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Giving A Push Down The Slippery Slope

B.C. man accused of polygamy plans defence based on gay-marriage laws

I really did see a defence like this coming from a fundy: it has a certain "hoist by your own petard, liberals!" sort of poetic justice to it, especially given all the rhetoric about "opening the door to polygamy, incest, and cat-dog weddings" that we got to deal with during the gay marriage controversy.  Frankly, I don't even really have a problem with polygamy between consenting adults - something which most of these fundamentalist communes are as far from as it's possible to be, but they insist on ruining the idea for the reasonable ones with their brainwashed child brides and such (and will regret it, actually - see below).

There's a certain intuitive appeal to it, to be sure, but in a courtroom, intuition and fifty cents will get you a cup of "coffee" from the building vending machine after you get thrown out with a contempt citation. The moral, intuitive argument is "people should be able to marry who they love." The law is free not to care about love if it so chooses - the legal argument needs to be different.

I can really only see two potential ways to overturning the polygamy ban on Charter grounds - through s. 2 (religious freedom) or s. 15 (equality rights).

It will be...difficult at best, to claim that "being inclined towards polygamy" is at all analogous to the existing protected criteria for s. 15 (race, gender, sexual orientation, age, etc.). You could perhaps argue that this inclination is immutable enough to qualify - I don't know enough poly people to really judge this - but I also don't expect this to find much sympathy. Not that I would mind if it did - but again, see below.

I can see it being an infringement of religious freedom as well, but the Charter has no absolute rights - there's always section 1 lurking in the background with its "reasonable limits".  This is why you don't get off murder charges for proving that the victim was a sacrifice to Satan and it's within your religious rights.   And here's where all that unsightly evidence about the Lost Boys problem and child abuse and so on and so forth comes into play, because here's where the courts get to be practical, look at the problems a law is meant to address (are they important enough to justify infringing on rights?) and their means (can this law accomplish this objective? Is this law infringing more than it needs to, or restricting more than the ends justify?). A judge can look at all of that and say, "these results are problems enough to let this law stand".

That, really, is what it comes down to. The ugly consequences of FLDS-style multiple marriage are not a necessary consequence of multiple marriage in general (though there are society-level issues with gender balance and the in-general "what happens at the end of the game of musical spouses with all the losers left standing?" question that need to be addressed), but:

a) the association has been drawn so strongly in the public mind that there's no political constituency to legalise it through Parliament for a long time if ever.
b) Blackmore is unlikely to succeed in the courtroom, even if it's pointed out satisfactorily that "polygamy isn't the problem, lack of consent is the problem", because there's entirely too much room for the courts to wiggle away from that conclusion because of the already-observed consequences in Bountiful-esque situations.

In the end, I expect it'll be Blackmore and his ilk that will be hoist by their own petards. But I will be watching these cases and their arguments with interest.

Comments

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jagash
Jan. 22nd, 2009 11:25 am (UTC)
Might I say that your legal posts are particularly enlightening? From the poly people pov, I know that general principle is along the lines of Trudeau about the state in the bedroom. Consent is the crux of the matter when you look at it objectively, even though the courts are unlikely ever to permit polygamy/polyandry/polyamoury.
rumor_esq
Jan. 22nd, 2009 05:19 pm (UTC)
Agreed.
( Walk among 2 shadows — Cast a shadow )