I have 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. – Chief Justice Robert Bauman in the B.C. Supreme Court decision this week that upheld the constitutionality of Canada's anti-polygamy laws
A list of things that have been decried as threats to monogamous marriage: contraceptives, gay marriage, sex education, out-of-wedlock cohabitation, lewd dancing to rock 'n' roll, women in the work force, legal alcohol, naughty films, no-fault divorce and educating women.
Yet even though all these things came to pass – and several of them would be a fair trade for monogamous marriage – the institution is still here. Possibly monogamous marriage isn't the fragile flower it's made out to be.
But Parliament's chivalrousness toward it, as reaffirmed by Chief Justice Bauman's ruling, makes me nervous anyway.
It assigns an inherent moral value to a particular kind of union over other kinds of relationships entered into by consenting adults, and I hate that. What's more, upholding a law that violates our Charter right to religious freedom in the name of protecting women and children from trafficking, rape, abuse and forced marriage is just faulty logic: These are already crimes.
Claiming they're more common in polygamous communities is suspect. Chief Justice Bauman specifically interprets the law as not applying to polyamorous relationships, so clearly the number of sex partners a parent has is not in itself construed to be the problem. Might it not be more accurate, then, to say these crimes are more prevalent in, say, religious cults – whatever their matrimonial arrangements?
Criminalizing a situation in which violations are sometimes committed is generally frowned upon: People often drive drunk, but few propose banning cars.
Chief Justice Bauman again confuses correlation with causation by basing his ruling partly on the fact that women in polygamous relationships “have more children, are more likely to die in childbirth and live shorter lives than their monogamous counterparts.” While this is probably true, it probably stems less from the fact that these women share one husband (a circumstance that might easily lead to women having less sex and fewer babies) than the fact that many women in polygamous relationships belong to religious sects that forbid contraception and whose doctrine dictates that women should bear lots of children.
Were the judge to extend his compassion for women further, we would have to look at Catholic and other religious teachings that have similar outcomes. Statistically, women who are married to one man are likelier to have more children and die in childbirth than women who aren't married at all, so we might as well conclude that marriage itself damages women's health.
This ruling demonstrates the tendency to compare only the best monogamous relationships against only the worst polygamous relationships. I've seen hard-core feminists get 18th-century sentimental over monogamous marriage when polygamy is mentioned. They even stop saying “patriarchal,” and require resuscitation.
But objectively I can't find any argument against polygamy that doesn't work equally well against monogamous marriage, excepting those about Western tradition – which are the same ones made against same-sex marriage, and not dissimilar to those made against women's emancipation.
As with anti-drug and anti-prostitution laws, I don't imagine there's a huge pent-up demand for polygamy that Section 293 of the Criminal Code has been keeping at bay. What about the untold masses of immigrants rumoured to be living out The Butterfly That Stamped in a suburb near you? In fact, of the top five countries whose citizens gained permanent resident status in Canada in 2010, only India permits polygamous marriages – in a highly restricted form, to a minority Muslim population, the vast majority of whom, worldwide, are not polygamous.
This ruling implies that if the anti-polygamy law vanishes, lots of us are going to run out and get more spouses. Surely, if monogamy – which Chief Justice Bauman calls an “institution” on par with the values of “social justice and equality” – has such a tenuous grasp on us, it's not as fundamental to Western civilization as he claims. There goes a pillar of his reasoning.
Monogamy isn't threatened by a small sect in British Columbia, and enshrining it won't alter the members' religious beliefs. But this ruling should concern all those perfectly nice Canadians for whom monogamy is no more an institution than is the missionary position.