What makes Canada's anti-polygamy laws constitutional?

In 2011, the Supreme Court of British Columbia ruled that polygamy (the practice of having more than one wife or husband at the same time) is harmful to women, children, and society and for this reason should be unlawful. However, the way the Supreme Court reached its decision disregarded the reasons why some women and men may choose polygyny, the marriage of a man to more than one woman.

McMaster Researcher

Citation

Heath, Melanie. In Press. “Testing the Limits of Religious Freedom: The Case of Polygamy’s Criminalization in Canada.” In The Polygamy Question, edited by Janet Bennion and Lisa Fishbayn Joffe. Logan: Utah State University Press.

What is this research about?

Bountiful is a small town in British Columbia, home to a fundamentalist Mormon sect that practices polygyny. After accusations of child abuse, sexual exploitation, and forced marriage in Bountiful, the Supreme Court of British Columbia held a reference trial to assess if Canada's anti-polygamy laws were constitutional.
 
The ruling found the ban against polygamy to be constitutional. The court determined that the harm polygamy causes to women, children, and society outweighs the infringement of religious freedom to fundamentalist Mormons.

What did the researchers do?

The researcher analyzed the Supreme Court's decision by separating the argument into different themes. She did a close text analysis to examine the reasoning behind the decision and evaluate its validity. She also looked at literature written about polygamy to draw conclusions with respect to the British Columbian case.

What did the researchers find?

While the researcher found that the Supreme Court offered evidence to the problems associated with polygamy, she found the methodology insufficient in the following ways:

  • The decision did not fully explore ideas about the people who participate in different forms of polygamy or the differences in polygamous practices culture to culture.
  • It did not discuss the relation between religious rights and criminal law, or how rights relating to familial and sexual intimacy, gender equality, and religious freedom interact.
  • The reasoning focuses too heavily on the possible harms polygyny could cause to society and monogamous marriage, rather than looking at the reasons behind polygyny and addressing consent and freedoms.

How can you use this research?

Policy makers in other countries may be interested in this research, to see how this decision compares with their own constitution. Legal scholars concerned with competing rights may find the research helpful for developing methodologies. Courts may find it useful to refer to this research when making decisions on polygyny. Citizens' groups or organizations may use the discussion on competing rights helpful in articulating their own rights.

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