A confused judicial treatise on polygamy

The fear that lifting the prohibition of polygamy will result in a surge of polygamous marriages is absurd

Today’s decision by the British Columbia Supreme Court upholding the constitutionality of Canada’s anti-polygamy law serves as a quintessential example of the difficulties inherent in having courts resolve fundamentally moral issues implicated by the Charter of Rights.

Justice Robert Bauman’s judgment is an exhausting and comprehensive display of philosophy, social scientific inquiry, history, religious and cultural studies. It serves to demonstrate, yet again, that judges are experts in law and tend not to be very good at any of these other things.

Whether prohibiting polygamy unreasonably impairs individual rights is inherently complex and, to be honest, I am not sure where I stand on the ultimate question. There is incontrovertible evidence that in many cases polygamy reflects and reinforces gender inequality and can result in abuse, sexual slavery and the exploitation of children.

Critics of the law point out, however, that we already have laws in place that prohibit these things. Moreover, spousal and child abuse are not the sole province of polygamous marriages. Given the individual rights at play, a law focusing on polygamous relationships needs to demonstrate that polygamy itself is inherently harmful (especially since the law only applies to marriages and not all polyamorous relationships).

In its submission to the court, the Canadian B.C. Civil Liberties Association argues “that criminalizing plural relationships between consenting adults is an extraordinarily deep intrusion into personal liberty and a grossly disproportionate response to addressing either the abstract objective of preventing harm.” Yet the judge dismissed this argument as “premised on the notion that polygamy is not inherently harmful.”

What evidence does Justice Bauman have for saying it is?

On his way to upholding the law, Justice Bauman takes a tour through the days of the Roman Empire and ancient Greece all the way to the United States prohibitions before finally getting to Canada. This prolonged discussion is used to justify the assertion that polygamy is inconsistent with Western values.

The underlying purpose of a law is integral to judicial analysis of its constitutionality and here the decision’s historical analysis is unconvincing. As University of Ottawa law professor Carissima Mathen has noted, the law as originally enacted in 1892 was rooted in discrimination against other religious beliefs and practices and not, as Justice Bauman found, motivated by a concern for women and children. As she points out, marital rape was not even considered a crime at the time; the notion the law was for the protection of women is silly.

An even more significant problem with the analysis of social science evidence and expert opinion in the decision is the question of the negative “societal” effects of polygamy. Justice Bauman was convinced by the assertion that polygamy “creates a pool of unmarried men with the attendant increase in crime and anti-social behaviour.”

The fear that lifting the prohibition of polygamy will result in a surge of polygamous marriages and a measurable increase in crime is absurd. The judge’s willingness to accept this logic underscores the problem of a court of law assessing the value or weight of social scientific evidence.

If prohibiting polygamy is actually constraining a huge number of people from entering polygamous relationships, then the argument that monogamy is central to the values of “Western civilization” quickly falls apart. The mere fact that the anti-polygamy law hasn’t been enforced in over 50 years should give one pause before accepting such an argument (unless you are able to do a poll of your wives to ask them what they think, of course).

The weak empirical analysis and largely irrelevant historical treatise embedded in the decision allow Justice Bauman to dismiss the argument that the government has failed to provide “any convincing evidence that … more targeted laws cannot be effectively used to punish and deter harmful conduct in polygamous relationships.”

None of this is to suggest that laws based on basic moral or value-based conceptions are automatically contrary to the Charter of Rights. In fact, much of the criminal justice system is fundamentally about broadly held conceptions of morality.

Yet in the face of honestly-held religious views and the even more fundamental individual right to choose how to live one’s life, courts need to do a better job of assessing the actual impact of a law. It is not enough for a judge to refer to broadly held values and assert spurious, unproven predictions about how society will fall apart if the law is struck down.

In this respect, this case reminds us that judicial reasoning is just as important when upholding a law as it is when striking one down.

Ultimately, this issue will proceed to an appellate court and very likely to the Supreme Court of Canada, either as an appeal to this reference decision or during the course of a criminal prosecution.

Appellate judges usually give fairly broad deference to the evidentiary findings at the trial court level. We can only hope deference gives way to common sense because if there is a compelling argument about the reasonableness of the anti-polygamy law, it wasn’t in today’s ruling.

Emmett Macfarlane is a senior instructor at the University of Victoria. You can follow him on Twitter @EmmMacfarlane




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A confused judicial treatise on polygamy

  1. This article just points out the obvious: that since the courts have decided that traditional marriage is of insufficient value in our society to be worth protecting, there really is no real justification for limiting marriage in any way: marriage between humans and animals anyone?

    • Polygamy is very traditional marriage. The Bible mentions it often.

      • It depends.
        The Jewish Tanakh (aka Old Testament) doesn’t endorse it but doesn’t forbid it and several of it’s characters had multiple wives, but in the Christian New Testament Jesus seems to frown on it.

        He never gets specific, but it seems to be implied, usually when he’s attacking divorce. For instance;

        Jesus replied, “Moses permitted you to divorce your wives because your hearts
        were callous. But it wasn’ this way from the beginning. I tell you that anyone
        who divorces his wife, except for marital unfaithfulness, and marries another
        woman commits adultery.” (Matthew 19.8-9)

         ”Some Pharisees came and tested him by asking, “Is it lawful for a man to divorce his wife?”  
        “What did Moses command you?” he replied.
         They said, “Moses permitted a man to write a certificate of divorce and send her away.”
           “It was because your hearts were hard that Moses wrote you this law,” Jesus replied. 6 “But at the beginning of creation God ‘made them male and female. For this reason a man will leave his father and mother and be united to his wife, and the two will become one flesh. So they are no longer two, but one flesh. Therefore what God has joined together, let no one separate.”
         When they were in the house again, the disciples asked Jesus about this. He answered, “Anyone who divorces his wife and marries another woman commits adultery against her” (Mark 10.1-11)

        Virtually all the early church leaders and councils interpreted this as saying that if the first marriage still stands, then a “second” marriage is
        adultery and not ’polygamy’, And this is the viewpoint has held through the millennia and various schisms.

        So that’s why Christianity doesn’t allow polygamous marriage. That and the huge influence of Greek and Roman conventions on early Christianity (which can’t be overlooked).

          • Ummm… OriginalEmily1, if you look at the little names of the books by the quotes, you’ll see that every book mentioned is in the Tanakh. Not one of them is from the Christian New Testament.Secondly just because the various writers mention a particular living arrangement, doesn’t mean they endorse it or infer that their God endorses it.Just because MacLeans has an article on the Shafia murders, doesn’t mean their editorial board endorses honor killing.But the graphic infers endorsement, whereas the Tanakh writers are occasionally actually condemning the behavior.For instance the graphic mentions Solomon as having over 300 wives, and it’s correct, but look at the excerpts that mention it:”King Solomon, however, loved many foreign women besides Pharaoh’s daughter—Moabites, Ammonites, Edomites, Sidonians and Hittites… He had seven hundred wives of royal birth and three hundred concubines, and his wives led him astray. As Solomon grew old, his wives turned his heart after other gods, and his heart was not fully devoted to the LORD his God, as the heart of David his father had been… So Solomon did evil in the eyes of the LORD; he did not follow the LORD completely, as David his father had done.”. (1 Kings chapter 10)“The king… must not take many wives, or his heart will be led astray. He must not accumulate large amounts of silver and gold.” (Deuteronomy 17)The graphic also mentions levirate marriage as being advocated in Genesis 38, but it isn’t, a similar situation occurs but not a levirate marriage. It’s actually mentioned in Deuteronomy and there it’s neither condemned nor endorsed.I could go on and on, virtually every example is at least slightly out of context. I would encourage you to look up these yourself OriginalEmily1, rather than relying on the efforts of demagogic pamphleteering.But as I mentioned above, not one of them is from the Christian New Testament. You may want to whip them out when arguing against Orthodox Judaism, but you’ll just sound uninformed when debating a fundie. They do actually read their bible you know, usually daily.

          • I am well aware of the nonsense in the Bible….however polygamy is a very traditional marriage….as are many other kinds.

            There are old testament christians…big on smiting…and those would be Cons

            And there are new testament christians….big on sharing….those would be NDP

            No, fundies do not read the bible….most of them have no idea what it is they’re supporting.

      • So was stoning adulterers.  Neither, however, underpinned western democratic societies like Canada’s before Trudeau invited the judiciary to remake it in their own image.

        • Hard to stone adulterers when a man could have hundreds of wives.  LOL

          Marriage does not underpin democracy.

          Trudeau did nothing of the sort.

          • There was another word after “democratic”, although you’re not particularly known for careful reflection before posting.

          • Marriage occurs all over the world…in every ‘society’…no matter what their political system is.

            Don’t confuse the two.

      • yeah?  and who “wrote” the bible? Do you believe everything you read??

        • Since I’m an atheist, I don’t believe any of it.

          I was replying to a poster who talks about ‘traditional marriage’ and drags animals into it.

    • I hate to even acknowledge such a ludicrous line of argument, but fine.

      Explain to me how an animal is capable of consenting to marriage.

    • Animals can’t give knowing consent. Just like children. Care to try again?

      • What do you mean children can’t knowingly consent? Sure they can. I thought you cared about liberty!

        What I mean is that at least theoretically some children are probably mature enough to give informed consent to marry and or have sex. A true libertarian would force the state to prove that the child was not mature enough to provide consent as an element of any offence.

        But does that mean we should allow an exception to allow “mature children” to marry or have sex with adults? Of course not. It’s about drawing lines.  Just as Justice Bauman did here.

        • 1. I’m not a true libertarian by any stretch, and don’t have a good opinion of those who are.

          2. Personally, I’d suggest the other way; that before a marriage licence gets granted, we have the person prove they know not only who they are but what the hell they’re getting into.

          But then again, I think it’s idiotic that we allow people to get married before we trust them to drive, and even worse that we trust people to drive before we trust them to drink.

        • But does that mean we should allow an exception to allow “mature children” to marry or have sex with adults? 

          In terms of marriage, we already HAVE such exceptions.  People under the age of 18 can get married TODAY.  All they need is a signed consent form from their parents in most provinces (in PEI you can only marry under the age of 16 if you are pregnant or a mother, and in New Brunswick you need to get a declaration from a court to marry if you’re under 16, but you still can get married under the age of 16 pretty much anywhere, usually just with written permission from you parents).  As I’ve said elsewhere, this is the absurd thing about the ban on polygamy.  In most (though not all) instances, marrying a minor wasn’t even a problem legally for a defendant.  They still hadn’t done anything wrong until they married more than one person.  It’s our OTHER laws that we need to strengthen, a charge of polygamy should just be redundant in all cases.  Again, if all that we can charge a cult leader who is exploiting and abusing women and children with is “marrying more than one person” that’s an indictment of our laws against exploitation and abuse, not an indictment of the concept of polygamous marriage.  If polygamy is all we can charge someone like that with the problem is that we don’t have other laws that we could charge that person with.

          • Yes, I was not very precise in my response. But the particular exception I outlined above is different than the exception that you outlined.  The current exception (getting an order from a judge) puts the onus on those seeking to get married, not the state. The point is that the state has drawn a line (at the age of 16) such that is would be an offence to attempt to marry someone under that age (without an order of the court). Further, I can tell you that in practice, these exceptions are made very, very rarely.

            So the law has established line, not based upon an assessment of maturity, but based upon the age  of the participants as a proxy for such an assessment, as a reasonable limit on the “right to marry” in order to prevent abuse of minors. Such lines are drawn all of the time. 

            My point is that the polygamy law draws another line that is a reasonable and defensible one, given the demonstrable harm flowing from the control over female spouses extracted from solemnized polygamous marriages. Rather than musing about hypothetical impacts on freedoms, the court recognized these real “facts on the ground”, and upheld the law in order to curtail an actual, longstanding pattern of abuse of many, many young girls and women.

              

          • Is it actually an offense to attempt to marry someone under 16? I know someone can’t get a marriage license if they’re under 16 (at least not without parental permission, or being pregnant/ a mother) but can someone actually go to jail for attempting to marry someone under 16? Wouldn’t it just be some misdemeanor of attempting to get married without a license (if that?).

            Now, SEX with a minor would be something else entirely, but I’m not sure that someone can actually be charged with the “offence” of attempting to marry someone under the age of 16.

            Finally, minors aside, what about the restrictions being placed on the rights of adult WOMEN to enter in to polygamous marriages? We may view the subservience of wives to their husbands as exploitation, or even abuse, but can’t an adult CHOOSE to follow such a religious precept? Presidential candidate Michelle Bachman became a tax attorney because her HUSBAND TOLD HER TO, and because she believes that the Bible’s instruction for wives to obey their husbands is meant to be taken literally. We may find that to be repugnant, but as an adult woman, should she not be free to believe that, and also be free to follow that belief in her daily life?

  2. most of what you say …..I’m already there……and get it……..my thought is this…..people are wanting more personal liberties to be looked at with a open mind and the courts for the most part deal with laws that are on the books……get more open minded people to run for office……problem is most that run are not open minded to begin with…..but the encouraging thing is …..we have allowed for the last 30 years at least ……more people to see and hear things via a number of venues and they just may……start changing things to allow for more open mindness……I’m 60 and I know more change is coming……big time……old school vs more open mindness…..wonder who will win ?……put money on the new kids on block……. 

  3. This case is a good illustration of the limits of references.  IMO, references are good for technical cases (like the Clarity Act) but not as good for cases that require a good factual foundation to ground the decision.  Facts tend to focus a judgment.  Otherwise, a reference decision often reads more like a legal opinion than a judgment. Good article.

    • It’s not the underlying facts but the nature of the “social scientific” evidence needed to ascertain the legal effects of government policy.  It can definitely give one pause at times, but having two (usually more) parties presenting their best evidence in an adversarial system before an impartial judge is hardly the worst way to figure out these things, and better than making these decisions on no evidence at all.

  4. I am a bit disappointed with this analysis. The suggestion that he prohibition of polygamy will result in a increase in polygamous marriages was mentioned in the decision, but it was hardly central to it. This was a careful, comprehensive decision that included a lengthy discussion of harms that always seem to accompany the practice of polygamy. 
    The historical and contextual analysis that Mr. Macfarlane mocks was clearly an attempt to reflect a consideration of the copious submissions received, the 42 days of testimony, and to compensate for the challenges inherent in providing a decision in a reference.  Further, Justice Bauman demonstrated judicial restraint: Despite the apparent need for as much evidence as possible, he refused to rely on certain evidence on the basis that it was anectodal.  You wouldn’t know any of that from Mr. Macfarlane’s summary.

    • Thank you for that comment.

      I think when journalists endeavor to explain judicial reasoning, they all too often demonstrate that they tend not to be very good at that sort of thing.

      • In fact, I’ve never met a single professional in any field who was happy with mainstream journalism’s representation of work in that field.  Lack of expertise, combined with the need for a sensationalistic “gripping” stories, short available space all play roles.

        It’s really unsettling, when you think about it.

  5. I eagerly anticipate reading the decision.  It does seem odd to me that I could live in the same house with more than one person, have long-term romantic relationships with both (or more) of them, even have children with one or more.  As long as I did not harm them or break any other law, there would be nothing the police could do.

    But if more than one of these hypothetical persons and I participate in a religious ceremony, they should slap the cuffs on all of us? 

    • Everyone seems to support the freedom to engage in hypothetical polygamy. It’s the real polygamy that is the problem.

      • Heck, it’s not even that.  It’s the things which aren’t polygamy which the Crown claims are so inevitable they trump religious freedom.

        • You mean, there are examples of polygamy that don’t lead to these harms? Show me where.

          • When constitutional rights are at issue, i would like to think, despite what I may find the judgment, that the opposite would be the case. Especially, when, as noted, one is talking about insular groups who may not feel comfortable giving evidence.

            Worth noting – we seem to be here because the police couldn’t actually prove the abuse they thought in bountiful was going on, so they had to resort to polygamy charges.

          • Ha ha. Good one. Clearly, no abuse there. Carry on!

            I’ll let you hang your hat on that one. Sheesh.

          • Did they lay charges? I admit I was unaware.  It was my understanding that they had to go with polygamy because they couldn’t gather evidence on anything else.  (Now, this may have been because people refused to talk, but it doesn’t mean you should go around making convictions for things which themselves should violate the charter). 

          • Read Paragraph 393 of the decision, and the paragraphs that follow, for a summary of the police investigations. 

          • Any married so-called “polyamorous” family in Canada (the quotes are because the second you move from love to formalized marriage polyamory becomes, by definition, polygamy – more than one love vs more than one marriage – but it obvious you do not actually understand the fully definition of polygamy based on your statement so I’m trying to differentiate for you) – 188 of which answered a survey stating they lived in a “conjugal union” – some of which included marriage (as defined by Bauman – involving a ritual/ceremony/acknowledgment by an external party) FOR this court case in response to CPAA asking, and the survey was only available for one month.

            Five of these families that you imply don’t exist also entered affidavits for the case – many have ONE marriage between them and have expressed the desire for a second ceremony to celebrate the commitment that they have been showing to each other for years already. Many of these families have children. None have abuse, inequality based on gender, or other “harms”. And monogamy has not been destroyed in the rest of the known world. Did you actually read the court documents?

            Now, if you what you are ACTUALLY asking is: “you mean there are examples of a small subset of polygyny (one form of polygamy) that involves strict religious guidelines often bordering on zealotism where those guidelines and the secretive nature that is forced upon isolated communities more than the concept of marrying more than one spouse results in abuse? Show me where.”

            This I will give you – not a lot of examples of that one.

            Bauman has stated that as long as polyamory never moves into the realm of santifying a union…we’re “ok” (we can shack up, we can raise children, we can “be married in all but name”, we just can’t put on a wedding gown and have cake apparently) – the second it does – these consenting adults who are capable of having a committed relationship with each other are breaking a law by saying “I do”. Not because they are abusing each other, not because there is any perceived harm (except to the apparently fragile institution of monogamous marriage and because unmarried men become slavering maniacal beasts when denied sex – I’d really like to know where the raving hoards are because apparently my single male friends defy mathematical inevitability) – but because they chose to declare their commitment formally, religiously, or civilly.

          • Assuming without deciding that 100% of religious polygamous marriages engage in illegal abuse and that the ones you describe do not, wouldn’t it be ironic if the ones who commit crimes can try to claim a constitutional exemption, but that the non-religious ones would have no claim to avoid imprisonment!

          • I fully understand the definitions, dawnhawk, thanks. But I think that you have your small subsets confused. Your CPAA families comprise a very small subset of the polyamorous families on the planet. The evidence demonstrated that almost everywhere polygamy exists, significant social harms result.

            And no, I don’t think that polygamy is any threat to monogamy. Nor did Justice Bauman.

          • Actually Bauman DID decide that polygamy was a threat to the institution of monogamy.

            And I quote:
            [5]            
            I have concluded that this case is essentially about harm; more
            specifically, Parliament’s reasoned apprehension of harm arising out of the
            practice of polygamy. This includes harm to women, to children, to society and
            to the institution of monogamous marriage.

            You could likewise prove that almost everywhere monogamy exists, significant social harms result. Bauman however rejected that because “he wasn’t asked to judge on monogamy”.

            He stated there is no such thing as “so called good polygamy” – evidence exists to the contrary. The second you make an absolute statement it only takes a single example to the contrary to cause a logical fallacy.

            And while only 188 non-FDLS poly people had a chance to conduct themselves in the CPAA survey there are many more. For example, a paper published in Psychology & Sexuality entitled “A comparison of polyamorous and
            monoamorous persons: are there
            differences in indices of relationship
            well-being and sociosexuality?” published by co-authors from the University of Saskatchewan and the National University of Galway, Ireland also surveyed almost 300 self-identified poly/mono in a poly relationship people of multiple gender identities. You can look it up if you like.

            Just because YOU may not know that anyone you know is poly, does not mean they aren’t out there and out in there in numbers.

            Please do the research before you claim they aren’t out there, or aren’t significant.

          • I missed that reference dawnhawk. I still think that it could be read as a general statement about the nature of the issues addressed by Parliament, rather than a statement that monogamy is generally endangered by polygamy, but I will grant you that it is possible that Bauman fears for the institution of monogamy (although I don’t). So I stand corrected. But you must admit that this was not the focus of the decision.

          • I agree entirely that it was not the focus of the decision – the focus of the decision was whether the anti-polygamy law is constitutional – which he found it is when applied to consenting adults – because based on the fact that societal harm exists where polygamy exists.

            Your question was – there are examples of polygamy that don’t cause harm? show me examples.

            Examples shown.

            The added question on top of that should have been asked (and instead they skated around it and drew a causal relationship without taking into account basic control factors – any scientific study that doesn’t account for controls and margins of error would be laughed out) which is resulting in a fair amount of debate (and fear for consenting adults who frankly just want to be able to live their lives they way they choose where it doesn’t affect anyone else) – is are societal harms a direct result of “polygamy” (namely – FDLS/Muslim forms of polygny) – or are the societal harms a direct result of…well society and control factors OTHER than polygamy (in any form). If we say abuse is caused by polygamy – then we HAVE to explain by abuse exists outside of polygamy. We also have to explain by polygamy exists outside abuse. It’s not a one-to-one relationship – therefore the conclusion is not supported by the premise.

            No one here is arguing that forcing anyone (of ANY age) into a relationship they don’t want is wrong. “Brainwashing” (as opposed to honest faith…I would suggest that some people do actually believe in multiple celestial marriage resulting in heavenly reward, and not all are brainwashed…hell some people do actually believe in the Klingon religion created for the purposes of a sci-fi show by Roddenberry, people just believe what they want, that’s the point of belief)…where was I…oh yes, actual brainwashing – wrong. Screwing up children – wrong (yet we still allow pretty much anyone who wants to, to have as many children as they like). Completely disregarding the laws of the place you live – wrong. Especially when you then turn around and depend on the same society to help/support/provide for you in any way, shape or form.

            That does not mean that laws can’t and shouldn’t change based on changing times/ideals/circumstances etc. It does not mean people can’t and shouldn’t fight for those changes.

            There were a lot of claims during the case that were so generalized they became false (Polyandry doesn’t exist, for example…Polyandry has existed in CANADA – there are inuit cultures that had this form of non-monogamy within it). The Maasi have it in their culture, in the form of walking marriages as an example.

            The case was oriented toward FLDS/Muslim cultures – and yes those are the most public (which some argue this as predominant – however the number of practicing polygamous in Bountiful is actually quite small – there are only 1000 people there and less than 200 of them identify as polygamous) – however the generalizations made as a result are frankly offensive to anyone who doesn’t fall into them (and they DO exist – I know over 100 in Saskatchewan alone) – however like other niche sexualities/orientations/lifestyles – many will NOT step forward because of fear, and thus end up invisible and marginalized and lumped in with people they have no desire to be lumped in with.

            This judgment, in a lot of ways continues to marginalize and propogate that fear. And while that fear exists the actual numbers of who falls where can’t truly be examined. As long as people might get thrown in jail for saying “I do” – law abiding people won’t do it. And thus the “statistics” will always show that “well they are insignificant”.

          • Bah…sorry some spelling mistakes ended up making that confusing.

            why* not by in a couple places.

            No one is arguing…ISN’T* wrong. Not is.

            And Massi are an African example (not inuit), but for some reason the line that made that make sense got cut out. I was originally stating that it exists in Canada and elsewhere.

          • Also Maggie – while the paragraph [5] by it self could be seen the way you interpret, the judgment as a whole can not.

            For example:

            [1332] The positive side of the prohibition which I have discussed – the preservation of monogamous marriage – similarly represents a pressing and substantial objective for all of the reasons that have seen the ascendance of monogamous marriage as a norm in the West.
            [1350] But, in my view, the salutary effects of the prohibition far outweigh the deleterious. The law seeks to advance the institution of monogamous marriage, a fundamental value in Western society from the earliest of times.

            Bauman is saying that we MUST prohibit poly to preserve monogamy (because apparently all of you truly mono people are simply held back from throwing your fundamental values to the wind solely by this law – who knew?).

          • Justice Bauman has said a civilly married person can have a same time common law spouse.. you just can’t have a “ceremony” or even a cake. BC’s new family Law Act supports that as does Saskatchewan’s’. You can “become the spouse of a person who has a spouse, legally. So, the answer for polyamorists and polygamists that want to have binding marital rights and obligations with more than one person is to go to family law court over a trivial matter and be heard and recognized as spouses. Once done, you can forget the trivial matter by agreement and you are thereafter “spouses” with provincial protection from prosecution.

          • Sure, but isn’t making polygamy illegal because it often leads to other offences sort of akin to making drinking illegal because it often leads to other offences?  Why do we need to be able to charge people with the crime of polygamy in order to deal with the crimes that (you say inevitably) result from polygamy?

            I’m not actually convinced that we SHOULDN’T keep polygamy illegal for exactly the reasons you state.  However, being one who prefers to err on the side of freedom, I’m not sure I need more than a hypothetical possibility that someone could engage in activity X without causing any harm to others for me to decide that maybe X shouldn’t be illegal.

          • If the precursor/harm ratio for drinking was as high as it is for polygamy, I might agree with that first proposition. However, the evidence suggests otherwise. Most people drink without abusing anyone.  

            How nice for you to be able to err on the side of freedom, given that there is absolutely no risk that you will end up as a 13 year old girl in a cult in Bountiful, BC.

          • If a 13 year old girl ends up “married” in a cult in B.C. and all we can legally charge her “husband” with is polygamy that’s not an argument in favour of criminalizing polygamy imho, that’s an argument in favour of strengthening our laws against child abuse and exploitation.  In the case you describe we ought to be able to successfully prosecute that man for a whole host of offences imho, and a charge of “polygamy” ought to be just gilding the lily.

            To my mind, if we need to criminalize polygamy in order to prevent the type of scenario that you describe that’s not necessarily an argument in favour of the importance of the criminalizing of polygamy, it’s an argument in favour of the importance of strengthening our other laws.

            Now, that said, if we really have to criminalize polygamy in order to prevent the type of scenario, then let’s do it, but I think I’d philosophically (if not practically) rather make it legal for three 30 year olds of sound mind to consent to marry each other and make it illegal to marry a 13 year old, period.  If all that we can charge a man who is abusing a 13 year old with is “marrying more than one person” then that’s a pretty big problem imho, and it has very little to do with whether or not polygamy is legal.  If cult leaders are abusing children in Canada and “polygamy” is the most serious charge we can come up with to get them on then THAT’s the problem, and we ought to fix that.

          • The evidence is not hypothetical. Read the statistical analysis starting at paragraph 609 of the decision.

          • “I’m not sure I need more than a hypothetical possibility that someone could engage in activity X without causing any harm to others for me to decide that maybe X shouldn’t be illegal.”

            The “if it doesn’t harm anyone else” argument resurfaces after its hiatus following the “gay marriage” wars.  The problem with the argument – then as now – is that it defines “harm” too narrowly.

            When divorce laws were liberalized in the late 60s, the same “harm” argument might have been raised, i..e. what “harm” comes to happily married couples if the divorce rules are loosened for the benefit of unhappily married couples.  Turns out Canadian society did suffer “harm” (more single parent families with corresponding increases in crime & poverty rates) because more marriages ended, although it will always be a matter of debate whether this “harm” outweighs the “harm” liberalized divorce laws were intended to reduce.

            Perhaps an analogy better illustrates the point that “harm” occurs, if not to individuals, but certainly to society in general, when foundational concepts like marriage are sacrificed to the Charter gods.  I possess a post-graduate degree, which I achieved after many years of concerted effort to meet rigorous academic requirements.  I will not suffer personal “harm” if a court decides to redefine these requirements because they infringe someone’s Charter rights – nobody will be taking my degree away from me – but society will certainly suffer harm because not everyone possessing the degree in the future will have met the same requirements.

            A more honest argument is to acknowledge that renting the fabric of society isn’t harmless, but nonetheless justified because (for e.g.) polygamists will feel bad if we don’t.

          • I just find it hard to believe that the reason everyone’s not marrying multiple partners is because it’s illegal to marry multiple partners, and that therefore keeping polygamy illegal is the only thing between us and harm to the fabric of Canadian society.

            I’m not sure I see much more evidence for the notion that polygamy will flourish if it becomes legal then I saw for the argument that if same-sex marriage were made legal, somehow a lot of straight couples would get divorced, or a lot of heterosexual people would accidentally marry a member of the same sex, because they’d no longer be able to help themselves. Unless we’re going to make polyamory a crime, I’m not sure that I understand what harm is being prevented by saying “you can live together, and have sex, but if you engage in a religious ceremony to formalize your relationship we’re going to throw you in jail”.

            At least with divorce I can kinda see the potential for the prevention of a societal harm by legally preventing divorce (though this is premised on the idea that 1) all those couples will stay together, and not just split up anyway without technically getting “divorced”, and 2) that forcing people who don’t like each other any more to remain married is somehow good for society). However, what “societal harm” is being prevented by stopping people from getting married more than once, that wouldn’t already occur anyway unless we outlaw adultery too? What logic is there to allow me to live with multiple women in a romantic relationship, but prevent me from engaging in a ceremony that makes that arrangement more “official” in the eyes of my religion (I’m not even arguing that the state should RECOGNIZE polygamous marriages the way we do same sex marriages, simply that maybe people shouldn’t be thrown in jail for consensually marrying more than one adult).

            It seem to me that the “societal harm” arguments against polygamy itself (as opposed to the related harms that sometimes result – child abuse, abuse of women etc… which I’m still open to being convinced are reason enough to ban polygamy) are arguments in favour of the societal “good” of monogamy, and I don’t see how criminalizing polygamy protects monogamy. If we want to protect monogamy, don’t we need to re-criminalize adultery? Possibly even criminalize consensual sex between unmarried partners?

          • @MaggiesFarmboy:disqus Take a look at the relationship of criminal offenses to liquor. I worked for a criminal lawyer for a while. I’d estimate about 90% of his cases started with “________ and buddies were having some drinks..”
            It’s only anecdotal evidence, but I’ve yet to find anything that contradicts it.

            Incidentally, Disqus really needs a way to “unlike” something you accidentally liked because that link got moved over to where reply is supposed to be.

          • @MaggiesFarmboy:disqus 

            When I referenced “hypothetical” I wasn’t saying that there’s only hypothetical evidence of harm being cause by polygamous marriages.  What I was saying was that from a libertarian point of view I don’t actually need to see real world examples of polygamous marriages in which no harm results to believe that we should perhaps not criminalize polygamy.  The mere hypothetical possibility that it’s at least conceivable that three consenting adults could marry one another without causing harm to themselves or to society could be enough to convince me that we shouldn’t criminalize the practice. (Plus, as Dawnhawk points out, though perhaps very rare, there are apparently cited examples of polygamous marriages where no harm resulted).

            Also, to my mind, criminalizing polygamy essentially suggests that in these cases of abuse, everything was just fine right up until the moment that the marriage ceremony took place.  It seems to me that if “marrying more than one person” is all that you can charge someone with, that kinda suggests that the only thing that person did that was criminal was to have a particular type of ceremony performed.  I think that what we should be doing is strengthening our other laws against exploitation and abuse rather than risk that our system leaves the impression “everything else you did was fine, you just shouldn’t have had a party, gotten dressed up, said some vows, and eaten some cake”.

          • If I put up a pinup poster of a woman in the office at work, it creates a hostile work environment for women.

            Recognizing polygamy creates a hostile societal environment for women and children.

          • @WhyshouldIsellyourwheat

            OK, I can see that argument, but isn’t banning polygamy in that analogy like banning pin-up posters?

            Just because in context X a pin-up poster can create a hostile environment doesn’t mean that pin-up posters are inherently hostile and should be banned.

            I guess I’m just not convinced that no woman could ever rationally enter in to a polygamous marriage without doing harm to herself and/or others. I also think there’s a difference between recognizing polygamy and not criminalizing polygamy. I don’t think the state needs to “recognize” polygamous marriages, I’m just not sure that people should go to jail for marrying more than one consenting adult.

          • I can think of two families with multiple partners that are healthy, happy relationships absent abuse. The abuse in Bountiful and other religious communities is more easily and convincingly explained by the antecedent variable of a affiliation with a fundamentalist religion that teaches values antithetical to gender equality. Even absent multiple marriages, women in religious communities that are misogynist are subject to abuse at a higher rate than women in more secular or more mainstream religious affiliations.

          • Hint: The polygamy isn’t what’s leading to these harms. Shocking as it may be for your delicate sensibilities, abuse and domination of women and kids happens every day. And in fact more women are abused in two-person marriages than in poly-amorous ones. Would you have us ban all of them?

          • Trust me pal, my sensibilities ain’t delicate.

          • Correlation != Causation. This is pretty basic science.

            I’d go so far as to suggest there’s a strong argument that the causation is actually reversed. Domination and abuse of women/children leads to polygamous cults as a means to justify the activity.  Thus, outlawing polygamy will do somewhere between jack and shit to reduce this abuse, while at the same time criminalizing many people who really have done nothing wrong.

            The fact that we have women’s shelters is a disgrace. Why is it that it is the woman who is being abused that is forced to leave her home?  What we actually need is stronger enforcement of the abuse laws, automatic restraining orders in spousal abuse cases — with teeth behind them, and a recognition that the abusee may be unwilling or unable to declare the abuse.

            And I’ll point out that the lack of depth in Disqus’s reply chain is what made these posts come one after the other. What a pain.

  6. It’s time for the federal government to quit recognizing marriage at all.

    What’s the difference between a common law arrangement that features a man and two or three women and polygamous marriage? Just legal recognition really.
    And with so many people nowadays in committed long term common law relationships that differ only in name and a piece of paper, having government recognition of only those who stand before a clergyman or a JP is meaningless.

    Losing government recognition of marriage would only really affect spousal pension, and the way things are going, how long is that going to last.

    Leave marriage and it’s various definitions to communities, social groups and religious organizations, not the government.

    • While the ‘moral issues implicated’ by the marriage debate are probably something the government wants to avoid becoming too involved in, there are many practical reasons why the government should be interested in continuing to regulate marriage – spousal pensions would be the tip of the proverbial iceberg.

      It’s possible to oppose polygamy on the grounds that it is bad policy without ever opining on its moral correctness.

      • And even to oppose it but not feel people should be jailed for it! 

  7. Just started reading the decision.  Good grief, who granted REAL Women intervenor status!? 

    • If I were a polygamist, I’d be trying hard to find a gay polygamy group that could intervene at the appellate level.

  8. I’m still not convinced that we shouldn’t keep polygamy criminal, but still…

    If someone is exploiting and abusing women and/or children, and all we can successfully charge that person with is “marrying more than one person” then it seems to me that that says much more about the weakness of our laws against exploitation and abuse then it does about the strength of the rationale for criminalizing polygamy.

    More to the point, if someone is exploiting and abusing women and children, and all we can charge that person with is polygamy, doesn’t that send the message that all of the exploitation and abuse was just fine, the perpetrator just shouldn’t have held a marriage ceremony???

    We shouldn’t need to criminalize polygamy in order to save people from being exploited and abused by polygamous groups, and if criminalizing polygamy is really the only way that we can figure out to save people from abuse and exploitation then THAT is the problem, and shouldn’t we be fixing THAT?

    • I tend to agree that it’s difficult to come up with cogent arguments in favour of maintaining criminal sanctions against polygamy in 2011.  This is because the reasons for sanctioning polygamy are essentially the same reasons against redefining marriage and we all know how that turned out.  Those who still insist the advent of gay marriage would not turn out to be a slippery slope that would eventually render the concept of “marriage” meaningless might want to avoid reviewing the jurisprudence cited by the pro-polygamy side in the BC decision.

      • I would submit to you that if the concept of marriage has been rendered meaningless that happened LOOOOONG before we acknowledged same-sex marriages. We were treating common law heterosexual partners essentially the same as married partners long before we let two men get married to one another.

        • The concept of marriage may well have been rendered meaningless long before judicial proclamation of same-sex marriage, but only because it represented an ideal fewer and fewer people were encouraged to aspire to, not because it had somehow become, after centuries as the foundation of western culture, broken.  Arguing about it now is, of course, pointless – after 25 years of social engineering by Charter-enable courts, Trudeaupia draweth nigh and I suspect neither you nor I will be around to experience the “wonders” that will eventually manifest in that brave new world.

          • I guess I would just argue that marriage has lost some of it’s luster because society changed, not because Trudeau re-engineered society. I think perhaps you give Trudeau and the Charter too much credit for their ability to change human nature and alter the course of Western civilization.

  9. If marriage is recognized by the state for the common good, then the state can refuse to recognize polygamous marriages if they are found to be contrary to said good.

    However if marriage is recognized by the state as a fundamental right which each citizen can claim with respect to any other consenting citizen, then there are no logically consistent grounds for refusing to recognize polygamous marriages.

    It is obvious, since the same-sex marriage debate, that the current national understanding is the latter, not the former.  It is wholly unreasonable then to refuse consenting adults the right to enter into polygamous marriages.

    This redefinition of marriage as a personal right rather than a part of the common good started long before same-sex marriage, however.  It started with divorce. 

    • The article has incorrect information. It says “Given the individual rights at play, a law focusing on polygamous
      relationships needs to demonstrate that polygamy itself is inherently
      harmful (especially since the law only applies to marriages and not all
      polyamorous relationships).”

      The judge did NOT say the law applies to “marriages”..he said “ceremonies”, not civil marriages. (bigamy covers that)

      Also, civilly married people may legally take additional (family law)
      recognized spouses if they are common law marriages, prior to divorce.
      (even without their consent) This is not polygamy nor is it bigamy. It
      is only polygamy if a “ceremony” occurred. It is only bigamy if a “civil marriage” took place.

      Civilly married persons may not civilly marry another person until
      divorced from an existing spouse or it is bigamy. If they do, no marital
      rights nor obligations arise (within provincial family law acts) as
      family law courts declare the subsequent marriage is null and void.

      Civilly married people may take common law spouses prior to divorcing
      their existing spouses. Marital rights and obligations do occur (within
      provincial family law acts) and the family law courts declare the
      subsequent “common law marriage” is not null and void.

      The Attorney General of Canada makes this clear below:

      To whom it may concern: 
      Thank you for your further correspondence of October 12, 2011, concerning polygamy and provincial legislation in Saskatchewan.
       In
      general terms, I would point out that a number of federal and
      provincial statutes and regulations across Canada recognize the reality
      that, in certain situations, an individual may be separated from his or
      her legally married spouse long enough to form a subsequent common-law
      partnership with a third person.  In law, this situation does not fall
      within the definition of polygamy.
       Thank you again for writing.
       Yours truly,
       The Honourable Rob Nicholson

  10. Double post edit

  11. In reply to LKO:

    You raise a valid point – society is always evolving and it is conceivable it would have evolved into what it looks like today without jurisprudential impetus.  However, it is simply undeniable that the Charter has been a blunt instrument of social changes that, in some cases, may have ultimately occurred anyway because they reflect a social consensus for change but in many others represent the imposition of the will of a small, shrill, legally savvy minority on the rest of us.

    I was startled by your suggestion that I think the Charter has the ability to change human nature because I think the opposite is true and, accordingly, trying to effect change by fancy constitutional law tricks is folly.  I read somewhere that in the two or three decades since the courts struck down abortion laws, the percentages of people in support and opposed haven’t budged an inch.  I predict the same will be true for “gay” marriage.  That is why I am both bemused and irritated when people seize upon the latest prolix judicial emanation as heralding sea change.

  12. I am concerened that civil libertarians will unltimately destroy our culture.

    With the support of a legal profession focused on challenging principle for money versu justice we are on the decline as a society rather than on the rise.

    I think the end results of their endeavors will in the end up turn Canada into just the opposite of what they are promoting.

    Expect to see more abuse of females and the ultimate loss of the culture that made Canada the envy of the world.

  13. The issue seems to be one of religion. I can have as many partners as I want if it is a common law relationship but as soon as I try to marry more than one of these partners it becomes a crime.

  14. “I am not sure where I stand on the ultimate question” is the problem.  If you don’t stand for something, you will fall for anything – including assertions (in the name of “freedom”) that run clearly in the face of common sense. Would you be willing to share your spouse with someone else?  Really?  Shouldn’t the burden of proof be on the proponents of polygamy?  Shouldn’t they be the ones who should draw historical, sociological arguments that polygamy will result in a happier families, and thus, happier communities?  Ironically this commentary is in the same issue that features the murder of the Sharia girls and one of the killer’s wives – a polygamous home with obviously very unhappy members.

  15. Freedom of association. The judge clearly has no understanding or interest in liberty.

  16. Chief Justice Bauman allows multiple spouses IF one or both parties are civilly married to another as long as the “common law marriage” does not have a ceremony. They cab become common law spouses with identical marital rights and obligations under provincial family law courts while they are still in a legal marriage with another (not divorced). That’s just perversion of the law against polygamy and the judge is left with egg on his face.

  17. It has only been about 50 years that the so-called “traditional” marriage has transformed from a “man-of-the-house” releationship to one between two equals.  Even today, there are still some marriages in some conservative religions where men are still in charge.  The practices of several religions give priority to men over women.

    Society may not be comfortable with plural marriages.  People talk about the abuse of young girls.  However, Canada’s law against plural marriages only deals with the number of spouses–not the minimum age of marriage.  If there is a problem with men marrying young teenaged girls, then those men should be charged with abuse (sexual or other)–not multiple marriages.

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