Defence to invoke gay marriage as polygamy trial begins in B.C.

The Globe and Mail - Canada
January 21, 2009

by Gloria Galloway and Robert Matas

OTTAWA, VANCOUVER -- Same-sex marriage, they said, would be the slippery slope to polygamy.

Just a few short years after Canadians engaged in a caustic debate over whether two men, or two women, should be allowed to marry, the prognosticators will find out if they are vindicated - however unhappily.

The lawyer for Winston Blackmore, the man with 19 wives in the B.C. religious community of Bountiful who is to appear in court today on polygamy charges, says he will cite Canada's gay-marriage laws as part of his defence.

It's an argument that people on both sides of the same-sex marriage fight were expecting: If same-sex marriage is justified under Charter rights to equality, then polygamy is justified under the Charter's protection of religious freedom.

In February, 2005, Vic Toews, who was then Justice critic for the opposition Conservatives, said changing the definition of marriage would open the door to court challenges from people who wanted polygamous unions.

But even those who argued in favour of expanding the definition of marriage to include same-sex couples say they anticipated this sort of legal manoeuvre.

David Rayside, a political science professor at the University of Toronto who studied the same-sex debate, said yesterday he is not at all surprised that the defence is being attempted in a polygamy case. But he doesn't think it will fly.

"The claims by same-sex couples were, in some respects, very conventional," he said. "In fact, there has been no significant change in the direction of moving beyond two people."

Daphne Gilbert, a law professor at the University of Ottawa, said the argument promised by Mr. Blackmore's lawyer is predictable but without merit. The monogamous aspects of formal same-sex relationships are "actually in keeping with our view on marriage," Prof. Gilbert said.

Polygamy, on the other hand, has a completely different dynamic, she said.

"First of all, it's not a one-on-one partnership. Secondly, the dynamics of polygamous relationships in Bountiful certainly involved serious harms around the age of the women getting married, whether or not they are truly consenting to the marriage, the extent to which parental involvement is a coercive part of those marriages, and the patriarchy of how those marriages operate."

And even if a lawyer could prove that a ban on polygamous marriage is a violation of the Charter, the government is entitled to defend the ban on the basis of greater societal good, Prof. Gilbert said.

Don Hutchinson, the legal counsel for the Evangelical Fellowship of Canada, said there have been several court decisions around same-sex marriage that could be used to defend polygamy. But he is counting on Parliament's current definition of marriage, which prevents multiple spouses, to douse the polygamy debate, he said.

"I am hopeful that where the courts will land is where they landed in the same-sex reference case in 2004," said Mr. Hutchinson, "that they will say, 'You know what, marriage [is] defined by Parliament and we're going to stick with that.' "

Salt Lake City lawyer Rodney Parker, who has represented members of the polygamous religious community in the United States, said yesterday the legalization of gay marriage in Canada will allow the court to focus directly on the defendants' constitutional rights in a way that U.S. courts could not.

With the Supreme Court of Canada decision legalizing gay marriage, Canada is "further down the path" than the U.S. on marriage issues, he said.

"It is a defence we've argued for in the states," Mr. Parker said in a phone interview from his office. The arguments, however, were ineffective because U.S. prosecutors went after sexual crimes, not polygamy. "The cases we had down here so far involved minors. Oler's case does not involve a minor."

Jim Oler, a rival leader from a different faction within the religious community in B.C., has also been charged with polygamy, for allegedly having two wives. Mr. Oler is aligned with those in the U.S. who have been represented by Mr. Parker. The Salt Lake City lawyer was the spokesman for the church after the raid last spring on the group's Yearning for Zion compound in Texas.

Mr. Oler's lawyer, Robert Wickett, declined to comment yesterday, saying the prosecution has not yet disclosed the case against Mr. Oler.

Blair Suffredine, who is Mr. Blackmore's lawyer, said the two men have separate legal representation and may have separate trials. Although they were charged on the same day with the same crime, he saw no reason for one trial. Obviously the case against each man is different, Mr. Suffredine said.

This article was found at:

http://www.theglobeandmail.com/servlet/story/LAC.20090121.POLYGAMY21/TPStory/National