No 'Big Love' in BC - Bring 'em Young, indeed.

The leader of the Mormon sect in Bountiful British Columbia is right about one thing - something changed over the holidays.

I don't know if it was a direction from PVL (C - I can't get one wife, let alone six) or from the PMO but something happened. A tolerated scar was surgically operated on. Or is it the BC crown moving in preparation of a BC Election? Who knows- the only thing we know is that FINALLY someone has the stones to charge the polygamists with the charge that bears their name.

While the facts of the case are not shocking to anyone, the bottom line is how this will play out when the Charter Challenge is initiated. I could make a joke about free association or free speech (the right to say I DO more than once) but is this really about religious persecution.

I say it is, but it doesn't matter. There is no freedom protected in the Charter that puts the value of the rights of a 'religion' above the practical rights of women, children and 'devoted' followers.

For me, plural marriage has always been about assholes who want to have power. In the name of god, they abused people in a power vacuum. It is fucking shameful.

My opinions aside, can section 293 withstand a charter challenge?

Well, let's ask the first question? Is it a right to practice polygamy. No - it is a right to be free of conscience and religion - and to have the freedom of thought and belief. There is no guarantee in the Charter that protects the practice of those rights persae. The act of plural marriage is an integral part of that aspect of Mormonism (shouldn't it be MorWOmanism?) but it isn't essential for the belief.

There has been exactly NO case that I have seen that defends an illegal practice on religious grounds provided that the practice has other victims. For example, defending human or animal sacrifice as a tenant of voodooism (I made this up) is the absurd example that proves the finer point. There is no blanket protection for freedom of religion in the way envisioned by the opponents of section 293.

In fact, religious freedom has been curtailed numerous times as it pertains to medical decisions made on behalf of individual who cannot form the capacity to make a decision (child blood transfusions).

So, let's assume then that there is a violation and that plural marriage is a right that is protected by the Charter. Is section 293 a reasonable limitation on that right?

I think that the four pronged test would come under attack in the event of a sustained charter challenge - and that is a good thing. Oakes is over 20 years old, and desperately needs overhaul on what should be protected and what shouldn't. There are numerous elements of the test - and all of them are measured on a civil standard. That seems low when you are talking about rights, doesn't it?

So, looking at section 1 - The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society

1) What does demonstrably justified mean?

In a crazy world, a legislature can say "we need to ignore some rights for a while because we are elected and we have a problem." In a moderate world, we can forgo section three rights by forming a coalition government. In a 'pressing and substantial' analysis, section 293 fails because, to be blunt- this has been the ignored law of the land since Jesus was a Cowboy and before "bring 'em young" meant anything.

Demonstrably justified/pressing and substantial SHOULD mean - we have such a huge problem with your practices because your rights are infringing the rights of others - and in many cases, that means the people you are married to. And your spawn.

It is also very hard to guarantee that a solution to a given malady would be forthcoming. They could just get nannies (see below).

2) Rational Connection

No rational man would have two wives. Who does he spend valentines day with? If you are still able to get married once, are you still being persecuted?

I am afraid I find invoking persecution to defend your ability to over-power weaker, abused and brainwashed women/children to be so ghastly that you deserve to burn in hell. Jews were persecuted. You were left alone for a LONG time. Time to clean up your act.

Sadly, this is the first problem with the existing test. In a post 9/11 world, the rational connection to the limitation has already started to be eroded. The leading case (RJR MacDonald) was about advertising cigarettes and why a ban was an acceptable limitation to free speech. A health objective was attained by limiting speech.

Here, limiting religious freedom by banning extra wives from someone who wants extra wives for the purpose of having extra wives is either a) completely rationally connected or b) so bizarrely irrelevant as to say "there can't be a connection" because it is so intimately connected. Instead of limiting the rights of person A in practice A to protect B,C and beyond - we are actually limiting the Right Z of Persons Y and X and W (and on) for THEIR OWN protection. We are substituting a moral judgement where none should exist.

While you and both know that we are protecting the rights of women and children - we can't prove it the same way. There is a stage of proof, or a burden, that is not easily satisfied. Especially when the wife/wives takes the stand.

Here we have to substituted judgement. We have to say "we believe in this type of marriage" because of what it adds to society.

Or, we could be clever and tell pluralists that gay rights are different than theirs, and worth protecting. It would drive them bonkers. Except in that case, it is about affording someone a legal right to property, support, tax benefit and recognition as equals- not allowing them to have plural marriages which are by definition not equal.

3) Is the right minimally impaired?

I would argue that it is - I mean, you can still have one wife, right? Plural defenders would say that anything that keeps them from a second marriage is a black/white violation of the rights, and to minimally impair the right is to completely impair it.

Why can't they just get nannies like people in the suburbs? The effect is that making something illegal will just drive it underground. The Government of Texas learned the hard way that the best way to stop sinister behaviour wasn't to cut off the head of the beast - but to take away the tendrils (rescue children who are being abused rather than arresting an abuser.)

4) Means/Ends/Proportionality

The meat, as it were. For me, this is a no brainer. Your rights to have more than one wife are not so valuable so as to give affront to the rest of the community and the victims of your crime - presumably the wife, kids and rest of the community.

I don't think that is beyond reasonable proportionality to limit the right of practicing religion in this particular way. I think that the sheer fact that there are Sikhs that don't carry daggers to school, and are still Sikhs, speaks to that. They say that their entire religion is undermined because they can't be plurally married.

I don't know if that is true, because, I am not mormon. If it is true, does the law diminish the religious view? If it does, I am fine with that.