The Violence of Disestablishment

The Church of Jesus Christ of Latter-day Saints’ dedication to religious freedom is fierce and proud. Among the most energetic and generous advocates for an extension of legal protection for religious freedom to all, Latter-day Saint lawyers work around the world to secure such liberty everywhere that it is imperiled. The Center for Law and Religion Studies at Brigham Young University is justly celebrated as an international center for the comparative study and implementation of the international human rights norm of promoting “freedom of religion and belief.” At the same time, as its website announces, “From its inception more than a century ago, the goal of Brigham Young University has been to offer ‘a new kind of education’ for Zion, one based on precepts ‘revealed by the Lord.’ Today, BYU is widely recognized for its deep commitments to inspired religious values and rigorous intellectual learning.”1This distinctively American combination of publicly professed religious commitment combined with a dedication to religious freedom was forged in a communal experience of persecution and violence at a critical time in US legal history. As Sarah Barringer Gordon explained in her important 2002 book about the effect in law of the long battle between Latter-day Saints and the federal government, The Mormon Question, the peculiar blend of disestablishment and Protestant hegemony that is present in US law was invented in large part through the legal arguments made to justify the outlawing of plural marriage and Latter-day Saint communalism, as well as through the subsequent Mormon accommodation to that federal disciplining.2 Indeed, Gordon convincingly argues that American legal history cannot be understood without understanding the particular challenge that the LDS Church and its doctrines posed for American law and the nature of the victory that Protestant Christians had over the Saints.Vengeance is Mine, while in many ways covering the same sweep of time, is interested less in the challenges of protecting religious freedom than it is in the possibilities for justice in American law, then and now. It is a much more ragged tale, revealing the messy but intriguing and creative complexity of the Mormon religio-political experiment amid the relentlessness of western expansion. It also lays bare the violence and bigotry of those who opposed them. Forensic attention to detail by the authors—one of whom has a law degree—dissolves any one narrative into a fascinating exposition of the multiple strands of a struggle for justice among a deeply compromised set of characters and the pervasive violence of settler colonialism. It is a story at once distant and yet deeply and depressingly familiar. It also engages all of American law, not just religious freedom. Mormons used law, made law, and were victims of law, from the beginning. Law was an intrinsic part of the Latter-day Saint project, as it is for all US religion.The Mountain Meadows Massacre was a shocking event. It is difficult to read about. In 1857, around 125 travelers of all ages were brutally murdered in a mountain pasture in what is now southern Utah. Looking back, there were many causes of the massacre; the incentives to shape any explanation of those events to fit personal and political agendas have also been many. Vengeance is Mine is about the legal aftermath of the massacre—the long effort to provide an official account of what happened and the search to find a remedy in law. Now and then, like most modern secular law, US law has difficulty with collective responsibility. It is focused on the individual.3The wonder of this book, in many ways, is in its narrative restraint. After so many years of self-serving accounts of the massacre, beginning with those published at the time, what the authors offer instead is something like a truth and reconciliation commission report. Finally, after a century and a half, this book makes it possible to begin to look at what happened after the massacre and why. In other words, this book is the beginning rather than the end of a conversation about what American justice for these atrocities might look like.While those who inhabited and settled the western half of the North American continent had a variety of motives and goals, the cast involved in this event falls into roughly four groups: members of the LDS Church, other White settlers, Indigenous nations, and the various officers of the federal government in Washington, military and nonmilitary. In 1846, following the murder of Joseph Smith in Nauvoo, Illinois, his successor, Brigham Young, led a large migration of Mormons out of the US into territory in what was then Mexico, but was by 1848 to become part of the United States. Initially useful to the federal government as an outpost of White settlement despite their outsider status, Mormons were granted a degree of self-rule and allowed to develop their own religious and governance institutions. Young was made governor of the new territory. By 1857, however, increased migration of both Mormons and non-Mormons into the area had created fierce hostility among the groups. Politically speaking, the federal government increasingly sought to dominate territorial government, and statehood began to be anticipated. For their part, Brigham Young and other Latter-day Saint leaders began to feel that there had been a falling off of Mormon devotion, so they initiated a reform movement in which they preached fiery sermons of repentance and blood atonement. Native groups, described in the Book of Mormon as descendants of one of the tribes of Israel, were seen by the LDS Church as potential converts and allies against the “Gentiles”—as they termed all non-Mormon Whites. Some Indigenous communities allied with Latter-day Saint settlers; others opposed them. In 1857, informed that armed resistance to federal rule was brewing and anxious about the safety of settlers moving west who were traveling through the Utah Territory to California, President James Buchanan sent troops to quell what was seen as an incipient rebellion. The Mountain Meadows Massacre occurred amid this unstable and rapidly changing situation.Readers of this journal will be far more familiar than I with the history of the Mountain Meadows Massacre, its subsequent cover-up, repeated failed attempts at accountability, as well as its recent acknowledgment and full documentation by the LDS Church.4 These readers are one audience for this book. But Vengeance is Mine has something to offer both the insider and the outsider. For the reader unfamiliar with this history and perhaps less personally invested in the shame it has long brought to many in the LDS community, Vengeance is Mine offers a raw, up-close look at one particular event in the violence of American settlement and the often chaotic and unsatisfying legal aftermath that has characterized and, in some ways, continues to characterize the efforts to come to terms with such events in the US. It is the second of two books telling the story of the massacre and its aftermath, and it is closely tied to other companion books publishing historical documents.5 An associated website also presents the accumulated historical record of the massacre and its contexts.6 Together, these resources attempt transparency and accessibility about an event long obscured by shame, caricature, and vituperative blame-casting. A sad irony, perhaps, is that fully documenting the violence of that day happens at a time when the focus for many now is not so much on the enmity between the two clashing groups of White settlers, who today have come more and more to resemble each other, but on the genocide of Native peoples in which both were complicit.7As the authors explain in the preface to Vengeance is Mine, they wished to reach both academic and nonacademic readers with this new book. They describe the flaws and biases in many earlier efforts to publish this history. Seeking then to avoid the distorting and sensationalizing tone of earlier books, they combine a straightforward, at times deliberately flat, narrative style with careful footnoting to documentary sources, both to leave room for readers to form their own judgments but also perhaps because the law that would provide full justice for the violence the book exposes is not yet born, or cannot yet be recognized. The result is that Vengeance is Mine is, in many ways, in the genre of a gripping true crime account. The details fascinate. But the upshot is unsettling.The book first introduces the reader briefly to the persons and facts and political context of the 1857 massacre: a group of Mormon militia and their Paiute allies brutally killed some 125 men, women, and children traveling by wagon train from Arkansas to California while they were camped in a high meadow in what is now southern Utah—on a well-traveled route west. This is part 1, “Crime.” (Its content is covered more extensively in the previous volume.) Part 2, “Cover-up,” documents the immediate attempt by local Mormons to shift blame entirely to the Paiute; the Mormon militia falsely explained both to Mormon leadership in Salt Lake City and to others that the Paiute had perpetrated the massacre in retaliation for migrant poisoning of Paiute land and animals. Parts 3, 4, and 5—“Negotiation,” “Investigation,” and “Interlude”—tell the story of the desultory efforts through the following two decades, the period of the Civil War, to investigate the murders. Finally, parts 6 and 7 give an account of the eventual prosecution and execution in 1877 of John D. Lee, one of the massacre leaders. The execution seems like a triumph of sorts. After so much time, someone was finally brought to justice. And yet, as the authors acknowledge, the conviction and execution of Lee was also an insufficient and unsatisfying conclusion to the story. None of the other several dozen perpetrators were brought to justice and it took more than a hundred years for a full account to begin to be told. Even after this careful excavation, we still have more questions than answers.Vengeance is Mine begins with a summary of an incredibly complex event, setting the actual killings in the context of local, national, and international politics. Venomous rivalries and hostilities abounded. Ignorance, indecision, and poor communication exacerbated tensions. Demonization and dehumanization of others was common on all sides. And there was plenty of fault to go around. While he did not direct this event, Brigham Young was a man of violent public rhetoric. US military forces were champing at the bit. Anti-Mormon attacks in the press were pervasive and vitriolic on the subject of polygamy, as well as on the topic of theocratic governance. Mormons were decried as un-American. The stage was set for an event that reverberates to the present day, revealing unresolved fault lines. And yet, what formal law could do was minimal, and what was accomplished could be seen as mere scapegoating, letting more powerful figures, both Mormon and non-Mormon, off the hook.Convicting Lee took two tries. After a hung jury in the first trial, a proceeding that had been unsuccessfully converted by the local prosecutor into a political effort to connect Brigham Young to the crime, the second, successful prosecution of Lee was handled by an experienced and nationally-known litigator. Sumner Howard, a Michigan lawyer, was sent by President Ulysses Grant to be the US attorney for Utah Territory. Whereas the first prosecutor had deliberately seated a mixed Mormon and non-Mormon jury in order to magnify the stakes of the political divisions in the struggles over Utah statehood, the final successful prosecution was, interestingly, successfully completed by a lawyer who explicitly eschewed political tactics in favor of securing a verdict.The authors carefully explain why Howard's legal skills mattered. Putting politics aside, Howard focused on securing the necessary evidence that would prove Lee's personal involvement in the massacre through eyewitness accounts of his murders. Rather than a mixed Mormon and non-Mormon jury as in the first trial, Howard purposely selected an all-Mormon jury, challenging them to act with integrity and convict one of their own as one who had betrayed his Mormon faith by the cold-blooded murder of travelers whom he fraudulently inveigled out of their encampment with a white flag of truce. The strategy was successful. Lee was convicted and then executed on the very site of the massacre in March 1877. But that first success was not repeated. Because of the long lapse of time and the fact that the dozens of other participants were either dead or difficult to find, and because of the press of other events, no one else was ever prosecuted.It would be interesting to use this book, and the other associated resources now published about this event, to teach students about the possibilities for law and justice in the United States, as well as for religious freedom. But it could also be used in a class to teach about law more generally—what law is for and how it works. And how it is entangled with religion. Always.Default histories of law in the US assume that “law” means “secular law,” and that secular law should properly not be indebted to or dependent upon religion in any way as religion should not be entangled with law. Separation is understood to be critical to modern law and modern religion. In accounts of US legal history, Mormons often feature as the victims of religious intolerance, as I have mentioned. But Mormons are not just legal victims. From the very beginning, as Benjamin Park's new history makes so evident, Mormons were using ordinary law—and making law—to establish their church organization, to buy and sell property, to litigate with their neighbors and associates. They were also writing laws for their own church. For Mormons, as it had for other religious organizations in antebellum America, disestablishment created an immediate need for law. Lacking an existing ecclesiology embedded in law, as was the case in most of Europe, DIY legalism was the American way of doing church from the beginning.But although law was pervasively present in Mormon history as well as in US religious history more generally as disestablishment was worked out, this story is not well-researched or well-known. Separationism continues to characterize narrative accounts of US religious history. This assumption has both a political and a theological genealogy, founded in constitutional theory and ideology as well as in the particular forms of separatist theologies of the Puritans and other protestants who worked to invent American government. It is an assumption that has tended to suit almost everyone, but it is not a description of the situation on the ground. The LDS Church has its own impressive legal infrastructure and it has been impressively competent at engaging federal, state, and territorial law in the United States, as well as the law of other nations, and international law, almost from the beginning. Theirs is a vision of “ordered liberty,” not antinomian freedom.Descended from those hounded from New York to Ohio to Missouri to Illinois to Utah, often by angry mobs, a form of extrajudicial law ubiquitous in American legal history, the Mormons we meet in Vengeance is Mine were acutely aware of their status as the object of religious discrimination. That narrative was central to who they were. They understood themselves as Americans to be constitutionally entitled to something better. They were also subject to repeated freedom for these Mormons was a work in as it was for in the US at the it was not yet into a as it is But it was fully present in of law. the constitutional to form themselves as a with the to their form of Mormons a to federal law in the west. Because they were useful to a federal government to its over the Mormon in Utah were for a Brigham Young as both governor of the territory and of the church. a non-Mormon made it possible for the federal government to on however, his was over and the federal government to and Latter-day Saint over the governance of the territory. this legal Vengeance is Mine a legal that is often not and law, church law, law, of and extrajudicial were then as is not just that there were multiple and of law as well as of law each were also of law on religion for its of the or not that is explicitly religious and law. The we from in this book are all doing of those with official and them about seems to be the conviction that law, the kind of law, will justice. This is true for Brigham Young, then governor of the of both a Mormon and a federal for President James to the Mormons out of the US to as well as for John D. Lee, various federal military the non-Mormon of the territory the Indigenous nations, and the migrant In of a of law to justice in this did not give on law was the used to those recent book the of multiple legal and the effect in law of of the human and of the is and by and The a in in over a period of about years at the end of the victims and them why they had not in for In a of fascinating various victims described their understanding of and personal each with a more complex of their own than what modern law has on in of law, and communal as well as various of modern law, the of modern law in and its causes both and as well as those that were the result of the of from in Vengeance is Mine, one from to as the effort to find justice LDS of of and religious and each the possibilities for a legal As in the difficulty was not a of or the difficulty was that for the was and that was then also and not the nature and of the Mormon challenge to US to religious freedom is While was a for the federal government, the political and that was the LDS Church posed an to the increased of and US is described as the justice in the the in many with the of in the US law is also often described as pervasively and this situation to the violence of the to the of the as well as to the of US is a part of this story. reform on the LDS Church as a of statehood is part of a story of the of religion to to the and White Religion was and so that it would not with modern law. would law look like of justice were more rather than for the of religion of the US today are often Indeed, the religion of the has been from the beginning for its I have that that is in part because religion is unstable a to a more It is also because the of the religion has come to be a from the challenges the US. public and a justice in part because we would rather about in part because we are to the and of history. As with the we cannot and neighbors in law and, cannot of this book is deeply It also a theological is the These from to the in the New are At Brigham Young, and perhaps his took these as a to for the violent and persecution that Mormons had understood these to a of such to Brigham Young seems to have sent mixed at other times and other Latter-day Saints are not from other Americans in this is a violent history. might religious in this might the of the with from the to the of the Civil do we do we this of that it all the by the two hundred and years of be and of blood with the be by with the as was years ago, so still it be judgments of the are true and

Freedom of Religion · Human rights · Persecution · Political science · Protestantism · Religious persecution · Sociology · American Constitutional Law and Politics · Law · Mormonism, Religion, and History · Philosophy · Religious studies