Terry O’Neill
Special to The Interim
Abubaker Abusbeaa, the manager of Vancouver’s Islamic Information Centre, says that there’s a lot more talk amongst his Muslim friends these days about the possible legalization of polygamy. After all, they figure, if marriage is being redefined for the purpose of allowing two men to marry, then why not a man and two women? “It’s not a priority for them right now,” he says of his acquaintances. “But I know there are several cases where people are trying to push it,” including a Calgary man he knows, who is eager to get formal approval for polygamous marriage.
Getting polygamy legalized is, admits Abusbeaa, one of his group’s long-term goals. He realizes that with Muslims representing just half a per cent of the Canadian population – compared to the roughly two per cent of the country estimated to be homosexual – “it might take time” for Muslims to win the same rights as same-sex couples. But he’s confident it will happen one day.
And several legal experts back him up. While newspaper columnists and politicians spent the better part of January arguing over whether legalizing same-sex marriage would create a slippery slope, polygamy activists make it clear that they’re more than ready to grease the process along. After all, they argue, if the federal Liberals are anxious to protect “minority rights,” as the prime minister has framed his push to sanction same-sex marriage, then why should the minority of Canadians who wish to take multiple wives be any less worthy of protection? And if the Charter of Rights can be interpreted to allow gays to marry, as the Supreme Court made clear in the opinion it handed down in December, polygamy advocates believe they’ve got an even stronger constitutional case on their side.
In fact, unlike homosexuals, who have argued only that they are being excluded from a right enjoyed by other Canadians, polygamist Muslims have a slightly stronger legal argument going for them. In addition to having their family structure unrecognized by the law, they might also argue that the prohibition, by law, of a common Islamic family structure amounts to an infringement of another right – freedom of religion.
The Koran does not insist that men take multiple wives, says Toronto lawyer Faisal Bhabha, a member of the Canadian Muslim Lawyers Association, but it does permit them to do so. “Polygamy is simply a cultural practice that was tolerated under Islamic law at a particular point in time,” he adds, noting that he personally does not support the practice’s legalization, and believes any challenge to legalize it will fail. But he admits that not all Muslims have the same progressive outlook and that many more traditional men see polygamy as an integral part of Islamic culture. Sayed Mumtaz Ali, a retired lawyer who is president of the Toronto-area Canadian Society of Muslims, has publicly said that, though he does not agree with the legalization of same-sex marriage (if that happens — a vote on the federal Bill C38 is expected sometime this spring), logic and fairness dictate that if gays have the right to marry, Muslim men should have the right to multiple wives. Mohamed Elmasry of Kitchener, Ont., national president of the Canadian Islamic Congress, says that, even though his organization currently has no plans to push for legalization of polygamy, that could change. It took homosexuals 20 years to change the “hearts and minds” of Canadians towards same-sex marriage, Elmasry notes, and several years down the road, “somebody [might] get the bright idea that he has to be equal in front of the law, and he has to bring his mistress and call her wife.”
Technically speaking, polygamy is illegal in Canada, proscribed by the Criminal Code. Practically speaking, however, it’s permitted, given that the prohibition is not being enforced in the one place where it is openly being flaunted. In fact, the province of British Columbia appears to be reluctant to enforce the ban on a fundamentalist Mormon sect in Bountiful, B.C., the Fundamentalist Church of Jesus Christ of Latter Day Saints, specifically because it is unsure its prosecution will stand up to a human rights challenge. The province has twice obtained legal opinions. After the provincial Liberals were elected in 2001, retired chief justice Allan McEachern, advised them that, in his opinion, the protection of religious freedom guaranteed in the Charter of Rights and Freedoms would trump the Criminal Code ban.
Federal Justice Minister Irwin Cotler, who spearheaded the Liberals’ same-sex marriage legislation, has publicly said that B.C. should prosecute the sect, seemingly anxious to test polygamy against the charter or put a stop to it, rather than turning a blind eye to it. Meanwhile, when the federal agency, Status of Women Canada, put out a call for research papers on polygamy in January, it noted specifically that the question of legalizing the practice “will require questions of religious freedom to be considered in light of the possible impact on other charter guarantees.”
Vancouver lawyer Robert Wickett, who represents the Bountiful sect in real estate matters in B.C., says he knows of no plans by the fundamentalists to launch a legal challenge of the Criminal Code prohibition. “I don’t think they would, unless someone were charged criminally, then they’d have to sit down and decide what their defence would be,” he speculates. But if they are charged for practising their religion, says Salt Lake City lawyer Rodney Parker, who is defending a Utah man charged with polygamy, the B.C. sect would likely stand up for their religious rights. “They just would like to lead their lives,” he says. “They’re not going to go out looking for a fight. If one comes to them, though, they’ll take it on.”
Polygamy advocates – be they fundamentalist Mormons or Muslim – may also turn to assertions of privacy rights in defending their practice, says Brian Barnard, a Salt Lake City civil rights lawyer, who is trying to overturn Utah’s polygamy ban on behalf of two fundamentalist Mormon women and a Mormon man. In the U.S., a Supreme Court decision two years ago overturned laws prohibiting homosexual acts in Texas because, the court ruled, the ban unlawfully invaded a citizen’s right to privacy. Barnard says the anti-polygamy laws are “punishing as criminal an intimate sexual relationship.” In other words – to paraphrase Pierre Trudeau – the ban provides the state a place in the bedrooms of the nation. Adds Barnard: “I think, maybe the time is ripe for an objective look at the practice, in a rational way.”
But William Black, a professor in the faculty of law at the University of B.C. specializing in human rights, argues that the charter can just as easily work against any would-be polygamists. Section 1, he says, actually allows the state to override certain rights with “reasonable limits, demonstrably justified in a free and democratic society.” He’s certain, he says, “one of the factors that would be sure to be considered by the court would be whether polygamy violates the equality rights of women.”
How the court will weigh the competing rights of polygamists to privacy and religion with those of women – not to mention the matter of decriminalizing an illegal practice – won’t be known until some province ends up laying charges against polygamists or, more likely, until advocates for the practice start a campaign for polygamy rights. Either way, it bound to prove an interesting battle. Perhaps the only thing more interesting will be watching to see whether those politicians backing same-sex marriage are still as keen on protecting minority rights when polygamists finally get their own day in court.
This article originally appeared in The Western Standard March 14, 2005. It appears here with permission.
