The challenge of polygamy law

Times Colonist

April 17, 2011

Final arguments are winding down in a Vancouver court case that could change our country’s future. The issue at stake is whether polygamy can be legally prohibited.

For several decades, a fundamentalist sect that broke away from the Mormon church has permitted men to take several wives at its Bountiful commune in the Kootenays. That is a breach of Canadian law. Section 293 of the Criminal Code makes marriage with more than one spouse at a time illegal.

However, a recent attempt at prosecution failed. Two of the commune’s leaders were charged. Although one is alleged to have 25 wives, the case was dismissed on procedural grounds.

That raised an unsettling possibility. If forced to decide, our courts might find that religious freedom trumps the ban on polygamy.

To its credit, the provincial government has opted to confront this prospect. The attorney general asked the B.C. Court of Appeal for a definitive ruling: Is the statute blocking polygamy enforceable, or is it not?

Whatever the court decrees, the decision will have farreaching implications.

If the ban on polygamy is upheld, that means religious freedom is only a qualified right. Other interests must be weighed. However, if the ban is struck down, values such as gender equality and the rights of children take a back seat. Religious freedom comes first.

Of course, there have always been limits in matters of conscience. Doukhobor groups who used arson to publicize their goals in the 1960s and 1970s were prosecuted.

And the courts have shown little sympathy for individuals trying to avoid income tax on conscientious grounds.

But polygamy raises deeper issues. Marriage is more than a religious sacrament. It is one of the foundations of our society.

Supporters of polygamy argue it is merely a willing transaction between adults. Some have compared the ban to laws that once made homosexual activities a crime.

But government lawyers point out that polygamy often leads to abusive practices. The court heard testimony that one of the Bountiful leaders took his 15-year-old daughter to the United States to be married, and brought back with him a bride of the same age.

And they note that in similar fundamentalist communes in the U.S., male children are driven away to prevent competition for wives. One witness testified that a boy of 15 and his brother were given $100 and a garbage bag with clothes, and told to leave.

These and other instances of abuse are not in dispute. The issue is whether they are an inevitable part of polygamy, or merely the misdeeds of a few. And that is a more difficult question to answer.

In an isolated commune, with gender-based roles and a strict hierarchy, the risk of exploitation seems high. The arithmetic of polygamy is bound to cause problems.

But what about more relaxed arrangements? If three men and a woman in Esquimalt choose to live together, should the courts get involved?

Yet polygamy involves more than a casual living arrangement. What supporters are pressing for is statesanctioned marriage.

And that does, on the face of it, present problems. Can there be meaningful equality in such an arrangement? In many countries where polygamy is lawful, women are treated as second-class citizens.

And how are the interests of children to be protected? Expert witnesses testified at the hearing that men in polygamous arrangements tend to shift money and attention from raising their children to obtaining more wives.

But whatever the courts decide, this is not just some arcane legal wrangle. Monogamous marriage has proved a vital and useful institution. We should think long and hard before weakening it.
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