Professor Charles Reid (U. St. Thomas law) has posted a fun piece, The Devil Comes to Kansas: A Story of Free Love and the Law, which discusses one of the earliest American cases in which various notions of privacy and “freedom of choice” were first raised and which, as Professor Reid says, have become watchwords of modern constitutional law. The abstract follows. — MOD
State v. Walker (1887) is an important but hitherto neglected landmark case in the development of the right of privacy. The case involved the “autonomistic” or “free-love” marriage of Edwin C. Walker and Lillian Harman, daughter of Moses Harman, the radical newspaperman.
Edwin and Lillian, who rejected state control over marriage, proclaimed themselves married in the fall of 1887, although they declared that their union was neither permanent or exclusive. Prosecuted for illegal cohabitation because of their refusal to obtain a marriage license, they and their defenders developed a vocabulary that would profoundly influence the future path of American law.
Their supporters in the radical press began to speak of the right of women to control their own bodies, woman’s right to reproductive autonomy, and a right of sexual privacy. Indeed, it was in the midst of this controversy that the expression “freedom of choice” was used, probably for the first time, in its modern meaning by Lillian Harman writing from prison.The Kansas Supreme Court, which ruled on the appeal of their convictions, was, in contrast, a deeply conservative and Christian group of men who were publicly known for their religious fidelity and who brought their religious feelings to bear in the case.
Thanks to the survival of both a substantial body of newspapers and the personal papers of the three justices who ruled on the appeal, it is possible to reconstruct a vivid account of this first skirmish in the American culture wars.