Okay, not usually, but maybe in this case?
A polygamous society “consumes” its young. It hurts people. It hurts society. Because of that, polygamists ought to be criminally prosecuted, not shielded by constitutionally guaranteed freedom of religion, expression or association. That’s the position laid out by the B.C. attorney general’s lead lawyer Monday as the reference case to determine whether Canada’s 120-year-old criminal law against polygamy ought to be struck down entered its final phase in B.C. Supreme Court.
I’ve tried to avoid commenting on the polygamy case thus far, because I wasn’t sure what there was to say about it other than the obvious, but I’ll try to wade in a bit here. For those of you that haven’t been following the case, a group of religious fundamentalists in Bountiful, British Columbia are before the Provincial Supreme Court challenging the constitutionality of Canada’s ban on polygamy. They are claiming that they should be exempt from the law on grounds of freedom of religious expression, a claim which obviously irritates me to no end. If your religion commands you to break the law, it’s not the law that must change, it’s your religious practice. Canada is a secular country that allows people to believe however they want – that courtesy is not extended to behaviour.
The contradiction doesn’t come from their central claim:
What [Canadian historian Sarah] Carter wrote was that protection of women was “a central rationale” for outlawing polygamy and that “Anti-polygamists claimed that polygamy meant unmitigated lives of slavery, bondage and horror for the wives.” “The child brides smuggled across borders to serve as compliant wives to middle-aged men they have never met, the boys expelled or sent to work camps without an education, the harsh mechanisms of control, the grotesque subjugation of women and girls, these are not discrete harms [of polygamy] that are simply coincidental,” [attorney general's lawyer Craig] Jones said.
It comes from the idea that telling someone they aren’t allowed to enslave children is a violation of that person’s freedoms. Now they may not see it as slavery, but the disgusting way in which they treat these supposed ‘brides’ is medieval and undoubtedly falls under the umbrella definition of slavery.
If I can read the judicial minds of the Supreme Court, I’d imagine that this case will not be granted as argued – there is no Charter protection of compulsory servitude for life, nor does punishing the violation of both the law and common decency amount to religious persecution. However, the attorney general is attempting to demonstrate that the abuse and depravity that is systemic in the Bountiful group is a necessary product of polygamous relationships. In this attempt, I think he will fail. While there is a great deal of anecdotal evidence to suggest that the particular kind of polygamy practiced in Bountiful and other fundamentalist Latter-Day Saints churches (as well as some branches of Islam) is inherently exploitative, that fact is insufficient to justify a wholesale ban on polygamy.
The claim that polygamous marriage would disrupt society is certainly a true one. The definition and practice of marriage would become unbelievably complicated if groups of people were allowed to marry. Marriage has specific legal implications, and making changes to that would have broad societal ramifications. However, I remain unpersuaded by this argument, simply because a different formulation of it was used to prop up racial segregation and to bar women from getting the vote. Constitutional freedoms should not hinge on whether or not their are convenient – the whole point of having guaranteed human rights is that sometimes they are wildly inconvenient. We have to find a way to work around them.
However, there is one argument now being made that I find particularly interesting:
“We’ve seen the extent to which religion is used as the control mechanism, as the enforcement mechanism that magnifies the harms of polygamy,” Jones said during his third day of final submissions at the constitutional reference case being heard by the B.C. Supreme Court. “The evidence that has emerged from expert and lay witnesses alike is that the greater the religious fervour with which polygamy is intertwined, the more harmful it can be expected to be. There is something significantly harmful about the religious manifestation of polygamy.”
It is entirely possible, and seems to be supported by the testimony, that when religion is used as the justification for polygamy, that’s when the whole host of other abuses begin to manifest. As an anti-theist, this certainly gels with my view of what religion does – takes a perfectly decent thing like community or charity and distorts it into something sinister. That being said, banning things because they are religious sets a dangerous (and, frankly, ridiculous) precedent. If we say that polygamy is allowed for secular reasons but not religious ones, we are simply tipping the “freedom of religion” argument to the opposite extreme. We cannot begin outlawing things because they are religious, just as we cannot permit things on the same grounds. We should be making our legal decisions on grounds that entirely ignore their religious justification.
The abuses that occur in these polygamous groups are criminal. Child neglect, emotional abuse and imprisonment are all horrible acts that we should fight vociferously. However, they are not necessary outcomes of a man married to several women, even if such marriages are done for religious reasons. While the men of Bountiful should not be allowed to abuse their child brides because their imaginary friend said it was okay, it is illiberal and anti-democratic to punish them for such delusion. The harm of polygamy manifests itself as abuse – when that happens the abusers should be punished. In absence of abuse, there are no grounds to ban polygamy that are not just as arbitrary as the arguments against gay marriage, interracial marriage, or allowing women to vote.
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