Top court must weigh polygamy

A British Columbia judge has upheld Canada's polygamy law that prohibits a person from being in a marriage, or conjugal union, of more than two people. Supreme Court Chief Justice Robert Bauman decided Sec. 293 of the Criminal Code breaches the Charter of Rights and Freedoms' protection of religious freedom, but that it is a reasonable limit to the freedom because of the harm polygamy presents to women, children and society.

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(DALE CUMMINGS / WINNIPEG FREE PRESS)

The case laid out ample evidence of that harm through the ages and in various societies where multiple marriages have existed. But the decision left other questions unanswered. The judge noted the law could result in the prosecution of spouses younger than 18, which would not survive a charter challenge. The complex ruling of a national, controversial law in an era of shifting attitudes toward the validity of various conjugal relationships, should be sent to the Supreme Court of Canada for greater deliberation.

Judge Bauman gave considered weight to the volume of evidence collected through the ages about what happens when a community or society sanctions multiple spousal marriages. Aside from the effects of the elevated conflict within the family, which includes elevated rates of domestic violence and mental illness, children are more likely to suffer neglect of a father. Data collected indicate mortality among the children is higher, as well. Within the community, conflict among males, as competition rises, results in higher rates of crime. Young men are exiled as the pool of available women is reduced. Girls married at younger ages, to much older men, have more babies closer together, with all of the risks to physical health. The power imbalances typically found in patriarchal families is intensified.

Much of those findings are drawn from societies abroad, largely in African, Middle Eastern and Asian countries where polygamy is legal. They are also found in small, relatively secretive communities of polygamists in North America, such as the Mormon breakaway sect at Bountiful, B.C.

It was that evidence that convinced Judge Bauman that, while upholding the polygamy law would certainly trample the religious freedoms of those practising polygamy in Canada, it was necessary to prevent harm not just to the people involved, but to society -- permitting polygamy to spread would weaken monogamy, which Canada believes is foundational to social order.

But there are troubling aspects to the decision that deserve the reflections of a higher judicial panel. Judge Bauman ruled that the law and its use of the terms "marriage" and "conjugal union" were to be read as capturing those unions that are sanctioned by some religious, civil or other type of rite, including same-sex marriages, but not "multi-party, unmarried relationships or common-law cohabitation."

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(DALE CUMMINGS / WINNIPEG FREE PRESS)

This distinction deserves Supreme Court scrutiny. Predicated on the harm to individuals within polygamous unions, the justification for the law falls down if the law then ignores that the same harms might arise in unmarried relationships and where multiple persons live common-law. Canadians are moving increasingly away from unions that are sanctioned officially by the church, state or community. Can protection of monogamous marriage, then, justify a criminal law that includes a penalty of jail?

The Supreme Court must also resolve the inherent weakness of the polygamy law, which penalizes all involved in a multiple marriage. Judge Bauman found spouses married into the union under the age of 18 should not be prosecuted, recognizing they do not have the capacity or autonomy of adults to make such decisions. Yet, he said he was not in a position to frame an exclusion for children.

The decision lays out a clear case for the harms of polygamy but leaves unanswered whether polygamy is criminalized in Canada because of the risk to people or to protect an increasingly archaic notion that officially sanctioned marriages, or unions, exclusively are worth preserving. The Supreme Court must resolve this, and, if the law is to stand, expressly protect spouses under 18 from prosecution.

Republished from the Winnipeg Free Press print edition November 26, 2011 A18