A confused judicial treatise on polygamy

The fear that lifting the prohibition of polygamy will result in a surge of polygamous marriages is absurd

Today’s decision by the British Columbia Supreme Court upholding the constitutionality of Canada’s anti-polygamy law serves as a quintessential example of the difficulties inherent in having courts resolve fundamentally moral issues implicated by the Charter of Rights.

Justice Robert Bauman’s judgment is an exhausting and comprehensive display of philosophy, social scientific inquiry, history, religious and cultural studies. It serves to demonstrate, yet again, that judges are experts in law and tend not to be very good at any of these other things.

Whether prohibiting polygamy unreasonably impairs individual rights is inherently complex and, to be honest, I am not sure where I stand on the ultimate question. There is incontrovertible evidence that in many cases polygamy reflects and reinforces gender inequality and can result in abuse, sexual slavery and the exploitation of children.

Critics of the law point out, however, that we already have laws in place that prohibit these things. Moreover, spousal and child abuse are not the sole province of polygamous marriages. Given the individual rights at play, a law focusing on polygamous relationships needs to demonstrate that polygamy itself is inherently harmful (especially since the law only applies to marriages and not all polyamorous relationships).

In its submission to the court, the Canadian B.C. Civil Liberties Association argues “that criminalizing plural relationships between consenting adults is an extraordinarily deep intrusion into personal liberty and a grossly disproportionate response to addressing either the abstract objective of preventing harm.” Yet the judge dismissed this argument as “premised on the notion that polygamy is not inherently harmful.”

What evidence does Justice Bauman have for saying it is?

On his way to upholding the law, Justice Bauman takes a tour through the days of the Roman Empire and ancient Greece all the way to the United States prohibitions before finally getting to Canada. This prolonged discussion is used to justify the assertion that polygamy is inconsistent with Western values.

The underlying purpose of a law is integral to judicial analysis of its constitutionality and here the decision’s historical analysis is unconvincing. As University of Ottawa law professor Carissima Mathen has noted, the law as originally enacted in 1892 was rooted in discrimination against other religious beliefs and practices and not, as Justice Bauman found, motivated by a concern for women and children. As she points out, marital rape was not even considered a crime at the time; the notion the law was for the protection of women is silly.

An even more significant problem with the analysis of social science evidence and expert opinion in the decision is the question of the negative “societal” effects of polygamy. Justice Bauman was convinced by the assertion that polygamy “creates a pool of unmarried men with the attendant increase in crime and anti-social behaviour.”

The fear that lifting the prohibition of polygamy will result in a surge of polygamous marriages and a measurable increase in crime is absurd. The judge’s willingness to accept this logic underscores the problem of a court of law assessing the value or weight of social scientific evidence.

If prohibiting polygamy is actually constraining a huge number of people from entering polygamous relationships, then the argument that monogamy is central to the values of “Western civilization” quickly falls apart. The mere fact that the anti-polygamy law hasn’t been enforced in over 50 years should give one pause before accepting such an argument (unless you are able to do a poll of your wives to ask them what they think, of course).

The weak empirical analysis and largely irrelevant historical treatise embedded in the decision allow Justice Bauman to dismiss the argument that the government has failed to provide “any convincing evidence that … more targeted laws cannot be effectively used to punish and deter harmful conduct in polygamous relationships.”

None of this is to suggest that laws based on basic moral or value-based conceptions are automatically contrary to the Charter of Rights. In fact, much of the criminal justice system is fundamentally about broadly held conceptions of morality.

Yet in the face of honestly-held religious views and the even more fundamental individual right to choose how to live one’s life, courts need to do a better job of assessing the actual impact of a law. It is not enough for a judge to refer to broadly held values and assert spurious, unproven predictions about how society will fall apart if the law is struck down.

In this respect, this case reminds us that judicial reasoning is just as important when upholding a law as it is when striking one down.

Ultimately, this issue will proceed to an appellate court and very likely to the Supreme Court of Canada, either as an appeal to this reference decision or during the course of a criminal prosecution.

Appellate judges usually give fairly broad deference to the evidentiary findings at the trial court level. We can only hope deference gives way to common sense because if there is a compelling argument about the reasonableness of the anti-polygamy law, it wasn’t in today’s ruling.

Emmett Macfarlane is a senior instructor at the University of Victoria. You can follow him on Twitter @EmmMacfarlane

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