Study proposes legalizing polygamy
Today's Family News
January 18, 2006
Parliament should decriminalize polygamy because the courts would likely strike down the law banning it as unconstitutional, according to a government-funded study by three Queen's University law professors.
"Virtually everyone in a polygamous marriage is there for religious reasons," co-author Beverley Baines told the Kingston Whig-Standard. "I came to the conclusion that we define freedom of religions very broadly. I think the courts would say the prohibition infringes on the Charter right to freedom of religion."
A constitutional law expert, Baines claimed that decriminalization would allow governments to extend rights of custody, access, support and divorce to women and children when a polygamous marriage ends. She also suggested that Canada cannot avoid allowing polygamy because it is "enormously multicultural now."
As well, chief author Martha Bailey told Canadian Press, "We don't criminalize adultery. In light of the fact that we have a fairly permissive society ... why are we singling out that particular form of behaviour [polygamy] for criminalization?"
Polygamy has been a crime since 1890 when Section 293 of the Criminal Code
was enacted as a deterrent to polygamous Mormons migrating to Canada. For more than 60 years, it has been practiced in Bountiful, a fundamentalist Mormon community in southeastern B.C. The community is currently the focus of an RCMP investigation into allegations of child abuse and sexual exploitation.
"If there are problems such as child abuse or spousal abuse," said Bailey, "there are other criminal provisions or other laws dealing with those problems that certainly should be enforced."
Status of Women Canada commissioned the study last year shortly before the government introduced a bill to legalize homosexual marriage.
Justice Minister Irwin Cotler, however, said the government has no plans to act on the study.
"At this point, the practice of polygamy, bigamy and incest are criminal offences in Canada and will continue to be," he told CP.
Focus on the Family Canada, which has been working hard to promote traditional marriage in Canada, is not surprised that the institution is under further assault.
"There is little comfort in saying 'I told you so,' said Focus on the Family Canada senior vice president Derek Rogusky. "However, whenever anyone raised polygamy as an issue in the debate over the definition of marriage, they were quickly accused of being a fear-mongerer and out of touch. Now we have three professors from Queens University with a government-funded study telling us that polygamy should be legal in Canada, too. Unfortunately, this doesn't come as a shock because the supporters of polygamy are advancing the very same arguments that allowed marriage to be redefined in the first place."
Media commentators were also quick to question Cotler's assurance that polygamy will continue to be a criminal offence.
"Recall that last spring," an editorial in the National Post stated, "when opponents of same-sex marriage cautioned that its legalization would lead to a demand for legalization of polygamy, Mr. Cotler and other supporters scoffed that such warnings were nothing but 'alarmist.' But they turned out to have more than a grain of truth to them. Given how wrong the Justice Minister turned out to be last time, Canadians could be forgiven for having their doubts when he tells us now that polygamy will never be legal."
"If past is prologue," the Ottawa Sun predicted, "the matter will find its way to the country's top court for decision and the Supremes will rule once and for all whether we can walk down the aisle arm-in-arm-in-arm-in-arm. Talk about changing the traditional definition of marriage."
© Today's Family News 2006
Today's Family News