Did Joseph Smith violate marriage laws in Ohio by performing marriages?

Joseph did not knowingly violate marriage laws in Ohio, and seems to have used his prophetic gifts to spare victims of the nineteenth-century's legal and bureaucratic immaturity unnecessary suffering

Joseph did not knowingly violate marriage laws in Ohio, and seems to have used his prophetic gifts to spare victims of the nineteenth-century's legal and bureaucratic immaturity unnecessary suffering. The secular powers honored Joseph's marriages, and provided documentation to ratify his acts. As happens so often, critics condemn Joseph Smith and the early Saints without providing the proper context for their legal choices or moral actions. As we consider the wider implementation of plural marriage in Nauvoo, such context will become increasingly important.

Plural marriage would eventually involve a complex collision of religious belief, secular law, and personal conscience. Many historians have presumed that Joseph Smith always had a cavalier attitude toward civil laws which conflicted with his marital concepts. Even before the broad implementation of plural marriage, critics point to marriages performed by Joseph in Ohio as evidence that he would readily violate secular laws.

As John Brooke put it:

Specifically prohibited from performing the marriage ceremony by the local county court, Smith brushed aside a state-licensed church elder to perform the rites of marriage between Newel [Knight] and Lydia [Bailey] himself. She was not divorced from her non-Mormon husband, so this technically bigamous marriage also challenged a broader moral code…Over the next two months Joseph Smith performed five more illegal marriages.^[4]

Brooke claims Joseph was forbidden to perform marriages, that he performed a bigamous marriage, and that he repeatedly disobeyed state marriage laws.

Michael Quinn makes the same type of claim when he opines that

in November 1835 [Joseph] announced a doctrine I call "theocratic ethics." He used this theology of justify his violation of Ohio’s marriage laws by performing a marriage for Newel Knight and the undivorced Lydia Goldthwaite without legal authority to do so…Theocratic ethics justified LDS leaders and (by extension) regular Mormons in actions which were contrary to conventional ethics and sometimes in violation of criminal laws.^[5]

Quinn's introduction of the expression "theocratic ethics" is an excellent example of his regrettable tendency to coin an expression, and then proceed as if his act of definition proves that the phenomenon he has labeled actually exists.^[6] In another context, one non-LDS reviewer of Quinn regretted this use of "rather artificial categories that acquire an aura of scholarly respectability through the magic of 'Quinnspeak.'"^[7]

Quinn's vocabulary implies that Joseph was using a different sort of ethical standard as most people—and, the term "theocratic" is loaded, since it generally has negative associations. Quinn also makes the entirely unwarranted conclusion "by extension" that Joseph's supposed irregular actions meant that a "regular Mormon" would be likewise justified in following a novel ethical scheme.

Despite such confident claims, the historical record regarding Ohio marriages disagrees with this portrait in almost every particular.^[8] Newel Knight, a young widower, wished to marry Lydia Bailey. Lydia was married to an abusive drunkard, who had abandoned her years before. Sidney Rigdon had been refused a license to marry as a Mormon minister, and so many concluded that Mormon elders would not receive state sanction to perform marriages.

Because Seymour Brunson had been a preacher prior to being a Mormon, he held a license to solemnize marriages. Brunson was thus about to perform the Knight-Bailey wedding. In what Van Wagoner calls "a bold display of civil disobedience,"^[9] Joseph Smith stepped forward and announced that he would perform the marriage.

The Knight-Bailey wedding was not illegal, since Newel Knight obtained a marriage license from the secular authorities

On the surface, it appears that the critics are justified in arguing that Joseph had no right to perform marriages, and chose to do so anyway. Scott Bradshaw's research, however, found that refusing Rigdon permission to marry was "not justifiable from a legal point of view." Such a legal decision in Ohio "was rare in the 1830s, perhaps even unheard of."^[10] The court's refusal to grant Rigdon a license to marry as a Mormon minister likely stemmed from religious prejudice.

The Knight-Bailey wedding was not illegal, since Newel Knight obtained a marriage license from the secular authorities. The state of Ohio did not contest Joseph's performance of the marriage, since it then issued a marriage certificate for the Knights' marriage. Joseph later performed other marriages in Ohio, and these couples likewise received marriage certificates after Joseph submitted the necessary paperwork.

A review of Ohio state law demonstrates that Joseph's decision to perform marriages was correct

A review of Ohio state law demonstrates that Joseph's decision to marry—and his prophesy that he had the right to marry, and that his enemies would never prosecute him for marrying—was correct. Ohio's 1824 marriage law stated that "a religious society…could perform marriages without a license so long as the ceremony was done ‘agreeable to the rules and regulations of their respective churches.’"^[11]

The "rules and regulations" regarding marriage for the Church had been established since the publication of what was then D&C 101 in September 1835.^[12] The Knight-Bailey wedding did not occur until 24 November 1835, and Joseph Smith surely had the authority to perform weddings in the Church if anyone did, especially since D&C 101 declared that marriage "should be performed by a presiding high priest, bishop, elder, or priest."^[13]

When applying to the county clerk for marriage certificates of other marriages which he performed, Joseph specifically noted that they were solemnized "agreeably to the rules and regulations of the Church…on matrimony," a clear reference to the 1824 Ohio statute.

When Joseph Smith performed the marriage of Newel Knight and Lydia Bailey, were they guilty of bigamy since Lydia had not been formally divorced from her previous husband?

Lydia and Newel were aware of the prohibition on bigamy, and Lydia refused to marry Newel until they approached Joseph for his counsel

Joseph's decision to solemnize marriages was in accord with Ohio state law. Because Lydia Bailey was not divorced, however, the critics have also charged Joseph with permitting a bigamous marriage, and thus flaunting the law.

Lydia and Newel were aware of the prohibition on bigamy, and Lydia refused to marry Newel until they approached Joseph for his counsel:

Broth[er] Joseph after p[ray]or & reflecting a little or in other words enquiring [of the] Lord Said it is all right, She is his & the sooner they [are] married the better. Tell them no law shall hurt [them]. They need not fear either the law of God or man for [it] shall not touch them; & the Lord bless them. This [is the] will of the Lord concerning the matter.^[14]

Ohio law had, until just prior to their wedding, allowed spouses to remarry without formal divorce if they had been abandoned for three years

Ohio law had, until just prior to their wedding, allowed spouses to remarry without formal divorce if they had been abandoned for three years. This described Lydia's case, and Newel tried to so persuade her before speaking with Joseph. Lydia's concern about remarriage seems to have been motivated mainly by spiritual worries that it was wrong in the sight of God to remarry, even if the law might allow it.^[15]

It was doubtless because of abandonment that Newel obtained the marriage license.^[16] He was likely unaware—as, perhaps, were those who granted the license—that the law had recently changed the abandonment period to five years, and so the marriage might have been illegal on those grounds.

The Knights' predicament highlights an aspect of early nineteenth-century marriage which modern readers often ignore

The Knights' predicament highlights an aspect of early nineteenth-century marriage which modern readers often ignore. Communication in this period was difficult, travel was slow, and record keeping requirements varied widely across the United States. As a result, technical "bigamy" was a common state of affairs for all social classes at this period in American history.^[17] This made the prosecution of bigamy rare, and in cases of abandonment some spouses had to simply remarry since obtaining a formal divorce was difficult or impossible:

Since bigamy was only prosecuted on the complaint of a spouse (one whose honor had been offended or for whom the loss of support was irremediable) and when the offending spouse could be found by summons, most bigamists were probably never arrested...From the standpoint of the legal historian, it is perhaps surprising that anyone prosecuted bigamy at all. Given the confusion over conflicting state laws on marriage, there were many ways to escape notice, if not conviction.^[18]

Ohio law also required that persons seeking a divorce apply to the state supreme court, and be state residents for two years—so, on these terms Lydia would have been in violation of the law. But, it is not clear that she, Newel, or those who granted the marriage license were aware of this technicality.

Despite potentially violating some legal niceties, however, Lydia almost certainly did not engage in bigamy since her previous husband had died

Despite potentially violating some legal niceties, however, Lydia almost certainly did not engage in bigamy. Shortly after the Knights' marriage, she learned that her wastrel husband had died. The Knights viewed this as vindication of Joseph's prophetic gifts, since he had promised them that there was no moral or legal impediment to their marriage—and, he was right.^[19]

M. Scott Bradshaw: "Joseph Smith could not have been properly convicted of adultery under the law of Illinois in 1844"

M. Scott Bradshaw:

Joseph Smith could not have been properly convicted of adultery under the law of Illinois in 1844. Illinois law only criminalized adultery or fornication if it was "open". Had Joseph lived to face trial on this charge, he would have had good reason to expect acquittal because his relationships with his plural wives were not open, but were kept confidential and known by a relative few. Given a fair trial on this indictment, Joseph could have relied on several legal defenses.^[1]:402

Was Joseph Smith ever charged with adultery under Illinois law?

William and Wilson Law charged Joseph with adultery in the case of Maria Lawrence

Joseph Smith was, in fact, once charged with adultery under Illinois Law. This occurred shortly before his death, when Robert Foster, William Law (Joseph's former counselor in the First Presidency) and Law's brother Wilson charged Joseph with adultery in the case of Maria Lawrence.^[1]:403,414 Joseph took an aggressive stance in the defense of himself and Maria, which would be surprising if Illinois law was as detrimental to his case as many have assumed.

For example, as soon as Joseph was charged, two days later he and his supporters "rode to Carthage, intent on having" the charge "'investigated.'"^[1]:404

Illinois law only criminalized adultery or fornication if it was "open"

It is vital to understand, however, that:

Joseph Smith could not have been properly convicted of adultery under the law of Illinois in 1844. Illinois law only criminalized adultery or fornication if it was "open". Had Joseph lived to face trial on this charge, he would have had good reason to expect acquittal because his relationships with his plural wives were not open, but were kept confidential and known by a relative few. Given a fair trial on this indictment, Joseph could have relied on several legal defenses.^[1]:402

Joseph's relationships with his plural wives did not meet this definition

The same author emphasized:

The term "open" in [the Illinois Criminal Code of the day^[20]] is a key element of this crime. The meaning of this term was then and still today is generally understood in law to cover conduct that is "notorious," "exposed to public view," or "visible," and which is "not clandestine." Joseph's relationships with his plural wives did not meet this definition.^[1]:408

Were there any similar cases under Illinois adultery statute which demonstrate that Joseph was not breaking the law?

Two cases decided after Joseph's death demonstrate that there was nothing which would have permitted conviction

Two cases decided after Joseph's death but under the same legal regime likewise demonstrate that there was nothing about Maria and Joseph's relationship (regardless of whether or not they had sexual relations) which would have permitted conviction under the Illinois adultery statute. Additionally, Stephen R. Douglas (the famed Illinois judge and later candidate for the presidency of the United States) and Thomas Ford (the governor of Illinois at the time of Joseph's murder) prosecuted adultery cases during their legal careers and both were definitive that an "open" and "notorious" aspect to the cohabitation had to be proven under the statute.^[1]:408-411

If Joseph been charged by his wife Emma with adultery, this could have served as grounds for divorce under Illinois law

By contrast, had Joseph been charged by his wife Emma with adultery, this could have served as grounds for divorce, and did not require the stringent requirements of being "open" or "notorious."^[21]

It was later realized that Illinois law would probably support the practice of Latter-day Saint plural marriage, so they changed the wording of the law

Even Joseph's near-contemporaries would later realize that Illinois law would probably support the practice of Latter-day Saint plural marriage, perhaps even if done so openly.

Recognizing the breadth of [the] state constitutional provision [for religious freedom] as it stood in 1844, Illinois adopted a new constitution in 1869 that introduced a number of changes in the clause governing religious liberty, including wording specifically intended to give the state authority to prohibit Mormon polygamy or other religiously-based practices that might be deemed offensive. Comments by certain delegates to the 1869 Illinois Constitutional Convention show taht there was a concern that the Mormon practice of plural marriage could be protected under the state constitution....

Several delegates expressed support for changes in the wording of the Illinois constitution in order to protect the state from what they viewed as extreme forms of worship, including Mormon polygamy. These delegates feared that the more liberal wording of the earlier constitution (in force in Joseph's day) might actually protected practices such as polygamy. One such delegate was Thomas J. Turner...[who] stated:"...Mormonism is a form of religion 'grant it, a false religion' nevertheless, it claims to be the true Christian religion...[d]o we desire that the Mormons shall return to our State, and bring with them polygamy?"^{[1]:416, 416n45}

Gregory L. Smith, M.D., "Polygamy, Prophets, and Prevarication: Frequently and Rarely Asked Questions about the Initiation, Practice, and Cessation of Plural Marriage in The Church of Jesus Christ of Latter-day Saints"

Critics charge that Joseph Smith and his successors made repeated public statements in which they hid or frankly denied the practice of polygamy, despite knowledge to the contrary. It is argued that this dishonesty is morally dubious and inconsistent with the Church’s purported principles.

The concept of "civil disobedience" is essential to understanding those occasions in which Joseph Smith or other Church members were not forthright about the practice of polygamy.
Like obedience to civil law, honesty and integrity are foundational values to the Church of Jesus Christ. Indeed, the success which critics have in troubling members of the Church with tales of polygamy and its deceptive circumstances is, in a way, a compliment to the Church. If the Church as an institution typically taught its members to have a casual disregard for the truth, a discovery that Joseph Smith had deceived others about polygamy would not be troubling to most. But, because the Church (contrary to the suggestions of some critics) really does teach its members to aspire to live elevated lives of moral rectitude, the discovery that deception was involved with polygamy can come as something of a shock. Disillusionment can ensue if we follow the critics in assuming that because Joseph occasionally misled others in this specific context, he must therefore have lied about everything else, and been absolutely unworthy of trust.

But, as we have seen, the practice of polygamy must be viewed in its moral context as an act of religious devotion which the Saints were unwilling to forego simply because the state or society disapproved.

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Joseph Smith's Polygamy: "1840—Plural Marriage Secretly Introduced", by Brian C. Hales

Summary: Sometime in 1840 Joseph Smith first broached the topic of plural marriage privately to trusted friends. Most of the apostles were in England and thus were unavailable for an introduction to the practice.

(Click here for full article)

Was there ever a consummation of the sealing between Maria Lawrence and Joseph Smith?

Although under law, Joseph Smith and Maria Lawrence were not guilty of adultery, this does not mean that they had not consummated their plural marriage

A side issue raised by some relates to what the legal strategy can tell us about the status of Joseph and Maria's sealing. Under law, Joseph and Maria were clearly not guilty of adultery. This does not mean, however, that they had not consummated their plural marriage.

Most authors have concluded that their marriage was one which was consummated. This is due to relatively late, second-hand testimony, which Brian Hales has explored in detail.^[22]

Bradshaw suggests:

Joseph instructed John Taylor on June 4, [1844] to initiate legal action against the Laws and Foster for perjury and slander against Maria [for charging her and Joseph with adultery]. No such suit is known to have been filed, since Joseph was killed three weeks later; however, the mere fact that Joseph planned to bring such a suit suggests that, in Joseph's mind, there was nothing to hide in his relationship with Maria. If there had been a sexual dimension to this particular plural marriage, it is almost unimaginable that Joseph would have wanted to file a lawsuit, knowing that Maria might be put on the witness stand—or even subjected to a gynecological examination [to determine whether or not she was a virgin]. The possibility that Joseph's relationship with Maria Lawrence did not involve intimacy is also plausible given his comments regarding the publication of the Expositor: "They make it a criminality for a man to have one wife on earth while he has one wife in heaven."^[23] Since the only specific allegation of "criminality" (the adultery indictment) with respect to Joseph's plural marriages concerned Maria Lawrence, this statement by Joseph could be understood as a reference to his spiritual connection, or sealing, with Maria, but perhaps no more.^[1]:414

In the same vein, Madsen argues:

The consequences of such an indictment [for adultery with Maria] were both legally and socially scandalous. Maria Lawrence's reputation would have been publicly damaged, independent of what the reputational consequences might have been to Joseph. She and her sister had been sealed to Joseph on May 11, 1843...with Emma's initial consent but later repudiation. Even if this celestial marriage could have been made [publicly] known, it would not have alleviated the scandal—it would have just turned it to another, even more flamboyant, direction....

This plan to counter-sue against the Laws and others has some interesting legal aspects. William Law had supplied testimony under oath that led to Joseph's indictment. If the adultery case had gone to trial and the jury had found Joseph not guilty, then Law would have been liable to a criminal charge of perjury and civil liability for slander. Possibly Joseph planned to prove his innocence, not only by his and Maria's denial of sexual intercourse but also by the testimony of a reputable physician who had conducted a physical examination and found that Maria was still a virgin. It would have been both foolhardy and fruitless for Joseph to have even imagined countersuing without something of such weight to present at trial.^[24]

Hales, however, feels that the scenario offered by Madsen and Bradshaw is less likely:

This speculation is problematic because, since Maria was sealed to Joseph in a "time and eternity" sealing, then sexual relations would be permitted. In addition, virginity cannot always be proven by physical exam even if the woman has never experienced intercourse.^[25]

Gregory L. Smith, M.D., "Polygamy, Prophets, and Prevarication: Frequently and Rarely Asked Questions about the Initiation, Practice, and Cessation of Plural Marriage in The Church of Jesus Christ of Latter-day Saints"

Critics charge that the Church and its members participated in polygamy in violation of both state and federal laws. It is therefore argued that the Church abandoned its commitment to “obeying, honoring, and sustaining the law.” Critics, however, make such arguments without a full understanding of the legal considerations of the day and without understanding how civil disobedience plays into the picture.

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Notes

1. ↑ ^{1.0 1.1 1.2 1.3 1.4 1.5 1.6 1.7 1.8} M. Scott Bradshaw, "Defining Adultery under Illinois and Nauvoo Law," in Sustaining the Law: Joseph Smith's Legal Encounters, edited by Gordon A. Madsen, Jeffrey N. Walker, and John W. Welch (Provo, Utah: BYU Studies, 2014), 401–426.
2. ↑ James B. Allen and Glen M. Leonard, Story of the Latter-day Saints, 2nd edition revised and enlarged, (Salt Lake City: Deseret Book Company, 1992[1976]), 401. ISBN 087579565X. GospeLink
3. ↑ James E. Talmage, The Articles of Faith (Salt Lake City, Utah: Deseret Book Company, 1981[1899]),382–383.
4. ↑ John L. Brooke, The Refiner's Fire : The Making of Mormon Cosmology, 1644-1844 (Cambridge ; New York: Cambridge University Press, 1994), 212.
5. ↑ D. Michael Quinn, The Mormon Hierarchy: Origins of Power (Signature Books, 1994), 88.
6. ↑ For a critique of Quinn's concept of "theocratic ethics," see Dean C. Jessee, "Review of D. Michael Quinn's the Mormon Hierarchy: Origins of Power," Journal of Mormon History 22/2 (Fall 1996): 163–165. Jessee also treats the matter of Joseph Smith performing marriages in Ohio on pp. 166–167.
7. ↑ Klaus J. Hansen, "Quinnspeak (Review of Same-Sex Dynamics among Nineteenth-Century Americans: A Mormon Example by D. Michael Quinn)," FARMS Review of Books 10/1 (1998): 132–140. off-site
8. ↑ Unless otherwise indicated, the facts in this chapter are drawn from M. Scott Bradshaw, "Joseph Smith’s Performance of Marriages in Ohio," Brigham Young University Studies 39 no. 4 (2000), 7–22. See also William G. Hartley, "Newel and Lydia Bailey Knight’s Kirtland Love Story and Historic Wedding," Brigham Young University Studies 39 no. 4 (2000), 22–69.
9. ↑ Richard S. Van Wagoner, Mormon Polygamy: A History (Salt Lake City: Signature Books, 1989), 7.
10. ↑ Bradshaw, "Joseph Smith’s Performance of Marriages in Ohio," 43, 45.
11. ↑ Ohio's "Act Regulating Marriages," (1824); cited in Hartley, "Newel and Lydia Bailey Knight’s Kirtland Love Story and Historic Wedding," 18.
12. ↑ See Doctrine and Covenants (1835 edition), Section CI. . (In 1876, this section was eventually removed, and replaced with the plural marriage revelation as D&C 132.) We must remember that at this point in Church history, the concept of a "temple sealing" or "eternal" marriage was certainly not being taught, and may well not have even been known to Joseph Smith. All Church marriages at the time were what modern members would call "civil marriages," such as those performed by an LDS bishop today.
13. ↑ Doctrine and Covenants (1835 edition), Section CI [D&C 101꞉1].
14. ↑ Newel Knight, Autobiography and Journal, Church Archives, folder one, [45] in Hartley, "Newel and Lydia Bailey Knight’s Kirtland Love Story and Historic Wedding," 18.
15. ↑ Lydia's history says that Newel "endeavour[ed] to show her that according to the law she was a free woman, having been deserted for three years with nothing provided for her support." – See Hartley, "Newel and Lydia Bailey Knight’s Kirtland Love Story and Historic Wedding," 15; citing Susa Young Gates [as "Homespun"], Lydia Knight's History: The First Book of the Noble Women's Lives Series (Salt Lake City, Utah: Juvenile Instructor Office, 1883), 28.
16. ↑ See Hartley, "Newel and Lydia Bailey Knight’s Kirtland Love Story and Historic Wedding," page ^{[citation needed]}
17. ↑ See Hendrik Harlog, Man & Wife in America: A History (Cambridge, Massachusetts: Harvard University Press, 2000), 87; cited in Allen L. Wyatt, "Zina and Her Men: An Examination of the Changing Marital State of Zina Diantha Huntington Jacobs Smith Young," (Mesa, Arizona: FAIR, 2006 FAIR Conference).
18. ↑ Beverly J. Schwartzberg, Grass Widows, Barbarians, and Bigamists: Fluid Marriage in Late Nineteenth-Century America (Santa Barbara, California: University of California at Santa Barbara Ph.D. dissertation, 2001), 51–52; cited in Wyatt, "Zina and Her Men."
19. ↑ Hartley, "Newel and Lydia Bailey Knight’s Kirtland Love Story and Historic Wedding," 18.
20. ↑ Bradshaw cites Criminal Code, section 123, Revised Laws of Illinois: "Any man or woman who shall live together in an open state of adultery or fornication, or adultery and fornication, every such man and woman shall be indicted...." (Bradshaw, 407, emphasis added).
21. ↑ "Compare [the strict criteria for statutory adultery] to Illinois divorce law which allowed adultery as a grounds for divorce; however, the cases that involved divorce petitions on this basis do not seemed [sic] to have followed any clear standard defining what constituted adultery, focusing rather on proving individual acts of adultery. Divorce law did not require that the conduct be "open" or "notorious." - Bradshaw, "Defining Adultery," 407–408n21.
22. ↑ See link to Hales' materials at the bottom of this essay. The material about sexuality in the Maria Lawrence relationship is here.
23. ↑ History of the Church. Volume 6 link
24. ↑ Gordon A. Madsen, "Serving as Guardian under the Lawrence Estate, 1842–1844," in Sustaining the Law: Joseph Smith's Legal Encounters, edited by Gordon A. Madsen, Jeffrey N. Walker, and John W. Welch (Provo, Utah: BYU Studies, 2014), 329–356(p. 348-350).
25. ↑ Brian C. Hales, "Maria Lawrence–Evidences of Sexuality," josephsmithspolygamy.org website (accessed 21 June 2014).