Montreal, December 15, 2011 • No 295

 

Adam Allouba is a business lawyer based in Montreal and a graduate of the McGill University Faculty of Law. He also holds a B.A. and an M.A. in political science from McGill.
 

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Defending the Undefendable?
Canada's Ban on Polygamy
 

by Adam Allouba
 

          Marriage laws have been big news for a decade, thanks to the controversy over same-sex marriage. Recently, however, the spotlight has shifted, as a polygamous community in Bountiful, British Columbia has entered the news. Like many other Western countries, Canada makes it illegal to have multiple spouses simultaneously. While over 60 years have passed since a successful prosecution, the Bountiful case has raised the possibility of fresh convictions and has sparked a debate over the law in question.
 

          Bountiful was founded after World War II by Mormons opposed to their church's rejection of polygamy, and the practice continues there to this day. As far back as 1992, the BC government opted to do nothing after judging that the courts would strike down anti-polygamy laws on grounds of religious freedom. However, it gradually became impossible to ignore the situation. In 2004, a woman originally "married" at age 15 to a religious leader filed a human rights complaint. In 2005, another religious leader held a "polygamy summit" at which he acknowledged marrying underage girls ‒ then repeated his boasts a year later to Larry King on CNN. In 2007, a special prosecutor was appointed to examine the possibility of bringing charges, which ultimately led to the government referring the issue of the law's constitutionality to the courts.

          On November 23, after 42 days of legal arguments, Chief Justice Robert Bauman handed down a 335-page decision upholding the law (except as it might be used to prosecute minors). The ban, he wrote, violates religious freedom but is justifiable nonetheless in that its purpose is "the prevention of harm to women, to children and to society" and "the preservation of monogamous marriage." The ruling presumably clears the way for the authorities to put an end to plural marriage in Bountiful and elsewhere.

          Life in Bountiful sounds appalling, with accusations of child marriage, abuse, the "importation" of brides from abroad, the expulsion of "surplus" males, etc. There is no question that much of what allegedly occurs in Bountiful should indeed be illegal. But should polygamy itself be included on that list? Is marrying several partners in itself a social wrong? And even if it is, should criminal sanctions be used against polygamists?
 

It's Harmful

          Both anecdotally and statistically, polygamy appears to be correlated with the abuse of women and children. One expert explained to a BC court that "as polygamy increases, so do the rates of maternal mortality, teenage marriages and births, sex trafficking and domestic violence [...] A rise in polygamy is also associated with lower education opportunities for boys and girls and greater inequity between men and women." The link seems plausible, as polygamous communities appear to be patriarchal, authoritarian and closed ‒ favourable ingredients for physical and psychological mistreatment. But does it necessarily follow that polygamy itself should be illegal?

          Many of the things that happen in Bountiful that outrage us so ‒ "marriage" of 12-year-old girls, forced marriage, human trafficking, physical violence, etc. ‒ are already illegal. They would be no less so in the absence of polygamy. Spousal abuse and rape occur in monogamous relationships, too. Had Bountiful's patriarchs limited themselves to one wife each, their actions would have been no less repugnant or illicit; one child bride is enough for a lengthy prison sentence. And had they decided not to "marry" their subsequent victims but only to force themselves on them, those children would have been no less wronged. Polygamy charges add little when one is already accused of violating a young girl. And would not the threat of imprisonment actually dissuade victims of non-consensual polygamy from coming forward?

          Faced with this argument, the BC government countered that it was "irrelevant" whether monogamous relationships can also be abusive. Instead, the "real issue is whether it occurs more in polygamy." This argument seems fair enough on its surface, but taken to its logical conclusion its implications are frightening: if a given family environment is shown to be more conducive to socially undesirable outcomes, it should be prohibited.

          If this is the kind of argument we want to rely on, where does that leave single-parent families, more likely to be poor? Or teen parents, whose children typically start life at a disadvantage? How should we view globetrotting couples, whose children can face unique difficulties? What about workaholic parents who raise latchkey kids? More pointedly, should the legality, or even the acceptability, of any of these arrangements really depend on an empirical analysis of their average social impacts? Or should we more properly see them as private matters in which the state has no business unless and until someone actually does something criminal?
 

It's Degrading

          Another argument against polygamy is that it degrades women. Of course, this assumes that we are talking about polygyny (one man, multiple wives) rather than polyandry (the converse). Many women quite reasonably find it degrading, as it implies that a wife is a fungible commodity ‒ a status symbol or a collectible. Though legitimate, these views are not reasons to ban the practice, any more than they are reasons to criminalize pornography, strip clubs or sexist beer commercials. Hate speech degrades ethnic minorities (indeed, that is normally the point), but the emotional pain that it causes is not sufficient grounds for banning it. The fact that certain behaviour is upsetting is not enough to justify imprisoning those who engage in it. Freedom is not just the right to do what is popular and normal; true freedom includes the right to upset and offend without running the risk of state repression.
 

"As a civil rights issue, polygamy is admittedly not terribly pressing; it affects only a tiny minority of people, many of whose relationships should probably be illegal anyway on grounds of child exploitation or abuse. So why does it matter?"


          And what exactly is it that the law seeks to ban? Adultery clearly undermines marriage and degrades the aggrieved spouse. Should we criminalize cheating? What about plain old promiscuity? It, too, undermines traditional relationships, not to mention that it can spread disease. Should the government therefore fix a ceiling for a person's annual number of sexual partners? Most people agree that there's no place for the state in the bedrooms of the nation, but for some reason that view changes once multiple marriage ceremonies are performed.

          Surprisingly, under the law no marriage need even take place. As the Bountiful case progressed, Zoe Duff, a director of the Canadian Polyamory Advocacy Association, suddenly realized that her relationship, in which she shares her home with two male partners, is illegal. Why? Section 293 of the Criminal Code prohibits not only polygamy but also "any kind of conjugal union with more than one person at the same time." As she put it, "Holy cow ‒ this affects me ... I'm living common-law with two partners, and this law very much overshadows my life and how I feel, how I relate to other people in the community and causes a great need for secrecy that's just not part of a lifestyle that I want." Ms. Duff's situation may be highly unusual, but does this mean that she and her partners deserve imprisonment? In addition to the right to offend and upset, real freedom also protects the right to be different.

          Ultimately, which is more demeaning: polygamous marriage, or the law that prohibits people from entering into it voluntarily? Of course there is a very real question as to whether many such arrangements are truly consensual, but in some cases they clearly are. Ms. Duff and her many fellow "polyamorists" do not come across as oppressed or brainwashed, but rather as individuals whose preferences happen to be very different from those of the majority. Some people genuinely do not want monogamy to be part of their marriage (or co-habitation) contract. Is it not condescending to insist that because most of us cannot imagine wanting to live in such a way, no woman (or man, for that matter) who enters into a multiple marriage could be doing so freely? After all, very serious concerns about consent also arise with traditional marriage, particularly among some cultural groups. Should we therefore consider prohibiting marriage altogether? It is unjust to address this very real problem by deeming it impossible for anyone to validly consent to a polygamous marriage.
 

Who Cares?

          As a civil rights issue, polygamy is admittedly not terribly pressing; it affects only a tiny minority of people, many of whose relationships should probably be illegal anyway on grounds of child exploitation or abuse. So why does it matter?

          It matters for a number of reasons. First, unjust or unenforced laws should not remain on the books. They send the wrong message. What would it say about us if homosexual activity were still technically illegal? Unenforced or rarely enforced laws can easily be used for improper purposes, such as when a racist police officer tickets black people for jaywalking. And unenforced legislation undermines respect for the law itself. How can we justify enforcing some rules when others are routinely violated without consequences?

          Second, it matters because the status quo makes us very hypocritical indeed. Gay marriage advocates have eloquently promoted the idea that we should all be able to marry whomever we choose. On what grounds can that argument apply to a pair but not a trio? Is marriage based on social stability and procreation ‒ as the traditionalists would have it ‒ or on love and consent? If the former, how can we justify legislating same-sex marriage? If the latter, how can we justify prohibiting polygamy? And remember that it has been decades since gay unions were illegal in Canada ‒ the issue was that gay marriage was not recognized. Polygamists have not even reached the point where, assuming genuinely consenting adults and no criminal behaviour, the law leaves them alone, much less the point where it recognizes their arrangements.

          Third, it matters to me for a purely personal reason. My wife and I share what not so long ago would have been widely referred to as a miscegenated marriage ‒ what more enlightened folk today call a mixed-race marriage. Within our parents' lifetimes, there existed laws severely punishing such "mingling of the races" in most states south of the border ‒ a form of state-sponsored racism that endured until 1967, outlasting even segregation. And while mixed marriages were never illegal in Canada, social attitudes once greatly opposed such unions. Such laws still exist elsewhere in the world, and even in the West, some people still exhibit racist disdain for unions such as my own.

          The decision of whom we can commit our lives to belongs not to the state, but to each one of us individually. If we believe in and defend the right to marry without government interference, we must do so always and for everyone. Even setting aside the principled and logical arguments that exist against banning polygamy, the simple fact is that the principle of marriage freedom must apply to all if, for purely selfish reasons, I want it to apply to me.