To the Exclusion of All Others: In a liberal society, is polygamy still intolerable?

The Walrus:

TWO DECADES AGO,RCMP officers drove up a winding road through the Creston Valley of southeastern British Columbia, past fields of timothy hay and cottonwood stands, to an unmarked settlement known as Bountiful. It looked a typical rural town — homesteads bordered by well-kept yards full of children running and swinging and cycling — but, in fact, the officers had come to investigate a complaint that two local patriarchs, young gun Winston Blackmore and his fifty-seven-year old father-in-law Dalmon Oler, were polygamists — an offence under Section 293 of the Criminal Code.

All 1,000 or so residents of Bountiful are members of the Fundamentalist Church of Jesus Christ of Latter-day Saints (FLDS), a Mormon sect that believes God’s chosen leaders should each marry several virgins and “multiply and replenish the Earth… that they may bear the souls of men.” Unashamed, Oler invited the officers into the fifteen-bedroom home he shared with his five wives and forty-eight children. Blackmore, who in addition to leading Canada’s FLDSoperated a multimillion-dollar logging, trucking, and manufacturing business, was cagier about numbers, only admitting to having more than one wife. He was rumoured, however, to have at least twenty-five (many underage at the time he married them), and more than eighty children.

After a year-long investigation, the case seemed completely straightforward, but lawyers knew otherwise. While the Criminal Code defines polygamy as a crime, the Charter of Rights guarantees religious freedom, and in the summer of 1992, after consulting various constitutional experts, the BC attorney general’s office officially rejected the RCMPrecommendations, on the grounds that Section 293 was invalid. Blackmore, puffed up with victory, is said to have mounted a framed copy of the Charter on his office wall.

But his troubles were far from over. Blackmore would soon became embroiled in an internecine leadership struggle with James Marion Oler, son of Dalmon; more concerning, Bountiful suffered from growing image problems. In the wake of the thwarted charges, BC’s secretary of state for women’s equality commissioned a committee on polygamy issues, which in May 1993 issued Life in Bountiful, a powerful indictment of polygamy, in particular forced marriage and extreme demands of obedience. “When does a culture stop being a culture,” the report concluded rhetorically, “and start being abuse?” A decade later, one of the committee members, escaped FLDS wife Debbie Palmer, published Keep Sweet, a sensational memoir dedicated to her eight children, “who lived through unspeakable horrors before I brought them out.” And in 2008, Vancouver Sun columnist Daphne Bramham published The Secret Lives of Saints: Child Brides and Lost Boys in Canada’s Polygamous Mormon Sect, which documented, along with the sad fate of Bountiful’s girls, that of its boys, who were yanked from school and put to work, or expelled from the community to eliminate competition for brides.

The year after the book was released, BC’s attorney general, Wally Oppal, laid polygamy charges against Blackmore and James Oler (who replaced the former as bishop in 2002) and had the RCMP arrest them. In his determination to do so, however, Oppal had ignored government lawyers who maintained the charge wouldn’t stand up to a Charter challenge, instead appointing successive independent prosecutors until he found one who recommended laying charges, which the court then quashed on procedural grounds. (Blackmore is now suing the BC government for expenses related to “unlawful” prosecution.) When Oppal lost a subsequent election, his successor, Mike de Jong, filed a constitutional reference in which he asked the BC Supreme Court to contend with the conflict between the Criminal Code and the Charter of Rights at last.

When the trial opened on November 22, 2010, a stream of participants and witnesses for the government, including representatives from the Canadian Coalition for the Rights of Children, REAL Women of Canada, the Christian Legal Fellowship, and academic experts, testified about the many harms associated with polygamy. Most convincing, perhaps, was the testimony of former FLDS members. Carolyn Jessop, who fled a community in Utah with her eight children in the middle of the night, summed it up well: “Polygamy is not pretty to look at. It is nice that it is tucked away in a dark corner where nobody has to see its realities, because it’s creepy.”

But George Macintosh, the amicus curiae (friend of the court) appointed to present the opposing argument, came out swinging. He characterized Section 293 as an overly broad and grossly disproportionate law rooted in Christian prejudices, a law demeaning to polygamists. Women in polygamous marriages anonymously testified that they were happy, that they’d made the right decision. According to CBC, the BC Civil Liberties Association argued that “consenting adults have the right — the Charter protected right — to form the families that they want to form.” And the Canadian Association for Free Expression maintained that the legalization of same-sex marriage in 2005 strengthened the individual’s right to enter a polygamous marriage.

The rights argument carries considerable weight in a liberal society — if it didn’t, we wouldn’t still be faced with the Bountiful problem. We’ll find out what the court makes of it all by the end of the year. Something that hasn’t been fully considered but should be factored in to any reasonable decision is that rights can’t be separated from the culture in which they arise. They are inextricably linked to institutions that form the backbone of a society, and in every society throughout history the fundamental organizing institution has always been marriage…

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