The Globe and Mail has decided to endorse this idea saying as follows:
It's good that he said so. Too many supposed experts have walked on eggshells around the subject of polygamy. A constitutional democracy such as Canada need not accept every practice of a religion or cult or cultural group. In fact, Canada is obliged to protect vulnerable people from practices that create major harm. For instance, Canada is obliged to ban genital mutilation. It is obliged to insist on a single standard for corporal punishment rather than permit some groups to hit their children.
While these words ring true and should inform Parliament, legislatures, courts and each of us as thinking citizens, they actually stand as a strong argument against a reference to the Supreme Court of Canada.
A reference is a process where the government can send a question to the Court for an answer (if the Court believes it to be appopriate to answer) in the absence of a formal lis or live controversey. The Court receives the question with a minimal factual background and is then asked to hear the lawyers debate the question in some big league version of a high school debate. The Court then renders a judgment which may or may not answer the question and may or may not settle the dispute. In reality though, the reference power is generally used where there is a real controversey and there are real combatants who sooner or later will be in front of the Court anyway. This was the case with the same sex marriage controversey where the challenges were slowly but surely working their way up the chain in one province or an other, and likewise with the great constitutional references in the early 1980's.
In each case there was a well developed factual backdrop. There were opponents to take both sides of the questions and intervenors to cast light on different aspects of the issue. It was possible to layout the social context as well as the practical matters that the Court's decision would bear on. This would most decidedly not be the case in the case of a polygamy reference.
The evil of polygamy (religious arguments aside) -- and I have not made a study of this issue -- is said to lie in the social context of how it is practised. That is, regardless of its academic attractions the practicial reality is that it is so intertwined with abuse of women, children and the welfare system that there is no way in a modern democracy it can be practised safely. Thus whatever issue of religious freedom or personal liberty arises this is a limitation that is justifiable in a free and democratic society. Now this may or may not be true but the fact of the matter is absent a real case, with real human beings and a real context this will be a dry abstract debate without a footing in reality.
The danger here is that as an academic issue there are easy arguments to be made on the basis of religious freedom (how many wives did those biblical patriarchs have anyway?) and personal liberty to support polygamy. The counter arguments (except for ones based purely on the New Testament) debate on facts and context -- a reference strips both away. This observations is really true for both sides of the debate in fact.
Twenty five years ago growing up in Catholic Newfoundland I was largely unaware of any of my friends or acquaintances having any sexual orientation than straight (although I now know differently about many of those people). The issues of gays and lesbians were entirely abstract to me and largely informed by my Catholic education. There was no reality to their situations, their desires, disappointments or aspirations for me or for really anyone in the public sphere. Even on reaching university and going to law school most of my experiece with gay and lesbian persons was in the context of out activists -- indeed with few exceptions merely being out in the 1980's and 1990's waas a form of activism. The issues around gays and lesbians wanting to mainstream their lives and to partake in conventional social institutions were not front and centre in the press or in my personal world -- which included a great many progressive people at the time. The fact of the matter is that the Courts and the public and even me as an individual would have reacted very differently to the same sex marriage issue in 1985 than would have been the case in 2005, when it was a real issue with real human beings pleading their real cases.
Richard Peck has looked at Bountiful and said no charges can stick. The residents of Bountiful are not pressing for the laws around polygamy to be reformed (they deny it is going on or just don't comment). The muslim community is not pressing this issue. There is no political party pressing for this issue and as the Globe and Mail editorial itself observed there is no groundswell of public support calling for change. Parliament has passed a law and there is no serious challenge to it -- the only issue is that prosecutors seem to be afraid to use the law. My thought would be -- well -- use the law: if there is a problem charge someone. Have some evidence. Lay out the evils. Show the harm and take the time to make sure both the personal and social facts are laid out in front of a judge and in due course the Supreme Court of Canada will have its say in the context of a real case. Moreover, have someone there who will put a human face to the other side of the story.
It is bad for the Supreme Court of Canada (which has lots of real work to do) and bad for democracy and our democratic institutions to turn the Court into a debating shop where we regularly debate abstract issues of social policy.