Written by Jens Pierre Urban
In 1967, Canada’s former Prime Minister Pierre Trudeau (then Justice Minister) famously argued: “There’s no place for the state in the bedrooms of the nation.” He was referring to an Omnibus Crime Bill that changed Canada’s position on abortion, homosexuality and divorce law forever.
Fast forward to 2005, when Canada significantly changed the traditional definition of marriage of a “voluntary union for life of one man and one woman, to the exclusion of all others.” That year, the Supreme Court of Canada legalized same-sex marriage, which was confirmed in the Civil Marriage Act. What remains of the “traditional” definition of marriage is the prohibition of polygamous marriages, a stipulation that is codified in section 293 of the Canadian Criminal Code.
However, the members of the Fundamentalist Church of Jesus Christ of the Latter Day Saints (FLDS) have recently challenged the polygamy prohibition and last Wednesday, Chief Justice Robert J. Bauman of the Supreme Court of British Columbia rendered the decision. In a nutshell, Chief Justice Bauman found that the Criminal Code prohibition on polygamy breaches the constitutional right to freedom of religion and to life, liberty and security, but that the harm caused easily justifies the law.
In his reasoning, which runs over 335 pages, Justice Bauman gives a detailed overview of polygamy throughout history and some of its remaining forms in contemporary Canada. Several experts and a number of women living in polygyny (the form of polygamy where one husband can have multiple wives) were heard during the trial, and Justice Bauman 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.”
It is laudable that Chief Justice Bauman’s focus is primarily on the harm to the involved parties. However, that the “apprehension of harm” by the Parliament of Canada should guide the legal reasoning in such an important issue is rather problematic. Unfortunately, apprehension as opposed to sound research is too often a guiding principle when it comes to recent Canadian legislation; one only has to think of the current government’s proposed crime bill in a time of mostly declining crime numbers.
The question that should have guided the court’s analysis is whether criminalization of polygamy constitutes an effective tool to combat some of its negative consequences. Unfortunately, Chief Justice Bauman does not really answer this question; instead he concludes that monogamy is “the best way ensure paternal certainty and joint parental investment in children. It best ensures that men and women are treated with equal dignity and respect, and that husbands and wives (or same sex couples), and parents and children, provide each other with mutual support, protection and edification through their lifetimes.” Justice Bauman continues by claiming that “[t]he negative and the positive aspects of the polygamy prohibition are two sides of the same coin. The prohibition abates the harms to individuals and society associated with polygamy, and it protects and preserves monogamous marriage, the institution believed to advance the values threatened by polygamy.”
These statements are legally awkward and somewhat problematic. First, the assertion that the prohibition of polygamy actually protects monogamy is logically flawed, and a similar argument was rejected in 2005 when opponents of same-sex marriage claimed that this form of marriage would destroy the marriage institution. Second, the court subjectively favors marriage to non-marriage, based on more-than-flimsy proof that non-marital unions of any kind are more harmful to the adults and children involved. Drawing general conclusions about polygamy or any other similar arrangements based on individual experiences, such as one small community in British Columbia does not necessarily reflect the wide spectrum of such arrangements. Similarly, one could ask any cop in Canada what constitutes the biggest chunk of his or her work, and he or she will answer you: “Domestic violence — white husband hitting white wife.” Should we therefore forbid marriage between white men and white women? That would be a ridiculous conclusion.
If the court really wanted to address the harm caused by some polygamist communities (or any marital or non-marital union), it should first ask why, for many years, the government did not pursue the issues at hand with the tools already available. There is already a wide range of crime legislation to combat issues such as coercion and abuse of the women involved and to address the fact that young men are chased out of some polygamous communities because they are unwelcome competition to the old husbands.
On the contrary, it would probably be more effective to decriminalize polygamy and treat it like polyamory (the practice of having more than one intimate relationship with the consent of everyone involved). Why? Because polygamy will continue to be practiced by its adherents, and as long as polygamy is criminalized, it will be done mostly in secret, without any access to social services or other protection. The decriminalization of polygamy, on the other hand, would have the effect of allowing the people being harmed by this practice to access help and to openly condemn the negative aspects of some polygamist communities without the fear of ending up in jail. Although Justice Bauman allowed for an exception to the criminalization in the case of wives under the age of 18, this is not sufficient, particularly in the Canadian case, where most of the women in question are over 18 years of age.
This case certainly opened up the discussion about alternatives to the “traditional” form of marriage to a wider audience and will likely be concluded before the Supreme Court of Canada.
Jens Pierre Urban is a lawyer and doctoral candidate in law at the Université de Perpignan Via Domitia in France. He lives in Ottawa, Canada.
Photo from KevinSaunders via flickr