Polygamy in the news

November 24, 2011

There is a Mormon community in British Columbia, called Bountiful, in which polygamy has been practiced for decades, despite the practice being illegal in Canada. In recent years there have been some charges laid, and some court challenges to those charges. The argument, I believe, is that the current laws consitute infringements of religious freedom.

Yesterday Chief Justice Robert Bauman, of the British Columbia Supreme Court, wrote an opinion that upheld the constitutionality of the ban on polygamy. He was asked to investigate the question by the B.C. government, and though his decision is apparently not binding on anyone, it presumably carries some weight. He argued that although the ban does infringe certain rights guaranteed under the Canadian Charter of Rights and Freedoms, such as freedom of religion and autonomy, those infringements he judged ‘reasonable’ in the interest of protecting women and children from exploitation. That, it seems to me, makes it a rather soft ruling, but a welcome one nonetheless.

What interests me most about this story is the response to the ruling from various quarters. The B.C. Civil Liberties Association, which appears to be a more or less typical far-left advocacy group (or perhaps a far-right advocacy group; the topology of the political spectrum often makes it difficult to distinguish the two), is apparently disappointed; they think the ban on polygamy should be overturned. I am a little surprised.

Meanwhile, The Slop & Pail, one of Canada’s premiere daily newspapers, has run an article on the story that contains a few more surprises. First, the headline would seem to indicate that the paper also thinks the ban on polygamy should go. Perhaps I am naive, but my eyebrows went up. The author of the article interviewed three law professors from the Toronto area. Each one of them had something interesting to say.

Bruce Ryder, of Osgoode Hall, had the mildest complaint about the ruling. Judge Bauman, he said, “placed an ideological and constitutionally dubious premise at the heart of his opinion – namely, that the state can punish other family forms for the purpose of promoting monogamous marriage.” Evidently he thinks that a ban on polygamy — which must necessarily invoke the power of the state to promote monogamous marriage — rests on “ideological and constitutionally dubious” reasoning. That already helps us understand which way he thinks the wind is blowing.

Prof. Alan Young didn’t have much to say about this particular ruling, but he made some inspiring remarks about the enduring importance of law and legal process. “Balancing societal interests versus individual interests is intrinsically a very subjective process. […] It makes anything appealable and it makes anything defensible.” I know that makes me want to be a lawyer. And he added, just to show that he’s thought hard about the relationships between moral reasoning, personal action, and political community, “There are very few core values in society, and values are changing all the time.” Although I expect that he believes his own brand of moral relativism is pretty secure.

But the best remarks came from Prof. Brenda Cossman. “The decision is built on a house of cards,” she said. “You can’t just say that marriage is better than non-marriage. What happened to swingers? What happened to people who are adulterous? His continuous assertion about the harm that polygamy does to monogamous marriage is deeply problematic.” Honestly, I don’t think I could make this stuff up.

All that simply to say this: if the comments from these law professors are really representative of the quality of the moral and legal reasoning coming out of our top law schools, it seems to me that we’re in for a bad time.

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