Liberals always seem to squirm a little bit when questions of religious freedom come into conflict with other rights that they cherish (i.e. gender equality), the way they did last week when the British Colombia Supreme Court handed down its epic reference on the legality of polygamy in Canada. I suppose the situation is bound to cause some cognitive dissonance in those of us who generally support multiculturalism and the bedrock civil and political rights that, for the most part, are reflected in our Charter of rights and freedoms.
Certainly freedom of religion is not a right that should be curbed by the state lightly. Yet, as is the case with so many monumental legal battles, the courts are almost always called upon to engage in a balancing of different competing rights. And, as is the case more often than not, the judges, at least where the Charter is concerned, seem to have gotten it right this time.
First of all, let’s examine the key facts of the reference. The provincial government of British Columbia basically posed the following question to the court: Is section 293 of the criminal code, which prohibits polygamy, compatible with article 2(a), which provides for freedom of religion under the Charter?
Allow me to cut to the chase here: Yes. However, the reasons elaborated by the court deserve a slightly more profound analysis, and involve one of the most extensive studies ever undertaken in a court of law on the subject of marriage.
At issue here was the practice of a rather obscure little Mormon sect of Bountiful nestled in the heart of interior BC. They call themselves The Fundamentalist Church of Jesus Christ of Latter Day Saints, and they are as God fearing and backward as their name would suggest.
For those who might be tempted to sympathize with this group, may I point out the cynicism with which they and other religious organizations often use such human rights cases. By this I mean, does anyone actually believe, even for a second, that these people who conveniently hide behind the protection given them by modern, secular, liberal and democratic laws, actually subscribe to any of them in their daily lives?Or do they respect only one law in their personal lives: God’s? Not to mention, they boycotted the whole proceedings and thus the court was forced to appoint an Amicus Curia (friend of the court) to speak on their behalf.
No matter, Judge Bauman had a field day in his incredibly detailed opinion. According to the judge, this is the first time in Canada’s history that a trial court, as opposed to an appellate court, was able to hear a reference case. Apparently this unusual preference by the government was on account of its desire to submit evidence (as a rule, appellate courts do not allow any new evidence to be heard in court) in the case.
What kind of evidence, you ask? The judge began with examining the origins of monogamy in western civilization, all the way back to the olden times of Plato and Julius Caesar, and finished with a history of polygamy in Canada, all the way up to modern times. Little wonder this opinion required 335 pages!
But much of this was contextual and the final opinion rendered was largely based on the notion of harm and how, in this instance, it could effectively limit a person’s freedom of religion under the Charter. The judge employed the reasonableness test in article one and deemed that it saved the legal measures in the criminal code outlawing polygamy.
Though the provision offends the right to practice ones religion under the Charter, such a restriction was, in the language of article 1, “demonstrably justified in a free and democratic society,” because of “Parliament’s reasoned apprehension of harm arising out of the practice of polygamy. This includes harm to women, to children, to society and to the institution of monogamous marriage.” These well-documented harms include, poverty, neglect and physical and emotional abuse suffered by both women and children who find themselves trapped in such families.
This case is based on sound reasoning, exhaustive empirical research and all manner of expert witnesses who testified to the court. I encourage anyone who is looking for an opinion on how modern complex liberal democracies should strike the correct balance between fundamental human rights and the common good of society, to at least browse the opinion.
Hats off to Judge Bauman on this legal tour de force!!!
* Images: timeslive.co.za, mercatornet.com, canada.com