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"Each individual should allow reason to guide his conduct, or like an animal, he will need to be led by a leash."
Diogenes of Sinope


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University of Guelph - Guelph, Ontario

Thursday, August 02, 2007

BC polygamy & gay marriage

The National Post reported today that the BC prosecutor responsible for determining the Crown's options regarding the prosecution of Mormon polygamists in the community of Bountiful has recommended that charges not be laid. Before "slippery slope" arguments like this flood the blogosphere claiming that this is the inevitable result of Canada's legalization of gay marriage, let's take a deep breath & look at the case.


The legal issue surrounding the Bountiful community in southeastern B.C. should be referred to the B.C. Court of Appeal to decide the constitutional question of whether polygamy is illegal in Canada, a special prosecutor has recommended in a decision released yesterday.

Senior Vancouver criminal lawyer Richard Peck, appointed last May 31 as independent special prosecutor to review the previous Crown opinions not to lay charges against individuals living in Bountiful, agreed with four previous Crown prosecutors who reviewed the evidence gathered by the RCMP. Mr. Peck concluded there should be no criminal charges laid in connection with the investigation.


The main legal point in this case is that the various criminal code prohibitions against polygamy may violate the Charter of Rights & Freedoms' guarantee of freedom of religion:



Polygamy has long been illegal in Canada -- it was banned in Canada's first Criminal Code enacted in 1892 -- but prosecutions have been rare. Benjamin Berger, a University of Victoria law professor and constitutional expert in the area of religious freedoms, said the court will have to decide the boundaries of religious freedom -- a right enshrined by Canada's constitution -- and try to balance that with possible harm to members of the community.

"This is a question the courts are going to have to wrangle with," said Prof. Berger, who published an article last year titled Understanding Law and Religion as Culture: Making Room for Meaning in the Public Sphere in the journal Constitutional Forum. The law, he said, has to respect the religions of others and differing world views, but those rights are not absolute. Court decisions involving religious rights have to decide "what kind of activity are we going to tolerate and what kind are we are not going to tolerate," Prof. Berger said.

So, the case is primarily about religious freedom, and Mr. Peck did not use gay marriage as a justification for recommending not laying charges. I find it hard to imagine gay marriage being used as a precedent in a court case pitting religious freedom against polygamy. Marriage is legally a civil institution in Canada, not a religious one, and the government is fully within its constitutional jurisdiction to restrict marriage to two people.

There is a substantial body of evidence that indicates that polygamy is harmful to the community, especially to the women & children involved, and the government is fully justified in criminalizing polygamy on this basis alone. This "harm principle" argument, which is fundamental to western common law, is difficult to make for gay marriage. Legalizing gay marriage did not change the legal requirement restricting marriage to two people - in fact it extended that requirement to include homosexual couples. There are numerous criminal code provisions which the government could use to prosecute polygamists, all of which apply equally to gay & straight marriages.

Let us not confuse a failure of will on the part of government & police to enforce the existing law with moral paralysis brought on by legalized gay marriage. Polygamy is still illegal in Canada, and it is shameful that BC officials refuse to deal with this situation using the legal tools at their disposal. Arrest the perpetrators, and let the courts decide the constitutional issues at a trial, but let's not blame gay marriage for the inept enforcement of the law in BC.

(see also my earlier post on this subject: The polygamy red herring)


14 comments:

Joanne (True Blue) said...

As I understand it, the whole thing revolves around this question of coercion and exploitation, which is very difficult to prove.

Hence the desire for the government to get that age of consent legislation through the Senate.

Anonymous said...

Eric,

You are naive. This has everything to do with gay marriage.

The entire purpose of gay marriage was to chisel away at the any special considerations given by the law to heterosexual unions.

Polygamy has to eventually become legal now that gay marriage is in place. And that's because gay marriage essentially rendered the traditional definition of a male-female union as being irrelevant, or at the very last as being nothing of special importance.

If those who are in favour of gay marriage simultaneously claim that polygamy should be illegal then they are hypocrites.

Unless of course their claim is that the only valid unions are gay unions and all others are wrong - nothing would surprise me.

I personally hope that polygamy is tested by the supreme court, and does become legal, because at this point the citizenry deserve what they get for supporting the Liberals for so long.

At some point people need to be forced to lie in the bed they make.

Anonymous said...

Eric,

Let me add too that in the early days of the gay movement the public mostly saw the wilder side of the gay lifestyle.

The gay movement realized that this was bad for their image, so we started to see more conservative gays at the front of the movement. Ordinary people, involved in long stable relationships, who didn't party every night and who didn't have 6 different partners a year.

Suddenly gay marriage was accepted by the population and the courts and politicians had no trouble making it legal.

The same thing will happen with polygamy. It may start with groups like Bountiful and young girls, causing most people to recoil in horror.

But you can bet that in time the push for legalizing polygamy will be taken mainstream, and we'll see pictures of "ordinary Joes" with two women their own age, just wanting to "be recognized like everyone else" and so forth it goes.

You wait and see. It will happen.

Joanne (True Blue) said...

The problem is going to be how to deal with spousal rights with 2 or more partners.

Eric said...

Anonymous (both of you): I think you missed the main thrust of my post - the state is fully justified in banning polygamous marriage because it can be demonstrated to cause harm to individuals & to the community at large, and I think the courts will recognize this. You may disagree, but I think this argument about harm is difficult to make for gay marriage, thus it is harder to justify a prohibition of it. I just don't see a connection, and arguments that gay marriage makes traditional protections from harm in our common law "irrelevant" are an over-reaction. If that makes me a hypocrite, so be it.

Anonymous said...

Eric,

Thanks for replying.

The argument about gay marriage causing harm is actually very easy to make. Many people would argue that a child having two loving Daddy's is not nearly as good a deal for the child as having a loving mother and father, and might even be bad for the child.

The gay rights crowd on the other hand would argue that those two arrangements provide *identical* benefit to the child.

If anything one could make an argument that polygamy is a better deal for children - not that I would believe any such arguments myself, but I bet a convincing argument could be made.

Remember, and this is the key point, the polygamists you see now are not the ones that will eventually be arguing the case in a few years.

For example there are plenty of Muslims who would love to legally have a few wives in Canada. And at some point we'll see a well educated Muslim, with two or three wives who are roughly his own age, make a case to have his relationship legalized.

And that's the problem. In opting for marriage instead of civil unions for gays, Paul Martin (the bastard that he is), pulled a key brick out of a very important foundation of Canadian society.

And there will be no turning back. Our supreme court is far too powerful, our citizens far too weak. And all we can do now is watch things tumble to the ground, and teach our own kids to steer clear of all this rubbish.

SouthernOntarioan said...

Eric and Anonymous:

I think you are viewing the argument from two different POVs but I think you are both more or less correct.

Legally, the government can choose what definition of marriage they want to enforce and then enforce it.

But I would be greatly surprised if polygamy didn't eventually become legal. As anonymous said, the 'traditional' definition of marriage has been changed once already, why not a second time to accommodate polygamy?

The 'harm' argument in my opinion won't carry much weight because it is so subjective. Many Muslims and Mormons might argue that polygamy holds no such harm so long as the man is responsible and wealthy enough to care for them all. They'd argue that studies which show 'harm' are inherently flawed.

Eric said...

"The argument about gay marriage causing harm is actually very easy to make. Many people would argue that a child having two loving Daddy's is not nearly as good a deal for the child as having a loving mother and father, and might even be bad for the child."

Well, this is a whole other kettle of fish. This is an argument against allowing gay couples to raise children, not about gay marriage.

The whole case about gay marriage and child-rearing is a non-sequitur in my opinion. It is not illegal for gay couples to raise children (and wasn't even before gay marriage was legalized in Canada). According to US census data from 2000, 27% of households headed by same-sex couples contained children (usually the child of one of the partners) - this was before gay marriage was legal in any state. Prohibiting gay marriage will not stop gay couples from raising children; all it will do is prevent these children from having the legal benefits of being raised by a committed married couple. In these cases, gay marriage benefits the child; prohibiting the marriage of his guardians would be causing harm.

If you are opposed to gay couples adopting children, that's a different story, but again data shows that gay couples frequently adopt troubled or difficult-to-place kids who would otherwise be raised in foster care. Is the child harmed by having "two loving [married]daddies" rather than be raised by the state? I don't think so.

If the argument is about categorizing these relationships as "marriages" rather than "civil unions", well that's more of a semantic argument.

Joanne (True Blue) said...

the state is fully justified in banning polygamous marriage because it can be demonstrated to cause harm to individuals & to the community at large, and I think the courts will recognize this.

Eric, read the editorial in today's National Post. I agree with Southern Ontarioan. It's only a matter of time. And there is nothing we can do about it now.

Anonymous said...

Eric,

Plenty of heterosexual couples adopt children from troubled homes too so I don't buy the argument that because gays do it makes them special.

Also the other argument that is often used goes something like this: "There are many children in abusive homes with heterosexual parents, so you're wrong to fault two homosexuals if they are good loving parents."

It's really a circular argument of sorts that is not very strong. Just because some kids grow up in rotten heterosexual households, and just because some homosexuals are not rotten parents, doesn't mean that a mother and father isn't still the best arrangement for a child.

Marriage versus civil unions is far more than just semantics.

It's going to be rather humorous to watch (although ultimately a sad thing), to see all those who were in favour of gay marriage, and who argued the slope was not slippery, suddenly realize that the slope is indeed very slippery (as opponents of gay marriage warned time and time again).

Legalized polygamy is here, it's only a matter of time. Maybe not next year, maybe not the year after, but it will come.

And it is all thanks to Paul Martin, the most despicable PM this country has ever had.

Eric said...

Well, I've enjoyed the discussion this post provoked - I've said it before, but the comments I get from conservative readers are a lot more intelligent & respectful than the nasty jabs I frequently get from left-wing trolls.

My final comment: legalized polygamy may indeed happen at some point in time in Canada - if that's the case, so be it. However, let's not blame gay marriage for this. These are two separate issues, and gay marriage doesn't necessarily lead to polygamy. We can allow gay marriage and prohibit polygamy if governments and police forces have the fortitude to make it happen.

Anonymous said...

Eric,

Yes, good discussion, and thanks for your post.

One final point from me. Gay marriage may not in of itself lead to polygamy, but it certainly does pave the way for it.

Gay marriage is a radical departure from heterosexual marriage, and once you have had one radical departure, a second one doesn't seem that radical any more.

And from a legal perspective it's going to be hard for the courts to turn down polygamy.

Western society used to value certain relationships above others because of the view that such relationships benefited society as a whole. And as such, those relationships were accorded certain legal standing.

But those days are gone. The intelligentsia in liberal circles generally now argue that as long a particular relationship does no harm (where "harm" is defined very loosely), it should be accorded some form of legal status.

I think at some point all manner of relationships will be governed by a common set of laws that determine such things as benefits, who gets what in a divorce, and so forth.

Whether one is heterosexual and married, gay and married, common law, a polygamist, really isn't going to matter. People will be free to have whatever relationship they want.

Crazy times in my view, but I'm not surprised at all that they have arrived.

Joanne (True Blue) said...

Thanks for the forum to discuss this, Eric. It's been very interesting.

Red Tory said...

A very good post. As you'll note I've linked to it. Being a "left wing troll" I have a few additional thoughts to add to the excellent points you've already raised here.