Tue, January 25, 2005

Edmonton Sun

 

Polygamist marriage challenge 'inevitable'

 

By Mindelle Jacobs

Federal Justice Minister Irwin Cotler objects to making the obvious link between same-sex marriage and a potential court challenge by polygamists.

Well, two human-rights advocates - a lawyer and a cult expert - are making the link for him.

Cotler is wrong to dismiss the possibility that polygamists will use the victories homosexuals have won to push for acceptance of their practices as well, says Calgary lawyer Vaughn Marshall.

The issues may be distinct but that doesn't mean polygamists won't launch a charter challenge if they're prosecuted, he says.

"I believe (a court challenge) could potentially arise," says Marshall. "It is scary but I believe that it's a realistic possibility."

Marshall isn't just any lawyer. He represented Jane Blackmore, the first and only legal wife of Bountiful, B.C., polygamist leader Winston Blackmore in their divorce proceedings.

The proceedings were settled "amicably," says Marshall.

If polygamists do launch a constitutional challenge, the government will have to use the notwithstanding clause to keep plural marriage illegal, says Marshall.

"Governments and courts have inherent jurisdiction over the protection of children and their action will have to be framed from the standpoint of protecting the interests of children born of these unions and polygamy will continue to be outlawed for that reason".

University of Alberta sociologist Stephen Kent says it's only a matter of time before Canada's ban on polygamy is challenged.

"Certainly, polygamists will raise charter issues. It's inevitable," he says. "Whether it flies is another question."

Polygamists will use the same-sex marriage rulings as a jumping-off point to argue the supposed merits of their own unions, says Kent, who specializes in alternative religions.

They see the charter as their best defence and may feel emboldened since the B.C. government has refused to lay charges, he says.

B.C. missed a "golden opportunity" to bring justice to the women and children of Bountiful because the government was afraid of a charter challenge, he says.

Government inaction has sent a message that Canada is a "safe haven" for polygamists, adds Kent.

"The government has a responsibility to protect its most vulnerable citizens and, in this context, the government failed."

Some have argued that polygamous communities are not a threat to society, but that view ignores the substantial harm suffered by women, children and, in some cases, young men, says Kent.

In Utah, he notes, hundreds of young men have been forced out of polygamous communities to prevent them from competing with older men for sexual access to the girls.

Kent is scheduled to speak about polygamy from a human-rights perspective at the International Cultic Studies Association conference in Madrid in July.

He has also written a piece on the issue which is to be published in an academic journal.

"Respecting freedom of religion does not mean giving a small number of religious leaders licence to perpetuate human misery," he writes in the paper.

"It is easy now to see why polygamy so often takes a toll on women, especially young women. The theology tells men that they have a right to multiple virgins," he writes.

"These marriages also control the young women's sexuality, as they become baby-producers in order to fulfil the religious aspirations of the men who control them," he continues.

Unlike in the U.S., where some authorities are prosecuting polygamists, Canada is doing nothing, observes Kent.

That could bring a flood of prosecuted U.S. polygamists our way, he says.

"It could happen," he says.

"Perish the thought."