote the majority opinion in Minersville School Dist. Bd. of Ed. v. Gobitis, 310 U. S. 586, 594–95 (1940). That ruling was reversed just three years later (over Frankfurter’s dissent) in West Virginia Bd. of Education v. Barnette, 319 U.S. 624 (1943), but Scalia argued that free speech concerns (not free exercise) drove the reversal. As Congress sought to restore the Sherbert standard of review, Church leaders sent Dallin H. Oaks to testify in favor of a law “to restore to the free exercise of religion what a divided Supreme Court took away in Employment Division v. Smith.” “Elder Oaks Testifies before U.S. Congressional Subcommittee,” Ensign, July 1992, 78. These deliberations resulted in the Religious Freedom Restoration Act of 1993.

[46] Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 546 (1993).

[47] Romer v. Evans, 517 U.S. 620 (1996). It is a landmark case in the protection of the rights of citizens whose sexual orientation puts them in the minority.

[48] Romer v. Evans, 517 U.S. 620 (1996), 648–53 (Scalia, J., dissenting). Note that Scalia agreed with the majority on the constitutional failings of Idaho’s voter registration rules. He nonetheless invoked Davis v. Beason to question why the court concluded that “the perceived social harm of polygamy is a ‘legitimate concern of government,’ and the perceived social harm of homosexuality is not,” a judgment he considered political rather than legal. Yet he missed the central complaint about Idaho’s law: it did not target polygamists for civil penalties, but all Church members.

[49] Romer v. Evans, 517 U.S. 620 (1996), 634 (Kennedy, J., for the majority).

[50] “H. W. Smith Is Dead,” Ogden Daily Standard, November 23, 1895, 1; “Judge Smith Dead,” Provo Daily Enquirer, November 23, 1895, 4; “Death of Judge Smith,” Salt Lake Tribune, November 23, 1895, 1.

[51] “Now It Can Be Told: The Most Dramatic Incident in Idaho’s History,” Idaho Statesman, January 25, 1931, 2.