| 251 should make no law respecting the establishment of religion or prohibiting the free exercise thereof, thus building a wall of separation between church and state. Adhering to the expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore man to all his natural rights in opposition to his social duties." Coming as this does from an acknowledged leader of the advocates of the measure, it may be accepted almost as an authoritative declaration of the scope and effect of the amendment thus secured. Congress was deprived of all legislative power over mere opinion, but was left free to reach actions which were in violation of social duties or subversive of good order. From that day to this we think it may safely be said, there never has been a time, in any state of the Union, when polygamy has not been an offense against society, cognizable by the civil courts and punishable with more or less severity. In the face of all this evidence it is impossible to believe that the constitutional guarantee of religious freedom was intended to prohibit legislation in respect to this most important element in social life-marriage: while from its very nature the sacred obligation is, nevertheless, in most civilized nations, a civil contract, and usually regulated by law. Upon it society may be said to be built, and out of its fruits spring the social relations and social obligations and duties with which the Government is required to deal. In fact, according as monogamous or polygamous marriages are allowed do we find the principles on which the government of a people to a greater or less extent rests. An exceptional colony of polygamists, under exceptional leaders, may sometimes exist for a time without appearing to disturb the social condition of the people who surround it; but there can not be a doubt that, unless restricted by some form of constitution, it is within the legitimate scope of the power of every civil government to determine whether polygamy or monogamy shall be the law of social life under its dominion. In our opinion the statute immediately under consideration is within the legislative power of Congress. It is constitutional and valid as prescribing the rule of action for all those residing in the Territories and in places over which the United States have exclusive control. This being so, the only question which remains is, whether those who make polygamy a part of their religion are excepted from the operation of the statute. If they are, then those who do not make polygamy a part of their religious belief may be found guilty and punished, while those who do, must be acquitted and go free. This would be introducing a new element into our criminal law. Laws are made for the government of actions, and while they can not interfere with mere religious belief and opinions, they may with practices. Suppose one religiously believed that human sacrifices were a necessary part of religious worship, would it be seriously contended that the civil government under which he lived could not interfere to prevent the sacrifice? Or, if a wife religiously believed it was her duty to burn herself upon the funeral pile of her dead husband, would it be beyond the
(page 251) |
