Some people eat, sleep and chew gum, I do genealogy and write...

Wednesday, February 17, 2016

Genealogy and the Supreme Court of the United States

Mormons imprisoned for polygamy  
With the recent death of conservative Justice Antonin Scalia, the United States Supreme Court is once again back in the forefront of news. Because of my legal background and particularly having taught, researched and argued U.S. constitutional law issues, I have been paying more than usual attention to the news. From a genealogical standpoint, the United States Supreme Court has played a huge part in my own family's history and as you are doing research into your own family, I might suggest that you take the time to investigate how the laws and court decisions of the country where your family originated may have affected your ancestors and perhaps even your own life today.

My own family's involvement with the Supreme Court is related to a complex issue in the history of the United States: polygamy. The recent ruling of the Unites States Supreme Court on same-sex marriage, Obergefell et al. v. Hodges, Director, Ohio Department of Health, et al., 576 U.S. ___ (2015) contained some interesting comments made by Chief Justice John G. Roberts, dissenting with the now deceased, Justice Antonin Scalia and Justice Clarence Thomas concurring. Here is a quote from the Court's decision concerning the dissent:
It is striking how much of the majority’s reasoning would apply with equal force to the claim of a fundamental right to plural marriage. If “[t]here is dignity in the bond between two men or two women who seek to marry and in their autonomy to make such profound choices,” ante, at 13, why would there be any less dignity in the bond between three people who, in exercising their autonomy, seek to make the profound choice to marry? If a same-sex couple has the constitutional right to marry because their children would otherwise “suffer the stigma of knowing their families are somehow lesser,” ante, at 15, why wouldn’t the same reasoning apply to a family of three or more persons raising children? If not having the opportunity to marry “serves to disrespect and subordinate” gay and lesbian couples, why wouldn’t the same “imposition of this disability,” ante, at 22, serve to disrespect and subordinate people who find fulfillment in polyamorous relationships? 
My family was firmly involved in the history and controversy on this exact topic. Several of my ancestors practiced polygamy as active members of The Church of Jesus Christ of Latter-day Saints and at least two of them were convicted by the Federal Courts for unlawful cohabitation and one, Samuel Linton, served at least three months in prison. In fact, many of my ancestral lines can be traced to polygamous families.

Before going any further with this post, I should make specific mention of the fact that polygamy is not longer practiced by members of the Church. Please take the time to read the following articles on the subject if you have any doubts or concerns about this issue.

Plural Marriage in The Church of Jesus Christ of Latter-day Saints

In genealogy in English, we refer to siblings with only one parent in common with the term "step-." But we have no special terms for the relationships between children of different wives in a polygamous relationship. In one of my family lines, my Great-grandfather married two wives who were cousins. So not only do I have relatives who are descendants of the wife who is not my direct line ancestor, her children and grandchildren are my cousins. 

In the early history of the Church (and hence my family) the practice of polygamy ended up in the court system. The final decision of the United States Supreme Court concerning the matter was the case of Reynolds v. United States (98 U.S. 145 [1879]). You can read a summary of the case from the Brigham Young University Harold B. Lee Library. It is interesting to speculate that if the same case were brought today, my own family's history would have been significantly different. 

Because of the issues surrounding polygamy in the Church, ultimately the United States government sent almost the entire U.S. Army on a cross-country campaign to put down a Utah rebellion that did not exist. This unfortunate chapter in U.S. history is known as the Utah War. My Great-great Grandfather, Sidney Tanner, was living with his family in San Bernardino, California when the so-called war occurred and as a result, they abandoned their farms in California and moved back to Utah, settling in Beaver, Beaver County. The entire history of my family would have been substantially different absent the rulings of the Supreme Court.

Because of the stigma attached to this issue, much of this history has been either ignored or intentionally omitted from the published accounts of my ancestors. 

Your own ancestors may not have had such a sensational legal entanglement, but there may be another historical event that had an extraordinary effect on your family's history. Your ancestors may also have suffered extreme cultural or religious persecution, as did my family. My Great-great-great Grandfather, John Tanner, was mobbed, beat over the head with a gun, and left to die. He did survive but had grievous injuries and as I have mentioned, at least one of my ancestors spent time in prison for his religious beliefs. 

What was there in your family? Disease? Famine? Systematic persecution and mass murder? All of these subjects are part of our heritage. They may not be pleasant, but they should not be ignored. History is history.

As an ending comment, I should mention that the issue of polygamy is not dead. Here are some recent discussions of the issue:

Grossman, Joanna L., and Lawrence M. Friedman. “Is Three Still a Crowd? Polygamy and the Law After Obergefell v. Hodges.” Accessed February 17, 2016.
Law, Emory University School of. “Can Polygamy Bans Survive a Legal Challenge? | Emory University School of Law | Atlanta, GA.” Emory University School of Law. Accessed February 17, 2016.
Nelson, Steven. “‘Sister Wives’ Defeat Polygamy Law in Federal Court.” US News & World Report, December 16, 2013.
“New York Times Snapshot.” Accessed February 17, 2016.
Schwartz, John. “A Utah Law Prohibiting Polygamy Is Weakened.” The New York Times, December 14, 2013.


  1. I enjoyed your post. My grandfather was a polygamist who did time in prison. In 1968 at a family reunion many of the then younger descendants kept using the term "half-brother" or "half-sister" when referring to my grandfather's children. When hearing these terms used, my uncle, one of the children of my grandfather, immediately asked all to be quiet while he addressed the group. He said, "This kind of talk has to cease. We never considered ourselves as half-brothers or half-sisters. We are brothers and sisters." He wanted to correct any misconception that could have existed in the family as well as teach a principle. They were all one family. They never used the term "step". This gave me a clear idea of the relationships that existed in this polygamous family. I have always considered all of my uncles, aunts and cousins as just that, regardless from which wife they descended.

    1. Thanks for that interesting insight. In my family the subject was entirely suppressed and even taken out of any written books or whatever.

  2. Maybe we just didn't talk about family history very much, but I had no idea I had so many ancestors practicing plural marriage until I started doing family history myself. At this point I haven't found any that were incarcerated, but one ancestor, Warren Stone Snow, and his fourth wife Elizabeth Partridge Tillotson (the one from whom I am descended) were indicted for fornication because they were practicing polygamy, and as I recall they were fined $500 each. Polygamy seems mild compared to a few of the other dramas that have unfolded in my family tree. I have learned about several divorces and although I haven't verified it yet I'm probably related to some confederate soldiers. There's a pretty horrifying story about some things Warren Stone Snow did that may or may not be true, but anti-Mormons like to share it. Until I did family history I sort of assumed that all of my ancestors were "blessed honored pioneers" who never went astray, but I've realized that's not the case, and my family isn't guaranteed to turn out great just because of an amazing heritage, either. It takes work.

    1. You write very well and we all have some stories that could be told but aren't. Thanks for you insightful comment.