B.C. courts questioning polygamy laws

[SapphireFox]

Link

Mon Nov 22, 12:25 AM

By James Keller, The Canadian Press

VANCOUVER - A court in British Columbia will begin hearings Monday as it tackles a question that has been lingering over a small commune in southeastern British Columbia for nearly two decades: Is polygamy a crime, or is it a sacred religious practice protected by the constitution?

That question, and the lack of a clear answer, has stood in the way of the province's repeated efforts to prosecute the leaders of Bountiful, B.C., an obscure fundamentalist Mormon community near the U.S. border where some residents readily admit to multiple marriages.

But one observer predicts the B.C. case is just the first step in a process that will eventually make its way to the Supreme Court of Canada, where a final decision could affect a range of issues from the definition of marriage to how prospective immigrants with multiple wives should be treated.

"This is much broader than Bountiful — if the law is struck down and polygamy becomes legally recognized, you start to see some pretty broad ramifications, things like pension benefits, immigration," says Vancouver-based constitutional lawyer Ron Skolrood, who isn't connected to the case.

"Think about the world of immigration law and some cultures where polygamy is accepted. If the law is struck down, what does that mean for immigration into Canada?"

While the case may not end with Bountiful, it certainly began there.

Police and Crown counsel in B.C. have been investigating Bountiful since the early 1990s, but shied away from laying charges amid concerns the laws against polygamy wouldn't survive a challenge under the Charter of Rights and Freedoms.

That reluctance changed in January 2009, when police swept into the community and charged Winston Blackmore and James Oler, the leaders of two separate, divided factions within Bountiful, with one count each of practising polygamy. Police alleged Blackmore has 19 wives and more than 100 children, and Oler was accused of having three wives.

When the court threw out those charges because of how the province chose its prosecutors, the government referred the issue to the B.C. Supreme Court, setting the stage for a case that is expected to hear from more than two dozen witnesses and last until the end of January.

The province asked the court whether the polygamy laws are consistent with the charter, and if a polygamous relationship must involve a minor or some form of abuse for criminal charges to be laid. Such reference cases aren't technically binding, but legal experts have said other courts would likely adopt the eventual ruling, particularly if it is heard by the Supreme Court of Canada.

More than a dozen interveners have applied to be involved, including religious groups and women's rights organizations. The trial is expected to hear from between 30 and 40 witnesses including experts, former and current residents of Bountiful, and people who live in so-called polyamorous relationships that aren't part of a specific religion.

Oler and the Fundamentalist Church of Jesus Christ of Latter Day Saints, which is connected to a controversial Mormon sect in Utah, will also be present, but Blackmore is boycotting the hearings after the court rejected his request for government funding and special legal status.

While the B.C. government has insisted the case is not solely about Bountiful, the province's lawyer makes it clear in his opening statement that he'll narrow in on the community to show polygamy harms women and children, as well as society as a whole.

"Direct evidence from Bountiful ... presents a consistently worrisome narrative of child brides, teen pregnancy, and men and boys who are, by accident or design, driven out of the community," government lawyer Craig Jones writes in his opening submissions to the court.

"The harms documented at Bountiful are the perfectly predictable, indeed the inevitable, consequences of a polygamous society."

The province has appointed a lawyer known as an amicus to argue the other side of the issue, making the case that polygamy is protected by the charter.

George Macintosh says in his submissions that Canada's anti-polygamy laws were initially aimed at imposing Christian values on Mormons and other cultures that practice polygamy.

He says the laws do more harm than good, taking away a woman's right to enter into a polygamous relationship if she chooses and isolating members of communities such as Bountiful.

"The provision draws a distinction between religious practices which the state deems to be acceptable — monogamous marriage — and those that are subject to criminal sanction — polygamous marriage," writes Macintosh.

"Even if not prosecuted, religious practitioners of polygamy are stigmatized by the law and treated as less worthy of respect and concern."

The provincial and federal governments appear to disagree on what the polygamy laws actually forbid.

The province argues in its submissions that the law only outlaws polygany, the most common form of polygamy in which a man has multiple wives. The province says the law doesn't prevent a woman from having more than one husband — a practice known as polyandry — or such relationships involving multiple partners of the same sex.

The federal government, on the other hand, insists the law forbids any form of multiple marriage, regardless whether they involve multiple wives or husbands.

Posted without comment.

[Phantasee]

What, don't tell me you are neither for nor against polygamy? How do you manage to stay neutral about such a polarizing issue? That fence must be real comfortable.

I love watching this sort of thing. I'll be following it closely, and hopefully they didn't pick a complete moron for the job of amicus.

[Solauren]

I have to agree, that if Polygamy was 'legalized' in Canada, the impact would be interesting.

For one, it would suddenly become very easy for ANYONE to get into Canada using marriage-immigration laws.

Divorce rules would have to be changed, etc.

Quite frankly, the easiest way to deal with this is to remove recognition of marriage as a religious institution from the law. Instead, recognize 'Civil Unions', for all, as long as it's "1 partner" each. Clergy could perform the union as part of a religious service if the couple wants.

Now, we are no longer oppressing anyone's religious views. "Sure, you can have a polygamist marriage. But they don't count for Civil Unions. Only your first 'marriage' does".

[Darksider]

I have to ask this because i'm not entirely knowledgeable about the subject of polygamy, but are there any instances where a polygamous relationship forms out of genuine love between all three parties? Every instance i've ever seen of it in the news or on T.V. was a case of religious whackjobs using their faith to treat women like chattel slaves, pop out an unsustainable amount of children, and scam the welfare system of whatever country they're living in.

[Bakustra]

I have to ask this because i'm not entirely knowledgeable about the subject of polygamy, but are there any instances where a polygamous relationship forms out of genuine love between all three parties? Every instance i've ever seen of it in the news or on T.V. was a case of religious whackjobs using their faith to treat women like chattel slaves, pop out an unsustainable amount of children, and scam the welfare system of whatever country they're living in.

Well, there are polyamorous groups out there that are built on mutual love and all that, but they tend to a) be small, ad hoc arrangements, b) be secular and therefore c) get no media airtime. Polygamous relationships tend to be associated with said groups because they make good, sensationalist TV and are generally repulsive to the reporters and to the viewers alike. The librarian down the street in a committed relationship with three other people isn't, because he/she's odd, but not good TV unless he/she's formed an activist group or killed somebody or something.

[Broomstick]

I have to ask this because i'm not entirely knowledgeable about the subject of polygamy, but are there any instances where a polygamous relationship forms out of genuine love between all three parties? Every instance i've ever seen of it in the news or on T.V. was a case of religious whackjobs using their faith to treat women like chattel slaves, pop out an unsustainable amount of children, and scam the welfare system of whatever country they're living in.

Well, there are polyamorous groups out there that are built on mutual love and all that, but they tend to a) be small, ad hoc arrangements, b) be secular and therefore c) get no media airtime.

... and d) more common among neo-pagans and athiests than christians.

I've known a bunch of people in several polyamorous marriages who were quite happy and free of exploitation. I will also note that in all of those case the people entered those relationships without the burden of religious obligation, when they were past the age of 20, and wholly of their own free will. Also, no one was being denied an education or obligated to squeeze out babies fast as possible (one of the group I knew was a post-menopausal woman with two husbands, so childbearing wasn't a concern).

Personally, I think the worst problems in multiple-marriages comes from child marriages and denial of education stemming from religious indoctrination, not from the multiple marriage partners.

[Serafina]

I know at least two relationships (which formed while i knew both people and they each other) where i have been so close that i might have slipped into them as a third partner, if i (and they) were so inclined, including romantic involvement between all of us and a stable relationship (well, at least as a possibility).

Basically, it goes like this:
Person A, B and C know each other. All are potential love interests for each other - their personalities match well, and they find each other physically attractive.
Now, typically only two of these three end up in a relationship with each other and the third moves on (or stays a close friend). But since all of their personalities match, there is no reason why they could not end up in a polyamorous relationship. And if they do, there is nothing wrong with it, as far as i can see.
Naturally, this will get increasingly rarer with larger groups, especially when you want connections between everyone.

Now, there is also the potential "bottomless triangle" - two people love the same person and that person gets into a relationship with both. IMO, that's not really a polyamorous relationship, since it's only ever a relationship between two people. It's not necessarily bad either, but i think it tends to be much more competitive, which can get quite unhealthy for the relationships.

[SapphireFox]

What, don't tell me you are neither for nor against polygamy? How do you manage to stay neutral about such a polarizing issue?

I'm not actually neutral. However, I didn't feel the need to share my opinion in delivering a piece of news I found interesting. Since you asked, personally I would prefer if the Polygamy laws were repealed. While there have been abuses of spouses in polygamous marriages in the past one could argue the same for monogamous marriages as well. Personally as long as everyone involved is happy with it, I don't give a damn how many people decide to get married to each other. Doesn't matter if it 2 girls and 1 guy or 21 husbands for 1 wife.

I love watching this sort of thing. I'll be following it closely, and hopefully they didn't pick a complete moron for the job of amicus.

I will likewise be watching this. As for hoping the guy isn't a moron, my gut says not to bet on that horse.

[Phantasee]

I don't think it is in society's interests to allow more than two people per marriage. The immigration aspect is just one problem. What about taxes? How do you structure those such that you don't have people marrying multiple partners just to get a tax break? We already have people doing it with just one person, but ts not a huge deal because most people want to end up with someone they love anyway. And how do you prevent problems like a man marrying two different women and having two families, but neither knows about the other? Is that allowed?

[Zed]

There's additional issues - e.g. if children are born in a polygamous marriage of one man and two women, who are considered its parents? If it comes up to a divorce, who will receive custody? Will shared custody be possible? If so, will the third member of the relationship receive custody? If there are two men and two women in the marriage, and it is unknown who are the child's biological parents, how would one answer these same questions? Would it matter if the biological parents were known, although the child was raised jointly as a child of all four? Etc.

If one of the members of a polygamous marriage wants to divorce, while the others don't, how will goods be divided? If one of the members of a polygamous marriage wants to divorce one of the other members, but not all of them, how will custody be arranged and how will goods be distributed? Etc.

There is no legal framework for polygamous marriage as of yet, and I doubt it will be simple to work one out.

[Broomstick]

I don't think it is in society's interests to allow more than two people per marriage. The immigration aspect is just one problem.

We have people abusing marriage laws for immigration now, so what's the difference?

What about taxes? How do you structure those such that you don't have people marrying multiple partners just to get a tax break?

Abolish joint returns? Tax everyone according to their own income?

We already have people doing it with just one person, but ts not a huge deal because most people want to end up with someone they love anyway.

Not everyone marries for love even these days - OMG! A man and a woman might marry for convenience! For tax benefits! For political reasons! OMG OMG OMG!

Love based on romance is actually a pretty new thing, you do realize that, right?

And how do you prevent problems like a man marrying two different women and having two families, but neither knows about the other? Is that allowed?

I would say that would come under marrying under false pretenses or fraud - everyone has to be aware of such entanglements or no go.

There's additional issues - e.g. if children are born in a polygamous marriage of one man and two women, who are considered its parents?

How about "all of them".

If it comes up to a divorce, who will receive custody?

Since our laws (including Canada, US, and most other "western" countries) don't automatically assign custody to one parent or the other we already have to negotiate what is in the best interests of the child(ren). What, really, would change? Well, you'd have more alternatives that just two parents to choose from, but other than that...

Will shared custody be possible?

Why not?

If so, will the third member of the relationship receive custody?

Why not?

If there are two men and two women in the marriage, and it is unknown who are the child's biological parents, how would one answer these same questions?

Same as above. Which is a different question than biological paternity. Which can be determined fairly simply these days, you know? Unless the two men in question were identical twins, then it may not be possible to know who actually fathered the child.

Would it matter if the biological parents were known, although the child was raised jointly as a child of all four? Etc.

Your parents/family are those who actually raise you, not simply who donated genes to your body. I question if biological parentage is ever the most important factor in determining the best interests of the child(ren).

If one of the members of a polygamous marriage wants to divorce, while the others don't, how will goods be divided? If one of the members of a polygamous marriage wants to divorce one of the other members, but not all of them, how will custody be arranged and how will goods be distributed? Etc.

This is why we have divorce lawyers.

There is no legal framework for polygamous marriage as of yet, and I doubt it will be simple to work one out.

I think the obstacles are mainly in the lack of custom and the notion being foreign to a lot of people, not really the difficulty of drafting equitable decisions in disputes.

[Stark]

While there have been abuses of spouses in polygamous marriages in the past one could argue the same for monogamous marriages as well.

Oh dear.

Its not impossible that making it less outside cultural norms would work to prevent the endemic abuses inherent in the system, at least in the west.

[Korto]

What about taxes? How do you structure those such that you don't have people marrying multiple partners just to get a tax break?

Abolish joint returns? Tax everyone according to their own income?

I find this amusing, because I remember something about a push in this country to have married people put in independant returns in order to be fairer to the couple. I believe it was on the line that the second income earner gets taxed out of existance because of the first income earner being taken into account.
I don't know much about our tax law (no-one does. Not even accountants), but it may be that in Australia there's no real advantage to marriage for tax reasons.

I do know there's no real advantage, and definately real cost, to marriage (or just being in a relationship) for Social Security. Couples get paid less individually (a lot less), and their income is then also reduced according to the partner's outside earnings (not complaining, just giving the facts). When my wife moved out, it made about $300 a fortnight differance to her Parenting Payment. The SS (now Centrelink) is always trying to make sure all couples declare themselves.

And how do you prevent problems like a man marrying two different women and having two families, but neither knows about the other? Is that allowed?

I would say that would come under marrying under false pretenses or fraud - everyone has to be aware of such entanglements or no go.

Yeah, marriage would be between consenting adults competent to make such a decision (and to me "competent" includes "in full possession of all reasonable facts")

[Phantasee]

I don't think it is in society's interests to allow more than two people per marriage. The immigration aspect is just one problem.

We have people abusing marriage laws for immigration now, so what's the difference?

What about taxes? How do you structure those such that you don't have people marrying multiple partners just to get a tax break?

Abolish joint returns? Tax everyone according to their own income?

We already have people doing it with just one person, but ts not a huge deal because most people want to end up with someone they love anyway.

Not everyone marries for love even these days - OMG! A man and a woman might marry for convenience! For tax benefits! For political reasons! OMG OMG OMG!

Love based on romance is actually a pretty new thing, you do realize that, right?

And how do you prevent problems like a man marrying two different women and having two families, but neither knows about the other? Is that allowed?

I would say that would come under marrying under false pretenses or fraud - everyone has to be aware of such entanglements or no go.

You're missing my point, I think. People are abusing marriage laws for immigration, but they do have to be single. Polygamous marriage would open up that abuse to everyone, whether single or married. And I realize not everyone marries for love, but I would hazard a guess and say most people do want to end up with one person they are compatible with and have a deep attraction etc etc. What I'm saying is, since that desire keeps most people from marrying just for the benefits (and I would imagine make those marriages of convenience shorter anyway), marriage in general isn't abused for the benefits (tax and so on). Make it open to everyone, not just otherwise unattached singles, and now the system will be abused a whole lot more.

So I'm talking about limiting the pool of people who can abuse the system.

[Broomstick]

Why do you think marriages of convenience are shorter than romance marriages?

On what basis do you say monogamous marriage isn't being abused for the benefits?

You do realize you arguments were used against same sex marriage... and yet the world has not crumbled...

[Molyneux]

In a perfect world, I could be wholeheartedly in favor of legalizing polgyamy...but as it stands, I'm really not sure that it can be (or would be) implemented in law in such a way that it won't leave loopholes for some very nasty abuses.

[Broomstick]

The thing is, even in the most polygamous friendly societies most people never have more than one spouse at a time. While we are capable of such arrangement they are not the statistical norm, even where permitted. So I don't see where legalizing such arrangements will lead to widespread use of the liberty, much less widespread abuse.

[Akhlut]

The thing is, even in the most polygamous friendly societies most people never have more than one spouse at a time. While we are capable of such arrangement they are not the statistical norm, even where permitted. So I don't see where legalizing such arrangements will lead to widespread use of the liberty, much less widespread abuse.

Especially in Canada, where most people are non-Mormon Christians and, even if they aren't crazy Fundies, will still listen to their pastors/reverends/clergy when they say "Jesus only wants you to marry one other person."

[Solauren]

The thing is, even in the most polygamous friendly societies most people never have more than one spouse at a time. While we are capable of such arrangement they are not the statistical norm, even where permitted. So I don't see where legalizing such arrangements will lead to widespread use of the liberty, much less widespread abuse.

Especially in Canada, where most people are non-Mormon Christians and, even if they aren't crazy Fundies, will still listen to their pastors/reverends/clergy when they say "Jesus only wants you to marry one other person."

And there is the whole 'our women are actually smart, and would note want to share a husband'.

[Broomstick]

What does being smart have to do with it? Although our culture promotes monogamy plenty of others have permitted or endorsed polygamy, especially among the high ranking in society. One could argue that being a co-wife to a wealthy, powerful man is better than being the sole wife of a poor, powerless man who can't support you and your children.

Agreed that not many educated and secular women would go for it in our culture but I think you're letting custom and tradition color your thinking about the practice.

[Akhlut]

And there is the whole 'our women are actually smart, and would note want to share a husband'.

If they're bi, both love the same man and the man loves them both, how would it be smart to not have a polygamous marriage?

[Rye]

And there is the whole 'our women are actually smart, and would note want to share a husband'.

That's rather bigoted. Sure, religious fucknuts who keep their women ignorant and downtrodden exist, but so do people who share the love. If you can love two parents or two kids, why not two spouses?

[DPDarkPrimus]

So if polygamy is found to be a "sacred religious practice" does that mean only members of that religion get to have polygamous marriages?

[The Duchess of Zeon]

So if polygamy is found to be a "sacred religious practice" does that mean only members of that religion get to have polygamous marriages?

Until someone in a polyamorous relationship sues, if Canada has any kind of equal protection clause legally or constitutionally. That would be a Very short period.


P.S. -- aimed at people other than DPDP: the argument over marriages being used for tax fraud is utterly specious. Change the damned tax code. Let's put it this way: "If we decriminalize miscenegation, black men will marry white women so they have an excuse to stay in white-only hotels and eat in white-only restaurants and shop in white-only stores." Does that sound like a good reason to keep miscenegation illegal? Do not try to construct a retarded circular argument that we should keep something illegal simply because our existing tax code was written around the assumption that it was illegal.

[Simon_Jester]

I don't think it is in society's interests to allow more than two people per marriage. The immigration aspect is just one problem. What about taxes? How do you structure those such that you don't have people marrying multiple partners just to get a tax break? We already have people doing it with just one person, but ts not a huge deal because most people want to end up with someone they love anyway. And how do you prevent problems like a man marrying two different women and having two families, but neither knows about the other? Is that allowed?

The last problem is easy to solve: make the marriage contract one all parties have to sign. A cannot marry C without B's signature. Having done so, A cannot marry D without B and C signing off on it. And so on.