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.