24 Nov 2011
Justice Robert Bauman, upholding the constitutionality of Canada’s polygamy ban (emphasis mine):
In my view, the salutary effects of the prohibition far outweigh the deleterious. The law seeks to advance the institution of monogamous marriage, a fundamental value in Western society from the earliest of times. It seeks to protect against the many harms which are reasonably apprehended to arise out of the practice of polygamy.
At least we’re being honest about it.
There is a subtlety to the ruling. Justice Bauman has decided that polygamy, as an institution, is inherently harmful. Once such a conclusion is reached, there are no options available: polygamy is a freedom that must be restricted as empowered the Limitation Clause.1 Any attempt to overturn this ruling will have to first disprove that polygamy is intrinsically tied to harm.
Still, it is interesting that the prohibition is against polygamous marriage. Unless I am misreading the judgement2, it is entirely possible to engage in multiple partner relationships and have children with the various spouses without breaking the law – as long as it is done outside of the conceit of state-sanctioned marriage. Justice Bauman is, essentially, declaring that it is not polygamy, but polygamous marriage that causes harm.
While we are on the topic, there is another institution that has been allowed to flourish despite proven harm “to children, to society, and to the institution of monogamous marriage”3: divorce. We should get on banning that horrible practice as soon as possible.
“The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” - Canada Act 1982 (U.K.), 1982, c. 1. s. 1 ↩
I will happily admit that I do not know enough about this topic to be an expert. My suspicion is that polygamy is defined in a broader sense than monogamous marriage and it may be that the prohibition is on de facto marriage. ↩