My thanks to Info-Secte for passing this article along.
Criminal sanction against polygamy offends guaranteed rights, FLDS tells Vancouver hearing
By Daphne Bramham,
November 25, 2010
VANCOUVER — North America’s largest polygamous group says it’s not seeking to have polygamous marriages legalized in Canada, only to have the practise decriminalized.
In an opening statement filed in B.C. Supreme Court for the constitutional reference hearing into the validity of Canada’s polygamy law, the lawyer for the Fundamentalist Church of Jesus Christ of Latter Day Saints says his clients believe the criminal sanction against polygamy offends a variety of guaranteed rights, not only freedom of religion.
The FLDS has an estimated 15,000 members in North America and 550 in the B.C. community of Bountiful.
Of the 550 in Bountiful, 183 are over 18 and 115 of them are married, 68 are unmarried and 13 are single parents or widows. Of the married FLDS members, 60 live monogamously and 55 are in polygamous relationships.
(Although the FLDS shares the same roots as the mainstream Mormon church, it is not affiliated with the mainstream church, which renounced the practise of polygamy in 1890, the same year that the Canadian government passed the anti-polygamy law.)
In his opening statement, FLDS lawyer Robert Wickett says that Canada’s law prohibits making a binding agreement for a plural marriage.
Yet, he notes there is no criminal sanction against living with more than person, having sex with more than one person, having children with more than one person or loving more than one person.
Wickett counters concerns about child brides, sexual exploitation and abuse by saying that the polygamy law “does not (and could not) require that the prohibited agreement involve a minor, occur in the context of dependence, exploitation, abuse of authority, gross imbalance of power or undue influence.
“All of those matters, if proven, would indicate a lack of consent to the marriage or the marriage-like relationship. Without consent, there is no agreement and without an agreement… there is no breach of Section 293 [the polygamy section of the Criminal Code].”
Over the course of the trial which is expected to run until the end of January, the FLDS will argue that the law was improperly enacted in 1890 because it was aimed directly at spiritual marriages practised by Mormons. And even though the specific reference to Mormons and spiritual marriage were taken out in a 1954 rewrite of the law, it continues to infringe on fundamentalists’ rights to freedom of thought, belief and expression.
Additionally, the group plans to assert their members’ decision of who to have as a marriage partner is protected by the right to association, conscience and belief and limiting that deprives them of their rights to liberty and security.
Wickett describes the law as overbroad, arbitrary and “disproportionate to the state’s legitimate interest in the protection of children and in equality of all persons.”
The law as it stands “creates [a] regime of acceptable and unacceptable marriages based upon stereotypical assumptions about polygamous unions,” Wickett says in his written opening statement.
What the FLDS concedes is that the patriarchal structure of the religion, its codes of conduct and members’ belief that marriage partners are determined by God and those decision transmitted through the church leadership is “rejected and indeed reviled by many Canadians.”
But they argue that if they are forced to conform to mainstream Canadian standards, “their way of life and their beliefs will be taken from them.”
And they argue that their participation in the reference case is “not to defend partriarchy and arranged marriages which exist elsewhere in society, but to challenge the prohibition on plural marriage”.
The opening statement goes on to say that the essence of the FLDS’s challenge is that its members “freely chose to consent to these practices because of their beliefs.”
As for former members who will testify to abuses and bad experiences, the opening statement makes clear that the church will not “seek to justify or explain their mistreatment.”