Canadian Court Upholds Polygamy Law

As many of you know, I am lead counsel in the Sister Wives case challenging the constitutionality of Utah’s statute criminalizing plural or polygamous marriage. I also served as legal expert in the challenge to a similar law in Canada. The court has now ruled in that case and upheld the law in the decision below. While I strongly disagree with both the legal and factual conclusions of the Court, it is a decision that is worth reading. The decision can now be appealed to the higher courts in Canada.

Because this matter is likely to stay in litigation and given the Court’s discussion of my testimony, I must be circumspect in what I say about the decision. However, the Court adopts arguments from the government that, in my view, are based on sweeping stereotypes and generalities of people who engage in plural relations. It largely ignores that polygyny is only one form of polygamy and that there are a great variety of different forms of polygamous relationships, as discussed in my testimony.

The Court simply ignores that plural families can be entirely consensual and non-harmful, as evidence by the Brown family. Just as conventional families can have child or spousal abuse, it is wrong to criminalize all families because some are abusive.

The Court openly embraces the government’s invitation to generalize: “Polygamy’s harm to society includes the critical fact that a great many of its individual harms are not specific to any particular religious, cultural or regional context. They can be generalized and expected to occur wherever polygamy exists.”

The Court dismisses arguments, as discussed in my recent New York Times column, that this is about privacy not polygamy.

Some of the findings are breathtaking and, in my view, unfounded in actual studies, including the statement that “the statistical evidence shows that as levels of polygamy increase in a society, there is a corresponding decrease in political and civil liberties.” I have never seen such a nexus established in any existing study.

Despite my disagreement with the Court and the government’s experts, the opinion is well-written and comprehensive. It clearly reflects the view of many who hold intense religious and political opposition to these families in Canada and around the world. The decision does not directly affect the case in Utah, since it is a foreign ruling. The trial court in Utah has scheduled the hearing on standing for December 16th in Salt Lake City.

My congratulations to the government legal team and its experts. I also want to express my admiration for the fine legal counsel challenging this law, including George K. Macintosh, Q.C. Ludmila B. Herbst, and Tim A. Dickson. They were brilliant in their presentation of the case and advocacy for these families.

The matter is Reference re: Section 293 of the Criminal Code of Canada, 2011 BCSC 1588.

Here is the decision: Canadian decision