“The debates about same-sex marriage and polygamy are clearly distinguishable. Same-sex marriage does not affect the concept of monogamy.”

Sorry, Chris, but I don’t think the statement in that study is conclusive proof that “…polygamy has nothing to do with gay marriage…”

I know you’ve heard the arguments a million times, but let me set out my thinking.

According to Ontario Chief Justice McMurtry in the Halpern decision, marriage was formerly defined as “...the voluntary union for life of one man and one woman, to the exclusion of all others.”

Suppose we select two elements of that definition:

- “one man and one woman” – let’s refer to that as “composition”, and

- “to the exclusion of all others” – which, to my mind, defines the term “monogamy”. (Of course reference to the number “one” also helps.)

Both are (or were) elementary defining characteristics of marriage. So why is an attack on one so very different from an attack on the other? Clearly there are analogies.

Naturally, since it was the subject of the case, the Court of Appeal for Ontario only focused on the first characteristic, saying that it violated the Charter’s equality provisions in section 15(1), based on Justice Iacobucci’s three-stage inquiry.

Now I’m no lawyer, but the issue seems more common sense than legalistic: if one concludes that the defining characteristic of composition is violable, why is it such a leap to infer that monogamy is also, based on Justice Iacobucci’s same three tests?

I realize the study’s authors claim the difference is that polygamy is a choice, rather than an inherent characteristic. (Now where have I heard that argument before?) Of course whether or not the behaviour is a choice has absolutely nothing to do with whether it is protected under section 15(1).

My point is simply that it’s a stretch to say, “…polygamy has nothing to do with gay marriage…” Even ignoring the legal arguments; instituting same-sex marriage demonstrated that many people in Canadian society were willing to accept the nullification of at least one long-held precept of marriage. Why not others?

"My point is simply that it’s a stretch to say, “…polygamy has nothing to do with gay marriage…” Even ignoring the legal arguments; instituting same-sex marriage demonstrated that many people in Canadian society were willing to accept the nullification of at least one long-held precept of marriage. Why not others?"

The only thing the two have in common is that each represents a change from the traditional definition. That's a huge category into which to lump what are two significantly different changes.

With same-sex marriage, you have inherent orientation (which I notice you pooh-pooh without further comments) at issue, but the institution remains dyadic, and the contract is a relatively simple one.

Polygamy is a huge can of worms, on the other hand. Triads are inherently unstable, and larger numbers introduce even more instability. [Thank you, Georg Simmel.] Contractual relations become a nightmare of complexity, and issues of exploitation and hierarchies emerge. I'd be in favour of keeping such arrangements illegal for all of these reasons. There will be people getting the short end of the stick, and it will almost invariably be those of the female persuasion who do so.

If they legalize it, then, of course, same-sex polygamy should also be allowed. But that's the only link I can see between the two issues, in reality.

I hope you get a chance to stand in front of the Supreme Court and explain to them how a model of marriage practiced for thousands of years in half the world is impractical because "triads are inherently unstable." That should really knock them on their ermined arses.

Chris has been told the proverbial three times that the legalization of same-sex marriage would raise questions about the legal status of polygamy. Yet every time it happens--and as the authorities continue to display the fear of the obvious Charter arguments--he seems to regard it as a confirming case for his own view. The paragraph he cites in the entry has got to be the shabbiest thing he has ever found himself defending. Saying flatly that same-sex marriage is somehow more acceptable because it leaves monogamy intact presupposes a position on the subject of the analysis--namely, whether monogamy can be left intact once the common-law notion of marriage has been disposed of. It could as easily have been pointed out three years ago that "the acceptance of same-sex marriage as legitimate would do away with the concept of heterosexual marriage." All it really did was de-privilege it.

Moreover, one is rather surprised to learn that extending marriage benefits to same-sex couples has carried no additional costs to employers or the state. Death benefits under the CPP were extended to same-sex partners in 2000: this is only fair, but do we suppose that those additional disbursements are paid out in Monopoly money?

Further along, the study in question admits that monopolistic monogamy is vulnerable to freedom-of-religion arguments. It also says rightly that these arguments have never carried the day anywhere else. So what if the test case is brought by a wholly irreligious group of two polyamorous men and two polyamorous women? All the harm-based arguments against polygamy--including well-founded tirades against lunatic Mormon fundamentalists--fly out the window at that point. Polygamy isn't ultimately going to be tested according to its worst, least humane examples.

Plus, even if the odds are very strongly against my hypothetical scenario, we're still entitled to an answer from the Prime Minister about what he would do, having neutered the notwithstanding clause, if it came about. In the Maclean's entry, I probably should not have taken a specific position on the likelihood of a Supreme Court ruling in favour of polygamy; the "widely foreseen" bit has the effect of obscuring my actual point, for which I apologize.

I believe, as apparently does Colby Cosh, that the circumstances that might surround polygamy in Canada are not, in general, those that would encourage raving Mormon fundamentalists--nor, just to point out the trumpeting elephant in the room, raving Islamic fundamentalists.

But I would take issue with the notion that polygamy as practised elsewhere explodes my point about its likely instability here. You simply can't leap around the world in such an ahistorical, acultural fashion. A hypothetical polygamy in Canada would exist within a context of rights, of contract law, of social relations that can all be distinguished from those in countries where women did/do not have equal access to the law, nor equal expectations.

To turn to Islam, since Mormonism is a bit of a red herring here, religious law and custom prescribe rigidly enforced rules with respect to social relations. By the latter I mean that everyone in such societies knows precisely where he or she stands, even if men and women do not stand on a plane of equality. The man is, no questions asked, the head of the household. Polygamy is stable in such societies, all right, because the hierarchies and inequalities that I spoke of are normalized. Triads, etc., do have stability when one of the group is dominant.

But that's generally not the situation here, and I doubt that it would be all that difficult to make that case to the Supremes once they had picked themselves up and resumed sitting. Permitting polygamy would open up a can of worms including contract issues, obligations and rights. Where all involved are granted full agency, I think my reference to Simmel is apt. That doesn't mean that one cannot imagine a stable polygamous relationship in Canada--from what I know of Bountiful, such things are indeed possible, if extremely marginal. But if one wants, as a matter of good public policy, to promote gender equality in society and in its institutions, legalizing polygamy is a backward step.

Here I will confess that I sometimes find myself agreeing with Cosh and others about the long-term effects of legalizing same-sex marriage. By continually redefining marriage, it could be argued, one transmogrifies it. Personally, as with the matter of women in the priesthood, I occasionally think that fighting to infuse a bit of diversity into a creaky, reactionary old institution can transform it, and, unlike Cosh, I have no objections to that. But then I just rub my eyes and realize that such institutions tend to be reinforced, not transformed, by such measures. Same-sex marriage, in other words, is just marriage, and the latter keeps its essential character: gay activists have just gotten themselves coopted.

Admittedly, the activists were in a bit of a bind, because the issue on the table was really the right to equal access under the law, not marriage per se. So long as LBGT people are denied access to an institution sponsored by the state, discimination exists. My expressed views during the debate, therefore, were that marriage should be privatized. Everyone gets a civil union, but the state gets out of the marriage business. Marriage, if desired, would be left up to the church, synagogue, mosque or humanist association of one's choice.

I recall that Paul Martin was playing around with that very idea for a short period, and I was never very clear on why he dropped what struck me as an elegant common sense approach that would probably have pleased damned near everyone.

"I believe, as apparently does Colby Cosh, that the circumstances that might surround polygamy"

My apologies for being unclear: I meant "that might surround the legalization of polygamy."

Interesting comments, Doctor. If I understand your position, the majority of multi-partner relationships, or at least westernized ones, must be inherently unstable and contain at least some amount of exploitation. You believe this justifies keeping them illegal, even if there are willing participants.

I have four main areas of disagreement.

For one, it imposes your judgment as to what constitutes a viable, fulfilling, personal relationship on other consenting adults who do not share that view. During the same-sex marriage debate, I was lead to understand this was a bad thing.

Second, I understand some people’s perspective that there may be exploitation in polygamist relationships. Unfortunately, one can find the same view espoused by feminist writers about dyadic heterosexual relationships. While there are obviously examples of exploitation in real life, both views are simply opinions, and seem to be driven more by ideology than hard fact.

Third, you mention the resulting complexity of contract issues. Since multi-party legal agreements are not uncommon (take, for example, a business partnership among three or more people), I doubt the articles of a polygamist domestic agreement would be that much more of a challenge.

Finally, by way of background, I know nothing about sociology. So I had to consult the usual Internet sources to find out about Professor Doktor Simmel’s work – please forgive me if I’m quoting unreliable opinions or insights.

Based on the short article at:

http://tinyurl.com/8aars

it appears the trouble lies with triads alone. It also contradicts your assertion that more people results in even more instability. “Larger groups also tend to be more stable because of the greater variety of relationships that can form in them.” Apparently the more the merrier, so obviously we just need to make sure polygamist marriages encompass a large enough group of people.

Polygamy is also specifically noted as an exception to triad instability. As you already so astutely observed, that comment was in the context of “societies where polygamy is practiced”. But surely, if the relationship works, this is more closely a reflection of the specific participants’ attitudes, rather than the society as a whole. If so, even a westernized person with equal access to the law could still be happy as one of many spouses. Whether they feel marginalized or unequal is an issue for that person alone.

So if this is all true, and if all participants are voluntary (another key characteristic of the definition of marriage), then the main arguments for keeping polygamy illegal, or more particularly for differentiating it from the same-sex marriage slippery slope, would seem to disappear.

Of course, as I’m sure you’ve gathered, I don’t support polygamist marriage – I’m just playing devil’s advocate (aka being a jerk). It’s because I think there’s an inconsistency, both logical and emotional, between supporting the redefinition of marriage to include same-sex couples on the one hand, and opposing polygamy on the other. The attempts at drawing distinctions are good, but I don’t think they stand up under closer scrutiny. So naturally I believe it’s more a case of same-sex marriage advocates seeing the chickens ambling home for a nice perch, as predicted, and as a result, doing their best to distance themselves from the issue.

Thank you for your measured comments. You aren't being a jerk in the least. Let me address your objections first, and then provide a little commentary.

1) I'm not trying to impose my own view, but to describe difficulties with polygamy from the point of view of public policy. If equality before the law and in society is held to be a value worth defending, and I happen to believe that it is, sound public policy would not promote institutions and practices that discriminate and create inequalities. In the case of same-sex marriage, the objections appear to me to be primarily religious: certainly there is nothing in a same-sex marriage that militates against human rights, equality, etc. Indeed, I would argue that such rights and values become an issue when same-sex couples are denied the legal right to marry.

Polygamy, on the other hand, creates and maintains hierarchies, and it is women who occupy the lower rungs.

I do not think that one departure from the traditional view of marriage necessarily requires that we accept all other changes, however harmful or bizarre. The logic in that has always escaped me. Slippery slope theorists insist that there is a veritable cascade going on, but I don't see it. The road to establishing the commission of inquiry concerning polygamy seems to be quite independent of the road taken to establish same-sex marriage.

2) I quite agree that there is oppression in dyadic relationships. To put my cards on the table, I don't even believe in marriage, except as a contractual arrangment. But polygamous relationships create the possibility, indeed the likelihood, of even more difficulties. I did not intend to idealize dyadic relationships in what I wrote earlier, and I'm sorry if I gave that impression.

3)The rights and mutual obligations of multiple partners and offspring strike me as more of a legal mare's nest than a mere multi-person business partnership agreement. Perhaps, on reflection, that is merely an opinion. I'm no expert on contract law.

4) I wouldn't judge Simmel by a Wikipedia stub. He argues that a triad is fundamentally unstable. Polygamy works when, as your reference states, and as I myself stated earlier, one individual is dominant. Again we get to the public policy issue: do we want to recognize institutions that create the inequalities that such dominance implies?

Here's a comment by Simmel that I believe is on point:

"Furthermore, in the realm of the forms of marriage the decisive difference is whether, on the one hand, monogamy prevails, or, on the other, the man has a second wife. If the latter is the case, the third or the twentieth wife is relatively without significance for the structure of the union. Within the boundaries of such a structure, the step to the second wife is here also, at least in one direction, richer in consequences than that to a still larger number, for precisely the duality of wives may give occasion, in the life of the man, to the sharpest conflicts and profoundest perplexities, which, in general, do not arise in the case of each higher number. For in the latter instance such a fundamental declassing and deindividualizing of the wives is involved, there is so decided reduction of the relationship to its sensuous basis (since every more spiritual union is always of a more individual nature, that in general it cannot lead to those profounder disturbances for the man which may flow directly and only from a dual relationship."

G. Simmel, "The Number of Members as Determining the Sociological Form of the Group: II." American Journal of Sociology 8 (1902): 160

What I would draw your attention to is the profoundly male-centred analysis here. I am suggesting that the point of view of the twentieth wife must also be considered! But I am also conceding that he explicitly states that things get no worse when other members are added to the triad--I'm not certain how I got the earlier impression, and here withdraw it.

Here is where we part company, though:

"Polygamy is also specifically noted as an exception to triad instability. As you already so astutely observed, that comment was in the context of “societies where polygamy is practiced”. But surely, if the relationship works, this is more closely a reflection of the specific participants’ attitudes, rather than the society as a whole."

You partially quoted me here, and are implicitly accusing me of uttering a truism. What I did say was that, where polygamy is stable, it is stable because of external structures that codify its practice and normalize its structural inequalities; and also because one person (guess who that might be?) is dominant.

I would argue that, in Canada, such external structures are simply not there. Furthermore, the dominant values of this society do not buttress the inequalities that are inherent in the practice of polygamy.

I appreciate the opportunity, by the way, to clear up a little muddiness in my earlier post. The instability of polygamy in Canada, I would argue, is relative, in comparison to dyads. But it is also unstable in absolute terms, because the dominant values of Canadian society do not uphold its inherent inequalities.

As noted, that does not mean that, at the margins, such "voluntary" relationships will not be entered into, extra-legally. But affording legal recognition (and hence an implied approval) to such arrangements would create (in my view) considerable harm.

Again, my bottom line: one change in a traditional institution does not mean that all other changes are legitimate too. The links between same-sex marriage and polygamy are simply rhetorical in nature.

"But I am also conceding that he explicitly states that things get no worse when other members are added to the triad"

"Worse" is the wrong word here: "unstable" is what I meant. His "fundamental declassing and deindividualizing of the wives...involved" is certainly "worse," at least from the women's point of view.

Yeah, CC, I think I may have misunderstood the point of your post. Like, why would the reporter ask that question if Martin had already done away with the notwithstanding clause?

Anyway, to recap for those lucky souls unfamiliar with the Great Cosh vs. Selley Slippery Slope Debate, I never said that legalizing SSM wouldn't "raise questions about the legal status of polygamy." The existence of this discussion and the many that preceded it proves that it will, and does. But the slippery slope argument depends on a lot more than A leading to questions about B – it requires proof that A actually leads to B.

So when this wholly irreligious group of would-be polygamists arrives in the courthouse, what will their lawyer say? "You allowed gay people to get married, so why not us?" Doesn't sound very convincing to me. I think he'd make its case on its own merits, and he might win. But there's no reason he couldn't have won pre-SSM, and no reason he's more likely to post-SSM.

Much against my better judgement, I have to agree with the Dawg on the singular point that the state has no business in defining marriage. If it has a role it should be as a registrar of the various contractual relationships adults enter into. If those adults wish to have the seal of this church or that affixed to the contract then they'll have to conform to that church's marriage rules. But that is not a question for the state.

The arguments about the inherent instability of polygamy are rendered moot by a 40 to 50% divorce rate. Instability is no bar to hetrosexual two person marriage and it should not be held as a bar to two person homosexual marriage or a Muslim or a Mormon's desire to have four to forty wives.

The most fundamental alteration of the idea of marriage was not the legalization of SSM; rather it was the arrival of no fault divorce thirty five years ago. Once the "til death do us part" bit was dropped marriage as it was known at common law largely ceased to exist.

I note that we have lived in a nation where SSM has been legal for several months. Riots have not broken out in the streets, hetrosexuals are still hetrosexual, in fact you really have to look hard to find much has actually changed. It may have been a slippery slope; but it was a very short one.

Dr. Dawg, I understand your bottom line argument, thanks to your clear description. Working backwards from the conclusion, I think I’m safe in saying that the lynchpin is your assertion that polygamist relationships will, in the large majority of cases, result in a negative outcome, based on inequality. Different outcomes mean they are different issues.

(One quick note…my apologies if you thought I was partially quoting you. I actually took that quote from the article I referenced, but I was very unclear in my writing about the source.)

You’re obviously not alone in your thinking – polygamy is illegal after all, so somebody must think it’s a bad idea. And Chris’ hypothetical situation presumed it in the reporter’s question.

But if I really were arguing for polygamy, I’d focus on the use of the word “inequality” as a negative outcome. If by inequality we mean that one of the spouses loses even a single right accorded to them as a citizen of Canada, I disagree that is a possibility. It simply wouldn’t pass legislative or judicial muster.

On the other hand, if inequality refers to characteristics like emotional attachment, romantic love, or fulfillment from the relationship, my gut reaction is that you and Simmel are probably right, there will almost certainly be inequalities.

However, I don’t believe that government has any business making judgments in that particular area. For one thing, there will always be at least some such inequalities in any relationship – it's the nature of the beast. But even in the extreme case, where an adult voluntarily decides to participate in a loveless marriage, I suggest that should be their choice. If they believe the outcome is potentially negative, they simply won’t enter into the arrangement. And if we believe our fellow adult citizens are capable of such a choice (as I do), it really should be made available to relationships of any size or composition.

So since I don’t agree with the negative outcome assumption, or at least a negative outcome with which the government should concern itself, I’m left without the distinction you draw between the two types of changes. Of course that takes me back to rejecting the original notion that “polygamy has nothing to do with gay marriage”.

Does that still mean the difference is simply rhetorical? As Chris noted, legalizing same-sex marriage has in fact lead to questions about the legal status of polygamy. In turn, we have a recommendation that it be passed into law. I therefore suggest the difference goes beyond mere argumentation. (Although I assume both of you would find the link tenuous.)

As for whether same-sex marriage qualifies as the slippery slope, I suppose it depends on how one defines the term. If, as Chris asserts, A must actually lead to B (i.e. be causative), then SSM doesn’t qualify. But if one accepts a definition like “A initiates a chain of events that leads to B”, or “A increases the chances that B will occur” (quoth the dreaded Wikipedia), then SSM definitely does qualify as the slippery slope.

I can imagine the news conference outside the Supreme Court of Canada. A lawyer stands beside a very fatigued-looking client, surrounded by his adoring future wives. “We want to thank same-sex marriage advocates for emboldening us. You demonstrated that society can be forced to change its antiquated notions about the meaning of the word 'marriage'. Thank you, we couldn’t have done it without you. Now read in our Charter rights.”

Chris - I, too, am not a huge admirer of slippery slope arguments. That being said (and I am no lawyer, let alone a constitutional one), my understanding is that the basis for the position lies in the basis for the Supreme Court ruling. That, of course, being the application of a "no harm" standard and a "consenting adults" standard (evidenced quite clearly in the swingers club matter) as opposed to a general "societal morality" line of reason. The decision to apply the former two standards creates the legal precedent.

Had the courts and/or the government relied on a more "moral" standard, then the slippery slope toward polygamy simply would not exist or, at least, would not be linked to SSM. In that the courts have chosen to apply a "harm" and "consent" logic, then quite clearly, I think, the slippery slope is established and linked very directly to the SSM debate.

People can choose to live together polyamorously, and I would not be surprised to learn that there are some who currently do. This can happen without any regard for your concern for their welfare, quite apart from whether your concern should ever manifest itself in control over someone else's lifestyle choices. To deny equal protection and benefit of the law to such people - assuming they would enter into contractual life commitments if it were possible - is to undermine the principle of equal protection and benefit. Legal recognition would add protections to a situation which some of you suppose inherently has an imbalance of power and is unstable. As for stability - what is the divorce rate running at in Canada?