Canada: The perils of polygamy

The Globe and Mail
Polygamy has been a criminal offence in Canada since 1892, around the time the Americans were chasing after Mormons who married two or more partners.
But the Church of Jesus Christ of Latter-Day Saints has long since renounced polygamy, and the Canadian government hasn't prosecuted anyone under the relevant section of the Criminal Code since 1937.
Even then, the main finding was that adultery doesn't count as polygamy, which requires some form of ceremony.

So why is polygamy suddenly in the headlines again? Because Status of Women Canada issued "an Urgent Call" last January "for Proposals on the theme [of] Polygamy," at a cost of $150,000 to be split with the Justice Department. It did so out of concern that polygamists in a community called Bountiful in southeastern British Columbia might challenge the law, and because some critics in the debate over same-sex marriage warned of a slippery slope toward polygamy. The release of the four commissioned reports explains why Canadians are now knee-deep in stories about polygamy, which may be read here to mean polygyny (one man, many wives) rather than the far rarer polyandry (one woman, many husbands).

The real attention-grabber was the report by Queen's University law professors Martha Bailey and Bita Amani, Queen's women's-studies professor Beverley Baines and researcher Amy Kaufman. They hold no brief for polygamy itself, which frequently abuses the women involved and makes life hell for the children, but they want it removed from the Criminal Code. This would make it easier for Canada to help women who entered into polygamous marriages overseas and need stronger rights of inheritance and spousal support. Some provinces already make allowances for them, but it's an odd accommodation, since their marriages are invalid here and since being part of a polygamous union is an indictable offence carrying a potential term of five years in prison. Ms. Bailey and her co-authors use that as ammunition: that it makes no sense to have a law on the criminal books that is never invoked, and that a country that doesn't criminalize adultery shouldn't criminalize polygamy.

To decriminalize polygamy wouldn't be to endorse it, they say. In any case, they add, polygamists might successfully use the Charter of Rights and Freedoms to claim a violation of religious freedom, or, for civil marriage, a violation of their Charter rights to liberty (Section 7) and even equality (Section 15), though the authors suspect the equality angle wouldn't get the challengers far.

But before we get carried down the slope on this runaway toboggan, let us grab on to one of the other four reports -- this one by Queen's law professor Nicholas Bala, Queen's bachelor-of-laws candidate Katherine Duvall-Antonacopoulos and two authors from the Canadian Research Institute for Law and the Family, Leslie MacRae and Joanne Paetsch.

Like the Bailey report, the Bala paper itemizes the damage caused by polygamous relationships, which "appear significantly more likely than monogamous relationships to be characterized by physical and emotional abuse of women." Like the Bailey report, the Bala paper says it's important to make accommodations for women and children from an overseas polygamous marriage who need help securing inheritances or spousal support. But unlike the Bailey report, the Bala paper says the harm that polygamy does justifies its retention in the Criminal Code, and justifies preserving the power of immigration officers to refuse entry to polygamous families. It has "important symbolic, educational and policy functions," even if its enforcement should be focused (for instance, preventing minors from being forced into arranged polygamous unions) rather than broadly aggressive, which might drive polygamists underground and harm the children. And the Bala paper believes the courts would dismiss Charter challenges from polygamists. It notes a Supreme Court ruling on Jehovah's Witnesses which indicated (in the paper's words) "that concern about the welfare of vulnerable and dependent individuals may outweigh Charter-based rights of adults to freedom of religion."

As for the canard that redefining marriage to include same-sex couples would open the door to polygamy, there are at least four good responses. First, letting gays and lesbians marry doesn't alter the monogamous nature of marriage. Second, admitting gay couples into the marriage tent promotes equality, while permitting the power imbalance in polygamous unions would promote inequality. Third, same-sex marriage between two people is compatible with the assumptions made by pension plans and insurance firms; accepting polygamous marriages would blow their assumptions out of the water and incur great costs. Fourth, the Bala paper says, "there is no evidence that same-sex marriage harms children . . . [but] there is a significant body of research from a number of countries about the negative effects of polygamy on children in terms of their emotional development and educational achievement."

Polygamy deserves to stay in the Criminal Code. Talk of decriminalization should remain an academic exercise. Pull the toboggan back up the hill.

Globe and Mail
Wednesday, January 18, 2006 Page A16