Radio Freethinker

Vancouver's Number 1 Skeptical Podcast and Radio Show

  • Welcome to Radio Freethinker!

    Radio Freethinker is a radio show/podcast that promotes skepticism, critical thinking, and secular issues.
  • Follow Us!

  • Categories

  • Archives

Posts Tagged ‘Supreme Court of Canada’

Why should I care about the Supreme Court?

Posted by Don McLenaghen on May 18, 2011

Supreme Court of Canada

Where does it fit in?

Although established at the inception of our nation, the original the Supreme Court of Canada was not supreme; in fact until the British Privy Council was abolished in 1949 it was last court of appeal. There was a sort of limbo for our legal system until the repatriation of our constitution in 1982 at which point the court truly was supreme. Since 1982 not only does the Supreme Court rule on the letter of the law; they also interpret the meaning of and implementation of the Constitution and Charter of Rights as well as a unique role of answering ‘reference questions’. Reference questions occur when the Governor General (on the behalf of the PM) asks the court if a proposed law would be constitutional or not; a prejudgment of law as it were.

Why are they important?

Although parliament may make law, how that law is actually enforced in our country or IF it is allowed to remain a law at all lies in the hands of the Supreme Court. One great example was the legality of Abortion; for decades the Supreme Court upheld limitations on abortion however in 1988 the court struck down our laws and to this date we have no law on abortion…we are one of the few countries that treat abortion as a purely medical matter between doctor and patient. Similar landmarks occurred with regard to the recognition of Aboriginal rights or the definition of hate speech and the limitation of free speech.

Who are they?

Currently there are 9 members of the SC of C. By law, 3 must be appointed from Quebec, by tradition 3 from Ontario, 2 from “the West” and 1 from the Maritimes. For a case to be heard by the court, it must first be approved of by a committee of at least 3 justices. This means that before any case even reaches the Supreme Court it must first be approved by a this committee; this is the first opportunity for the ideology of the justices can influence the way our constitution and laws are implemented.

Once a case is approved, it is then heard by any from 5 to 9 judges unlike the American Court there cases are heard by the complete 9 court members. At the moment, of the 9 justices 6 have been appointed by the Liberals and 3 by the Conservatives however in the next 4 years, 4 more members are to be replaced due to forced retirement and that does not include those who quite for other reasons. This point is brought home by the recent announcement of Justice Louise Charron who is retiring early for personal reasons. At present these retirements will allow Harper to appoint at least 7 of the 9 justices.

How are they appointed?

First, there are two parts of our Canadian constitution – legislative and convention. The legislative are those parts of our constitution that are written down…such as the Constitution Act of 1982 or our Charter of Rights and Freedoms…they are physical documents that set down in words the rule of law. Another part is the convention part…those procedures that are followed not because they are prescribed in law but by tradition…they have always been done that way.

An example of this is the Governor General does not HAVE to sign a bill into law; there is no legal requirement or a legal means for the Parliament to sidestep the necessity of the Royal Assent. However, by convention the GG has never refused to give consent to a bill passed by Parliament although one Lieutenant Governor did refuse to sign three laws in 1937 that he felt were unconstitutional; a belief that was upheld by the Supreme Court/Privy Council.

The appointment of Justices to the Supreme Courts largely falls into the convention part of our constitution. Technically the GG appoints them on the advice of the Privy Council…in fact they are selected solely by the whim of Prime Minister. However by law[1] they must be members of the Bar (i.e. lawyers or judges) and by convention, the PM selects the Justices from candidates presented to him by a judicial advisory committee of the provinces ‘due’ a justice (to maintain the balance mentioned earlier. For “the west”, each province rotates, so one justice comes from BC, the next from Alberta…etc.; this also occurs in the Maritimes).

There have be over time many complaints about the power invested in the PM to “stack the deck” with ideologically friendly justices, that there was no input from the Parliament in the appointment and there was a lack of transparency in the process. In response to these criticism, Prime Minister Paul Martin in 2004 attempted to set up a committee to review nominees however this process became politicised when the Conservatives on the committee refused to sign off on the report from the committee because they felt the powers they had were insufficient; desiring a system that emulated the process in the USA where justices must be voted on by the senate prior to appointment…a process that is now considered a hyper-partisan inquisition. In response, the process was amended so as to allow the committee to select the “top three” candidates from a list of 7, one of which the PM would then select. Once in power, Harper did set up a review committee for his first nominee but quickly abandoned the idea and appointed the nominee of his choice stating that the process was too slow and political.

Lesson south of the border

caveat – it has been brought to my attention that the following paragraph is presented in a less than flattering light with some literary and political licence. As my readers probably know by now my political leanings are a little left of extreme left, so in my discussion of the US Supreme Court, I hope you will understand that I believe what I am writing to be honest and fair is not exactly balanced however one may wish to read it with “a grain of salt”[2]>

After years of lobbying and concerted effort the American Supreme Court has become what appears to be the judicial branch of the Republican Party promoting a right-wing corporatist agenda. For example, Clarence Thomas[3] and Antoni Scalia[4] have been noteworthy and active participants at a number of Neo-con gatherings with Thomas’s wife being a lobbyist for the prominent Tea-party group[5]. Having successive far right justices being promoted to the court (Clarence Thomas, Antonin Scalia and Samuel Alito being the worst with John Roberts, Anthony Kennedy not much better), the current court has become infamous for its patrician decisions including what has been called the Supreme Court coup d’état of 2000, the Citizens United case and many more. Don’t get me wrong, with the possible exception of the ruling on the “Florida Election Recount of 2000”, the courts are not ‘creating’ law but how they interpret laws and how they word their verdicts have wide ranging implications. My point is to show why and how the justices are important.

Let’s take a look at judicial philosophy; in the US there is a debate about how the constitution should be interpreted (one I am sure will become common here). On the one side you have what are called “living constitutionalist”, who believe that when the constitution was written the authors accepted that as time changes the interpretation of the constitution would change…that like a living creature the constitution (and the law it would give rise to) would evolve. A great example is the status of African Americans and their civil liberties. As society changed so did the depth and breadth of civil liberties.

On the other hand there is what is called Literalist or Originalist. They hold that what is written is written in stone, which comparing the constitution to a ‘living creature’ one would have to be, using the words of Justice Scalia, an “idiot”[6]. To them it is from the original meaning of the words used and not the intent of the founders, which should form the basis of interpreting the constitution. For example, capital punishment has been largely banned from civilized countries because it is seen as ‘cruel and unusual punishment’ and therefore a violation of civil rights. Justice Scalia would argue that capital punishment, at the time of the writing of the applicable part of the constitution (8th amendment), was not seen as cruel or unusual punishment therefor it does not violate civil rights and should therefore be legal[7].

Who is on the court can have a huge impact not only on what they rule but on what they see as their powers of interpretation…the very philosophical foundation of the rule of law.

Beyond how the constitution or laws are interpreted, the scope of the ruling can also have a wide ranging impact. In the US (they tend to provide more colourful, extreme and clear examples) the case of Citizens United was to determine that a third party could release a documentary about Hilary Clinton during the Primaries in the US. Clinton got an injunction because of the bias nature of the film, Clinton argued it was actual political advertising and as such violated electioneering laws. The case in the narrow sense was an issue of broadcasting rights but out of character for this court, Chief Justice Roberts decided to rule on an issue not actually part of the plaintiffs case; that being the financing of the film. This was unusual because the plaintiff (Citizens United) had already abandoned facial complaints[8]. In a landmark decision the Roberts case essentially struck down election advertising rules.

Who is on the court can have a huge impact not only on what they rule but on what they see as the question.

In Canada, our constitution is seen differently than the American one. We follow, for now, a doctrine of interpretation called Living Tree Doctrine or Doctrine of Progressive Interpretation. Lord Sankey stated: “The British North America Act planted in Canada a living tree capable of growth and expansion within its natural limits.” This means that the Constitution cannot be interpreted in the same way as an ordinary statute. Rather, it must be read within the context of society to ensure that it adapts and reflects changes.

Why should skeptics worry?

The worry we may have is that as PM, Harper has shown signs of being both extremely controlling and dictatorial. A number of political commentators have expressed concern and surprise at the level of control Harper has maintained over his party and the level of contempt for parliament in general. Remember the Conservatives were convicted of contempt of Parliament in part for lying to parliament and in part for refusing to provide government information to committees over public policy. In articles written in the Globe and Mail[9] and the National Post[10], concern was raised over the possible radical direction the court may take on if Harper’s selection, for the Supreme Court of the land, should be of a similar ideological mind as his own.

IF the fears that he does have intention, now that he has a majority to promote a neo-con agenda, the Supreme Court may be the only restraining force left in the land. Now although personally I find most of the conservative government’s policies wrong, many of them are open to valid debate this is not why I fear what Harper may do to our judiciary; what I worry about is the likelihood that Harper will take his tendencies to ideologically dictate political policy to the judiciary and that some of those ideologies should be of concern not just to leftist but skeptics in general. Some issues that may be of concern: Harper seems to be a Climate Change Denier, there have been many members of his party who wish to put restriction on marriage and abortion based on religious grounds, G20 has shown that there is a lack of respect of political and individual rights, and with his conviction of contempt of parliament and election fraud one must wonder where he may lead the country in the future.

As skeptics we must remain informed, aware and poised to action. We should insist that appointees to the Supreme Courts…any court…should base their decision on law or on science based principles…and not on political ideology or religious theology.

Upcoming cases…

Charter of Rights – Reasonable limits prescribed by law [11]

Legality of the Safe injection site – Does the Controlled Drugs and Substances Act violate the Charter of Rights because enforcement has grossly disproportionate effects on addicted persons

Hate Speech –

The Christian Truth Activists distributed four flyers in the mailboxes of various homes in Saskatoon and Regina in 2001 and 2002. Four persons who received the flyers filed complaints alleging that the material in them “promotes hatred against individuals because of their sexual orientation”. The Saskatchewan Human Rights Commission held the pamphlets, which referred to “sodomy marriage” and graphically described sexual behaviours in a derogatory manner, was hate speech.

The Christian Truth Activists argue first it does not count for it does not single out a group based on sexual orientation but a sexual behaviour and that further that IF the law does apply to sexual behaviour, then the definition of sexual orientation is overbroad in its definition.

Environmental Law[12]

Abitibi-Bowater Inc. has argued that a statutory duty to remove environmental contamination may be extinguished under the Companies’ Creditors Arrangement Act like a commercial debt. Companies’ Creditors Arrangement Act is a Federal Act that allows financially troubled corporations the opportunity to restructure their affairs to avoid bankruptcy. The Government of Newfoundland issued several environmental protection orders for Abitibi to clean up land it had contaminated by its large scale industrial activities. Abitibi argued that when it filed for a restructuring it freed itself of the obligation of the clean-up orders. The court must determine if government orders are legally equivalent to ‘commercial debit’ claims.

Intellectual Property[13]

Bell Canada argued that providing previews consisting of excerpts of works is fair dealing for the purpose of research that does not infringe copyright.

Some commercial internet sites that sell downloads of works allow users to preview the works. A preview typically consists of an extract taken from the work, for example a 30-second extract of a musical track, streamed online and accessible to consumers. On October 18, 2007, the Copyright Board of Canada decided that royalties should be collected for these communications.

Charter of Rights – Freedom of conscience and religion[14]

Mandatory attendance to an “ethics and religion” class – Ethics and Religious Culture program became mandatory in elementary schools. Based on the experience of an older child, a family requested an exemption for the course because serious harm disruption caused by forced, premature contact with a series of beliefs that were mostly incompatible with those of the family, as well as the adverse effect on the religious faith of the members of this family. The school board refused to grant the exemption.


[5] The consulting firm she set up in 2011 was Liberty Consulting; previously she was employed by Tea Party-affiliated Liberty Central and earlier by the right-wing Heritage Foundation.

Posted in Blogs, Don's Blogs | Tagged: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , | Leave a Comment »

Phantom Menace – Sharia Courts

Posted by Don McLenaghen on May 12, 2011

Sharia Law courts – why?

There has been much talk in the news a few months back about Sharia Law[1] and its imminent takeover of the American legal system[2]. Some of us may remember that there were similar fears in Ontario[3] a few years back when Sharia Courts were imminent there. This led me to ask myself what was going on…was Canada becoming Can-Arabia[4]?

Beth Din, London 1920s

First there is a difference between having Sharia as the law of the land. Countries like Saudi Arabia or Iran have legal systems based on Sharia. For the most part, these countries laws are similar to our own with some noteworthy exceptions, such as stoning[5] for ‘adultery’ or the chopping of hands for theft (SA in 2007 and Iran in 2010). Because these legal systems are based in the Abrahamic Traditions; they are incredibly patriarchal and ‘biased’ towards women just like Cannon Law or Beth Din.

Now although it is true that when some people use the term Sharia Court as a ‘code-word’ for racist sentiments they mean the abandonment of the Charter and our constitution and its replacement of it with the Quran; when we say that Sharia is coming to Canada or the USA we do NOT mean that the current criminal law system will be ‘replaced’ by Sharia. The role of Sharia is for civil arbitration cases. Arbitration is the process where two parties in a civil dispute, such as a disagreement on the terms of a contract, may select a third party who will hear both sides and make a legally binding settlement on both parties. Who gets to be the arbitrator is determined by the original contract or by mutual agreement of the parties. The method of or ‘rule of thumb’ used by the arbitrator to make their decision is likewise defined or left up to the arbitrator(s). This means that, with regards to religious courts, as long as we have arbitration, anyone can agree that the arbitrators are holy men and the ‘rule of thumb’ could be religious law. It’s also equally likely… that the disputants could use actors (Patrick Stewart and William Shatner for example) as arbitrators and use Star Fleet Command’s Prime Directive as the ‘rule of thumb’. Arbitration in our country allows the disputants almost complete freedom of choice here; the only limitation is that the arbitrator’s decision cannot contravene Canadian law. So an arbitrator cannot say one people must become the slave of another nor have a hand amputated. It should also be noted that the Charter of Rights trumps all other laws, however its role in this debate I will discuss this later on.

Biblical Family Law

Now that we have this understanding, one could make the argument that the debate over Sharia (or any other religious courts) is a false controversy. However, there is one area of civil law that does pose a problem; that is family law. Family disputes, such as divorce or child support, are considered a civil dispute and as such can be subject to arbitration. This is where religious courts come into conflict with civil society. As mentioned earlier, religious courts tend to be heavily biased towards men and rules based on religious text are often a discriminatory towards women and leave them a victim of the proceedings. For example it is the man’s right to declare a divorce (Cannon law does not even have divorce), not the women’s; thus condemning the woman to remain entangled irrespective of her wishes.

This became a huge issue in Ontario when their law on arbitration was changed to read that “under subsection 32 (1) it is provided that the parties under arbitration are free to choose the legal framework by which their disputes will be settled so long as the results are not prohibited by law.” This was first seen as an acknowledgment of the existing Jewish and cannon ‘courts’ that had existed in the province for years and provide them a ‘normal’ legal context. It was also seen as an opportunity for Muslims to gain equality by setting up their own Sharia courts under arbitration. It was acknowledged that for some time Catholic and Jewish courts had existed in the province and as such Muslims should be given equal rights. As the law was enforced to deny the Muslims…. Sharia Courts would be discriminatory; however to allow them was seen as ‘anti-western’.

Here I am of two minds. First and strongest, I do not believe ANY religious courts should be allowed; that said IF they are allowed I cannot not see how you could deny them to all… equally … whatever their beliefs.

In practice this could mean that in theory at least, in in a prenuptial agreement, if a couple agreed to arbitrate any marital disputes through a religious court with religious law as the guiding precedent; then it would be impossible for the woman to get a divorce…or receive alimony or custody of her children. This would almost guarantee that the women would not receive a fair ruling.

It came up in our show that women did not have to worry about these religious courts because they would not supplant the Charter rights. Some argue that any ‘unfair or discriminatory’ ruling by the religious court (or any arbitration board) could be appealed/set-aside because of our Charter rights. However, I don’t think that would ultimately help. My initial defence (actual an appeal to authority so I acknowledge it may be valid it is not great skepticism), is that if the answer to this issue was so obvious and simple then why was there such legitimate criticisms from family advocates and woman’s rights groups?

“The National Association of Women and the Law, the Canadian Council of Muslim Women, and the National Organization of Immigrant and Visible Minority Women of Canada argued that under Shariah law, men and women are not treated equally. They argued that women fare far worse in divorce, child custody and inheritance matters under Sharia. For instance, a woman can only inherit half as much as a man can. If a divorced woman remarries, custody of the children from her previous marriage may revert to the children’s father.”[6]

Now, it would appear at that they would be aware of constitutional remedies to these “inequalities” and yet they were actively opposed to the religious courts. However to be a good skeptic, I have other reasons I think a reliance of the charter may fail. A warning, what follows is my own thoughts and research – I am not a constitutional lawyer and thus this may have inaccuracies that render my position moot.

First, who would be challenged with Charter rights violation? When a divorce is issued, like the marriage, it is a kind of contract between to individuals; this is why it’s done in civil court and not criminal court; that the arbitrator is technically only mediating an agreement and not actually party to it. You may accuse the arbitrator as being ‘unequal’ but they are not actually violating ones rights, it’s the parties to arbitration (husband/wife) and thus the woman would be in a weird situation of suing themselves. This is why when the Supreme Court rules on arbitration, it does comment on the arbitrator or arbitration but on whether the item at hand being arbitrated (such as extra billing or the handling of private information) is subject to arbitration in the first place. Thus, much of family disputes are radially seen as arbitrate-able and thus not subject to Charter challenges.

Second, due to the innate voluntary nature of the proceedings, it is difficult (in a legal sense) to challenge an arbitrator’s decision because one felt it was ‘unfair’…the whole point of arbitration it to accept the ruling regardless of the outcome. There would seem to a be a flood of litigation is the ‘benchmark’ for making a constitutional challenge is simple one felt ‘slighted’ by an arbitrator’s decision…a decision one voluntarily and legally agreed to abide by prior to the arbitrator’s decision. Any challenge made could be summarily dismissed as an individual dissatisfied over the arbitrator’s decision not for reasons of discrimination but because they were simply unhappy with the decision of the board. I do acknowledge on this point, that what qualifies as ‘voluntary’ is very debatable however even her, it would seem not a charter challenge but a criminal charge of coercion if one party was forced into religious court.

Thirdly, the ‘religious courts’ are not actual courts. Legally speaking each is essentially an ad hoc arbitration board that HAPPENS to be religious in nature…the term Sharia court, Cannon or Beth Din are legally fictional titles for a board of arbitration. As such, each decision is unique so to apply a charter remedy would be difficult; that even if we accepted that rights were violated you could not make a systematic difference only a ‘case-by-case’ setting-aside of an arbitrator’s decision. This would seem to both violate the premise of arbitration as well as be unfeasible.

Of course, all of this could be side-step is arbitration boards were forced to use principles of Canadian jurisprudence which accepts the equality of all parties regardless of gender and other things we take for granted. After much discussion and lobbying by feminist and family groups the root of the problem was uncovered; that being “religious law” would be the ‘rule of thumb’ for any legal processing…at least with regards to family law. Therefore Ontario amended the law to add that Family arbitration as being arbitration that is “conducted exclusively in accordance with the law of Ontario or of another Canadian jurisdiction”. This put Ontario into line with the other provinces which always had Family Law as a special class of arbitration free from religious contamination. Of course, none of this changed anything for other civil disputes which is why there are ‘religious courts’ in Canada but this falls under the standard arbitration rule that two parties may select whomever they wish to rule of disputes by whatever mechanism they choose.

Sharia Courts are a phantom menace because they never existed. For those wishing equality always had it. The composition of arbitration boards could always have been Qadi (Islamic justices) or Rabbi…and the rule-of-thumb could have been ‘holy text’…and still can be (with the exception of Family law). Thus there was nothing to grant them. On the other hand, there is nothing to fear because arbitration boards have always had ‘complete’ freedom and thus Sharia courts are no more ‘corrosive’ than any other arbitration boards. This seems to me to be a controversy fuelled on one side by a group who wished to assert a cultural independence (perhaps just to ensure control over a community?) and on the other side by a xenophobic types worried that any ‘foreign’ sounding thing regardless of its actual impact (or lack thereof). Religious courts are simply linguistic fancy on a legal fiction.

On a related them, but beyond the scope of this post is the other end of culturally sensitive law – Aboriginal Sentencing circles. Sentencing Circles are an attempt to provide culturally sensitive sentences to Canada’s aboriginal population who have suffered from institutional discrimination in our legal system. A quick look at the level of native incarceration shows how systemic this inequity is. This is quite different from these religious courts and IF there is interest we can do a segment on this issue in a future episode.


[1] Technically Sharia law is a redundant statement; Sharia means (roughly) religious law of Islam.

[4] I use this term to mock those who would report on the impending creation of “eur-arbia”. In no way do I fear, predict or expect the islam-ification of Canada or Europe.

Posted in Blogs, Don's Blogs | Tagged: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , | Leave a Comment »

A problem with Polygamy law

Posted by Don McLenaghen on December 19, 2010

Okay, I am an open-minded kinda guy. I think love and lust are not necessarily the same things; that people will form various kinds of unions and that if consenting and fulfilling no limitation should be applied. Now if you asked me if I believe that polygamy was good or bad, I probably would have said “do you mean the Mormon kind or the hippy kind”. You see, as a good atheist and a product of my society, Mormon polygamy was wrong on two counts 1) it was abusive to women and children and 2) it was religious dogma. The hippy kind (to date my imagery) was a union of equals to express both pleasure and non-conformity.

However, in doing some research for the show I discovered such simplistic (yes, I can be simplistic at times…sorry) views I held were both optimistic and not reflected in our legal system. First I should clarify some terms:

Polygamy: a marriage in which a spouse of either sex may have more than one mate at the same time

Polyandry: the practice or condition of having more than one husband at one time

Polygyny: the practice or condition of having more than one wife at one time

Now technically, the Mormon type would be strictly limited to polygyny. This issue came my attention because of a court case currently making its way through the BC legal system destined for the Supreme Court of Canada (SCC).

Recently an unsuccessful attempt to charge two Mormon men in Bountiful, BC with polygamy failed. This prompted members of the FLDS (Fundamentalist Church of Latter Day Saints, more commonly known as the Mormon Church) to mount a constitution challenge holding that the laws against polygamy are unconstitutional and should be struck down.

As I have talked about before with regards to free-speech, prostitution and other issues; in Canada our constitution allows for the limitation of fundamental rights provided they pass the “Oakes Test”. The Oaks test (from the SCC ruling on the Oaks case) holds that limitations must be minimal, pertinent and remedy proportional harms to society.

The law, section 293 of the Criminal Code, states that “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” is guilty of an indictable offence. Further that anyone who “celebrates, assists or is a party to a rite, ceremony, contract or consent that purports to sanction a [polygamist] relationship” are likewise guilty of a indictable offence.

That’s the law; however the harms that are most often cited, that are ‘eased’ by this limitation of liberty, are child brides, forced marriage and spousal abuse (more often the abuse is seen as economic or psychological). If we look at this list though we can already remove the last one, because spousal abuse (sadly) is common in monogamous marriages. However, little evidence shows polygamist unions are innately more significantly abusive (although I am open to evidence showing my cursory investigation to be wrong).

Living in Vancouver with several strong Asian cultures with ‘traditions’ regarding arranged marriages, we are aware there is a disconnect between polygamy both forced marriage and child betrothed. In these arranged monogamous marriages often the betrothed are children and have little or no choice in the matter (in the worst of these cultures, violent punishment is exacted on reluctant participants) – that is there is no necessary connection between child brides or forced marriage and polygamy.

So, it seems that the harms that are supposedly addressed by this law, although real are not connected to polygamy. In applying the Oakes test we agree that there are harms that should be addressed however it seems to fail to show the pertinent connection between the harms and polygamy.

However, let’s continue our thought experiment. If we assumed that what we wanted to restrict was religious polygyny because it has been associated with substantial and pertinent harms, does the law restrict our freedoms in a minimal way. The law as stated is extremely broad. This law would include my hippy polygamist; in fact if you were gay living with several roommates in a ‘close’ relationship, you could be charged under this law. Further, if you went to a house warming for this common-law type relationship to celebrate their ‘union’, you could be charged.

The law as stated is EXTREMELY broad. There is a local group, VanPoly (along with CPAA) which is working to have the law struck down because they fear they could be charged even though their relationships have nothing to do with the LDS, child brides or forced marriage.

So, why do we have these laws then when they seem overly broad and not really aimed at the social harms we have cited? In fact, when the anti-polygamy laws were first enacted the concept of spousal abuse was non-existent and child brides (at least mid-teens) was not uncommon in monogamous marriages.

Much has been made as to the religious turf war being the root of the North American experience. The Mormons, the new religious, had as a main tenet of their belief system polygamy since 1843. The US made polygamy illegal in 1863 and the Mormons moved west and north (to Utah and western Canada). In 1890, to gain statehood, Utah banned polygamy leading to a second wave of exodus. Canada also banned polygamy in 1890 and saw its one and only successful convictions in 1899, in fact Mormonism was explicitly used in the law until 1950s.

The criminalization of polygamy drives its participants to separate themselves from mainstream society and it is here that the harms arise. If your neighbor showed up one day with an 11 yr. girl and said it was his new wife you’d likely call the cops; if we suspect spousal abuse, as a society we are getting better at recognizing it and would come to the assistance of the abused. However when these actions take place in a ‘like-minded’ community isolated from the ‘masses’, this social safeguarding system breaks down and abuse can occur.

Do I think there is harm being done to the women and children of Bountiful, BC (and similar communes)…yes. Do I think this harm is originated in polygamy…no. I believe the root issue, the source of the abuse, is not multiple marriages but patriarchal authoritarian religion. With regards to the law AS IS, it fails the Oaks test both in the fact that the practice is not directly linked to the stated harms to be remedied (i.e. there is nothing innately abusive in polygamous relationships) and the level of minimal limitation of freedoms (i.e. even if we assumed LDS style polygyny were harmful, the law encompasses any type of polygamy including lesbians in a multi-partner relationship etc.).

On a last note, I is funny that our society seems to frown so strongly on parallel multiple marriages and yet has come to terms to serial multiple marriages; that is there are millions of people in the US and Canada who  have many spouses but not at the same time. If we look back a century or two, we see how that was seen as immoral and harmful to society. Why is it okay to have many spouses over time but not at one time?

Posted in Blogs, Don's Blogs | Tagged: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , | 5 Comments »

 
Follow

Get every new post delivered to your Inbox.

Join 295 other followers