Bountiful is a Detour on the Road to Same Sex Marriage
by Margret Kopala

Published in the Ottawa Citizen, January 29, 2005

If Paul Martin wants to tinker with definitions of marriage he may wish to consult with the ghosts of politicians past, starting with his own father.

Along with John Diefenbaker and Davie Fulton, Paul Martin Senior was an architect of the trailblazing Canadian Bill of Rights that acknowledges the position of the family and affirms “that men and institutions remain free only when freedom is founded upon respect for moral and spiritual values and the rule of law.”

“Diefenbaker, Martin Senior and Fulton agreed that human rights needed a religious foundation,” says George Egerton, a University of British Columbia historian specializing in religion, politics and human rights. “In fact, Paul Martin Senior felt the traditional family needed constitutional protection.”

Lacking provincial consents, Diefenbaker’s Bill of Rights was never entrenched but to the extent it is not superseded by the Charter of Rights and Freedoms, it remains on the federal statute books. Parliament, says Egerton, will have to decide whether the proposed same-sex marriage legislation will override it.

Certainly, it could be the appropriate instrument for addressing all forms of non-traditional marriage, not just the same-sex variety but the heart wrenching and possibly dangerous variety underway in places like Bountiful, British Columbia.

Recently in the news because of B.C. Attorney General Geoff Plant’s insistence that the federal government investigate its polygamy laws, Bountiful is located in southeastern British Columbia, just north of the Idaho border. Members of a breakaway Mormon sect that settled the area in the 1940s, its 1,000 residents follow the teachings of Joseph Smith who held that a man must have several wives in order to reach heaven.

With an additional 30,000 members located mostly in Arizona and Utah, the Fundamentalist Church of Jesus Christ of Latter Day Saints has become a hotbed of intrigue that includes allegations of cross border trafficking, sexual abuse of minors, and speculation that some of the sect’s leaders have up to 30 interchangeable wives, 100 or so children and millions in personal assets.

Bountiful has been known to British Columbia authorities for some time. A government funded report in 1993 recommended sensitive intervention but, it contended, prosecution under Canada’s polygamy law was unconstitutional because of Charter protections of religious freedom. A host of other issues from property settlements to welfare fraud were also (or have since) been raised.

B.C.’s attorney general finally acted on these concerns but it took a hue and cry to do it. The local press, teachers’ and civil liberty organizations plus complaints to the Human Rights Commission and a provincial best seller, Keep Sweet, Children of Polygamy mobilized public opinion.

But for all the high dudgeon outrage, it isn’t difficult to understand the Attorney General’s reluctance. Even if Canada does Charter-proof its polygamy laws, most Bountiful marriages are unregistered leaving the resulting single mothers eligible for generous benefits and the men adulterers but not apparently indictable. And after B.C.’s experience with the Doukhobours that saw families torn apart, few civil libertarians want to see polygamy prosecuted much less take on the 80 Bountiful women who posted a notice last October refuting allegations they are being exploited.

For those who would tinker with the definition of marriage, including Bountiful in the discussion is irrelevant, a red herring, and ‘fear mongering’. “Polygamy is a criminal offence … same sex marriage is constitutional …” insisted Irwin Cotler while scrambling to commission studies on the constitutionality of polygamy.

Stating the obvious, however, same sex marriage and polygamy share context: both are non traditional forms of marriage and both are Charter issues placing various rights and freedoms in conflict with each other. Bountiful is merely that conflict’s grotesque extreme, demonstrating the law’s impotence and capacity for division when it is no longer organic to society’s customs and traditions.

And one aspect of Charter politics is surely a truism: that once you start handing out rights, everyone wants some. Or as Professor Egerton says, if you expand the definition of marriage, you can’t exclude any new definition which takes into account equality or religion.

Paul Martin Senior would undoubtedly agree.

MARGRET KOPALA’s column on western perspectives appears every other week.

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