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Posts Tagged ‘criminalization’

A problem with Polygamy law

Posted by Don McLenaghen on December 19, 2010

Okay, I am an open-minded kinda guy. I think love and lust are not necessarily the same things; that people will form various kinds of unions and that if consenting and fulfilling no limitation should be applied. Now if you asked me if I believe that polygamy was good or bad, I probably would have said “do you mean the Mormon kind or the hippy kind”. You see, as a good atheist and a product of my society, Mormon polygamy was wrong on two counts 1) it was abusive to women and children and 2) it was religious dogma. The hippy kind (to date my imagery) was a union of equals to express both pleasure and non-conformity.

However, in doing some research for the show I discovered such simplistic (yes, I can be simplistic at times…sorry) views I held were both optimistic and not reflected in our legal system. First I should clarify some terms:

Polygamy: a marriage in which a spouse of either sex may have more than one mate at the same time

Polyandry: the practice or condition of having more than one husband at one time

Polygyny: the practice or condition of having more than one wife at one time

Now technically, the Mormon type would be strictly limited to polygyny. This issue came my attention because of a court case currently making its way through the BC legal system destined for the Supreme Court of Canada (SCC).

Recently an unsuccessful attempt to charge two Mormon men in Bountiful, BC with polygamy failed. This prompted members of the FLDS (Fundamentalist Church of Latter Day Saints, more commonly known as the Mormon Church) to mount a constitution challenge holding that the laws against polygamy are unconstitutional and should be struck down.

As I have talked about before with regards to free-speech, prostitution and other issues; in Canada our constitution allows for the limitation of fundamental rights provided they pass the “Oakes Test”. The Oaks test (from the SCC ruling on the Oaks case) holds that limitations must be minimal, pertinent and remedy proportional harms to society.

The law, section 293 of the Criminal Code, states that “any kind of conjugal union with more than one person at the same time whether or not it is by law recognized as a binding form of marriage” is guilty of an indictable offence. Further that anyone who “celebrates, assists or is a party to a rite, ceremony, contract or consent that purports to sanction a [polygamist] relationship” are likewise guilty of a indictable offence.

That’s the law; however the harms that are most often cited, that are ‘eased’ by this limitation of liberty, are child brides, forced marriage and spousal abuse (more often the abuse is seen as economic or psychological). If we look at this list though we can already remove the last one, because spousal abuse (sadly) is common in monogamous marriages. However, little evidence shows polygamist unions are innately more significantly abusive (although I am open to evidence showing my cursory investigation to be wrong).

Living in Vancouver with several strong Asian cultures with ‘traditions’ regarding arranged marriages, we are aware there is a disconnect between polygamy both forced marriage and child betrothed. In these arranged monogamous marriages often the betrothed are children and have little or no choice in the matter (in the worst of these cultures, violent punishment is exacted on reluctant participants) – that is there is no necessary connection between child brides or forced marriage and polygamy.

So, it seems that the harms that are supposedly addressed by this law, although real are not connected to polygamy. In applying the Oakes test we agree that there are harms that should be addressed however it seems to fail to show the pertinent connection between the harms and polygamy.

However, let’s continue our thought experiment. If we assumed that what we wanted to restrict was religious polygyny because it has been associated with substantial and pertinent harms, does the law restrict our freedoms in a minimal way. The law as stated is extremely broad. This law would include my hippy polygamist; in fact if you were gay living with several roommates in a ‘close’ relationship, you could be charged under this law. Further, if you went to a house warming for this common-law type relationship to celebrate their ‘union’, you could be charged.

The law as stated is EXTREMELY broad. There is a local group, VanPoly (along with CPAA) which is working to have the law struck down because they fear they could be charged even though their relationships have nothing to do with the LDS, child brides or forced marriage.

So, why do we have these laws then when they seem overly broad and not really aimed at the social harms we have cited? In fact, when the anti-polygamy laws were first enacted the concept of spousal abuse was non-existent and child brides (at least mid-teens) was not uncommon in monogamous marriages.

Much has been made as to the religious turf war being the root of the North American experience. The Mormons, the new religious, had as a main tenet of their belief system polygamy since 1843. The US made polygamy illegal in 1863 and the Mormons moved west and north (to Utah and western Canada). In 1890, to gain statehood, Utah banned polygamy leading to a second wave of exodus. Canada also banned polygamy in 1890 and saw its one and only successful convictions in 1899, in fact Mormonism was explicitly used in the law until 1950s.

The criminalization of polygamy drives its participants to separate themselves from mainstream society and it is here that the harms arise. If your neighbor showed up one day with an 11 yr. girl and said it was his new wife you’d likely call the cops; if we suspect spousal abuse, as a society we are getting better at recognizing it and would come to the assistance of the abused. However when these actions take place in a ‘like-minded’ community isolated from the ‘masses’, this social safeguarding system breaks down and abuse can occur.

Do I think there is harm being done to the women and children of Bountiful, BC (and similar communes)…yes. Do I think this harm is originated in polygamy…no. I believe the root issue, the source of the abuse, is not multiple marriages but patriarchal authoritarian religion. With regards to the law AS IS, it fails the Oaks test both in the fact that the practice is not directly linked to the stated harms to be remedied (i.e. there is nothing innately abusive in polygamous relationships) and the level of minimal limitation of freedoms (i.e. even if we assumed LDS style polygyny were harmful, the law encompasses any type of polygamy including lesbians in a multi-partner relationship etc.).

On a last note, I is funny that our society seems to frown so strongly on parallel multiple marriages and yet has come to terms to serial multiple marriages; that is there are millions of people in the US and Canada who  have many spouses but not at the same time. If we look back a century or two, we see how that was seen as immoral and harmful to society. Why is it okay to have many spouses over time but not at one time?

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