- The Washington Times - Wednesday, November 23, 2011

Polygamy is so harmful to women, children, society and the “institution of monogamous marriage” that it can be outlawed, even though it offends certain religious beliefs, a Canadian judge said in an unprecedented ruling Wednesday.

“I have concluded that this case is essentially about harm,” British Columbia Supreme Court Chief Justice Robert Bauman said in a 357-page opinion.

Canadian law-enforcement officials “have a strong basis” to think that decriminalizing polygamy would cause harm “to many in our society,” said Justice Bauman.

So even though Canada’s anti-polygamy law “offends the freedom of religion of identifiable groups,” it is “demonstrably justified in a free and democratic society,” he wrote.

The ruling is expected to be appealed in December to either the British Columbia Court of Appeal or Supreme Court of Canada.

The case has been closely watched in the United States since it, like Canada, is home to several polygamous communities. If Canada were to legalize polygamy, it would lead to a myriad of lawsuits.

Gay marriage is also an issue: Canada legalized same-sex marriage in 2005, and some of the pro-gay marriage arguments were used on behalf of legalizing polygamy during the 42 days of testimony before Justice Bauman.

For U.S. traditional-marriage advocates fighting to keep marriage between one man and one woman, legalization of polygamy “has been one of their worst-case scenarios,” said Mark Tooley, president of the Institute on Religion & Democracy.

The legalization of polygamy in the U.S. has “been mocked as extremely unlikely, but obviously, this Canadian case, at least partly validates those concerns,” said Mr. Tooley.

Canadian law-enforcement officials praised Justice Bauman’s ruling that Section 293 in Canada’s Criminal Code, which criminalizes polygamy, was legal.

“We are pleased with the fact that the Court has upheld the constitutionality of this prohibition and found it consistent with the Canadian Charter of Rights and Freedoms,” said Christian Girouard, a spokesman for Attorney General of Canada Rob Nicholson.

Canadian courts now “have a very strong message about the prohibition of polygamy,” British Columbia Attorney General Shirley Bond told the Vancouver Sun, adding that she thinks the government will now take time to consider its next steps concerning criminal investigations.

Justice Bauman recommended that children aged 12 to 17 not be considered criminally liable under Section 293.

An appeal is expected within 30 days from Vancouver, B.C., lawyer George K. Macintosh, who is the court-appointed counsel for groups seeking to overturn the anti-polygamy law. These include James Oler and other members of the Fundamentalist Church of Jesus Christ of Latter-day Saints (FLDS), a Mormon offshoot that believes plural marriage is essential to enter heaven.

British Columbia officials asked for a legal opinion on Section 293 after a judge threw out a criminal case against two polygamous men from Bountiful, B.C., on a technicality.

An appeal is “very likely,” said Monique Pongracic-Speier, attorney for the British Columbia Civil Liberties Association, which opposes the ban on polygamy. Justice Bauman’s ruling continues to “criminalize consenting-adult relationships” and disrupts families, she said.

Gerald D. Chipeur, a lawyer affiliated with the Christian Legal Fellowship and Alliance Defense Fund (ADF), said he was pleased that “the chief justice accepted our argument that, under the Constitution of Canada, Parliament may define marriage as no more than two people.”

“Some organizations claim that same-sex ‘marriage’ won’t open the door to polygamy and group marriage, but that’s what nearly happened in British Columbia,” added Austin R. Nimocks, an ADF colleague in the United States. “Canada just dodged a bullet for the moment; Americans should take notice because this country need not risk the same thing.”

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