Children play outside the Mormon Hills school in the polygamist community of Bountiful. Picture: Canadian Press
Marriage and family advocacy groups have greeted with enthusiasm a Canadian court decision upholding the country’s ban on polygamy, published yesterday.
British Columbia Supreme Court Chief Justice, Robert Bauman, has ruled that the government of Canada may continue to prohibit polygamy because, although the law does impinge on the right to freedom of religion, that harm is outweighed by the harms that polygamy inflicts on women and children, and to the institution of monogamous marriage. “There is no such thing as so-called ‘good polygamy’,” said Bauman.
The Alliance Defence Fund, an association of Christian lawyers represented by Gerald Chipeur in the court case, said that the court “recognized that marriage is about children and parents, and that Parliament has a very important role to play in protecting the family. The court also recognized that Parliament, not the courts, has the authority to define marriage.” The court had accepted their argument “that, under the Constitution of Canada, Parliament may define marriage as no more than two people,” said Chipeur.
“Some organizations claim that same-sex ‘marriage’ won’t open the door to polygamy and group marriage, but that’s what nearly happened in British Columbia,” said ADF Senior Legal Counsel Austin R. Nimocks. “Had marriage never been attacked there in the first place, it’s questionable whether this particular assault would have ever occurred. Canada just dodged a bullet for the moment; Americans should take notice because this country need not risk the same thing.”
The judge’s 270-page decision (which includes potted histories of monogamy and polygamy) comes at the end of a trial that began in November 2010 as a result of official investigations into allegations of sexual abuse at a fundamentalist Mormon community in Bountiful, British Columbia. Because it was difficult to find victims willing to testify, and because of the likelihood the community would invoke religious freedom as a defence, the BC Attorney General asked the Supreme Court to rule on the validity of the law.
In his decision, Chief Justice Robert Bauman wrote:
“When one accepts that there is a reasoned apprehension that polygamy is inevitably associated with sundry harms, and that these harms are not simply isolated to criminal adherents like Warren Jeffs but inhere in the institution itself, the…complaint that there are less sweeping means of achieving the government’s objective falls away. And it most certainly does when one considers the positive objective of the measure, the protection and preservation of monogamous marriage. For that, there can be no alternative to the outright prohibition of that which is fundamentally anathema to the institution. In the context of this objective, there is no such thing as so-called ‘good polygamy.’”
He summarised the harms of polygamy thus:
“Polygamy has negative impacts on society flowing from the high fertility rates, large family size and poverty associated with the practice. It generates a class of largely poor, unmarried men who are statistically predisposed to violence and other anti-social behaviour. Polygamy also institutionalizes gender inequality. Patriarchal hierarchy and authoritarian control are common features of polygamous communities. Individuals in polygynous societies tend to have fewer civil liberties than their counterparts in societies which prohibit the practice.”
The Institute of Marriage and Family Canada agreed with the judge. Executive Director Dave Quist said:
“The practice of polygamy institutionalizes patriarchal domination, gender inequality and a host of other negative behaviours. Conversely, research shows that two-person, man-woman marriage is the strongest family form, bringing a host of physical and emotional health benefits to children and the adults involved.
“Oftentimes we are led to believe that our relationships are only private matters. This ruling shows this is not the case, given the radically different outcomes associated with polygamous marriage as compared with other family forms, outcomes which affect the way we live.
“This sends a strong message across Canada that further changes to the institution of marriage are deleterious to society and should not be entertained,” concludes Quist.
Although it will probably be appealed, the decision gives authorities the green light to prosecute members of Bountiful. What effect it will have on the wider marriage situation and debate is not clear.
The law and the decision against plural marriage apply only to formal ceremonies that claim to be sanctioned by some higher authority, and not to cohabiting relationships or, apparently, to so-called “polyamory” in which more than two partners are involved — unless they try to formalise it.
And since same-sex marriage is treated as a monogamous relationship, there are no necessary implications for that issue. Harms to children in the care of same sex couples is considered a matter for social science to prove rather than social welfare authorities to investigate, and it may be many years before there is evidence that would convince a judge.