Making their bed

Some 16 groups take sides on polygamy in a landmark case

Making their bed
Photograph by Jonathan Hayward/Canadian Press

The British Columbia government’s decision to test the legality of Canada’s 120-year-old polygamy law led to a shocking revelation for Karen and her two male partners. The 37-year-old Winnipeg-area mother, her husband of 15 years and a second male partner concede their arrangement is unconventional. She calls it a plural union based on equality, not religious ideas of male dominance. What she didn’t realize, until the B.C. court reference drew attention to the issue, was that they’re breaking the law by sharing a home. “This has been a real learning experience,” she says.

Karen, who doesn’t want her surname used in order to protect her children, is part of a constituency of polyamorists, one of many groups seeking standing in the B.C. Supreme Court. The case will determine if the polygamy law—Section 293 of the Criminal Code—is constitutional. It was triggered by the province’s failure to prosecute two polygamous bishops in the fundamentalist Mormon community of Bountiful, B.C., but its outcome could affect the rights of thousands.

Some 16 groups have submitted affidavits seeking permission to argue for or against 293 when a trial date is set—proving, if nothing else, that polygamy creates strange bedfellows. Some groups see the polygamy law as the foundation of the traditional family and a defence against the exploitation of girls forced into multiple marriage, as the province alleged happened in Bountiful. Others argue the law is unenforceable, does nothing to help the women of Bountiful, and that it imposes a moral code out of step with Canada’s modern, multicultural society.

Affidavits filed by James Oler and Winston Blackmore, who each lead congregations of about 400 fundamentalist Mormons in Bountiful, claim the law violates their constitutional rights. Blackmore, alleged to have at least 19 wives and 100 children, calls the law an “unjustifiable infringement of my congregation’s and my religious freedom.”

Conversely, Nancy Mereska, coordinator of the Alberta-based Stop Polygamy in Canada, says, “Religious law must not trump civil law in a free and democratic society,” a view shared by its member group, the U.K.-based Women Living Under Muslim Laws. The British Columbia Teachers’ Federation, in its filing, also states religious freedom “cannot be interpreted to allow for the abuse, exploitation or oppression of women and children.”

The secular B.C. Civil Liberties Association, on the other hand, says the “dominant morality” shouldn’t be imposed by law. “Criminal attacks on polygamy will simply drive it underground,” says an affidavit by executive director David Eby. His group calls the law too “vague and overbroad” to be enforced: the statute prohibits “any kind of conjugal union with more than one person at the same time,” even if those in the relationship aren’t legally married. (Adultery, also a multi-partner relationship, isn’t illegal under the law.)

REAL Women—which promotes “the Judeo-Christian view of traditional marriage and family”—argues polygamy turns women into “chattels.” A minority of cultures have historically allowed plural marriages, its affidavit says. “These have, almost without exception, given rise to a hierarchy dominated by older men with multiple younger wives.” That leads to “over-aggressive” males competing for a limited number of women,” it says. “Hence, polygamous societies are often violence-prone.” The Christian Legal Fellowship, a group of Christian lawyers, also supports the law. At issue isn’t religious freedom but the threat that male-dominated polygamy presents to equality rights, it argues.

Opposing the law is Paul Fromm of the far-right Canadian Association for Free Expression. Courts have supported the right to same-sex marriage in Canada, he says. Polygamy, with historic roots in many religions, is “more consistent with harmonious social relations that is any experience with the concept of same-sex marriage.”

Fromm’s group is uncomfortably in the same camp as the Canadian Polyamory Advocacy Association, which includes many gay and lesbian multiple partnerships. Vancouver lawyer John Ince, legal counsel for the group, and in a polyamorous relationship himself, says the case will determine only if plural relationships are legal. What flows from that—the rights of multiple partners to pensions, adoption or immigration sponsorship—are issues for future rulings many years, and many appeals, down the road, he said.

From her home in Manitoba, Karen says she is offended that the law labels her and her partners criminals, yet it would have been legal, and more socially acceptable, to disrupt her family life by leaving her husband or having an adulterous affair. As much as she hates the attention, polyamorists have to take a stand in what promises to be a high-profile case, she says. “The irony is we’re really fighting for the right to be left alone.”