Friday, November 25, 2011

News from Canada's Courts: Polygamy Ban is Constitutional

You know that old "slippery slope" argument that once gay and lesbian couples gain the ability to legally marry that there will be no way that anyone can argue against polygamy and other forms of plural marriage.  Heck, I just wrote about one such claim here in Iowa earlier this week.  Social conservatives have been pointing to Canadian court challenges regarding the constitutional nature of that country's 121-year-old law against polygamy.  Guess what?  Canada recognizes the legal marriage rights and responsibilities of its gay and lesbian citizens and yet polygamy was still found to be unconstitutional:
The ruling stemmed from a failed prosecution in 2009 of two leaders of a breakaway Mormon sect in (Bountiful,) British Columbia and might have implications for followers of other religions that allow polygamy. In a 335-page decision that followed 42 days of hearings, Robert J. Bauman, the court’s chief justice, found that women in polygamous relationships faced higher rates of domestic, physical and sexual abuse, died younger and were more prone to mental illnesses. Children from those marriages, he said, were more likely to be abused and neglected, less likely to perform well at school and often suffered from emotional and behavioral problems.

The law seeks to advance the institution of monogamous marriage, a fundamental value in Western society from the earliest of times,” Justice Bauman wrote. “It seeks to protect against the many harms which are reasonably apprehended to arise out of the practice of polygamy.” He also made reference to reports of plural marriages among Muslims in Canada before concluding, “There is no evidence that it is a widespread or mainstream phenomenon...”

Members of the sect have argued that polygamy should be allowed under Canada’s constitutional guarantees for religious practices.

On Wednesday, Winston Blackmore, one of the sect’s leaders in Bountiful and one of the men charged in the original case, told The Canadian Press that he had always expected that the issue would ultimately make its way to the Supreme Court of Canada. Yet even if Mr. Blackmore, or someone else, asks that court for an appeal there is no assurance that it will hear the case.
Of course, I'm always suspicious of social science claims raised in courts that show that most spouses and children in certain types of families face all sorts of awful nightmares.  I've seen similar arguments targeted at gay and lesbian families without much actual data to back it up.  Then again, most gay and lesbian families don't live in isolated villages with dogmatic values and leadership, so it's possible that these generalized assertions might ring true for the people of Bountiful and for others like them.  I'd like to learn more.

Don't get me wrong, it's possible that Canada's anti-polygamy law might get struck down eventually by its Supreme Court.  But given the strongly worded decision that came out of B.C.'s own highest court, it doesn't seem likely.  At least for now.  Either way, it goes to show that it's possible for a court system or an individual to acknowledge that there is merit to striking down marriage restrictions against one group (i.e., gay and lesbian families) while holding firm when it comes to marriage restrictions against another group (i.e., polygamous sects).


Mark Stone said...

So are you supporting marriage equality that isn't actually equal? That's sort of the problem with allowing the state to license family in any form. :(

Jon said...

I'm not necessarily against polygamy.

That said, the government has been issuing marriage licenses for a long time. There's benefit to having legally recognized and protected families.