The Toronto Star by Bev Baines 29 November 2011
In deciding that polygamy should remain a crime, B.C. Chief Justice Robert Bauman might think he plays to a feminist audience by repeatedly stressing that the purpose of the prohibition is to protect women and children. Yet he renders a decision that is not feminist either in its reasoning or in its outcome. We need only examine three features of his decision — his assessment of the evidence, his analysis of the law’s purpose, and his approach to the government’s justification for infringing freedom of religion — to understand its feminist deficit.
The longest part of the chief justice’s decision is devoted to his assessment of the evidence. The B.C. government in adopting the Constitutional Question Act in 1996 permitted anything and everything to be admitted as evidence because the reference case is heard at the trial rather than appellate level.
Thus he heard evidence on polygamy’s history from Greco-Roman times to the present and on the extent of its global pervasiveness. He admitted psychological studies, a literature review, statistical analysis, religious studies, and international legal authorities.
Some of this evidence pertained to Canada but most of it came from foreign experts. The only contemporary studies of women living in polygamy in Canada were presented by professors Angela Campbell of McGill and Lori Beaman of Ottawa. Their research credentials compelled the chief justice to recognize them as expert witnesses. Nevertheless, he concluded by repudiating their evidence — which cast doubt on whether all women and children in polygamous relationships were abused or unhappy — by calling them “naive.”
His ad feminims comment was unjustified. He was in no better position than these scholars to determine whether their research subjects — women living in polygamy in Canada — evinced false consciousness. Professors Campbell and Beaman credited these women with human dignity and agency.
In any constitutional challenge, the purpose of the legislation is one of the contested issues. Normally it is established as of the time of enactment of the impugned law. In the polygamy challenge, the chief justice rewrote history when he rejected the possibility that the purpose was religious animosity. To do this he had to dismiss as inconsequential the fact that when it was first passed the provision contained words about keeping ex-Mormons out of Canada.
He maintained the purpose was prevention of harms to women and children. This claim is a hard to accept because in 1892 when the polygamy prohibition was adopted and later in 1954 when it was amended, women had few legal rights and children none.
Then patriarchy reigned supreme and the needs of women and children were of little interest to politicians. As late as 1970, the Royal Commission on the Status of Women in Canada could still report that women were treated as second class citizens economically, socially, politically, in terms of their well-being and that of their children.
Midway through his decision, the chief justice’s real reason for prohibiting polygamy became clear. According to his analysis, the harms associated with polygamy “directly threaten the benefits felt to be associated with the institution of monogamous marriage.”
He then described those benefits in rhetoric that I thought had long ago disappeared, stating “monogamous marriage is the best way to ensure paternal certainty.” He never explained how “paternal certainty” contributed to the alleviation of harms to women and children.
To that contentious benefit he added another: “joint parental investment in children.” Investment? Feminists might mention caregiving in this context but “investment” has a mercenary connotation to which feminists are unlikely to subscribe.
Benefits aside, monogamous marriage is a Christian institution whereas polygamy is found more pervasively in Islam, ex-Mormons notwithstanding. Yet the chief justice did not address the obvious implication of preferring one of these religious tenets over the other, namely that it contradicts the value of multiculturalism which is recognized in our Charter.
The third feature of his decision that should trouble feminists was his invocation of deference to Parliament to justify upholding the impugned polygamy provision. Relying on such deference saved him from any serious evaluation of the full implications for women of infringing the religious freedom of polygamists. Thus he never explained how threatening women with prosecution for living in polygamy would improve their lives.
Bev Baines is a law professor at Queen’s University and the former head of the university’s Department of Gender Studies.