Who could possibly argue against a polygamy law?

Wednesday, November 23, 2011

In fact, the question would have been preposterous even a few years ago. Polygamy laws, it seems, have always been with us. The idea that marriage can mean anything other than the union of two people (not so long ago, "one man and one woman") strikes many as absurd, even dangerous.

Yet, that is precisely the issue that will be the focus of Chief Justice Bauman's opinion later today. And it is clear that there are, indeed, numerous arguments that suggest that continuing to criminalize polygamy is no longer acceptable.

A commonly heard challenge to the polygamy law is that it discriminates against those who seek to be in plural relationships out of a personal religious conviction. Section 2(a) of the Charter guarantees everyone the fundamental freedom of conscience and religion. To the extent that someone sincerely believes that a polygamous union will assist him or her in following a particular faith system, then polygamy becomes a protected religious choice. Importantly, it does not matter that the belief may be odd, an outlier or even rejected outright by other members of the same faith. It is still protected, though it can be subject to reasonable limits. Those limits will depend on the scope of the offence in question, its purpose and its impact on the people it catches.

The polygamy law is also challenged on the ground that it is vague. The Criminal Code does not define polygamy, and it includes as part of the offence a separate state of being in "a conjugal union involving more than one person at a time." While "polygamy" could perhaps be defined as being "married" to more than one person (presuming of course that one could decide what counts as a "marriage") the term "conjugal union" is highly problematic. Does it require people to actually live together? Must there be a sexual relationship, or merely one of dependence? If children are involved, does that change the analysis? What weight should be given to the intent of the parties?

Obviously criminal laws use broad, even diffuse, terms all the time and that by itself does not make them vague. Ultimately, though, laws must be precise enough to provide guidance to those who must apply and interpret them, namely, police, Crown prosecutors and judges. One of the challenges with the polygamy law is that it has been so rarely used that it is difficult to even know what present-day mischief the law is trying to address.

That brings us to another problem with polygamy - the basis on which it was criminalized in the first place. The law originally was directed at Mormons to keep them from emigrating to Canada from the US. Indeed, until 1955 the Criminal Code specifically mentioned "Mormon spiritual or plural marriage." Today, that kind of targeted use of the criminal law based on nothing but antipathy towards a particular group automatically violates the Charter, as well it should.

The offence no longer singles out Mormons, and the federal government has argued that it now represents a more conventional use of the criminal law to uphold certain moral values. In that case, the issue is whether criminalizing families is a proportionate means of upholding those values. The law carries a possible prison sentence of five years, it applies to everyone in the relationship and it concerns a fundamental life choice: the way in which we constitute our families. Does it strike the right balance?

The other aspect of polygamy, of course, is the equality of women. We have all heard the harrowing stories of sexual exploitation, of child marriage and of forced child-bearing. Polygamy commonly is associated with an extremely harmful form of patriarchal dominance, one that denies women education, social support and true choice. And, of course, one cannot forget the position of children born into these communities. Don't these people deserve all of the help and support we can give them?

One difficulty is that it is not at all clear that criminalizing the family unit - as opposed to specific harms that occur within that family unit - achieves anything other than to further isolate and marginalize those who are most vulnerable. Another difficulty is knowing in advance which polygamous unions given rise to these harms and which do not. And, finally, if the state's true concern is the exploitation and abuse of women and children, why on earth would it want to limit its scope to polygamy? Wouldn't it make more sense to seek to address those harms no matter how many persons are in a marital relationship?

It is understandable why so many are so invested in saving the crime of polygamy. But, as we contemplate this serious issue, we must be careful to always keep in mind the underlying principles of our society and legal system. We must be willing to examine polygamy in all its aspects, and to give fair consideration to troubling questions.
Designed by Rachel Gold.