Many Americans were shocked, confused and even sickened with the recent Supreme Court pronouncement that the Constitution of the United States of America now protects a “fundamental right” to homosexual-marriage, based upon sodomy.  That case, entitled Obergefell v. Hodges,[1] will serve to undermine the Supreme Court’s legitimacy like no case since Dread Scott. The same Supreme Court which held in Dred Scott that the Constitution does not protect a person from being held in slavery, where the very life of the slave is held in the palm of the master’s hand, is the same Supreme Court which held that the constitution does now protect a right to homosexual-marriage based upon sodomy.  Dred Scott was overturned on the battle fields of the Civil War.[2]  The means by which Obergefell v. Hodges will be dispatched to the dust bins of history have not yet been played out.

           In our constitutional republic it is the job of the Congress to legislate or create laws and it is the job of the courts to interpret and then apply the law in the case in question.  Ordinarily, the first step in interpreting the law is to review how prior courts have dealt with similar situations, this is otherwise known as researching the case law.  The case law will reveal which law applies to a given case or situation and disclose the thought process or analysis engaged in by the prior court.  This is what a first-year law school student is taught.

           The Supreme Court has, on occasion, dealt with the issue of marriage prior to the Obergefell case.  In most cases, a court would in its opinion identify prior relevant cases and describe how such cases are similar to and how they are different from the case in question.  Then the court would state why such prior case did or did not bind the court concerning the case in question. This is known as following precedent.  Courts should not become slaves to the concept of “following precedent” but at the same time they must clearly and logically state why they are not bound by precedent in a particular case.

           So, it is curious that the Supreme Court in its Obergefell decision fails to mention its prior case of Reynolds v. United States.[3] Reynolds was convicted of bigamy in the Territory of Utah in 1878.  At first blush it may seem odd for the Supreme Court in the year of Obergefell, 2015, to take a case which is over 100 years old into consideration, however, Obergefell, is approximately half as old as is the constitution and was issued by the same Supreme Court which imposed Obergefell upon our nation.

           Reynolds appealed his conviction for bigamy by asserting that he had the freedom of religion under the First Amendment to the Constitution of the United States of America to marry multiple wives.  He established to the satisfaction of the Supreme Court that at the time of his second marriage, (1) he was presently married, (2) he had been for many years a member of the Mormon Church and was a believer in its doctrines, and (3) it was an accepted doctrine of the church that male members were enjoined to practice polygamy by taking more than one wife.

           The Supreme Court in Reynolds, of course, acknowledged the First Amendment’s prohibition upon Congress making any law which prohibits the free exercise of religion.  It framed the precise issue in the case, though, as “what is the religious freedom which has been guaranteed?”[4]  The Supreme Court reviewed the history of the First Amendment and determined that it was adopted because of the fact that prior to the Constitution some of the colonies taxed their citizens to finance churches to which some citizens did not subscribe, provided punishment for failure to attend public worship and provided punishment for heretical opinions.  (It is this author’s opinion that this history is so narrow in scope and time as to be seriously misleading, but that is not the point here.)

The Reynolds court, then reasoned that since “religion, or the duty we owe the Creator, was not within the cognizance of civil government,”[5] Congress could not make laws regarding “mere” opinion, but it could make laws regarding action.

In support of its opinion the Reynolds court summarized the legal history demonstrating that polygamy had historically been outlawed:

“Polygamy has always been odious among the northern and western nations of Europe…. [F]rom the earliest history of England polygamy has been treated as an offence against society…. [T]here never has been a time in any State of the Union when polygamy has not been an offence against society …”[6]


The Reynolds court also reviewed the history of marriage thus observing the historical reasons why government is involved with the institution:

“Marriage, while from its very nature a 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 social relations and social obligations and duties, with which government is necessarily required to deal.”[7]

Reynolds notes that one of the primary reasons for the existence of government involvement in the institution of marriage is adjudicating or resolving disputes between people.  Marriage is a contract in the classic sense because it is the exchange of promises by two parties.  Consequently, the courts will be required to resolve disputes which inevitably result from a large number of marriage contracts and from breaches of duties arising out of those contracts.

The second primary reason for government involvement in the institution of marriage is to protect the “fruits” of the marriages, that is the children.  The court makes this point more most critically when it approves of the statement to the jury that one “evil consequence” of polygamy is to cause damage to innocent children.  The court, here, is alluding to the damage caused to children by raising them in an un-natural or unhealthy circumstance.

The Reynolds court concludes that government may legitimately make laws regulating marriage. The Reynolds Court reasons that marriage is the building block of civilization, because without a new generation of healthy productive children civilization will expire.  And governments, after all, is first and foremost concerned with its own survival.

The remaining issue for the Reynolds Court, after it concluded that the government could make laws regulating marriage, was whether or not one may be excepted from the laws governing marriage based upon his religion. 

This question, whether or not a person may be excepted from the law of marriage based upon his religion, is readily resolved by the Reynolds Court posing two questions, the answers to which we would all agree:

“Suppose one believed that human sacrifices were a necessary part of religious worship, would it be seriously contended that the civil government under which he lived could not interfere to prevent a sacrifice? Or if a wife religiously believed it was her duty to burn herself upon the funeral pile of her dead husband, would it be beyond the power of the civil government to prevent her carrying her belief into practice?”[8]


And, so the Reynolds court concludes that one’s religious belief does not excuse him from the laws governing marriage. The Reynolds court concluded that to rule differently would:

“be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances.”[9]


The Obergefell Court should at least have addressed this language in Reynolds and explained how the Obergefell decision does not result in “every citizen becoming a law unto himself.”  The Obergefell Court should also have explained how our civilization will endure, when our society does not agree upon the attributes of its basic building block, the institution of marriage.

Many other questions remain.  The Reynolds court drew a clear line between belief and action. Will this “bright line” test work for every confluence of government and religion?  If religious belief is not superior to the “law of the land” what is the purpose of the First Amendment?  Why did the Obergefell Court ignore Reynolds? Does Obergefell conflict with Reynolds?  If Obergefell survives, does it overrule Reynolds?  Is polygamy now a “fundamental right” protected by the Constitution?  What are the consequences for children from Obergefell?  Was the Reynolds Court narrow minded and even polygamist-phobic when it said, children raised in a polygamous home “were victims of this delusion [polygamy]… and would multiply and spread themselves over the land….” as an “evil consequence”[10] of polygamy?  If the Reynolds Court was correct concerning the “evil consequences” of polygamy, how will the consequences of the Obergefell decision be different? 

Ultimately, how will the legitimacy of the Supreme Court be impacted by Obergefell?  In a government with separate branches and with checks and balances, what are the Constitutional checks upon the Supreme Court and what Constitutional power can balance against it?

By James Rigby
Attorney at Law

[1] Obergefell v. Hodges, (2015)

[2] Obergefell v. Hodges, dissent of Chief Justice Roberts, p. 50 (2015)

[3] Reynolds v. United States, 98 U.S. 145 (1878).

[4] Reynolds, p. 162.

[5] Reynolds, p. 163.

[7] Reynolds, p. 165.


[9] Reynolds, p. 167.


[10] Reynolds, p. 168.