VANCOUVER, B.C. (CN) – After years of uncertainty, British Columbia’s Supreme Court upheld Canada’s criminal ban on polygamy, finding that while the law does infringe upon religious freedoms, it is justified to prevent the significant harms polygamy inflicts upon society.
Chief Justice Robert Bauman wrote that he based his lengthy ruling on “the most comprehensive judicial record on the subject ever produced.” He concluded that the “case is essentially about harm; more specifically, Parliament’s reasoned apprehension of harm arising out of the practice of polygamy. This includes harm to women, to children, to society and to the institution of monogamous marriage.”
Bauman found that the law was justified because “(w)omen in polygamous relationships are at an elevated risk of physical and psychological harm,” and children “suffer more emotional, behavioural and physical problems, as well as lower educational achievement than children in monogamous families.”
Bauman found that young girls frequently enter into polygamous marriages with much older men and face health risks from early sexual activity and pregnancy, while young men are often forced out of polygamous communities to reduce competition for wives. And Bauman concluded that children are harmed by being exposed to “harmful gender stereotypes” in polygamous households.
The court heard evidence from a wide range of witnesses, and the ruling traces the roots of monogamy back to the ancient civilizations of Greece and Rome. The ruling distinguished between polygamy practiced by Muslims, Mormons and other groups throughout history and across the globe.
The case stemmed from constitutional questions posed amid mounting pressure to prosecute polygamists in the community of Bountiful, where a sect of Fundamentalist Church of Latter-day Saints has lived for decades. The community has strong ties to FLDS communities in the United States.
Polygamy advocates argued that Canada’s laws against polygamy were rooted in Christian belief, but Bauman disagreed.
“Polygamy was not prohibited because it was a religious belief, or, to turn the coin, because Parliament wanted to impose a Christian religious belief in monogamous marriage. I find that the original prohibition was prompted by largely secular concerns with perceived harms associated with the practice to women, children and society. As I have discussed, socially imposed universal monogamy, while embraced by Christianity, had its roots in Greco-Roman society,” the ruling states.
Advocates also argued that consent among practitioners was a defense against criminal liability, but Bauman found it unnecessary to rule on that.
“In the case of polygamy, the risks of harm associated with the practice extend beyond the immediate participants to those who are not in a position to give their consent. The children of a polygamous union, as just one example, cannot consent to their situation, which includes exposure to the increased risk of harms that flow from their parents’ marital relationship.”
Bauman rejected arguments that a ban on polygamy was “anachronistic,” since the law’s object is “the prevention of harm to women, to children and to society. The prevention of these collective harms associated with polygamy is clearly an objective that is pressing and substantial. … The positive side of the prohibition which I have discussed – the preservation of monogamous marriage – similarly represents a pressing and substantial objective for all of the reasons that have seen the ascendance of monogamous marriage as a norm in the West.”
Shortly after the ruling was handed down, legal minds were already pondering an appeal. University of Toronto law professor Brenda Cossman told the Toronto Globe and Mail that the decision was “built on a house of cards” because Bauman’s contention that polygamy harms monogamous marriage is “deeply problematic.”
“You can’t just say that marriage is better than non-marriage,” Cossman told the Globe. “What happened to swingers? What happened to people who are adulterous?”