11.26.2011

polygamy ruling: why are the courts still trying to protect marriage?

The recent BC Supreme Court decision upholding Canadian laws criminalizing polygamy is disappointing and dangerous. The much-quoted summary paragraph of Chief Justice Robert Bauman's decision contained a surprising clause: the protection of marriage as an institution.
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.
As we all know, harm to women and children has been the stated basis behind anti-polygamy laws, but in contemporary society, this makes no sense. Forced marriage, spousal abuse, child abuse, and child sexual abuse are already crimes, whether they occur in the context of legal marriage or any other context.

Laws curtailing women's freedom have always been rationalized as necessary for women's protection. Women weren't allowed to work, vote, smoke cigarettes, dress as they pleased, own property, and whatever else because, supposedly, they were weak and in need of protection. The anti-abortion-rights people still claim that anti-abortion laws protect women, when of course those laws do exactly the opposite.

Although it may be difficult for many people to believe, some women do freely choose to be in group marriages with several women and one man. Maybe most people don't understand this, but then, Charter rights exist to protect the minority against the dominant culture.

Children are in need of legal protection, and seldom receive enough of it. Having more than two parents doesn't inherently harm children any more than having two parents of the same gender does (i.e., not at all). If society is truly concerned about protecting children, it should strengthen and enforce existing child-protection laws. Dictating what types of relationships are sanctioned for child-raising is simply bigotry.

Beyond the usual excuses about women and children, protecting "the institution of monogamous marriage" is the same irrational, nonsensical excuse used for prohibiting same-sex marriage. Why does an institution need court protection? How do multiple-partner marriages threaten and harm monogamous marriages? What business do the courts have in siding with an institution over individual Charter rights?

Tabatha Southey, writing in the Globe and Mail, says it very clearly and succinctly:
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.
[Read her excellent column here.]

A surprising number of people in our society reject monogamy. This may be expressed in dozens of different models of relationships, from married couples who have casual sexual relationships outside the marriage with their partners' knowledge and consent, to polyfidelitous group common-law marriages. And, supposedly, as long as none of them tries to formalize these nontraditional relationships with legal marriage, it's nobody's business but their own. But if they want to be legally married, they're committing a crime. That is ridiculous.

I will never truly understand why people who choose to live outside societal norms still crave societal approval. Of course I support equal marriage; I just don't understand why so many people want to be married. But you know what? I don't have to understand. Just like the courts and Charles McVety and "Stop Polygamy in Canada" don't have to understand the people of Bountiful. They just have to let them be, because it's their right to live as they choose.

11 comments:

James said...

I will never truly understand why people who choose to live outside societal norms still crave societal approval. Of course I support equal marriage; I just don't understand why so many people want to be married.

I think it's more a matter of craving the legal rights and protections granted to recognized relationships -- though there are plenty of people who also love the traditions or the rituals. Fighting for gay marriage isn't really a way to earn social approval; otherwise, it wouldn't be a fight.

laura k said...

I didn't mean gay people, because most gay people don't live outside societal norms. They live the same lives as everyone else, they just happen to be gay.

But polygamous and openly polyamorous people really do live outside societal norms. Monogamous pairing is considered "normal" no matter what your orientation.

However, separate from that, I do think that for many people, legal same-sex marriage is a way to earn social approval. It's a fight because a powerful minority doesn't want gay people to have that approval.

James said...

Most of the poly people I know also live the same lives as everyone else, they just happen to be poly, and most of the gay/bi people I know aren't strictly monogamous -- though that may just be the people I hang out with. :)

laura k said...

Heh, right, I know what you mean. I'm not implying that poly people don't live normal lives! I just see most people, gay or straight, adhering to certain societal norms, and monogamous marriage is high on the list.

Gay monogamy - couples who follow the normative pattern - are much more accepted in society than polyamory. That's why so few poly people are out about being poly, relatively speaking.

laura k said...

Are most poly people you know out about that portion of their lives?

James said...

More people are out about being gay or bi than poly, but a surprising number are at least partly out about their polyamory as well. A recently-formed triad I know in Hamilton just went through coming out to (some of) the family. P & E (the original couple, Salvation Army background, married for ~14 years) brought D into their household last year. D's parents have no problem with it, but P & E's are Salvation Army, so they were nervous. It went surprisingly well, though: it turned out that E's step-father lived in a triad for several years in the 60s. ;)

Which, I have to admit, puts them ahead of me: I'm not out to family.

For that matter, they're only selectively out to family about E & D's same-sex side of the triad, and not at all about P's bisexuality. With their gaming friends, though, they're open about all of it.

laura k said...

More people are out about being gay or bi than poly, but a surprising number are at least partly out about their polyamory as well.

That's very cool.

When I was on a poly list-serv I knew people who were semi-out about being poly. But no one who was completely out publicly.

Now I know a few people who do what I do, tell people on a personal basis - individual friends - but in general appear mono in public. And I wonder, if I didn't feel the need to be out about being bi, if I would tell people at all. (Maybe I would, I don't know.)

James said...

Of course, most of the people I know who are open about their poly relationships are not married to any of their partners. Part of that is because they don't want to favour one of their relationships over the other(s), but many of them couldn't marry even one of their partners because they're in all-male groups.

The ones who are married would all prefer to be able to extend the legal rights and responsibilities they have with the one partner to include all their partners. D loves P & E's kids, but has no legally recognized ties with them.

Of course, all of this is from a biased sample based on my own direct knowledge of poly people in Toronto, which will have a completely different dynamic than that for poly people in smaller cities, towns, or rural areas...

laura k said...

Right, and when kids are involved, people have concerns about trouble with schools, potential custody issues, etc.

James said...

And beyond the legal aspect, D doesn't want people to see her caring for the kids, and being affectionate with P, and having people think she's the housemaid/nanny that the husband's sleeping with behind his wife's back.

But, IIRC, they're out to the school -- which is really cool.

impudent strumpet said...

Polyfidelitous is my new favourite word! #LeastImportantThing