Canadian polyamorists should be allowed to have multiple relationships as long as they don’t get married, BC’s Supreme Court chief justice ruled Nov 23.
However, Chief Justice Robert Bauman ruled that polygamy should remain a crime in Canada.
The ban on polygamy, he says, is designed to protect women and children from abuse and only minimally impairs religious rights. Protecting the vulnerable from anticipated harm is more important than religious freedom in this context, he ruled.
However, Bauman distinguished between polygamous and polyamorous relationships.
Polyamorous relationships, he ruled, are consensual and not harmful.
Lawyer John Ince had argued before Bauman, for the Canadian Polyamory Advocacy Association, that the ban on the formalization of polyamorous relationships violates freedom of expression.
Bauman disagreed but exempted polyamory from the criminalization of polygamy.
“For fundamentalist Mormons, polygamy is a fundamental spiritual principle through which they fulfill God’s plan,” Bauman said. “For polyamorists, the ability to live in a family with the people they love is essential.”
Bauman’s decision “rules that the lifestyle of polyamorists as practised in Canada is not illegal, and we’re pleased with that,” Ince says. “That gives our members a great deal of relief.”
In the ruling, Bauman says, “polyamory is not casual group sex. Rather, its fundamental value lies in the relationships at its core.”
He says sex positiveness and consensual relationships are important tenets of polyamory.
“Each party must know of and consent to both the possibility and the reality of other relationships within the group,” Bauman writes. “This need for openness and consent at all times necessitates considerable self-awareness, communication, conflict resolution and emotional processing on the part of all members.”
Aside from their relationship status, polyamorists live mainstream lives fully integrated with their communities, Bauman notes.
He also notes that “while polyamory has been a largely secular phenomenon to date, the evidence indicates that some polyamorists do favour religious ceremonies.”
Bauman says “criminalization of these ceremonies significantly impairs the ability of polyamorists to experiment and innovate in this regard. “As such, section 293, as interpreted by the attorneys general, directly infringes the religious liberty of polyamorists.”
Though Bauman stopped short of suggesting that polyamorous marriages be legalized, Ince says marriage is “not really an issue in the polyamorous community.”
Still, he says, the ruling’s weakness is its prohibition on poly marriage. But overall, he says, the decision gives a lot of relief to community members whose relationships are now considered legal.
It means they can move forward with other issues such as immigration and child custody without fear of the criminalization stigma, he says.
In contrast, Bauman says maintaining the criminalization of polygamy is one way to prevent various harms that opponents suggest include child abuse and the denial of women’s equality.
Provincial and federal government lawyers had argued before Bauman that polygamy is inherently harmful, leading to physical and sexual abuse, teenaged brides, human trafficking and other crimes.
“It follows that criminalization is one way of limiting those harms,” Bauman writes in his 335-page decision. “The existence of these harms has been demonstrated by defenders [of the ban].”
George Macintosh, one of the lawyers who argued for the decriminalization of polygamy, says the decision will be appealed, possibly directly to the Supreme Court of Canada.
The constitutional reference arose after another judge threw out polygamy charges against British Columbians Winston Blackmore and James Oler in September 2009.
Blackmore and Oler are rival bishops of the Fundamentalist Church of Jesus Christ of Latter Day Saints (FLDS) in the southeastern BC community of Bountiful. Blackmore was accused of having at least 19 wives, and Oler of having at least three.
The hamlet’s 1,000 residents have been investigated repeatedly during the past two decades but avoided prosecution until they were charged with polygamy in January 2009.
Oler is a follower of disgraced FLDS bishop Warren Jeffs, who was convicted by a Utah jury in 2007 on two counts of first-degree felony rape as an accomplice.
Members of the FLDS in Bountiful and elsewhere practise polygamy in arranged marriages, a tradition tied to the early theology of the Mormon church.
The main Mormon church renounced polygamy in 1890. Several fundamentalist groups seceded in order to continue the practice.
Blackmore has long maintained that they’re the victims of religious persecution and are being denied their constitutional right to religious freedom.
In addressing the religious rights argument, Bauman said a limit on a right or freedom is only justifiable if it meets a need that is pressing and substantial in a free and democratic society, in this case to prevent harm to the vulnerable. “The prevention of these harms associated with polygamy is clearly an objective that is pressing and substantial,” he said.
Kasari Govender, of West Coast Women’s Legal Education and Action Fund, says the law still needs to deal with exempting women from the provision.
“I think this is a very important step in moving towards women’s equality,” she says.