9 Jan 2009

If the polygamists prevail

Macleans Magazine - Canada
January 9, 2009

Will it be the end of marriage as we know it?

by Charlie Gillis

When questions of morality arise, “slippery slope” arguments follow close at heel. No surprise, then, that fear ran wild this morning that Canada’s criminal prohibition of polygamy will soon fall to a constitutional challenge—our weakness for religious freedom being what it is.

Then what? A nationwide rash of multi-spouse relationships? Half-siblings for everyone? Chaos in the family courts? Anarchy?

None of the above, actually. It is true that B.C.’s attorney general has decided to put long-dormant criminal laws to the test by laying charges against Winston Blackmore for running the equivalent of a wife farm in the province’s southeastern corner. And Wally Oppal has a point about keeping laws on the books you never plan to use: “If that section is invalid by virtue of freedom of religion,” he said, “we should let some court decide that.”

Still, there’s no guarantee Blackmore’s lawyers would win a charter challenge on faith-based grounds. They might convince a judge that Section 293 of the Criminal Code treads on religious freedoms. But any such argument necessarily opens the door to debate about potential harm to those inside the communities, and whether, given those risks, keeping polygamy criminal is a reasonable limit on those liberties. “You bring in the question of what kind of social construct this is, in that religious community,” notes Lorraine Weinrib, a constitutional law professor at the University of Toronto who follows marriage cases closely. “As I understand it, one of the reasons they did go forward with [criminal charges] is that they have a lot of testimony from women who have left these communities.”

Even if Section 293 falls—as many fear it will—that in no way points to the end of marriage law as we know it, say other experts. In Canada, marriage will remain legally defined as a union between two people (the gender-neutral phrasing, recall, comes courtesy of court decisions on same-sex marriage). One option for the state, says Annalise Acorn, a constitutional law professor at the University of Alberta, is to forget the Criminal Code and stick by the civil law, ignoring whatever unions the Blackmores of this world consecrate, fighting tooth and nail in the courts to protect the institution as currently defined.

If challenged, the Crown has plenty of legal ammunition with which to protect the law, namely: that polygamy as practised in Bountiful, B.C. and almost anywhere else in the world militates against the notion of gender equality; that children in polygamous communities may be exposed to harm; that allowing it would make common law as it relates to marriage, divorce, child custody, taxation and property impracticable.

Granted, communities like Bountiful might continue unscathed in this scenario. But if the goal is to protect the status quo, we’d be fools to forget how rare such cases are. Save for a bigamy charge or two-and immigration cases involving polygamists from other countries-there is almost nothing on the books presaging the case against Blackmore (James Oler, another resident of Bountiful, was also charged this week with one count of practising polygamy). That might be because polygamy is illegal. But it’s more likely because it doesn’t make sense from a legal or social standpoint. None of the legal benefits of marriage flow to a second, third or fourth spouse. Most Canadian women cannot imagine themselves as one of several wives, and are well aware of their right to simply walk away.

In other words, monogamous marriage works—however shabbily some of us practise it. The great irony, notes Acorn, lies in the role same-sex marriage advocates played in making that point. Remember, if you will, the whispered fears of gay marriage obliterating marriage law, swinging open the door to polygamy and other unintended consequences. “In those cases, the value of monogamy was front and centre in the arguments in favour of same-sex marriage,” says Acorn.

Some slopes, it turns out, are not as slippery as they look.

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