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COMMENTARY
March 28, 2009
Slippery slope
When same-sex marriage was legalized in 2005, I argued that polygamy would follow. This is now happening.There is nothing much we can do about it -- the Canadian Constitution has "evolved," so that the judges who interpret Pierre Trudeau's Charter of Rights have the power not only to overturn Acts of Parliament, but to make new law from whole cloth, according to their whims and ideological commitments. "The people" -- mere voters -- need not be consulted. A test case is already heading towards the Supreme Court, from Bountiful, B.C. Lawyers for the fundamentalist Mormon, Winston Blackmore, who has long been openly practising polygamy, will invoke the Charter. The old goat has actually boasted of his multiple teenaged brides: estimates run to more than 20 wives in total. (And you thought Brad Pitt was a chick magnet.) That this test case will not only proceed, but succeed, almost goes without saying. Even the attorney general of British Columbia doubted his chances with the Charter, when he brought polygamy charges in January against Blackmore, and Jim Oler. This was after a delay of about half a century: for the polygamous cult has been established openly in Bountiful since the era of Peyton Place (the late 1950s). The very fact that the authorities had not found the guts to enforce Section 293 of the Criminal Code, in all this time, will now be counted against the law itself. That the legalization of polygamy will have more immediate practical consequences than same-sex marriage can be easily seen. It will make Canada the first country in the western world to be compelled to accept the multiple wives of immigrants from such countries as Saudi Arabia, where polygamy is legal; and others, as refugees from where it is not. It will have fiscal implications, as polygamous families sue to receive multiples of the benefits now received by common law and other two-adult families. It will create a legal vacuum in which demands will be advanced for everything from public recognition of polygamous marriages, to status claims by additional wives and sundry children. Tom Flanagan pointed to such foreseeable consequences in an article he wrote for the Globe and Mail earlier this week. He further pointed to the pioneering work done by homosexual activists, after Canada's sodomy laws were overturned (by Parliament) in 1969. It took those activists 36 years to get from there to formal institution of "gay marriage." But now that the slope is cleared, polygamy activists need only sleigh down it. Under our current Charter regime, unlike our old Parliamentary regime, foreseeable consequences need not be considered. It is the judges' job to make the law, and the politicians' to deal with the fallout. The judges do pure theory, with "rights language," in the rarefied air. The cost of cleaning up after them -- both financial and moral -- is simply reassigned (to us). We read that the Harper government has vowed to oppose polygamy before the courts. This is a sick joke, to those who remember how Stephen Harper disposed of same-sex marriage. To ensure self-defeat, his government is now mounting its whole case on "Canadian values." As one legal blogger writes, "Canadian values" currently embrace saving puppies, but eating cows. "Canadian values" would have some relevance to the case if Canadians had the right to decide whether they wanted polygamy to be legal; and if, moreover, Canadians were allowed to debate such issues openly, freed from the legal and other intimidations of the politically correct. But we have lost that right, which has been transferred -- thanks chiefly to the Charter, but also to various supporting trends in politics, jurisprudence, bureaucracy, and media -- to special-interest activists who can afford lawyers and lobbyists to work the system. Spare me the argument that Canadian law will still protect minors, and that only "consenting adults" are involved. The children of polygamous marriages are non-consenting minors. Moreover, the belief that children should not be sexually exploited is itself just another of those "Canadian values," subject to review by the courts tomorrow. Those who cite "religious freedom" as a justification for polygamy can do so only hypocritically. The secular distinction between what a cult is allowed to preach, and what a cult is allowed to practise, is crucial to religious freedom. It has everything to do with how we maintain the sort of country in which religious freedom is possible, in contrast to the sort of country in which it is not -- Saudi Arabia, for instance. David Warren
© Ottawa Citizen
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