It’s long been said that political causes make for strange bedfellows.
When you add a touch of religion and a pinch of the law, the results can be very strange indeed.
You may doubt the likelihood of queers aligning with fundamentalist Mormons, but, until September, nobody was counting it out. Voluntarily or involuntarily, the fate of two Bountiful, BC men, charged with a total of 22 counts of polygamy, was intimately tied up with gay activism.
The accused, Winston Blackmore and James Oler, are members of the Fundamentalist Church of Jesus Christ of Latter-day Saints (FLDS), an offshoot of the Mormon faith.
FLDS members practice polygamy by way of arranged marriages — a tradition tied to early Mormon theology. Mainstream Mormons renounced polygamy in 1890, but several fundamentalist groups, like FLDS, left the main church in order to continue the practice.
In January, Blackmore and Oler were each charged with polygamy under Section 293 of the Criminal Code of Canada — a Victorian-era law, developed specifically to prosecute Mormons for polygamy, which makes it illegal to enter into multiple conjugal relationships.
The law says that anyone who practices or agrees to enter into a polygamous relationship — essentially, a conjugal union with more than one person at the same time — is guilty of polygamy, whether the relationship is recognized by law or not.
Further, anyone who assists, celebrates or is party to such a ceremony can be charged under this law. If they were convicted, the maximum sentence is five years in jail.
As you can imagine, the Bountiful case presented some sticky issues. There have been allegations of child abuse and a widespread subjugation of women in the community, not to mention reports of arranged marriages between mature men and young teens, inbreeding that leads to birth defects and bigotry being taught at the FLDS-controlled community schools. All of this has certainly coloured the debate about who decides what kinds of relationships Canadians should be able to form.
The case developed rapidly, but no one was prepared for the court’s stunning reversal in September. At the BC Supreme Court, a judge threw out the charges against the Blackmore and Oler in a strongly-worded decision.
It was former provincial attorney general Wally Oppal at the centre of the decision made by BC Supreme Court Judge Sunni Stromberg-Stein. He ruled that Oppal had acted inappropriately, tainting the case.
It’s common for politicians in Oppal’s position to appoint a special prosecutor to oversee politically sensitive cases. But when the first two special prosecutors advised against pursuing polygamy charges at Bountiful, they were replaced by someone who agreed to press charges.
That has been referred to colourfully as “special prosecutor shopping” and Stromberg-Stein ruled that it was unlawful. As a result, any decisions made by him were also unlawful.
Blackmore and Oler’s lawyers argued before Stromberg-Stein earlier this year that the decision of the first special prosecutor was final and binding.
The judge agreed.
“This is exactly the type of interference with the charge approval process that the [prosecutors law] and the special prosecutor scheme are meant to prevent,” Stromberg-Stein ruled.
The judge’s decision leaves the polygamy law intact.
Provincial Criminal Justice Branch spokesman Neil Mackenzie says the branch will need time to review the judgment before deciding on further action.
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Earlier this year, Oler’s lawyer said the case would be a test of Canada’s polygamy laws, and was expected to wind up in the Supreme Court of Canada.
Blackmore’s former lawyer, Blair Suffredine, suggested the defence could invoke the right to same-sex marriage in Canada. Parliament extended full marriage rights to same-sex couples in 2005.
When the Supreme Court sanctioned same-sex marriage, it examined the existing definition of marriage as the “voluntary union for life of one man and one woman, to the exclusion of all others.”
In the decision, the court rejected the idea of “frozen concepts,” saying this “runs contrary to one of the most fundamental principles of Canadian constitutional interpretation: that our Constitution is a living tree which, by way of progressive interpretation, accommodates and addresses the realities of modern life.”
And so Canadian gay activists were already implicated, even before arguments in the case began in earnest.
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While the province’s legal bureaucracy decides what to do next, Canada’s queer communities will have to make some decisions.
When it comes down to it, this debate is about freedom of choice. Blackmore and Oler may be practicing polygamy in unsavoury ways, but they remain part of the spectrum of nonmonogamy that informs so many queer relationships.
The dominant view — reinforced by Canada’s polygamy law — is that relationships are for two people to the exclusion of all others.
In queer circles, terms like “open” and “polyamorous” are used to describe people that don’t fit that template. Polyamorists who engage in multiple romantic relationships often distain polygamists, whose rigid sense of gender limits the possible permutations to one man and multiple women.
That’s also what it comes down to for Vancouver polyamorist Elaine Miller.
She says the polygamy situation in Bountiful is alien to her and believes polyamory should be treated as separate from polygamy.
“It’s as different as Catholic priests and altar boys,” she says. “That’s not gay sex.”
But she says people should be able to negotiate a legal contract of marriage with whomever they wish. And she adds that it should be taken out of the hands of the churches.
Unfortunately for Canada’s queer and poly communities, the law does not differentiate between conscientious, ethical nonmonogamy and the kind of religious harems at Bountiful.
Indeed, the polygamy provision isn’t specifically about having multiple wives — it’s about multiple partners. And you don’t have to be plural-married to be targeted by the law (since multiple marriages are legally void in Canada). Moreover, prosecutors don’t even have to prove that the participants ever had sex or that a marriage ceremony was actually performed.
The vague wording of the law means a wide range of nonmonogamists have been keeping an eye on Bountiful.
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Opposition to Canada’s polygamy law has come from a number of quarters. In a feminist rebuke of the provision, Queen’s University law professor Martha Bailey argued that the law marginalizes plurally-married women in areas such as divorce, family law, immigration and inheritance.
“I’ve argued [that polygamy] should be decriminalized,” Bailey says. “I just don’t think it’s good social policy to criminalize polygamy per se. It’s not illegal to commit adultery or have multiple [consecutive] marriages,” she says.
The BC Civil Liberties Association (BCCLA) took a similar position on the question of polygamy, urging police to drop the charges against Blackmore and Oler and, instead, refer the matter to the Supreme Court of Canada to examine the constitutionality of Section 293.
“The polygamy law, if enforced uniformly, would lead to ridiculous consequences. If enforced selectively, as appears to be the case in the Bountiful matter, it is vulnerable to a Charter challenge that would likely strike it down,” said BCCLA president Rob Holmes, in a public statement.
Muslim groups — including queer Muslims — have been watching with interest as the Bountiful case unfolds. Polygamous relationships have long been part of Islamic tradition.
Imtiaz Popat, general coordinator of Salaam Vancouver, a network for queer Muslims, says the existing polygamy law is based on the Christian tradition and does not reflect the multi-ethnic and multi-religious makeup of Canada today.
“If the Charter has equality in it, why don’t we have equality?” he asks. “People have multiple partners, multiple lovers. That’s the reality.”
Toronto-based queer Muslim lawyer and activist El-Farouk Khaki disagrees with Popat’s position. He says the polygamy law doesn’t need to be struck down.
Khaki, who founded the Salaam group, says progressive Muslims discourage polygamy.
He characterizes the Bountiful men as “a bunch of old guys who want to have multiple wives, which is a problem.”
“They’re reinforcing patriarchy and male dominance in the heterosexual context. In theory [polygamy] sounds really hot, [but] that’s not really what it comes down to. Polygamy usually comes down to an imbalanced power relationship.”
Characterizing nonmonogamy as inherently unstable or even coercive is not likely to sit well with queer people who have more than one sexual partner.
It also sounds suspiciously familiar. For years, those who wanted to keep gay sex on the margins have argued that same-sex couplings are inherently unstable and often involve (to our critic’s displeasure) great age disparities or power imbalances.
Popat feels that the law needs to catch up with the contemporary reality of relationships. He says that, with the advent of same-sex marriage in Canada, the definition of what defines a family has changed, while the Criminal Code has not.
“Our communities are redefining family,” he says. “If you have multiple partners, so what? Shouldn’t that be considered a family?”
But, with many middle-class queers now happily ensconced in white-picket-fence marriages, how many will be willing to fight for the rights of queers who have chosen multiple-partner arrangements?
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It is difficult for Canadians — gay or straight — to have a dispassionate conversation about our poly law, in part because of some the disturbing details about the FLDS compound at Bountiful. The spectre in the case has always been sexual abuse and child exploitation, yet no abuse charges have ever been laid in relation to Blackmore and Oler.
In 2005, then-BC Attorney General Wally Oppal said the issues of abuse were being investigated but, not surprisingly, no one from the Bountiful community was willing to come forward.
“We need people who will come in and testify that there is evidence of sexual exploitation and sexual abuse, sexual assaults,” Oppal told a news conference in Vancouver four years ago, with Utah Attorney General Mark Shurtleff by his side. Blackmore was also in the room that day, watching from the back with a homemade press pass.
“Those are the matters of greater concern to me than the polygamy case and the polygamy issue. We hear… continually of things that are happening [in Bountiful] — about children being abused, about sexual exploitation — but we can’t do anything with that unless we have a witness.”
Unable to come up with anything else, it’s believed that prosecutors settled for polygamy charges. But given the history, it remains hard for many to separate the polygamy charges from whispers about non-consensual sex, abuse or child exploitation.
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Even setting aside the abuse allegations, the FLDS made for a spectacularly bad case study. Their wacky beliefs (including more than their fair share of misogyny and homophobia) make them poor defenders of the right to sexual self-determination.
FLDS faithful are taught that having multiple “celestial marriages” is the way to heaven. In fact, they believe that a man cannot get into heaven unless he has at least three wives.
Blackmore, who has long been known as the bishop of Bountiful, once ran the entire Canadian wing of the Utah-based FLDS organization. He was ejected from that role in 2002 during a bitter feud with the organization’s now-leader, Warren Jeffs. He now runs an independent religious group of about 400 people in the hamlet of Bountiful, BC.
“I am what I am, we are what we are,” Blackmore said in a statement released after his arrest. “We are descended from a long line of Mormon-believing people. My family did not make up our faith nor did we establish the fundamental teachings of Mormonism. Jesus Christ is our lord and savior. He has taught us, and I have taught my children that they should pray for their enemies as well as their friends. That is what we will continue to do.”
These days, Oler is the officially-sanctioned bishop of Bountiful’s FLDS community and a loyal follower of Jeffs.
Essentially, members of the FLDS believe their polygamous approach to marriage is between them and their god. It’s a way of life that is tied to their religious beliefs.
FLDS spokesperson Willie Jessop was at the BC Supreme Court with Oler on Jun 29.
When approached by this paper, indicating that the chain is aimed at gays and lesbians, Oler hurried away. Jessop, though, was happy to explain what the case means for Canadians.
“I think it comes down to a fundamental issue. Are peoples’ fundamental rights being trampled on, or are our group’s rights being trampled on for being unpopular?” he asks.
Asked if he found it odd that the FLDS, whose leader places homosexuals in the same category as murderers, might have an unlikely ally in the queer community, Jessop says he doesn’t “know who’s going to be for us or against us.”
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Given that Canadians view the FLDS and its leaders with suspicion, the decision to throw out the case against Oler and Blackmore might prove a blessing for queer and nonmonogamous folks and their allies.
After all, those whose private lives chafe against Section 293 want to see the provision struck. The worst-case scenario would have been for Blackmore and Oler to take their polygamy case to the Supreme Court — and lose. It would have made any subsequent attempt to strike the law much more difficult in the future.
Over the course of forty years of court-centred activism, gays have learned a hard lesson: test cases matter. A sunny, ethically-minded lesbian threesome the Blackmore family is not. The sinister undercurrents of their religious practices — even if they remain outside of the scope of the court case — would have undoubtedly coloured the court’s decision.
Perhaps more importantly, it gives queer and poly people a chance to organize across the country. While there are poly groups in every major city in Canada (including poly potlucks at Breathless in Ottawa), few have a political mandate and none have a national scope.
If polyamorists, people in open relationships and swinging singles want to make a submission to the Supreme Court of Canada, how would they do so? Considering the increasingly conservative scope of rights-based groups like Egale Canada, can sexual non-conformers can still count on the gay lobby group to defend their interests? Would that even be desirable?
Now, without the threat of an impending court case, those in unconventional relationships have a chance to organize. Will they mount their own charter challenge? Or will they make the case for a Trudeau-style omnibus bill decriminalizing polygamy as part of a push to liberalize the country’s outdated sex laws?
Whether through the courts or Parliament Hill, Canada’s poly communities are going to have to come out of the closet to make the case to a Canadian public that has, until now, seen few positive representations of their way of life. In the meantime, with charges dropped against the bishops of Bountiful, they will certainly breathe a sigh of relief.
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