For over two months, the British Columbia Supreme Court has heard testimony in its case examining whether Canada’s ban on polygamy is constitutional. The issue was referred to the court after a judge in 2009 stayed charges against two Bountiful religious leaders from the Fundamentalist Church of Jesus Christ of Latter Day Saints (FLDS) – James Oler and Winston Blackmore – accused of polygamy. The trial began with an opening statement by Craig Jones, a lawyer for the Ministry of the Attorney General, upholding the prohibition of polygamy. He told Justice Robert Bauman that evidence “presents a consistently worrisome narrative of child brides, teen pregnancy, and men and boys who are, by accident or design, driven out of the community.”
Court-appointed amicus George Macintosh argued on the third day of the trial that the law should be eliminated to decriminalize polygamous or non-polygamous relationships between more than two people to decrease social stigma and abuse.
Afterwards, the judge heard testimony from witnesses on both sides. McGill University law professor Angela Campbell, who had conducted controversial research on polygamy, reported that she saw few problems in Bountiful and that, in truth, FLDS wives are suffering from the anti-polygamy law. Lori Beaman, who teaches religious studies at the University of Ottawa, compared abuses in polygamy to those found in some monogamous marriages and argued that the practices of a religious minority group should not be banned just because they are perceived as abnormal by mainstream society.
Many expert witnesses were called to point out the harms of polygamy. Dr. Shoshana Grossbard, an expert on the economics of marriage from San Diego University summoned by the Christian Legal Fellowship, an intervener in the case, said that women in polygamous relationships become subservient to men and do not benefit from a supposed increased “market value” due to larger demand for wives. University of Toronto law professor Rebecca Cook said that Canada is obligated under international human rights law to ban polygamy and that an increasing number of countries all over the world are outlawing the practice.
John Witte, director of the Center for the Study of Law and Religion at Emory University in Atlanta, testified that the Western legal tradition has rejected polygamy as a form of marriage for the past 2,500 years, recognizing the societal harms the practice caused. Joseph Henrich, a noted Canadian scholar at the University of British Columbia, warned that, if Canada became the only developed western country where polygamy is permitted, it would cause “a non-trivial increase in the incidence of polygyny (men with multiple wives).” Henrich predicted that Canada would become the destination of choice for wealthy men from polygynous countries and that high-status citizens would invest in several wives.
The court also heard testimony from victims of polygamy. On Jan. 18, Truman Oler, the brother of James Oler who ran away from Bountiful, spoke about his difficult childhood as one of 47 children in a polygamous family. Bountiful husbands were often gone for long periods of time and he received little attention from his mother. “Personally I can’t see why they have so many children if they don’t want to take care of them,” he said. Carolyn Jessop, who left an FLDS community in Arizona, partly because her children faced physical abuse and also because she feared her 13-year-old daughter would soon be compelled to marry, is in favour of decriminalization as long as there is an effort to prosecute abuses. Jessop spoke of her concern for the educational neglect of children and the practice of abandoning so-called surplus boys that would otherwise compete with older, powerful men for wives.
Some of the polygamous wives were called to witness in favour of the practice of plural marriage, although Oler and Blackmore were not present at the proceedings. On Jan. 25, one wife testified anonymously that she married at 16 to the husband of her sister and had nine children with him (her sister had 10). She explained the difficulties the three of them faced. “It takes a considerable amount of faith and determination to live the right way,” she said. Their polygamous relationship, she said, will let them attain the “highest degree of God’s celestial kingdom.” The wife can only enter the “celestial kingdom” if the husband “exalts” his wife through marriage.
An anonymous 24-year-old witness, one of the four wives of a Bountiful man, reported that she had a dream where she saw her future husband. She told her father about it, expressing her wish to be married. After consulting with the community’s ‘prophet’ the father told her she would be married to a man who, according to the witness, was the same man from the dream. Thirty minutes before the wedding, the then 17-year-old girl discovered the name of her husband, who was in his forties. She was one of his two wives married in Utah and brought across the border to live in Bountiful.
Witness testimony ended on Feb. 10 and the judge will hear closing arguments beginning March 28. No date for the decision has been set.