Polygamy ban centuries old, B.C. court told

The centuries-old laws banning polygamy in Western cultures are rooted in the protection from the ills of multiple marriage and not just the imposition of Christianity on the masses, a law professor told a B.C. court Monday.

It will be an important distinction for a B.C. judge to consider as he decides whether Canada's law against polygamy violates the religious guarantees in the Charter of Rights and Freedoms — a case prompted by the polygamous commune of Bountiful, B.C.

The B.C. government's own lawyer has conceded that, if the prohibition dating back to 1890 is in fact a religious law originally intended to impose Christianity onto society, it must be struck down.

But John Witte Jr., a law professor at Emory University in Atlanta, Ga., said the origins of polygamy in the West extend far beyond religion.

"The prohibitions against polygamy are pre-Christian and post-Christian in their formulation," said Witte, who was testifying for the federal government.

"Pre-Christian in that we have these formulations in Greek texts and pre-Christian Roman law. And post-Christian in that the architects of modern liberalism are making clear that if you want to respect rights, if you want to respect dignity, it is critical to maintain the institution of monogamy and prohibit and criminalize the institution of polygamy."

Once punishable by death

Witte traced the history of marriage back to ancient Greece and Rome, and he said Western cultures have consistently promoted monogamy and denounced polygamy for 2,500 years.

He said ancient Greek and Roman philosophers described  monogamous marriage as "natural and necessary" to foster mutual love, respect and companionship among husbands and wives.

In contrast, he said the Roman emperors who established the first anti-polygamy laws in the third century denounced the practice as "unnatural and dangerous," placing it in the same category as rape and incest. In some cases, polygamy was punishable by death.

Witte said those early beliefs about marriage have informed every Western culture since, from early Christians, the Catholic and Protestant churches, the Enlightenment — which eschewed religion and Christianity — and modern-day England and America.

"The Greeks and Romans are in many ways the forefathers and foremothers of our Western civilization," he said.

"We received from them ideas of liberty, ideas of constitutional order, ideas of rights.... It is a fundamental part of who we are as Western people."

The B.C. judge has heard conflicting accounts of whether polygamy is harmful, with government lawyers arguing the practice inevitably harms women, children and society as a whole.

Residents to testify

But the case is also examining the religious implications of the law — not only whether it infringes on the religious freedoms of polygamists, but also whether the law amounts to an illegal attempt to impose Christianity onto the Canadian public.

The B.C. government asked the court to examine the law after the failed prosecution of two leaders in Bountiful in 2009.

Winston Blackmore and James Oler are leaders of separate factions of the Fundamentalist Church of Jesus Christ of Latter Day Saints, a breakaway Mormon sect that continues to practice polygamy although the mainstream church renounced the practice more than a century ago.

Current and former residents of polygamous communities, including Bountiful, are scheduled to testify beginning next week.

Testimony is scheduled until the end of the month, with closing arguments expected in the spring.

Legal experts have predicted the case will eventually end up in the Supreme Court of Canada.