Inherently harmful, justice says. It's time to enforce the law

Vancouver, Canada - For all of the deep philosophical, religious and legal issues raised by polygamy, debates about the practice often depend on a simple factual dispute: Proponents of criminalization argue that polygamy is necessarily harmful, while opponents maintain that harm, when it occurs, is a product of abuse rather than of polygamy itself.

People's views concerning the criminalization of polygamy are often determined by their beliefs about this factual matter, rather than by their philosophical or religious commitments. This is true, not just of members of the public, but of judges of the Supreme Court of B.C. Indeed, Chief Justice Robert Bauman's decision upholding Canada's polygamy law depended heavily on his finding that polygamy is inherently harmful.

Bauman reviewed in considerable detail the expert testimony concerning the harm associated with polygamy. According to this testimony, women in polygamous relationships are at elevated risk of physical and psychological harm, and face higher rates of depressive disorders and other mental-health issues. In addition, they fare worse economically than women in monogamous relationships.

Children of plural marriage are also at elevated risk of psychological abuse and neglect, and they "suffer more emotional, behavioural and physical problems, as well as lower educational achievement," he wrote. And finally, young men are often forced out of polygamous communities, and must navigate the outside world with little education, life skills or social support.

Perhaps most important, Bauman stressed that these "effects are not limited to particular cultures or geographic locations; they are universal." In other words, the harms associated with polygamy appear to be caused by polygamy itself, rather than by the way it is practised by specific people or in a specific location. And it is this finding that ensures Canada's polygamy law will withstand virtually any legal challenge.

To see this, consider the two primary arguments against the criminalization of polygamy. First, opponents of criminalization argue that the law violates Section 2(a) of the Charter of Rights, which guarantees freedom of religion. And, indeed, Bauman agreed that the law infringes polygamists' Sec. 2(a) rights.

But once such a finding is made, the government can still prove the infringement is justified. And to do so, it must, among other things, show that the law was enacted for an important purpose - to prevent the harms associated with polygamy - and that it achieves that purpose while infringing polygamists' rights as minimally as possible.

Now, if the harms associated with polygamy were contingent - that is, if they were occasioned thanks to the abusive behaviour of certain polygamists - then the government would not be able to make its case. For there would be no justification for banning all polygamous relationships just because some polygamists act in an abusive manner.

But once one accepts, as Bauman did, that polygamy is inherently harmful, there is simply no alternative to banning polygamy outright if we are to prevent harm. Or in Bauman's words: Since "polygamy is inevitably associated with sundry harms, and ... these harms are not simply isolated to criminal adherents ... but inhere in the institution itself ... there can be no alternative to the outright prohibition" of polygamy.

The second primary argument concerns Section 7 of the Charter, which guarantees the right to life, liberty and security of the person, and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

Bauman agreed that polygamists' right to liberty is engaged by the polygamy law since they could land in jail for engaging in the practice. And opponents of the law argued that this is not in keeping with the principles of fundamental justice since the law is overly broad - that is, it affects all polygamous unions rather than simply those that are harmful.

Yet if one accepts that polygamy is inherently harmful, that argument goes nowhere. Indeed, if polygamy is inherently harmful, the law simply can't be overly broad.

And Bauman was well aware of the impact of his finding of inherent harm, as he stated, "This conclusion undercuts many of the challengers' submissions with respect to Sec. 7."

In fact, that conclusion essentially decided the case. And not just at the B.C. Supreme Court. Since appellate courts will not hear evidence the way Bauman did, they will have to rely on his findings of fact. And that means that when the case goes to the B.C. Court of Appeal and the Supreme Court of Canada, as it surely will, they will likely accept that polygamy is inherently harmful.

And this means it will be almost impossible to have the law declared unconstitutional. Philosophical and religious debates about polygamy will continue, but thanks to Bauman's finding of fact, the legal issue is settled. Polygamy is, and will continue to be, a criminal offence in Canada. All that's left is for law enforcement to respond.