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October 25, 2006
Freedom for the non-existent
I’ve argued ad nauseum that the same-sex marriage debate is very different than the polygamy debate (to the extent one exists). One of the key differences is that while same-sex marriage augmented the rights of a group of law-abiding people whose lifestyle the state had no official quarrel with, polygamy is a matter of whether to officially accept a lifestyle that has until now been criminal. Personally I see few parallels between the two debates, especially since so few people would benefit (and only then from ceasing to live every day outside the law) from striking down the law against polygamy and since, to my knowledge, not a single actual polygamist is petitioning for such a development. At the very least the debate is premature — as premature as same-sex marriage would have been in 1968.
Marriage was working just fine, for hundreds and hundreds of years. It's a coarse aggregate in the concrete foundations of Canadian society. And after all that time, its definition was suddenly and significantly altered (not for the first time) after the briefest tornado of rhetoric, misdirection and both homophobic and human rightsy high dudgeon. If the government does indeed have a role to play in setting the generally accepted definition of “marriage” — something existential, that is, not just the granting of various rights — then it owed Canadians a far more serious examination of those foundations.
(For the record: I don’t think government does have such a role no matter how fervently it believes it does. I also think homosexual couples should have all the same rights as heterosexual ones, which is why I have no problem with SSM as it’s now enacted even though I loathed the terms of the debate.)
Today’s Ottawa Citizen editorial, entitled “Three may not be a crowd,” proposes the same superficial treatment for polygamy:
Canadian legal experts say it's time for the government to crack down on conjugal relationships with more than two partners, but their argument rests on the dubious proposition that practices that are often bad must always be forbidden.
Well, their argument also rests on the law. Not all “often bad” practices must “always be forbidden” (though that is certainly the current guiding principle of Canadian government), but clearly at some point Canada, and the entire western world, decided that polygamy was, in fact, always bad.
Oh phooey, says the Cit:
The international agreements are meant to stamp out polygamy (the term for the general situation of more than two people in a relationship) and polygyny where it's used deliberately to subjugate women. Yet to the Canadian researchers, cultural context is irrelevant. Polygyny, they suggest, is inherently degrading to women, in each and every case. They offer dozens of examples of degrading polygynous situations, but the examples are inextricable from the societies in which they occur.
Cultural context is irrelevant to the authors of this editorial, too. They hardly even address the single polygamous culture in Canada — Bountiful, BC, led by the now-incarcerated Warren Jeffs. Bountiful is home to what might be the single group of people who are the most extricable, and extricated, from Canadian society, but the Citizen sees it more like Nelson or the Gaspésie — a little different, sure, but still just another part of Canada’s vast bumbleberry pie. “Women have an array of legal remedies available if they are defrauded [? –ed.] or otherwise abused,” they burble, which is true. It’s also true that tragic numbers of educated metropolitan women who fall victim to abuse fail to avail themselves of those remedies. Can we expect fuller participation from poorly educated women and girls who live under an oppressively paternalistic and (the Cit’s word) “cultish” religion, who “marry” in their teens, who live entirely and deliberately apart from Canadian society?
The Citizen then comes about violently and suggests that “the fact that it [polygamy] is illegal means that when it does happen, those who do it necessarily do it illicitly, without protection if things go wrong.” Wait, what happened to all those legal remedies?
Stories have emerged from Bountiful of young girls brought up in this cultish environment being married off to much older men against their will. Where such crimes are committed, they should be prosecuted.
But that’s exactly the point. They aren’t being prosecuted because British Columbia is too afraid of the Charter to go in and investigate, not because it’s impossible or unethical.
This Charter terror is usually phrased in roughly the terms the Citizen uses:
But if more than two genuinely free, mature people -- men or women or any combination thereof -- choose to share their lives, can the state legitimately tell them no? The whole argument in favour of same-sex marriage rested on the premise that consenting adults have the right to enter any relationship they like.
…
If "adult" and "consenting" are the key words, then it would be contradictory to turn around and outlaw polygymous arrangements that were freely entered into.
Sounds reasonable — so why is polygamy illegal across the entire civilized world. Inter alia, because the ideas of freedom and consent, to say nothing of social stability (which is one of the primary goals of governments’ historical promotion of monogamous marriage), have long been held to be incompatible with polygamy.
As I’ve said before, when one Canadian man and three Canadian women who do not live in Bountiful, British Columbia decide they want to get married, then let them mount the Charter challenge. It is madness to suggest striking down a law on behalf of hypothetical people when, as the Citizen admits, very predictable and very troubling social problems continue to emanate from the only known people in Canada currently running afoul of the legislation.
I could probably live with legalized polygamy if I knew that young women weren’t being trafficked across North America to be the wives of men they’ve never met, that young men weren’t being left penniless and unloved by the sides of highways, that everyone was free to leave if they so wished. All the evidence suggests that none of those conditions currently exist in Canada, which is bad enough. But the worst part is that we don’t even have the stones to go in and find out for sure. This is certainly not the time to soften our stance on this lifestyle.
Posted by Chris Selley at October 25, 2006 09:09 PM
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Comments
Ohhh, I was just going to say it would be alright but, What happens to all the leftover boys when all the brides are taken? I hate to get into a, "If God meant people to be polygamists..." area but, nature is astoundingly adept at giving us near-equal numbers of boys and girls.
It's the treatment of women and especially the treatment of those leftover boys that makes me say No to polygamy.
Posted by: Jason Bo Green at October 25, 2006 11:28 PM
One of the key differences is that while same-sex marriage augmented the rights of a group of law-abiding people whose lifestyle the state had no official quarrel with, polygamy is a matter of whether to officially accept a lifestyle that has until now been criminal.
Well, we can say that now, but the problem with this argument is that it is predicated on the legal status of the activity in question, a status which is entirely contingent. It wasn't that long ago that homosexuals who engaged in anal sex were not "law-abiding people whose lifestyle the state had no official quarrel with" - anal sex (which for purposes of this analysis is functionally interchangeable with the status of being a male homosexual) was illegal. And not just a little bit illegal, but really illegal: it was vigorously prosecuted and carried a jail term penalty (it may be worth noting that we're still not over the hump (forgiving the pun): Section 159(1) of the Criminal Code lays out the default position under Canadian law - anal sex is illegal and punishable by up to ten years imprisonment; then Section 159(2) lays out the exceptions to that general rule).
I think both same-sex marriage and polygamy should be legal: whatever consenting adults want to do with each in terms of their sexual or marital activities shouldn't be the concern of the criminal law, absent the usual qualifiers, such as fraud, etc. (coercion would be caught by the "consenting" requirement). But the argument that same-sex marriage should be legal cannot rest on the notion that it's okay because the underlying activity is not illegal: besides being circular, it doesn't provide any mechanism for deciding whether the underlying activity should be legal or illegal in the first place. Because this argument: "at some point Canada, and the entire western world, decided that polygamy was, in fact, always bad", could just as easily have applied to homosexual sex - it was illegal throughout the western world. And then that changed - what's to stop the law on polygamy from being modified in much the same fashion? And why shouldn't it?
When you say this:
Sounds reasonable — so why is polygamy illegal across the entire civilized world. Inter alia, because the ideas of freedom and consent, to say nothing of social stability (which is one of the primary goals of governments’ historical promotion of monogamous marriage), have long been held to be incompatible with polygamy
the same argument could have been applied, a fortiori to anal sex: "hey, if it's such a great idea, then why has everybody made it illegal?" But that's the wrong question. The question should be: should this activity be illegal in the first place? Maybe there's a good answer for that. Maybe, as you say, the requirements of freedom and consent are inherently incompatible with polygamy - but that conclusion can't be drawn merely from the fact that it's illegal.
Posted by: Bob Tarantino at October 26, 2006 08:23 AM
“Maybe, as you say, the requirements of freedom and consent are inherently incompatible with polygamy - but that conclusion can't be drawn merely from the fact that it's illegal.”
I didn’t mean to (and don’t think I did) suggest that it could. I just mean that if your destination is south, but upon turning the corner you see thousands of people running determinedly north, you should probably do some research before you go ahead with your plan. In the case of polygamy that research has to involve the actual polygamists, not the hypothetical ones. And the actualy polygamists are all in Bountiful.
Posted by: Chris Selley at October 26, 2006 10:32 PM
Oh, for god's sake. The "actualy" polygamists are not all in Bountiful.
I have to wonder how people keep winding up making authoritative statements in their blogs about a social phenomenon's non-existence without even, you know, trying to Google it first.
Posted by: Idealistic Pragmatist at October 27, 2006 11:34 AM
What happens to all the leftover boys when all the brides are taken?
Why they get indoctrinated into the gay lifestyle of course. Haven't you been paying attention?
Posted by: Robert McClelland at October 27, 2006 12:21 PM
(Cross-posted from IP)
I am aware of at least three open relationships. In one situation, both the man and the woman have long-term relationships with people other than their spouse, in another case, the wife has several longstanding relationships with other men (which is supported by her husband), and in the last case, a bi-sexual woman has both a male husband and a female partner.
Note that in the above cases, it's the women who has multiple partners. Everyone is an adult and personally made/makes his or her relationship choices. No one was assigned a spouse, and no one is forced to remain in the relationship.
Two of these relationships parent children, all of whom appear as happy and healthy as children in more traditional families.
As IP said: "The real issue isn't polygamy/polyamory, it's coercion." and these examples show that it's possible to have a polyamorous relationship without a coercive factor. We just don't have any studies on them yet.
Posted by: Deanna at October 27, 2006 02:19 PM
We just don't have any studies on them yet.
Actually, this turns out not to be true, either. I just bopped on over to my university's library and put the keyword 'polyamory' into the online sociology database. The number of studies that popped up was not small.
Posted by: Idealistic Pragmatist at October 27, 2006 05:59 PM
I hope you'll accept my tear-stained apology for the typo, IP, but I was operating under the assumption that polygamy meant "the practice or condition of having more than one spouse, esp. wife, at one time." You make an interesting point in your post about the law appearing to forbid polyamory as well (or at least "conjugal" polyamory, i.e., polyamory that's like marriage, which would seem to make the whole thing circular) but I think the distinction is pretty obvious. Just because the state doesn't recognize the fundamentalist Mormon ceremonies doesn't mean it has to view Winston Blackmore as morally and legally equivalent to John Q. Swinger. A law against "open relationships" is silly, but it's equally silly to lump those in such relationships in with Blackmore, Jeffs, et al.
Posted by: Chris Selley at October 27, 2006 09:25 PM
I, too, think the distinction between a polyamorous relationship and one of the Bountiful folks is pretty obvious--and that distinction is about coercion. It's therefore really not the multiple partnerships part of the latter's relationships that are objectionable. It's the coercion. That's what the law should be about.
(Incidentally, I also think the distinction between polyamory and swinging is pretty obvious. In fact, in my experience, calling a polyamorous person a swinger is the surest way to get a pretty cold stare.)
Posted by: Anonymous at October 28, 2006 02:06 AM