Polygamy charges may bring religious freedom challenge

  • January 13, 2009
{mosimage}OTTAWA - Canada’s law against polygamy may soon face a religious freedom challenge now that British Columbia has charged members of a breakaway Mormon sect.

Winston Blackmore, one of two men charged with polygamy under Canada’s Criminal Code, has told news media his religious freedom is under attack.

An array of constitutional experts has agreed, telling various newspapers they believe the anti-polygamy law could not withstand a Charter test.

“The people who say it will be very hard to uphold this as a criminal offence are right,” said Margaret Somerville, McGill Centre for Medicine, Ethics and Law founding director.

Somerville and others who opposed the redefinition of marriage to include same-sex marriage had warned that disconnecting it from the biological reality of one man and one woman to produce a child would undercut arguments against polygamy, which allows a man to have more than one wife. At the time, they were accused of being alarmist.

{sa 0773528946' align='left'}Douglas Farrow, who co-edited Divorcing Marriage: Unveiling the Dangers in Canada’s New Social Experiment, is finding it hard to resist saying “I told you so.” But Farrow, a champion of religious freedom, said the charter must not be used to justify polygamy. Religious freedom is not absolute, he said, and should not be a cover for polygamy, genital mutilation or other practices. 

Polygamy is just plain wrong

By Michael Swan, The Catholic Register

TORONTO - Legal arguments aside, polygamy is just plain wrong, according to bioethicist Moira McQueen.

“It maybe sounds like somebody’s fantasy, but most husbands say one wife at a time is quite a lot to deal with, thank you very much,” said the University of St. Michael’s College theology professor and executive director of the Canadian Catholic Bioethics Institute.

While it’s certainly true that in some cultures and at other times in history polygamy has been widely practised — from the patriarchs of the Bible to many modern-day Africans and Arabs, in a society that values equality and wants women to be more than additions to a man’s wealth or status, it’s hard to imagine polygamy fitting into those ideals, said McQueen.

“It’s always just the man who has several wives, and very rarely the other way around. I think there’s something there, even if I can’t quit put my finger on it,” she said. “It seems just a little bit paternalistic.”

From a Catholic perspective, there’s also a telling symmetry between the two-parent biological family and the Trinity, said McQueen.

“Certainly the Spirit, born of the love between the two seems very apt in terms of the structure of the family,” McQueen said.

For Michele Boulva, director of the Catholic Organization for Life and Family (COLF), polygamy distorts God’s plan for human love, attacks the dignity of women and threatens children’s rights.

“Marriage is meant to be an indissoluble communion of life and love between one man and one woman,” said COLF director Michèle Boulva. “Their communion of love, their conjugal love should bring them to love each other as God loves. 

“It should be free, total, faithful and fruitful,” she said. “It should bring them to a self-giving that cannot be shared with anybody else.”

Boulva noted that when that love is shared with another besides the spouse, both are “impoverished.”

(With files from Deborah Gyapong, Canadian Catholic News.)

But while many in feminist circles argue against polygamy on equality grounds, Farrow said they might be inclined to infringe religious freedom for everyone, not only polygamists. The same arguments against polygamy could be used to force the Catholic Church to ordain women priests, he said.

For Farrow, religious freedom arguments could swing to two extremes: a total moral relativism on one hand vs. an impulse to clamp down not only on polygamy, but also all public religious expression.

“I am concerned that freedom of religion could be a casualty in this fight,” he said.

The same-sex redefinition of marriage was based on adult personal preferences and on the ability to choose one’s family structure, said Somerville. Those same principles could be used to justify not only polygamy but polyandry and group marriage.

“There is a strong case that same-sex and polygamous marriage should be treated consistently,” she said, warning legalizing polygamy would not just affect a small isolated Mormon sect, but Muslims and other religions that allow multiple wives.

“And if opposite-sex and same-sex unions are to be treated the same, what about a group of same-sex people? Will they be allowed to get married?” she asked.

There are two alternatives if we are going to be consistent, Somerville said. Either continue viewing marriage as based on adult preferences and choices and accept polygamy or admit that “we made a mistake with same-sex marriage” and revisit it.

Somerville’s biggest concern has been the rights of children to be raised by a mother and a father who are biologically related to them. She has argued that only marriage built on the natural procreative relationship of a man and a woman finds the right balance of reciprocal rights and duties between the mother and father and their offspring.

Altering one social, ethical or legal value sets up precedents for altering all of them, she said.

Farrow urged a recommitment to the charter’s preamble, which recognizes that Canada “is founded upon principles that recognize the supremacy of God and the rule of law.”

“An authentic rule of law is rooted in a proper reverence and respect for the supremacy of God,” he said. “We need to be able to say something about that link and even about the God to which we refer.”

“If the God to which we refer is a tyrant, the rule of law is simply a system of oppression,” he said.

If the God is like the rational loving God Pope Benedict XVI described in his Regensburg address, then there is rational basis for law that supports freedom but know where to limit the rule of law where it threatens the common good, he said.

“We no longer have a common understanding of how religion and the law relate, how the common good and individual choice relate and how institutions like the family function,” he said.

The Centre for Cultural Renewal’s Iain Benson warned that arguments in favour of a Christian definition of marriage “went out the door with the same-sex marriage challenges.”

“The only logic that compels judges is an empirical argument,” he said. With the advent of “show me” judges, opponents to polygamy are going to have to prove that it harms women and children.

Somerville said Parliament should consider using the charter’s Section 33 override provision, the so-called “notwithstanding clause,” if the courts strike down the law against polygamy.

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