Canadian Court Tackling Polygamy Question

By Lindsay Whitehurst

A Canadian judge is now considering a landmark challenge to his country’s ban on polygamy as unconstitutional — a case being closely watched in Utah.

Testimony ended last week in the proceeding, sparked by the Canadian branch of a polygamous sect based in Utah. Since late November, British Columbia Chief Justice Robert Bauman has heard from nearly 20 witnesses — some of them Utahns — and taken many more affidavits and video testimonies about plural marriage.

The justice is expected to issue a ruling later this year on whether an anti-polygamy law dating to 1892 violates Canada’s guarantee of freedom of religion. The Utah Attorney General’s Office will be watching that ruling, said spokesman Paul Murphy.

“I think it will inform us,” he said. “Canada is tackling the same issues we have, in that we have this law but for the most part it hasn’t been enforced by any law enforcement agency.”

Utah’s bigamy law makes it a felony to marry or co-habitate with more than one husband or wife, though Attorney General Mark Shurtleff has focused on investigating crimes within polygamous groups rather than the practice itself.

Polygamists have also been observing the “historic” proceedings, said Marlyne Hammon, a member of the action committee for the polygamous community of Centennial Park, located just south of the Utah state line in Arizona.

“If Canada were to drop that law, it would send quite an important message out to the world,” she said. “They can see [polygamy] is not what everyone says. It’s about people.”

The case began in 2009 when the attorney general of British Columbia filed charges against James Oler and Winston Blackmore, two leaders of separate factions in a Fundamentalist Church of Jesus Christ of Latter Day Saints settlement known as Bountiful. Authorities had been investigating polygamy at Bountiful since at least 1990, but had feared running afoul of the country’s religious freedom laws. Fundamentalist Mormons believe in polygamy as a religious principle.

In 2007, then-Attorney General Wally Oppal appointed the first of three different special prosecutors to review the case; two years later, charges were filed. When a court threw them out on religious freedom grounds, the new attorney general asked the Supreme Court to investigate whether the polygamy law is constitutional.

On Nov. 22, the chief justice started a proceeding called a constitutional reference question. The first part of the inquiry focused primarily on expert testimony.

One professor said that plural marriage violates international human rights laws and another linked it to increases in social ills, such as crime and discrimination against women, according to the Globe and Mail of Toronto and The Province of Vancouver. But lawyers arguing against the law pointed to a Cornell legal study concluding that, even though polygamy laws are seldom enforced, they keep people in those communities from reporting abuse to authorities, the Vancouver Sun reported.

One of Utah’s most high-profile former polygamists espoused a similar point of view. Carolyn Jessop wrote a best-selling book chronicling the intimidation and abuse she and her children suffered in the FLDS culture, but nevertheless testified in Canada that polygamy should be decriminalized.

“What’s happening is children are being born into this, but we don’t have the same rights, we don’t have any protections,” the Canadian Broadcasting Corporation quoted Jessop as saying. “It’s not being prosecuted, but it’s not being regulated, either. My theory is decriminalizing the crime would be giving people some rights, so we have claim to property, we have claim to help.”

Other Utah voices included Mary Batchelor, of the pro-polygamy advocacy group Principal Voices, and her co-founder Anne Wilde, whose podcast was played during the proceedings.

Several women from the FLDS and other polygamous groups have testified, many anonymously, to their personal experiences. While one told stories of loving her large, close plural family, another reported feeling isolated and helpless, Canadian newspapers reported.

After testimony ends, lawyers on both sides will prepare their closing arguments, which will begin in late March. Though Bauman’s eventual ruling will likely be appealed, the outcome is poised to influence decisions about whether to prosecute polygamists in both British Columbia and the rest of the country, a law officer with the British Columbia Supreme Court said.

Even if the law is struck down, Hammon said she doesn’t foresee a rush of plural families from the U.S. moving to Canada. A total of about 38,000 polygamists live in Utah, many as part of about four major groups.

“The people here in this state, we’ve established ourselves in our homes,” Hammon said. “We want to continue on fighting for our civil rights.”

The decision will not likely have much direct effect on U.S. policy toward plural marriage, said University of Utah law professor Wayne McCormack.
“The U.S. has its own particular history with polygamy,” he said.

A pair of Supreme Court rulings that found religious freedom does not empower breaking the law have cooled interest in the polygamy question going before the justices, he said. Unless, that is, the Supreme Court takes up the issue of same-sex marriage.

“That would resuscitate the interest in polygamy,” McCormack said. “The U.S. courts are not going to be interested in polygamy until they have first dealt with same-sex marriage.”

lwhitehurst@sltrib.com
The Salt Lake Tribune

13-8