Canada ponders polygamy

Now that same-sex marriage has been legalised, it seems inconsistent to prosecute Canada's polygamists.
Margaret Somerville | Aug 20 2007 | comment  



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.



Copyright © Margaret Somerville . Published by MercatorNet.com. You may download and print extracts from this article for your own personal and non-commercial use only. Contact us if you wish to discuss republication.

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