Polygamy and gay marriage are importantly different, the B.C. Supreme Court has said.
"The alarmist view expressed by some that the recognition of the legitimacy of same-sex marriage will lead to the legitimization of polygamy misses the whole point," B.C. Supreme Court Chief Justice Robert Bauman wrote in upholding the polygamy ban last week. Plural marriage is full of "harm," he says, but gay marriage is not.
The judge is very right. Polygamy has many victims. It often imprisons people in marriages based on sexist rules. It reinforces religious fundamentalism in many cases. Same-sex marriage, by contrast, gives freedom to gays, and arguably to straights as well. It is fundamentalists' worst nightmare.
But the judge's ruling does not go far enough in countering the homophobic myth, still prevalent, that a road to tolerance for polygamy has been paved by good gay intentions. When Canada debated same-sex marriage, we heard regularly that gay unions would lead to legalized plural marriage.
It is worth considering the Western histories of the three family structures woven through the polygamy debate: gay marriage, straight marriage, and polygamy itself.
Gay marriage is a quintessential product of modern human rights. There is some evidence that gays have been marrying, usually in secret, for centuries. But same-sex marriage as we know it was really born in the 20th century. It was a child of feminism – the idea that women are equal to men, and that oppressive institutions need to be revised. With the feminist reinvention of the role of women in family came much of gay rights, and the idea that we should let gays marry.
Straight marriage is older than gay marriage, although possibly not as old as polygamy. In most of its forms, it was originally about procreation and property, with women and children often counted as the latter. As Tina Turner asked – what's love got to do with it? But the idea of love seeped in over centuries. It redefined heterosexual unions. After that, it was arguably just a slippery slope toward weddings with two grooms.
From the perspective of historic Western polygamy, of course, gay marriage is blasphemy, even more so than monogamy between straights. In the West, polygamy nearly always means marriage between one man and several women. It its inception, it was like the bad old form of straight marriage, but on steroids. Instead of one wife to rule, a man got several. Abraham was a polygamist. To some, that's proof that there can be love in polygamy. There is surely truth in that. To others, it is a sign that polygamy is from a bygone age.
From a moral and historical perspective, gay marriage is the opposite of polygamy. Straight marriage is somewhere in between. Whereas gay marriage has redefined love and family in a positive way, for gays and straights alike, polygamy buries its head in smothering sand.
"The prohibition of polygamy," Judge Bauman wrote vaguely, "has been linked, both temporally and philosophically, with the rise of democracy and its attendant values of liberty and equality." We could say that the evolution of the gay marriage laws provides important insight into how this is so.
But the judge also leaves something else a bit unclear: exactly why free choice is inviolable (and constitutionally protected) for gay and straight monogamists, but not for polygamists, too. This is where my own claim – as a gay man who thinks polygamy is retrograde – runs into trouble.
The court relies on the harms associated with plural marriage as the key reason to limit polygamists' freedom. (The harms are also used to differentiate polygamy from cosmopolitan "free love," gay or straight, which the court says in law is just fine.)
But Judge Bauman does not provide a very robust account of why it is wrong to tell gay or straight monogamists that they cannot marry, and yet right to tell sincere religious polygamists that they must violate God's will as they know it. It can be argued that free choice in religious matters on one hand, and in sex and love on the other, should be understood as a sacred right belonging to every human being in the personal search for truth. Some answers may be provided on appeal, even if the ban on polygamy is upheld.
The "fault" of letting polygamy out of its genie bottle does not solely belong to gay marriage. Anyone who has enjoyed freedom in sex and love – partaking or rejecting – has a stake. In a deep way, the polygamy debate is not really about polygamists. It is about the legacy of gay marriage, and of feminism, for mainstream secular people. It is about our own insecurity about what gender roles, family norms and the rules of sex have become.
The court has made clear that gay marriage is not a slippery slope to Bountiful. Now, we can start asking the real questions.
Aidan Johnson is a lawyer.