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Knives out for polgamy

Bountiful could be one of the most important legal battles of the next decade for gays and lesbians

If “not everyone’s cup of tea” and “criminal” were synonyms, what kind of country would we have?

Anything that made people squidgy or uncomfortable would be illegal.

Gay sex would be illegal. So would anonymous sex. The inventories of sex shops, porn stores and art galleries would be decimated.

Canada used to be that place and I have no interest in returning there.

Yet, the legal battle where this principle —personal and sexual freedom —is most under attack is a place many fear to tread.

Last week 20 years of allegations and rumours about all manner of depravity in Bountiful, BC culminated in polygamy charges against Winston Blackmore and Jim Oler. The competing heads of the small fundamentalist Mormon community are the first people to be charged with practicing polygamy in more than 60 years.

At best, these polygamy charges are a stand-in for unproven allegations of spousal and child abuse that the last special prosecutor assigned to the case couldn’t find enough evidence to pursue. (“The real issue here is that the number of so-called complainants that we have have all told us that they consented to the act that took place,” attorney general Wally Oppal told Canadian Press in 2007.)

At worst, in the run-up to BC’s May elections Oppal is getting tough on polygamists in some throwback to 19th century prudishness. (“There are people that are of the view that if people are of consenting age and want to enter into marriages under their religious principles, they have the right to do that,” Oppal told a press conference Jan 7. “I disagree with that.”)

Either way, it’s an embarrassment.

Now the trial of two cultish leaders of a tiny conservative religious sect could very well be one of the most important legal battles of the next decade for gays and lesbians and all people who have flirted with unconventional sexual expression. Will we be brave enough to tackle it?

Canada’s poly law should have been taken off the books 40 years ago. It prohibits all kinds of multiple, simultaneous relationships: “any kind of conjugal union with more than one person at the same time —whether or not it is by law recognized as a binding form of marriage.”

Gays and lesbians are all too familiar with antiquated laws enforcing sexual norms on private relationships. Over the years, we’ve used civil libertarian arguments (“get the state out of my bedroom”), feminist arguments (“my body, my choice”) and the SM code of ethics (“safe, sane and consensual”) to push for the decriminalization of consensual activity.

The polygamy law doesn’t even help the women it purports to defend. If its goal is to protect women from being brainwashed into odious, unhappy lifestyles, we have (paternalism aside) a classic case of a law that’s both overly broad and insufficiently specific.

The law covers a host of relationships involving multiple partners (including many, many gay relationships) that are neither coercive nor exploitative. Meanwhile, it misses the thousands of relationships that are monogamous but abusive.

In a feminist analysis of polygamy laws, Queens professor Martha Bailey also points out that some members of the marriage have no legal standing —which leaves them out in the cold when it comes to marital property division, inheritance, divorce and immigration.

Imagine a scenario where the harems of Bountiful were recognized by the state. Now, when a second wife leaves her marriage, she’s entitled to very little. But if she could sue for her part of the farm, well, let’s just say that would reduce her barriers to leaving. Over time, the ex-wives could end up owning the lion’s share of Bountiful. Ideally, the state should be getting out of the business of marriage (poly and otherwise) altogether, but in the meantime wouldn’t that be a breath of fresh air?

Ultimately, prosecutors in this case will be trying both Bountiful’s top dogs and Canada’s polygamy laws at the same time, no matter how they break up the factums. That’s bad luck for anyone interested in sexual freedom or social tolerance, especially since the spectre of Bountiful’s other rumoured offences will hang heavily over the trial and its inevitable appeals.

Blackmore’s case will almost certainly go all the way to the Supreme Court of Canada and when it does, lord help us all if the court uses the “icky” test in R v Blackmore.

Marcus McCann is associate publisher and managing editor of Capital Xtra.