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Ban on polygamy rooted in Western culture, court told

Winston Blackmore, the religious leader of the polygamous community of Bountiful, B.C., receives a kiss from one of his daughters as a son and a grandchild look on April 21, 2008 near Creston, B.C.

Jonathan Hayward/The Canadian Press/Jonathan Hayward/The Canadian Press

Centuries-old laws banning polygamy in Western cultures are rooted in the protection of women, children and men from the ills of multiple marriage and not just the imposition of Christianity on the masses, a law professor told a British Columbia court on Monday.

That 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 involving a case prompted by the obscure polygamous commune of Bountiful.

The provincial government's own lawyer has conceded that if the law, enacted by Parliament in 1890, is in fact a religious law originally intended to impose Christianity on society, it must be struck down.

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

"The prohibitions against polygamy are pre-Christian and post-Christian in their formulation," said Prof. 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."

Prof. 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.

Prof. Witte said those early beliefs about marriage have informed every Western culture since, including the early Christians, the Catholic and Protestant churches and the Enlightenment - which eschewed religion and Christianity - as well as modern-day Britain and the United States.

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"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."

A 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.

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 on the Canadian public.

Tim Dickson, the court-appointed lawyer who is arguing the current law is unconstitutional, noted many of the same cultures that banned polygamy also had laws against homosexuality, sodomy and interracial marriage.

Prof. Witte rejected the comparison, and he noted jurisdictions such as Canada that have legalized same-sex marriage still allow only same-sex monogamy.

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"Sodomy is what we would call a consensual, victimless crime, whereas polygamy is a crime in which there are victims: women, children, men and sometimes society as a whole," Prof. Witte said.

"What many people who come from traditional teachings have recognized is that same-sex parties can enjoy many of the same goods as opposite-sex parties: mutual companionship and love, mutual protection, and today, with assisted reproduction and adoption, it's possible that the goods of mutual procreation and education of children can be achieved by same-sex marriage."

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, or FLDS, a breakaway Mormon sect that continues to practise polygamy. The mainstream Mormon 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 expected to continue until the end of the month, with closing arguments set for the spring.

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

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