Saturday, August 4, 2007

Support for same-sex unions doesn't equal polygamy on the way: legal experts

Support for same-sex unions doesn't equal polygamy on the way: legal experts

18:47 on August 2, 2007, EST.

VANCOUVER (CP) - Gay marriage is declared by opponents as a slippery slope to all manner of nasty lifestyles not condoned in Canadian society, and they suggest legalizing polygamy will raise it's ugly head next.

Legal authorities are chopping that argument off at the neck. Same-sex marriage and the practice of taking multiple wives share little basis in law, they say.

Why then has British Columbia has been so reluctant to take action against a radical Mormon sect where the men take many wives as their ticket to heaven?

"I always find it baffling when people see the two as so closely linked," said Robert Leckey, a law professor at McGill University.

"Over the years many things about marriage have changed. It used to be for life, now we have divorce. It used to be the man had all the rights, now men and women have equal rights. It is weird to me that same-sex marriage is seen as being the first change dramatic enough to make people think it is polygamy next."

The existence of polygamous marriage has been a thorn in the side of B.C. legislators for more than 20 years.

Tucked in the southeast corner of the province sits a colony of a breakaway fundamentalist Mormon sect whose faith dictates that to reach heaven, a man must marry as often as possible.

And they do. The head of the colony in Bountiful, B.C., Winston Blackmore, is estimated to have more than 20 wives.

Their marriages are illegal but the government has never taken action, fearful that the law against polygamy would be overturned by an argument that the law against it violates the Charter of Rights and Freedoms.

Several government and police investigations into the colony have yielded differing opinions on whether to proceed with criminal charges. The appointment of a special prosecutor to review the case one more time was another such effort.

Richard Peck decided this week that no criminal charges were possible under sex crimes laws.

Instead, he said rather than trying to work around the polygamy law, the question of the law's constitutional validity should be referred to the B.C. Court of Appeal.

The referral would avoid a costly criminal trial that could get bogged down in Charter arguments.

Same-sex marriage protections wouldn't necessarily translate into similar protection for polygamous marriages, say legal experts.

The question put before the courts on same-sex marriage centred around equality rights - Section 15 of the Charter.

Those arguing against the law banning polygamy would probably argue it violates the right to religious freedom - Section 2a.

"When the state provides civil marriage it is supposed to follow the charter," said Leckey.

"But when the state recognizes civil marriages, there are a lot of ways it doesn't recognize all the religious marriages that are out there."

The arguments mounted by same-sex advocates and those seeking to strike down the polygamy law may be different, but one has certainly affected the other, said Nick Bala, a Queens University Law professor who has written widely about laws governing marriage in Canada.

"We had a definition of marriage in this country for hundreds of years - the union of one man and one woman to the exclusion of all others. As long as that was the definition and the accepted definition, it was difficult to challenge it, in terms of same-sex marriage or in terms of polygamy," he said.

But with the legal precedent set by same-sex marriage, the polygamous debate can now move forward.

Bala expects the argument will make its way to the Supreme Court, but he predicted the law would be upheld

When same-sex couples were agitating for the right to marry, they'd already jumped over decades of legal and social hurdles keeping their relationships on an unequal footing with heterosexual couples around them.

"Recognizing same-sex marriage promotes equality," said Bala. "Recognizing polygamous marriage actually promotes inequality."

If polygamy were legalized in Canada, under the Charter it would have to include the right of both men and women to have multiple spouses, but that idea doesn't enjoy wide social support.

B.C. Attorney-General Wally Oppal has called polygamous marriages abhorrent and the widely held view is that they're discriminatory and often cruel to women and children.

But the women of Bountiful, B.C., have tried in the past to tell the outside world that they are happy living the lives they have.

Their supposed contentment is one of the reasons B.C. has been unable to bring criminal charges for sexual assault or exploitation against polygamous men in the colony, which would have been a legal end run around the polygamy law.

The women insisted all their acts were consensual.

Their feelings on the matter will have to be taken into account by the courts.

When judges consider whether a law violates a freedom, they must also decide whether the potential harm created by striking down that law outweighs the right in question.

Opinions on the effects of polygamy are diverse, said Angela Campbell, a law professor also at McGill, who has studied how policy approaches to polygamy have affected women's rights.

Campbell said she's seen studies that some women and children flourish in polygamous environments, while other studies suggest a host of social ills created by the marriages, citing jealous

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