Last Updated: Friday - 09/24/2010
January 19, 2009
Polygamy law may face religious freedom challenge
Constitutional experts say anti-polygamy law could not withstand Charter of Rights and Freedom test
WCR PHOTO ILLISTRATION
Mormon sect member Winston Blackmore says the charges against him violate religious freedom.
BY DEBORAH GYAPONG
CANADIAN CATHOLIC NEWS
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 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 test under the Charter of Rights and Freedoms.
“The people who say it will be very hard to uphold this as a criminal offence are right,” said Margaret Somerville, founding director of the McGill Centre for Medicine, Ethics and Law.
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.
At the time, they were accused of being alarmist.
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. It should not be a cover for polygamy, genital mutilation, burning widows on funeral pyres or other practices.
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 or, on the other hand, 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 also polyandry and group marriage.
“There is a strong case that same-sex and polygamous marriage should be treated consistently,” she said.
She warned that legalizing polygamy would affect not just a small isolated Mormon sect, but also 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.
MADE A MISTAKE
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 “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.
WHERE WILL IT END?
She compared the redefinition of marriage to a dropped stitch in knitting. “You don’t know where it’s going to end,” she said.
“Once you pull out one piece from the integrated system, then everything else is up for challenge as well.”
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 described in his Regensburg address, then there is rational basis for law that supports freedom but knows 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.”
Somerville said Parliament should consider using the Charter’s so-called “notwithstanding clause” if the courts strike down the law against polygamy.
Letter to the Editor - 01/26/09