Gender Equality or Religious Freedom? Testing Competing Rights in the Canadian Polygamy Trial

Constitutional provisions protecting fundamental human rights are central features of liberal democracies. However, tensions exist between the construction of rights as universal principles and their application in a fragmented political world. For example, the right to be free from discrimination based on creed or gender may be at odds with each other or with other rights, laws, and practices. The Canadian Charter of Rights and Freedoms of 1982 guarantees freedom of conscience and religion and the right to equal protection and benefit of the law without discrimination based on race, national or ethnic origin, color, religion, sex, age or mental or physical disability. The practice of polygamy by fundamentalist Mormons and Muslims presents the potential for competing rights where arguments concerning autonomy, cultural integrity, and religious freedom are pitted against the right for gender equality.  In 2010, the Canadian Supreme Court of British Columbia embarked on an unprecedented reference case to test whether Canada’s prohibition against polygamy is consistent with the freedoms guaranteed by the Canadian Charter of Rights and Freedoms. A central concern is whether polygamy perpetuates inherent harm to women, children, and society. In contrast, arguments were made that some women freely choose to enter into polygamous relationships, and that criminalizing this family form offends their right to religious freedom. In 2011, Justice Bauman ruled that, although the law violates the religious freedom of fundamentalist Mormons, the potential harm caused by polygamy outweighs this concern. Thus, in the name of protecting women from harm, women who practice polygamy as part of their religious commitment are made criminal under the law. This paper examines the treatment of competing rights and societal values in the BC Supreme Court case that pits an individual’s right to act on “sincerely held beliefs” against the equality rights guarantee in Canada’s Charter.