Buzz Blog

In a highly anticipated decision from the Supreme Court of B.C., Chief Justice Robert Bauman declared that while the ban on polygamy does violate Canadians’ religious freedom, the ill effects of polygamy are so great that it is in the Canadian government’s interest to uphold the section of the Criminal Code outlawing it. Counsel to B.C. Attorney General Craig Jones (pictured) said the opinion was of “strong precedential value” for the future of polygamy in Canada.

The B.C. government asked for an opinion on the constitutionality of the polygamy ban to avoid failure in its attempts to prosecute James Marion Oler, the Warren Jeffs-appointed bishop of Bountiful, Utah,’s FLDS population, and his rival Winston Blackmore. Each of the two men claim about half of Bountiful’s 1,000 residents as followers. Since 1994, attempts to prosecute individuals in Bountiful have been thwarted by lack of evidence, lack of interest or, most recently, the uncertainty surrounding the constraints on religious freedom.

“I have concluded that this case is essentially about harm,” wrote Bauman in the introduction to the 357-page opinion. The chief justice then goes on to list the harms he believes are inherent to polygamy: Early marriage, high infant mortality and increased rates of domestic violence and sexual abuse are just a few of the innate ills Bauman sees in polygamy. Moreover, he argues, these harms are present across cultures and religions.

The opinion canvasses historical research, contemporary statistics and experts to discover the basis of the present taboos and laws against polygamy. At least 100 paragraphs are devoted to the roots of Mormonism, the foundation of Utah and fundamentalist emigration to Canada. While other groups (such as Muslims and Wiccans) are taken into account, there is no question that Bauman’s analytical lens is trained directly on the breakaway Mormon sects living in B.C. and Alberta.

Bauman also specified that while women in polygamous relationships may face prosecution, individuals 18 and under should not face criminal charges. This may provide little solace to former child brides: Once a woman is 19, she may be charged with polygamy. Women’s groups present at the ruling said they would have liked more protection of women and girls in polygamous communities, but they appreciated the focus on women’s issues that Bauman brought to the ruling.

While women’s organizations and groups like Stop Polygamy in Canada may be common at trials involving polygamy, the constitutional-reference case attracted the interest of many more diverse groups, from the B.C. Teachers’ Federation to the Canadian Association for Free Expression (CAFE), an advocacy group that represents Holocaust revisionists and white supremacists.

In addition to CAFE, the polygamists found another unlikely ally: the Canadian Polyamory Advocacy Association (CPAA). John Ince, counsel for the CPAA and local purveyor of erotica, chose his words carefully when making comments to the press. When referring to Bountiful-style polygamy, he made sure to mention the patriarchal, religion-based nature of the practice there. While the CPAA had initially favored striking down the ban, it was able to discover a happy medium in the ruling: Adults may cohabitate lawfully, as long as their unions are not considered conjugal.

Pointing out that most polyamorists have little interest in the traditional institution of marriage, Ince said he was “relieved that our lifestyle has been found to be lawful.” Beginning one week ago, there is now a 30-day window for appealing the opinion. George Macintosh, amicus curiae arguing to strike down the ban, gave every indication that this will be the next step in these proceedings. Court observers speculate that the question of polygamy could next land in front of the Supreme Court of Canada.