(no subject)

[theweaselking]

Mormons: once again, ruining things for everyone.

(Short version: Plural marriage remains illegal among consenting-adults-as-equals because Mormons insist that trafficking children for sexual purposes is a religious obligation *and* that it's the same as plural marriage, and the Mormons themselves were the test case before the court.)

Comments

[theweaselking.livejournal.com]

I'm not saying the judge is *right*, I'm saying I understand his logic.

Imagine a ban on, say, dogs. On the original grounds that everyone breeding dogs is breeding bad dogs who get lose and cause damage and are a general nuisance.

Owners of an abusive puppy mill that produces inbred, deformed, and poorly behaved dogs, who release feral packs of dogs into their neighbour's yards, sue on the grounds that they have a Charter right to breed and own dogs.

The judge looks at the law, and confirms that yes, there IS a Charter right to own and breed dogs, and that yes, this law DOES violate it.... but then looks at the section that defines when such violations are permitted, and declares that this law's violation of *those particular breeders'* rights is justified.

The court does not address the rights of people other than the plaintiffs, because that's not the job of the court. That question is not something that the court *can* rule on, legally.

(And before you get on about having a section that says when your rights are allowed to be abrogated: You've got that, too, you just phrase it differently. You've got a right to be free, and then they can put you in jail for murder. You've got a right to be proof against unreasonable search and seizure, and then a legal definition of "unreasonable". You've got a right to practice religion without interference, and yet illegal acts as part of a religious practice are not protected. You've got the same thing we do, just not as clearly delineated.)

[elmo-iscariot.livejournal.com]

Like I said over at my place, I think what's happened here is that I'm inappropriately applying my instincts based on American review of laws burdening enumerated rights to a Canadian court, which is obviously illegitimate. Since I'm almost completely ignorant of Canadian standards for review, I won't presume to know better than a Canadian high judge whether he's applied them correctly.

And before you get on about having a section that says when your rights are allowed to be abrogated...

Dude, I'm not going to tell you how to run your country. :) Even if I was that arrogant, my country has far too many windows for me to go throwing stones.

But do take a look at my reply to you over there. Browsing the actual decision, it looks like the judge meant to slap down consensual polyamorists right along with fundamentalist Mormons. His language is... pretty damning.

[theweaselking.livejournal.com]

I think he very well might have, but that doesn't change that:

1) Laws against polygamy have been declared a violation of charter rights
2) This violation has been declared a justifiable violation because of the negative effects of how Mormons do it. Not violating their rights would be worse.

Which leaves the obvious argument open: A group says "all those reasons you said it was definitely a societal ill? Those don't apply to how we do it, and we can prove it. Therefore, the second part can't apply to us."

That argument, if successful, would necessitate the law being modified to exclude them, since they've demonstrated that the infringing law does NOT justify violating their rights, since *not* violating their rights would not create a greater wrong.


Now, the end result really might be the eventual addition of a
3) And we have to violate the rights of non-Mormons, too, because we can't apply the law only to some people and the way Mormons do it is really way too damaging.

Which would be bad - but it might also be
3) The law must be rewritten to prevent only how the Mormons do it, since their way is damaging, while allowing how *you* do it since your way is demonstrably harmless.

[jsburbidge.livejournal.com]

The normal response is "it's up to the legislature". Judges will "read down" a law to preserve it by restricting its application to what is justifiable, but they won't import detailed conditions to do so.

Drafting a version of the law which excludes the problematic Mormon version isn't all that hard (e.g. requiring a minimum age of, oh, say, 30 before someone can enter into a poly marriage would probably do it, but that wouldn't be very popular with the poly community), but doing it well would be a bit of a challenge. You also have to thread the needle of immigrants with pre-existing polygamous marriages, many of which are de facto as strongly characterised by suppression of the women as Mormon ones (e.g. the family involved in the Kingston killings which is now on trial), and which other non-Mormon religious polygamous traditions you want to exclude and which ones you want to support.

IANAL, but I am an LL.B. I do wholeheartedly agree that judgements are treated as narrowly as possible as deciding the issue between the parties in front of the judge (I will ignore judgements in rem and Declaratory judgements) and that it would have been pretty well impossible to have a judgement explicitly upholding the law for this set of facts while also explicitly striking it down on another set of facts which were before the court.

[theweaselking.livejournal.com]

It's not specifically Mormon poly setups you want to prevent, it's societal one-directional *required* poly setups - where everyone is expected to be in a poly marriage and all poly marriages are one-man-many-women.

The Mormons just happen to be the ones in court, here.

[jsburbidge.livejournal.com]

That's why it's difficult -- a section specifically forbidding Mormon setups would be easy to write (although you'd probably need the notwithstanding clause to make it stick). Distinguishing between marriages which follow polygynous-only guidelines along with associated problematic patterns from polyamorous ones which are based on a relation between equals and only happen to be polygynous is more difficult. You could make a general provision and leave it for the courts, but that would make for a ton of uncertainty until a large body of case law built up.

[elmo-iscariot.livejournal.com]

I have to run now to family Thanksgiving, but very briefly:

My concern is with the judge's explicit acceptance of the Amicus brief holding that

the harms associated with the practice are endemic; they are inherent. This conclusion is critical because it supports the view that the harms found in polygynous societies are not simply the product of individual misconduct; they arise inevitably out of the practice. And many of these harms could arise in polyandrous or same sex polygamous relationships, rare as those appear to be. Here I mention, without limitation, harm to children (for example, from divided parental investment or as a result of less genetic-relatedness of family members), to the psychological health of the spouses, and to the institution of monogamous marriage.
...
When one accepts that there is a reasoned apprehension that polygamy is inevitably associated with sundry harms, and that these harms are not simply isolated to criminal adherents like Warren Jeffs but inhere in the institution itself, the Amicus’ complaint that there are less sweeping means of achieving the government’s objective falls away. And it most certainly does when one considers the positive objective of the measure, the protection and preservation of monogamous marriage. For that, there can be no alternative to the outright prohibition of that which is fundamentally anathema to the institution. In the context of this objective, there is no such thing as so-called “good polygamy”.

Not to say another court won't ignore his ruling or interpret it out of existence, but this judge seems pretty clearly to have accepted the premise--not that specific cultures with plural marriage are bad and must be suppressed--but that plural marriage itself causes the ills of those cultures.

I have a feeling Canada will eventually recognize plural marriage (and almost certainly before the US does), but this ruling? I have a hard time believing it's a good sign for the short term.

I hope you're right, and look forward to being proven wrong.