May 3, 2017

A polygamy trial in Canada tests the limits of conjugal freedom

Marriage and religious fundamentalism - The case illustrates the tension between religious freedom and human rights in democracies

The Economist
May 2, 2017

Many of today’s hottest arguments about religious freedom involve idiosyncratic micro-communities which impose on themselves (and on their children) norms of life which the rest of society finds bizarre or worse.

That is one reason why a polygamy trial which recently opened in the Canadian province of British Columbia has attracted attention throughout the country and among law-and-religion pundits across the world.

The trial focuses on a fundamentalist religious community called “Bountiful”. The group is home to Canada’s best-known avowed polygamist, Winston Blackmore, as well as his former brother-in-law James Oler. Both have been charged with polygamy under legislation which has existed for more than a century but has proved virtually impossible to apply because of countervailing considerations about religious freedom. "Bountiful", which was founded in 1946, has its roots in offshoots from the American Mormon church whose mainstream leadership eschewed polygamy in 1890. The Mormons now take a very dim view of small holdout communities across North America who still engage in multiple marriage, and have fought legal battles against them.

The indictment in the current trial lists 24 women who have been ceremonially married to, or had conjugal relations with Mr Blackmore, while four women are listed as wives of Mr Oler. Mr Blackmore has never hidden the fact that he has multiple wives who have borne him at least 145 children.

During the trial so far, the two men have been sitting side by side in the small courthouse in the town of Cranbrook, never speaking to each other. Mr Blackmore was excommunicated in 2002 from a fundamentalist sect of American polygamists in whose ranks he had served as “bishop”. The leader of that sect, Warren Jeffs, is serving a life sentence in Texas after he was convicted in 2011 of raping two of his under-age brides.

The Bountiful community has been under investigation by the Royal Canadian Mounted Police for at least 25 years. Several moves to charge its leaders foundered after the provincial government received legal advice that Canada’s Charter of Rights of Freedoms, underpinning religious liberty, might take precedence. The province’s former attorney general, Wally Oppal, spent years looking for strategies to prosecute, arguing that polygamy was demeaning to women and damaging to minors. The Charter does allow for “reasonable limits” on religious freedom when they are “demonstrably justified in a free and democratic society,” as critics of polygamy have noted.

In 2011, the Supreme Court of British Columbia issued a landmark decision running to 335 pages: it opined that although anti-polygamy legislation does indeed impinge on religious freedom, it is necessary in view of the harm which multiple marriage causes to children, women and society. It was that ruling which paved the way for the current trial.

Blair Suffredine, Mr Blackmore’s lawyer, is defending his client on grounds that society recognises the legitimacy of other non-traditional unions, including common-law marriage. He has said: “Because of Blackmore’s religious belief, because he has more than one relationship, he’s being prosecuted. If he didn’t have a religious ceremony and just had all these children with different women, it would be fine. The sole distinction is [that] Blackmore went and had ceremonies for each one.”

Evidence presented at the trial has included dozens of “marriage certificates” for weddings that took place on the same day. If convicted, Mr Blackmore and Mr Oler could each face up to five years in prison. A verdict is not expected until the autumn.

The decision will be watched with interest in many democracies. There is no liberal democratic state where polygamy is legal, but the practice is recognised, either formally or de facto, in around 60 countries round the world, mostly Muslim. In practice, courts and authorities in democratic countries have often accorded some recognition to polygamous unions forged elsewhere when adjudicating, say, social-security benefits or child custody. That includes Canada, where immigration authorities insist, of course, that each newcomer must declare only one spouse but have been willing in principle to allow children from a father’s other marriages to enter the country.

Still, there is virtually no tolerance for multiple marriages within the boundaries of a single democratic state across the Western world. It remains axiomatic that a person who enters a marriage ceremony while still legally wedded to somebody else is a bigamist. That rule invalidates the second marriage and renders the bigamist liable to prosecution.

Yet even that simple-sounding principle is not easy to apply. What if the “ceremony “ is some new-fangled rite which has been dreamed up by a recently constituted community, with no real social or legal standing? Does that make the situation better or worse than simply living with multiple partners, which is not illegal? Such questions will remain hotly contested through this trial and beyond.

No comments: