I’m going to go out on a limb here and say that I’m against polygamy. I think it’s wrong, and harmful, for all the usual reasons: that it devalues women, impairs the trust on which marriage and family life depends, upsets the sexual balance in society at large, and is broadly incompatible with the egalitarian, individual-based political values of Western civilization.
So when it came to opening statements in the landmark British Columbia Supreme Court reference on the issue, the government lawyer had all the best arguments, in my view. And yet I found myself agreeing with the conclusions of the amicus curiae, the lawyer hired by the court to represent the other side of the case.
The specific question the court is being asked to answer is whether the Criminal Code ban on polygamy is in violation of the Charter of Rights. But at bottom the issue is the role of the criminal law in regulating conduct. If the reference helps to clarify our thinking on that, it will have served a much broader purpose.
Society is confronted with all sorts of behaviour, aberrant or otherwise, which it must decide how to deal with. Broadly speaking, these break into four. There are things we encourage. There are things we tolerate. There are things we discourage. And there are things we prohibit.
These are separate and distinct ideas. Yet we are forever getting them mixed up. To tolerate something, say nose-picking, is not necessarily to encourage it. Nor, merely because we refuse to encourage something, for example by denying a subsidy to an arts group, can we be said to have prohibited it.
Likewise, even if we do not prohibit a certain type of behaviour, we can still register our disapproval in other ways. We can discourage it, not only by force of argument or social sanction, but by force of law—without going so far as to make it a crime. Can, and should. In a free society, we should always prefer the least intrusive means of correcting harmful behaviour, consistent with getting the job done.
There are two kinds of harm associated with polygamy. There are the specific harms done to the women and children of actual polygamous marriages, as in the breakaway Mormon sect in Bountiful, B.C., whose decades-long flouting of the law finally provoked the government, unwilling or unable to prosecute for fear the law would be overturned on religious freedom grounds, to seek the court’s guidance. These include allegedly forced marriages, sexual abuse of children, exploitation, and confinement. And there are the more general, what-if harms to society at large: the presumed effects, if polygamy were to become widespread, on marriage, the status of women, and so on.
Of neither type of harm, as I said, am I in any doubt. But the practices listed under the first type of harm, it will be noticed, are all crimes in their own right, under other sections of the Criminal Code. We don’t need to ban polygamy to ban rape: it’s banned already. Granted, there are practical concerns about the chances of successful prosecutions in these cases, given the exploitive nature of polygamous relationships and the difficulties in getting witnesses to testify. But the ban on polygamy is too crude a proxy.
(Indeed, the second question in the reference seems to acknowledge this. It asks whether the code’s general proscription on polygamy, though it does not say so, should be understood to apply only in cases involving a minor, or “in a context of dependence, exploitation, abuse of authority, a gross imbalance of power, or undue influence?” Should the court find that it does, it could narrow the law’s scope without invalidating it altogether. Better yet, the federal government might take the hint and redraft the law.)
As for the broader harms that many fear would arise if polygamy were not a crime: again, just because we do not prohibit something does not mean we have to tolerate it. We can still discourage it. Specifically, we can discriminate against it, withholding the social and legal status we confer on monogamous marriage. We don’t need to ban polygamy. We can just refuse to recognize it.
It is the solemnization of polygamy, after all, that the law forbids, not the practice. It is not a crime for a man to have sex with three women, or to live with them. He just can’t marry them (or live in “conjugal union,” which I suppose puts Hugh Hefner in some jeopardy). Indeed, he still couldn’t lawfully marry them, even if the polygamy ban were overturned. Though it would no longer be a crime, it still wouldn’t be legal.
I can hear the harrumphs already: how long until that bar fell, too? Didn’t we just legalize gay marriage? Didn’t the courts say it was illegal to discriminate between one type of marriage and another? Well, no. They said it was illegal to discriminate between two types of monogamous marriages. They did so, not because discrimination can never be justified, but because in this case it could not—because there was no persuasive evidence of the harm that would follow from recognizing gay marriage in law.
Perhaps some will argue that polygamy is no less benign in its effects, and that as such it should be as lawful for five people to marry as two. Perhaps they expect the courts to adhere to what Mencken called “a foolish consistency.” I rather doubt the courts will oblige them.