Dozens of lawyers introduced themselves to BC Supreme Court Chief Justice Robert Bauman at the start of the polygamy reference case on Nov 22, 2010, but only BC government lawyer Craig Jones remained standing.
Jones would spend the next few hours outlining polygamy’s “cruel arithmetic” — why the government believed the law criminalizing the practice of multiple spouses was justifiable and constitutional.
The case grew from the controversy surrounding the southeastern BC polygamous community of Bountiful, a hamlet divided between two factions of the Fundamentalist Church of Jesus Christ of Latter Day Saints (FLDS).
The community of about 1,000 residents had been investigated repeatedly during the previous two decades but avoided prosecution until its leaders were charged with polygamy in January 2009.
Winston Blackmore was accused of having at least 19 wives, and Jim Oler at least three.
FLDS members practise polygamy in arranged marriages, a tradition tied to the early theology of the Mormon Church. The main branch of the church renounced polygamy in 1890, but several fundamentalist groups seceded in order to continue the practice.
Blackmore has long claimed religious persecution and protested what he sees as the denial of his constitutional right to religious freedom.
The criminal charges against him and Oler never proceeded due to controversy surrounding the number of special prosecutors needed to arrive at their approval. A judge agreed that the government had gone “prosecutor shopping” and threw the charges out. Undeterred, the government tried a new tack, requesting a constitutional reference, essentially putting the polygamy law itself on trial.
In the testimony that followed, in a trial setting unprecedented in Canadian history, Bauman heard about polygamy, polyamory, polyandry, polygyny and gay marriage, among a host of other issues.
Bauman’s ruling a year later said Canada’s Section 293 criminal ban against polygamy should be upheld because it impairs religious rights only minimally while potentially protecting women and children from abuse.
However, he defended polyamorous relationships, calling them consensual and not harmful, and said polyamorists should be allowed to have multiple relationships as long as they don’t get married.
Now, Jones has written A Cruel Arithmetic: Inside the Case Against Polygamy, a memoir of the case that produced one of the world’s most thorough investigations of polygamy.
“This book is about polygamy and a fundamental clash of rights; the right of a society to declare it to be criminal behaviour versus the rights of individuals to be free to arrange their most intimate personal affairs according to their conscience,” Jones writes.
The cruel arithmetic (a phrase drawn from Vancouver Sun writer Daphne Bramham), according to Jones, is the excess of unmarried men and the overall gender imbalance that results as those unmarried men are expelled while more women are imported for marriage.
Bountiful, he writes, “was a small but important window on polygamy in practice, and it provided a demographic backdrop against which the individual evidence would emerge — of child brides, lost boys and human trafficking.”
In the foreword, journalist Andrew Coyne asks if polygamy is not just another step forward.
“Not so long ago, same-sex marriage had seemed strange, even threatening; now it was the law. Was not multiple marriage simply another step along the road to greater tolerance?”
Jones answers him in the afterword 352 pages later. “We can and should say that, going forward, all polygamous marriages that come to the attention of authorities will be subject to prosecution,” Jones writes.
“With respect to subsisting or historical polygamous marriage, prosecution would only occur if it appeared that there were elements of exploitation, abuse, or a gross imbalance of power,” he continues. “This would permit the majority of existing polygamous marriages, and the families they supported, to continue, and run their course without government interference.
“I see little to be gained in tearing apart existing and functioning households,” he adds, “most of which include children of the wives involved, except where they are founded on exploitation or abuse.”
On the topic of same-sex marriage, Jones concedes, “The modern embrace of gays and lesbians appears to have had nothing but positive effects.”
He also quotes reference witness John Witte Jr, director of the Center for the Study of Law and Religion at Emory University in Georgia, as saying children and partners in same-sex marriages are flourishing, as are the communities that embrace them.”
“We’ve come to the conclusion in a number of different churches and in a number of different states and in a number of different cultural communities, that same-sex parties need to be treated the same way as other-sex parties when it comes to union.”
Jones also praises the Canadian Polyamory Advocacy Association’s (CPAA) lawyer John Ince, calling him “adept” at presenting his clients’ viewpoint in the reference case.
Jones summarizes the CPAA position as supporting “the idea that there could be some law to prohibit polygamy, but that it could not include the secular, egalitarian multipartner relationships that their membership idealized.”
Ince argued before Bauman that the ban on the formalization of polyamorous relationships violated freedom of expression in as much as “the public celebration of a polyamorous relationship affirms the value and legitimacy of the union. It is also an expression of love and commitment.”
Bauman disagreed. But he still differentiated between polygamy and polyamory in his ruling.
“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 said the consensual and sex-positive nature of relationships are important tenets of polyamory. He also found that many polyamorists live mainstream lives fully integrated with their communities.
Ince welcomed Bauman’s decision as a relief to polyamorists whose lives and relationships were validated and found not to be illegal.
In the end, Bauman would hear and consider what he called “the most comprehensive judicial record on the subject ever produced,” Jones says.
Jones’s book, when read in tandem with Bramham’s history of the FLDS in Canada, The Secret Lives of Saints, and Bauman’s comprehensive ruling, provides an excellent overview of the context and law on polygamy in Canada.