The courts could be dealing with the legal status of polygamy “for at least five years,” following the arrest last week of Winston Blackmore and James Oler, both of whom are part of the Fundamentalist Latter Day Saints (FLDS) community in Bountiful, BC.
That was the assessment of David Quist, executive director of the Institute of Marriage and Family Canada (IMFC), who noted that the case — which involves the definition of marriage and allegations of religious persecution — will likely be taken all the way to the Supreme Court of Canada.
In a press conference soon after his arrest, Blackmore claimed that he and members of his family were being persecuted for their religious beliefs. There are also indications that the law against polygamy, which goes back to the 19th century, could have a much broader reach into various Canadian religions and cultures, if it is ultimately upheld by the courts.
The IMFC, which is currently in the early stages of preparing its response to the case, sees Blackmore’s religious persecution complaint as “a not very deep argument,” said Quist. “Regardless of which faith, there is not much support for polygamy.”
He acknowledged, however, that some Muslims in the Toronto area are said to be using polygamous family structures to claim welfare benefits. “The courts are going to have to consider that at some point,” he said.
Quist noted that those who were opposed to same-sex marriage a few years ago said at the time that if it became law, polygamy would also become an issue. “It now has, and, on the way, came three-parent marriage, at least in Ontario,” he said, referring to a 2007 court decision that recognized a woman’s same-sex partner as the legal parent of her child, in addition to the child’s biological father.
The IMFC is looking at the issue “from the social side,” said Quist. “In all the research we have seen so far, we have found the best scenario is parenting by a biological mom and dad. Polygamy may look like that, but it is quite different from one mom and dad.”
The Evangelical Fellowship of Canada (EFC) is also keeping a “close” eye on the case, said Don Hutchinson, vice-president of legal affairs and public policy for the organization, though they do not plan to intervene at this point, while the case is still moving through the British Columbia courts.
Hutchinson noted that, in 2006, the EFC issued a declaration defining marriage as a lifelong covenant between one man and woman. That statement was eventually signed by leaders from over 40 major religious organizations representing, among others, Catholic, Orthodox and Islamic believers.
“We are interested in seeing exactly how the case progresses,” he added. “Even though the Evangelical Fellowship is one of the nation’s foremost defenders of religious freedom, we recognize that right to practice one’s faith does not grant permission to engage in abusive behaviour.”
Hutchinson said he understands why BC Attorney-General Wally Oppal proceeded with the polygamy charges, instead of the sexual-abuse charges that some people have called for. If the case succeeds legally, said Hutchinson, it could well lead to the dismantling of polygamous systems in Canada and the abuses that are seen to result from it.
Ultimately, Hutchinson said the controversial “notwithstanding” clause — known as Section 33 of the 1982 Charter of Rights and Freedoms — may give the government an opportunity to deal with polygamy legally, without really cutting away at religion-based rights.
“Section 33 is a cornerstone that recognizes that Canada is a parliamentary democracy,” where parliament and the legislatures can respond to the authority of the courts “in a way that the values of a society can be upheld.”
Some observers have noted that the law under which the polygamists were charged could affect many other people outside of that narrow community. Rob Breakenridge, writing in the Calgary Herald, noted that Section 293 of the Criminal Code, under which Oppal laid the charges, outlaws not only polygamy but “any kind of conjugal union with more than one person at the same time.”
If the charges stick with respect to the Bountiful group, wrote Breakenridge, members of many other Canadian cultural and religious groups could be caught up in the more loosely-worded reference to “any kind of conjugal union”. For example, the law could apply to three people, two of whom are in the process of divorce but still-married and one person who is involved in a conjugal relationship with one of the still-married people.
Jim Abbott, Member of Parliament for the Kootenay-Columbia riding in which the Bountiful FLDS community is located, has spoken in the past about the Bountiful issue as one which could pit charter rights against religious freedom.
He was out of the country when the charges were laid, and his office indicated that he will not be back in Canada or available for comment until Parliament resumes toward the end of January.