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Anti-polygamy law challenged in Canada court

- The Washington Times - Tuesday, January 4, 2011

A court hearing challenging Canada's anti-polygamy law on religious freedom grounds resumes Wednesday in British Columbia and will eventually include testimony from men and women who are living in multiple-partner marriages.

The hearing will not immediately change the status quo, as British Columbia Supreme Court Chief Justice Robert Bauman's ruling will not bind any courts.

But his ruling will address questions about whether polygamy is a criminal activity under Canada's Charter of Rights and Freedoms, and, if it is illegal, under what circumstances. Observers predict that if Justice Bauman's ruling is appealed, the issue could end up before the Supreme Court of Canada, which could make a binding ruling about polygamy.

The legal hearing revolves around the British Columbia community of Bountiful. Formed in 1946, its 400 or so members belong to a breakaway Mormon sect that permits men to have multiple wives.

The challengers of Canada's anti-polygamy law say that the nation's 1982 Charter of Rights and Freedoms gives people the right to practice "plural marriage."

For believers in the Fundamentalist Church of Jesus Christ of Latter Day Saints, "celestial marriage" — i.e., plural marriage — "is an essential FLDS religious principle," and "[u]nless the faithful participate in it, they cannot enter into the fullness of glory in the kingdom of heaven in the afterlife," William John Walsh, an expert on FLDS, said in an affidavit to the court.

The FLDS long ago split from the mainstream Mormon Church, which formerly practiced polygamy but ceased the practice in 1890 and condemns the FLDS as heretical.

People who practice Islam, Wicca and other religions also are adversely affected by the anti-polygamy law, Vancouver lawyers George K. Macintosh, Ludmila B. Herbst and Tim Dickson said in a brief to the court.

But former members of polygamous communities have complained to Canadian authorities that they were victims of crimes, such as sexual exploitation and forced marriages, often when they were still minors.

If a religious activity harms the fundamental rights of others, it does not receive religious protection, Craig Jones of the British Columbia Attorney General's Office said when the hearing began in November. Also, no rights can be advanced "where doing so discriminates against women," he argued.

Mr. Jones noted the social ills that accompany polygamy, or more correctly, polygyny, in which a few men have multiple wives. The FLDS does not marry women to multiple husbands. These include social pressures to drive excess males out of the community, while preparing younger females for marriage, regardless of their ages or wishes, Mr. Jones said.

In the next few weeks, men and women who are practicing polygamy will be allowed to testify without revealing their identities.

The hearing is being watched closely both for its relevance to religious freedom issues and same-sex marriage. The Vancouver lawyers said Canada's 1890 polygamy ban is out of step with its modern understanding of marriage, which now includes same-sex marriage and offers protections for co-habiting couples.

Other legal observers suggest that if Canada jettisons its anti-polygamy law, other countries could be affected. If foreign jurisdictions, such as U.S. states, recognize same-sex marriages from Canada, for instance, they could be sued to force recognition of Canada's polygamous families, too.

The hearing before Justice Bauman stems from a failed prosecution of two Bountiful elders charged with practicing polygamy. The charges were thrown out in 2009. Instead of appealing, the British Columbia government asked the province's high court to examine the constitutionality of the anti-polygamy law.

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