Should we ban polygamy just because we don't like it?
The Globe and Mail
13 August 2007
Page S2
In considering how the BC Court of Appeal might deal with polygamy, if Attorney-General Wally Oppal refers the hot potato – oops, the issue – to it, several things should be kept in mind.
No one in the year 2007 is suggesting that Ottawa outlaw threesomes, for example, or whatever other living arrangements adult Canadians contrive for themselves.
Nor is anyone expecting the federal government to regulate sexual relations between and among consenting adults.
It's also worth noting that no one today is proposing that children be proscribed from living under the same roof as adults in unconventional arrangements, or that non-monogamously inclined adults, whatever their sexual orientation, not be allowed to spawn children, including by non-traditional means.
No, three decades after he coined the phrase, Pierre Trudeau's dictum that the state has no business in the bedrooms of the nation has become conventional wisdom. Two years ago, the Supreme Court of Canada even extended the principle beyond the privacy of one's home to include swingers clubs. And Ontario's Court of Appeal recently ruled that a child can have three legal parents.
If the courts are asked to rule on polygamy, then, all that's left to decide is whether Canadians should have the right to call these relationships “marriage.” Since that's also what the debate over same-sex unions came down to in the end, it's worth recalling that, in deciding that issue, the judges held that it was incumbent on governments to demonstrate major harm to society if the traditional definition of marriage were cast aside.
In the matter of polygamy, it would not be easy for governments to make that case. Aside from the fact that Canadians would still be allowed to live in multiple-member relationships together with children no matter what the Court rules, the fact is that many societies throughout history have been polygamous – and some still are. And I know of no authoritative study showing that polygamy in Saudi Arabia, for example, causes a particular harm not known in other Mideast societies that have banned the practice. In this sense, it would be incorrect to draw a parallel with the practice of female circumcision, also known as genital mutilation.
Reminding ourselves of these realities is another way of saying that the disgust some Canadians feel toward polygamy is insufficient grounds for banning the practice. Let's be frank: A good part of the anti-same-sex marriage movement consisted of Canadians who, because of their religious beliefs, are disgusted by gay and lesbian sex. Similarly, much of the anti-polygamy lobby is fuelled by feminists who, because of their ideology, find polygamy repugnant.
This is not to say that the existence of polygamous communities does not raise legitimate issues. Child abuse is a concern, but it is a general societal problem and should be dealt with as such. Moreover, if we truly are concerned about the welfare of children, should we not be extending the protections and benefits of marriage in order to make any unconventional arrangements in which they live more stable?
There is also, to be fair, the issue of underage or coerced marriages to consider, but the same concern also arises in the case of some arranged marriages, where it can even lead to so-called ‘honour' killings. The wider issue is currently being debated in the UK, and we should do so as well. As to the fear that brainwashing of young people may be taking place, who's to say that one religion's initiation teachings are copasetic while another's are beyond the pale?
Having extended the definition of marriage to include gays and lesbians, it's difficult to think of a single reason why, if it were purely voluntary and all parties agreed, governments should prevent a woman or a man from becoming the second husband or wife of another person – be it for religious or romantic reasons. The major difference, as a Globe editorial pointed out, is that gays and lesbians were already well accepted in our society when the courts ruled. However, since when do judges, as opposed to politicians, make decisions based on the popularity of a particular group of Canadians? Were they to do so in the case of polygamy, would this not suggest that in Canada, as liberal Americans are now re-discovering, judges make decisions based on their personal values, as opposed to abstract principles of law?