Margaret Somerville | Monday, 20 August 2007

Canada ponders polygamy

Now that same-sex marriage has been legalised, it seems inconsistent to prosecute Canada's polygamists.

HBO's drama about polygamy, Big LoveCurrently, in Canada, polygamy is in the news. The Canadian Criminal Code prohibits polygamy, but it is being practiced in some communities and the question is whether the people involved should be prosecuted. Recently, the Globe and Mail, one of Canada’s nationally distributed newspapers, published an editorial entitled "No to polygamy". It’s relevant that the Globe was a major voice in support of same-sex marriage in the public debate that culminated in its legal recognition in Canada. The core argument in the editorial reads as follows:

"In no way has gay marriage lent legitimacy to polygamy. Gay marriage was legalised by the courts in part because it so resembled heterosexual marriage; for instance, it has two people. The courts endorsed gay marriage only after a large cultural shift had occurred in the arts, in the workplace and in neighbourhoods… No such groundswell has occurred in the case of polygamy... It would be very odd if the Charter were read to require Canadians to give up their defence of core values; the document is supposed to encapsulate the country’s core values."

Are the Globe editorialists correct that gay marriage hasn’t lent legitimacy to polygamy? Does gay marriage, as claimed, resemble monogamous heterosexual marriage more than polygamy does? Is the "two people" union the distinguishing and most important characteristic of marriage?

Does a cultural shift to recognise the wrongs of discrimination on the basis of sexual orientation translate to approval of same-sex marriage? If so, why wouldn’t recognising the wrongs of breach of freedom of religion do the same for polygamy?

If, as same-sex marriage proponents successfully argued, marriage is simply a social construct not based on any core biological reality, and if what constitutes a family is just a matter of adults’ personal preferences, why should polygamy be excluded as an option?

Extending the experiment with children's lives

Same-sex marriage, polygamous marriage and opposite-sex monogamous marriage are three different family structures. Family structure has major impact on children. Gay marriage supporters argue "genderless parenting" is just as good for children as opposite-sex parenting. With gay marriage, we are experimenting to see if that’s correct. Should we try a parallel experiment with polygamy and study its impact on children as compared with both gay marriage and opposite-sex monogamous marriage?

Gay marriage gave priority to adults’ preferences regarding the kinds of family structures in which children would be reared, over children’s needs and rights in this regard. Why, then, shouldn’t the same prioritising also apply to polygamy? And if not, do we need to re-think gay marriage?

And if, as the Court of Appeal of Ontario just ruled, a child can have three legal parents, why should that number not be further extended in polygamous families? This case exemplifies a combination of monogamous gay marriage (lesbian spouses) and a polygamous family structure (the spouses and the sperm donor).

What are Canadian's "core values", especially with respect to marriage, that the Globe’s editorialists see as breached by polygamy and supported by gay marriage? What if we don’t agree as to what they should be, as is true of both same-sex marriage and polygamy? Majority approval does not mean a decision is ethical, but what if a majority wanted polygamy?

Same-sex marriage opens up the possibility of polygamy because it detaches marriage from the biological reality of the basic procreative relationship between one man and one woman and that means there is no longer any inherent reason to limit it to two people whether of the same or opposite sex. Once that biological reality is removed as the central, essential feature and "limiting device", marriage can become whatever we choose to define it as.

Gay marriage advocates successfully argued that the primary function of marriage is to publicly recognise two adults’ mutual love and commitment. But why shouldn’t three or more adults, just as much as two, have their love and commitment publicly recognised and whether they are in same-sex relationships or opposite sex ones?

Ironically, traditional polygamous marriage had a lot to do with procreation and it does not negate the procreative symbolism of marriage, although most people in Western democracies believe there are other powerful reasons to prohibit it.

To the extent that an important function of marriage is to allow children to identify their biological parents and vice versa, with polygyny (one man and several wives) children can still know who their biological mother and father are (at least they could prior to assisted reproductive technologies and donated gametes, and assuming no adultery - but that latter assumption also applies to monogamous marriage). But with polyandry (one woman and many husbands) children cannot, in general, know the identity of their male parent (although today DNA testing could come to the rescue). Might that be one small reason among many larger ones explaining why polygyny has been much more common than polyandry? But to allow polygyny but not polyandry would be to discriminate against women.

We need to be careful to distinguish under-age sex, forced marriage, spousal abuse and child abuse from polygamy, itself. These horrible crimes do occur in polygamous marriages – and monogamous ones – and must be dealt with severely. But are we being fair and just in retaining one alternative form of marriage, polygamy, as a crime, when we have legalised another alternative form, gay marriage?

Political motivations

If we were cynical about politicians, we could see the support of gay marriage by some of them as based on getting the social liberal "gay vote" onside and sacrificing the social conservative vote. Legalising polygamy might do the same for the vote of certain ethnic or religious communities at the expense of the social liberal vote (especially that of feminists).

The Canadian Charter of Rights and Freedoms contains a provision that allows Parliament to legislate notwithstanding that the courts have held that a certain law is in breach of Charter rights and is, therefore, constitutionally invalid. That is, Parliament has the ultimate authority and can act contrary to the courts’ rulings on constitutionality. This provision is commonly referred to as the "notwithstanding clause" and its use is a rare and very politically sensitive issue.

In the same-sex marriage debate, advocates of same-sex marriage decried employing the clause to veto same-sex marriage (indeed, its very existence) and the government largely agreed. In fact, with statements such as "the courts have ruled" and "we can’t cherry pick among constitutional rights" -- which using the clause would involve -- the government, taking its cue from Pontius Pilot, employed the inappropriateness of using the clause as a justification for its decision to legalise same-sex marriage. In short, they said this decision has been made for us by the courts and we must comply.

Now, some of the same people who saw use of the "notwithstanding clause" as anathema seem to be arguing that it should be used to continue to prohibit polygamy, were the courts to find that the present prohibition of polygamy is a breach of the Charter right of freedom of religion. In other words, these politically correct people would use the clause to suppress an institution they find abhorrent (polygamy) the prohibition of which transgresses a right they think is of limited importance (freedom of religion), but not an institution they approve (same-sex marriage) which they see as required to condemn discrimination on the basis of sexual orientation.

I don’t agree with either gay marriage or polygamy for exactly the same reason: both prevent marriage from fulfilling its primary goal. It is only when marriage is built on the natural procreative relationship between one man and one woman that it can establish the same reciprocal rights and duties between the married partners (polygamy contravenes this requirement) and between them and their biological children in order to create a family structure in which children know and are reared by their own biological parents (same-sex marriage contravenes this) and can best thrive. Other models of marriage cannot fulfil all these goals.

Margaret Somerville is founding director of the Centre for Medicine, Ethics and Law at McGill University in Montreal.

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Ron said... Canada | Tue, 28 Aug 2007 at 10:37 am

Quelle surprise to see the minority trying to make the majority guilty for rejecting abnormal behaviour in society!! Homosexual behaviour is not a fact in the animal kingdom.  Have you seen it?  Are you able to distinguish between “calling” behaviour, that is, readiness for mating as heifers do (if you lived on a farm as I have)and deliberate homosexuality activity?  My experience with nature draws a blank. Do not buy that nonsense until you have actually witnessed it yourself. Also, When wild animals are caged, confined to crowded areas, etc., any type of behaviour is possible. Because a male dog jumps on another male is it practicing homosexuality? There are many other actions in the animal kingdom that we can, and must, never imitate; just check it out!

And of course, most importantly, we are not animals! We are made in God’s image. The fact is, the well-being of society is seen time and time again to be dependent upon the male/female relationship. And, biologically, we are made with an anatomical part whose sole purpose is the elimination of waste and excess matter; the male sexual organ is made specifically for the female sexual organ, don’t you realize that yet? Quelle surpirse! And of course we are accountable for all our actions before our Creator.


Joe said... Australia | Mon, 27 Aug 2007 at 3:52 pm

Brendan of Wollongong says “The debate is hijacked by God-wielding heterosupremacists seeking to impose their view on the world around them by perpetuating the usual uninformed claims about what is natural and what is an abberation.Apparently homosexuality falls into the latter of those two, despite the observed behaviour of bonobo apes, birds, lizards, sheep, spotted hyena, bottlenose dolphins, fruit flies AND humans to the contrary.”

Bravo Brendan ... how about those ignorant God-wielding heterosupremacists bigots ... even a basic knowledge of science tells you that the sexual instinct is something we share with with the rest of the animal kingdom. 

The sexual instinct (and, thereby, the homosexual behaviour) of bonobo apes, birds, lizards, sheep, spotted hyena, bottlenose dolphins and fruit flies is as natural as the instinct to eat or sleep.

But I must chide you Brendan for being inconsistent - why do you consider legalised polygamy a “bogeyman”?  Polygamy occurs throughout the animal kingdom.  Indeed I am sure that polygamy is as natural to the fruit fly as it is to humans.

And, while the iron is hot, can I strike a blow for the following animal behaviours which are normal and natural and no longer deserve societal distain:

- intra-specie canabilism (those mountain tribes in PNG were light years ahead western civilisation)
- submission of females (by force) to a dominant male (people may call this ‘rape’ but please don’t be put off by that… just a ‘word’ invented by those higher-intellect homo sapiens)
- paedophilia (you know, age of consent is such a heterosupremacist social construct)

Anyway, despite this oversight on your part, I congratulate you Brendan for highlighting the “naturalness” of animal behaviour.  It will be of particular benefit for all those ignorant bigots who think that homosexuality is not something that society should encourage.

By Jove, if it is good enough for the spotted hyena, then it is good enough for me!


Brendan of Wollongong said... Australia | Mon, 27 Aug 2007 at 1:59 pm

There is an implicit presumption in the comments of some hetero-marriage supporters that marriage is a strict license to have children. It is not. It never has been.

Marriage is an institution under the law that recognises committed partnerships (in the considered interests of couples, families and society at large). This often includes, but does not require, the having of children by traditional or assisted means. Whereas the vast majority of the natural world rears offspring, across an amazingly diverse array of relational forms, quite successfully in the absence of formal marriage.

This strident emotive debate lacks a healthy sense of perspective. As the global human population soars and resources become scarcer, what will be said about marriage and children? Will we continue to be waylaid by misleading abstract paternalistic arguments about which couples are “more worthy” of legal recognition and “naturally better” as parents? The aforementioned challenges will be a far greater threat to the stability and dignity of human society than same-sex marriage and same-sex parents could ever be.


Tony said... Australia | Mon, 27 Aug 2007 at 6:54 am

I think we have to acknowledge that the “natural procreative relationship” is no guarantee of establishing “the same reciprocal rights and duties” between married partners. There is tragically not enough room in refuges for the people fleeing violence in these relationships.

COnsequently I cannot see how anyone with the realisation of the real situation of domestic violence and harm to children can even find on their radar of concern the positive same-sex relationships I know.

I also don’t think we have time to bother a polygamous arrangement between consenting adults where violence including verbal and economic abuse is not present.

I think that the needs of children could be agreed to be the highest priority by many people in opposite gender marriages as well as many in opposite gender defacto-relationships, same-sex relationships and even maybe some polygamous arrangements. Fracturing that alliance is only in the interest of those who place the joy of children below the desire to privelage their form of family.


Mariusz Wesolowski said... Canada | Mon, 27 Aug 2007 at 5:36 am

As much as we need to support the freedom of religion, we have to be aware of the growing prejudice against supernatural religious beliefs - especially among the oh-so-tolerant believers in the religion of secular liberalism - and thus use religious arguments only when there are no other arguments available. In case of same-sex marriage, common sense based on physical reality is sufficient to show the absurd character of this legal fiction. The same applies to the logical rigmarole concerning polygamy vs. same-sex marriage. This is why Prof. Margaret Somerville’s voice is so important.


Brendan of Wollongong said... Australia | Mon, 27 Aug 2007 at 12:05 am

Quelle surprise!

Margaret Somerville deploys the bogeyman of legalised polygamy as rear-guard attack on the nuptial rights of same-sex couples, and what happens? The debate is hijacked by God-wielding heterosupremacists seeking to impose their view on the world around them by perpetuating the usual uninformed claims about what is natural and what is an abberation. Apparently homosexuality falls into the latter of those two, despite the observed behaviour of bonobo apes, birds, lizards, sheep, spotted hyena, bottlenose dolphins, fruit flies AND humans to the contrary.

What’s next? Blaming parthenogenesis and hermaphroditism on “The Devil”?


Robert F. Kokron said... Canada | Sun, 26 Aug 2007 at 1:12 pm

Imagine if my benefits package from my employer, had to be applied to a legal, polygamous relationship that involved partners of both sexes and all of our children from the females involved.  For this very reason, I think the courts would be wary of a finding for polygamy.


Ron Henderson said... Canada | Sun, 26 Aug 2007 at 12:35 pm

Mrs. Andrews seems to display ignorance of the way Canadian parliament and courts function. She would do well to revisit the Liberal Party’s investigation on polygamy as they approached legalizing homosexual marriages. They actually came up with the conclusion that prohibiting poligamy was discrimination against women.  They were in favour of legalizing it. And they would have done it given the chance. Ask Mrs. Andrews why the BC courts did not convict the poligamists? When it comes to UN resolutions Canada is no saint! Canada fought for GM crop in spite of the refusal of the majority; Canada refused the Doha Agreement on the rights of children because they wanted homosexuality in, although most reliable studies have shown the advantage of male/female relationships for children; and also shown the derogatory effects of same-sex relationships on children.

And by the way, the Canadian Charter in no way permits homosexuality; this interpretation is an activist judge’s rendering of the charter. Go read it again and see that the reference to sexual discrimination is not concerning same-sex relationships in terms of marriage, but discriminating against individuals due to their sex. And, activist judges’ rulings do not make error right.  That is why the Brits, knowing this, wish to remove ‘right and wrong’ from schools teaching values. Instead of teaching right and wrong they must teach endearing values, human values, not God’s revealed ones. Deja vu! see Genesis 6.

Finally, while polygamy is not beneficial to society, it is much to be preferred than abnormality, as in homosexuality. Therefore, then, if we legalize homosexuality, there is even more reason to justifiably legalize poligamy. And while the churches can never accept homosexuality (although the renegade ones have), later on down the road they can tolerate polygamy, as was done in Bible times. And in the end we will all stand before the Soverign God to give an account of our actions.  Be warned!


Ron Henderson said... Canada | Sun, 26 Aug 2007 at 12:00 pm

I totally agree with Margaret. Somerville.  If same-sex marriage can be legalized so can polygamy.  Polygamy stands a better chance (although it is not ideal nor preferred) of benefiting society than homosexuality.  We know that homosexuality is destructive to individuals; we know that homosexuality as a disorder was removed from the psychology and psychiatry handbooks not because it was not a disorder, but because homosexual activists wanted it and the governments wanted their small votes.  We are aware of the sloppy, erroneous, misleading, research in favour of homosexuality; this has been exposed time and time again.  Court cases have demonstrated the fallacy of arguments favourable to homosexuality; yet governments in Europe and Canada have acted arbitrarily, against the majority of the population, and passed laws in favour of same-sex marriage.  And the major reason is not because of any benefit to society; in fact they have been shown clearly the detriment it would have on society.  The real reason is that activists politicians and other significant members of society, clearly the minority, wanted it.  And through connivance and intrigue they got it.

The Global Mail’s appeal to the Charter of Rights in defense of same-sex marriage is absolutely nonsensical!  This very Charter begins by stating clearly that Canadians recognise the Soverignty of God and rule of law.  And this Soverign God prohibits the practice of homosexuality; it is called an abomination.  And the rule of law cannot, and must not diminish or nullify the Soverignty of God.  So to appeal to the Charter in defense of homosexuality is only humbug and obfuscation of the facts, and a desire to mislead unsuspecting people.  Homosexual unions are in no way, not even by an inch, or better, a centimeter, equal to monogamous marriages.  Marriage is male and female, not same sex.  Even nature demonstrates this, for those who like to appeal, wrongfully, to nature for our origins.


TB said... -- | Sun, 26 Aug 2007 at 6:19 am

RE: Dr. Andrews states:
“Canada has agreed polygamy harms women in that wives (in reality, concubines) are not entitled to share in their “husband’s” estate, nor receive medical, dental or pension benefits. Finally, Canada has a Charter of Rights and Freedoms which in sections 15 and 28 state women have equality with men. Polygamy will never be legal here.”

The harm reported by Dr.Andrews is due to the failure of the government to legalize and recognize polygamous relationships. It seems that the fault lies with the government. After all, wasn’t the question of benefits a major impetus to recognize same sex unions. Why not benefits for these relationships?


HMacK said... -- | Sat, 25 Aug 2007 at 12:45 pm

Once polygamy returns, Canada will not be very far away from relaxing the laws of consent on sexual activity thus permitting every sexual perverts’ dream of legalised paedophilia. You think this is a sick joke? On the contrary, with St Death being widely spread as an increasingly popular but sinister devotion in Mexico, substance abuse increasing exponentially in the West and beyond and the increasing momentum of interest toward anal sex & transexualism, society is never very far away from other signs of paganism such as cannabalism. There are already reports of this being practised in Asia.

As GK Chesterton wrote, when people no longer believe in God they do not believe in nothing - they will believe in anything.


HMacK said... -- | Sat, 25 Aug 2007 at 11:52 am

Once polygamy returns, Canada will not be very far away from relaxing the laws of consent on sexual activity thus permitting every sexual perverts’ dream of legalised paedophilia. You think this is a sick joke? On the contrary, with St Death being widely spread as an increasingly popular but sinister devotion in Mexico, substance abuse increasing exponentially and the increasing momentum of interest toward anal sex & transexualism, society is never very far away from other signs of paganism such as cannabalism. There are already reports of this being practised in Asia.

As GK Chesterton wrote, when people no longer believe in God they no longer believe in nothing - they will believe in anything.


Mariusz Wesolowski said... Canada | Fri, 24 Aug 2007 at 11:57 pm

Thank you again, Professor Somerville, for your precise and dignified response to Dr. Andrews. It not only revives the almost-forgotten tradition of civilized dialogue among academic peers (which by now has been mostly substituted by loud political declarations and thinly veiled insults) but also points out to the fact that Canada, after the introduction of the Charter of Rights, ceased to be a parliamentary democracy to become a sort of judexocracy where unelected, activist judges simply dictate the law of the land according to their subjective interpretations of the Charter.


Umeozor Eva said... Nigeria | Fri, 24 Aug 2007 at 11:29 pm

What an insightful piece! Besides, I think that marriage should be liberalised in all fronts. Whether the setting is two-same-sex,opposite-sexes or polygamous.Albeit, the condition must be that those involved in any of the unions must acclaim it,restrictions must be imposed to shield negative impacts that are likely on the children.


margaret somerville said... Canada | Fri, 24 Aug 2007 at 7:55 am

Professor Andrews might hope she is correct that the position on polygamy, in the international instruments she identifies, will prevail in Canada, but she is wrong to state that they will necessarily do so. She doesn’t seem to understand how the Canadian Charter of Rights and Freedoms operates or the status of international law when it is relevant to domestic law in a case before the Canadian courts.

The Charter gives the courts the power to declare a validly passed law unconstitutional and, therefore, inoperative. For example, Canadian domestic law (and the Universal Declaration of Human Rights which Canada has ratified) restricted marriage to men and women. The Canadian courts held that restriction to constitute discrimination under the Charter and struck down the law. They could do the same to the prohibition of polygamy, if they accepted that its prohibition is an unconstitutional breach of freedom of religion or discrimination on the basis of religious belief. In deciding that, the courts will follow the Charter provisions, not those of international law as Professor Andrews seems to believe. They might take the fact that Canada is a party to the international conventions named into account - or they might not. The interaction of international and domestic law where both are relevant is a complex and unsettled area. I agree with Professor Andrews that polygamy is a bad idea, but that is not the legal basis on which the courts decide when faced with a Charter challenge, as they’ve explained often. The court’s role is to apply the law, and it’s not their role to make social policy - or so they say. I would respectfully suggest that Professor Andrews might consider taking her own advice to me that one does, indeed, have to be careful not to be “frighteningly ignorant” and “stop spreading inaccurate information”.


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