Polygamist leader Winston Blackmore and James Oler are facing criminal charges of polygamy in British Columbia. Polygamy refers to a practice in which a person is simultaneously married to more than one spouse. The most common form of polygamy is polygyny; this is the practice of one man having multiple wives. Social attitudes toward polygamy vary widely across cultures and religions. Polygyny has often been associated with the Mormon and Islamic faiths, although attitudes toward the practice vary enormously within those religious communities.
In Canada, polygamy is not recognized as a valid form of marriage. In fact, section 293 of the Criminal Code states:
293. (1) Every one who
(a) practises or enters into or in any manner agrees or consents to practise or enter into
(i) any form of polygamy, or
(ii) any kind of conjugal union with more than one person at the same time, whether or not it is by law recognized as a binding form of marriage, or
(b) celebrates, assists or is a party to a rite, ceremony, contract or consent that purports to sanction a relationship mentioned in subparagraph (a)(i) or (ii),
is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.
In the context of polygyny, s. 293 of the Criminal Code makes all spouses (including the wives) liable to a maximum prison term of five years. Mr. Blackmore has indicated that he plans to challenge the Criminal Code sanction by claiming, among other things, that it is a violation of freedom of conscience and religion as guaranteed in the Charter s. 2(a).
At least one legal scholar believes that a Charter challenge might succeed. Beverley Baines is a Professor of Law and Head of Women’s Studies at Queen’s University. In 2005, she co-authored one of a series of four policy papers regarding polygamy funded by Status of Women Canada’s Policy Research Fund. That paper argues, inter alia, that the criminalization of polygamy may be vulnerable to Charter scrutiny.
The polygamy issue has also promted responses from a very different perspective. Some opponents of same-sex marriage have argued that re-defining marriage could open the door to further revisions including polygamy. Dr. Margaret Somerville is one of Canada’s most well-known bioethicists. She is Samuel Gale Professor of Law at McGill University and the Founding Director of the McGill Centre for Medicine, Ethics and Law. She argues that marriage as a social institution has its basis in the biology of natural procreation. In her view, the same-sex marriage debate marked a fundamental shift in our concept of marriage from one that is based on biology to one that is based on personal preference. She argues that this has opened the door for legal reconition of marriage rights in polygamous marriages, possibly to the detriment of the children of those marriages.
On today’s podcast, I interview both Professors in order to explore some of the legal and social challenges raised by polygamy. As we follow the Blackmore case through the court system, it will be interesting to see how these challenges will be addressed.