The Devil Comes to Kansas: A Story of Free Love, Sexual Privacy, and the Law

On Sunday, September 19, 1886, Moses Harman, the editor of the radical newspaper Lucifer the Light-Bearer, presided over an inherently contradictory event-a free-love marriage ceremony between his associate editor, the thirty-seven-year-old Edwin Walker, and Moses' own daughter, the sixteen-year-old Lillian. The case that the two Harmans and Walker wished to present aimed to transform marriage from a public to a private relationship and from a permanent and exclusive one to a temporary one that permitted potentially many partners. State v. Walker and its parties have received some scholarly notice, but the truly radical quality of the arguments Moses, Edwin, and Lillian presented has yet to be fully appreciated. This Article's principal purpose is to present and analyze these arguments and the judicial response to them, thereby shedding light on contemporary debates over whether the state should withdraw from the marriage arena.

Scholars from various perspectives have come to maintain that the state's leading role in defining marriage should yield to private contractual ordering. In a pluralistic era where groups within society disagree fundamentally over the essential attributes of marriage, it is argued that the time has come to abandon narrow, one-size-fits-all public definitions of marriage in favor of a rich tapestry of differing personal perspectives and points of view.