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"Each individual should allow reason to guide his conduct, or like an animal, he will need to be led by a leash."
Diogenes of Sinope


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Thousand Flowers tapestry (15th Century) - Beaune, France (detail)

Friday, November 25, 2011

Gay marriage & the BC polygamy court decision

It's not often I get to gloat in this blog and say "I told you so", but I'm going to indulge a little today. I saw the recent BC Supreme Court decision on the Bountiful polygamists coming, and I was correct in saying that allowing gay marriage in Canada did not set a precedent that inevitably lead to legalized polygamy.

Way back in 2007 I responded to an article by David Warren in the Ottawa Citizen in a post I called The polygamy red herring. Warren had written that
polygamy follows "multiple parentage" as night follows day. It likewise followed from same-sex "marriage" -- for if the institution cannot be restricted to one man and one woman, how otherwise can it be restricted?

...

Long ago, we realized the marriage formula "one man, one woman" must secure the hearth of our settled culture -- that no other arrangement could possibly end well. The centuries pass, and we manage to forget why we came to that conclusion, and start tinkering with it again. Civilized men and women have their own taboos -- founded in reason and historical experience -- and the one against polygamy is (or was) among the most powerful. Cross the essential taboo lines, dare others to cross, and the superstructure of any society comes down, whether that society be civilized or primitive.

...

Wake up, gentle reader. If you don't want polygamy in Canada, you had better start making a loud noise. For the internal enemies of our civilization have laid all the groundwork for this coup de grace.
In my response, I wrote:
Even rabid libertarians acknowledge that not all individual rights are worthy of protection. John Stuart Mill, in his great essay “On Liberty”, laid the framework that has guided most western common law rights traditions: he wrote that individuals are entitled to life, liberty and property rights only so far as the exercise of those rights does not harm the rights of others. You may have the right to keep plutonium in your garden shed, but if it makes your neighbours sick or you are planning to build a weapon of mass destruction with it, then the state is justified in restricting this right to property.

It is difficult, in my mind, to argue that gay marriage infringes on the rights of anyone else. If a homosexual couple gets married, I can’t see how this significantly harms heterosexual couples or society at large. Similarly, if the state recognizes that a child has three legal parents, I don’t find the argument that this harms children very convincing. I think it makes sense from a libertarian perspective for the state to recognize that there is no valid reason for people not to exercise their liberty in this regard.

However, a very strong case can be made that polygamy does create harm. First of all, let us recognize that in societies that practice polygamy, it almost always means that one man has multiple wives, and not the other way around. In a population that statistically has a 50-50 split between males and females, and where males take multiple wives, the logical result is that many young men are prevented from taking wives of their own. The result in these communities is that surplus young men are frequently ostracized or banished from their communities against their will. This phenomenon is well documented in polygamist communities in the U.S. and Canada. This alone would justify the state’s intervention in limiting a man’s right to take multiple wives.

Furthermore, polygamist communities have a disturbingly high rate of incest, child abuse and wife battering. In Utah, where approximately 2% of the population are practicing polygamists in spite of a legal ban on plural marriage, the Los Angeles Times reported in 2001 that polygamist communities had extraordinarily high levels of these crimes, as well as widespread reliance on welfare, unusual levels of child poverty, wide-ranging tax fraud, limited education, and over-taxed public services. It is difficult to prosecute polygamy in Utah because the victims in these cases rarely press charges and it is almost impossible to compel witnesses to testify. However, there is no doubt in most people’s minds (including most Mormons) that polygamy should be illegal - the harm it produces far outweighs the rights to liberty of its practitioners. The state is fully justified in prohibiting it.

Opponents of gay marriage (and now “multiple parents”) argue that once the precedent for “non-traditional” family arrangements has been set, there is now no argument for continuing to insist that other non-traditional practices like polygamy remain illegal. Nonsense. The state has imposed limits on heterosexual marriage for centuries; the courts have upheld traditional taboos against marrying your mother, or your sister, or your dog. It is a legal requirement for heterosexuals to limit the number of their spouses to one. Homosexual marriage has the same legal limits - the centuries-old common law traditions have not been overturned, they have been extended, to include gay couples.

Gay marriage is now legal because its opponents could not muster up enough support for the argument that it caused harm to society. Fair enough. However, it would be difficult to make the same argument for polygamy, and the courts can and will recognize this. In my opinion, the moral floodgates have not been opened - everyone take a pill and relax.
Justice Bauman of the BC Supreme Court apparently has a similar opinion:
Chief Justice Robert Bauman wrote that Section 293 of the Criminal Code, the law banning polygamy, does, in fact, run counter to sections of the Charter of Rights and Freedoms. In particular, he made reference to Section 2, which protects such fundamental freedoms as freedom of religion, and Section 7, which guarantees the autonomy of the individual.

He ruled, however, that the ban remains constitutional under Section 1 - allowing "reasonable limits" on absolute rights that can be "demonstrably justified" - because the harm that flows from polygamous relationships outweighs any violation of constitutionally protected rights.
Section 1 of the Charter of Rights and Freedoms states that in Canada, rights (including the right to religious freedom) are not absolute:
The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
As reported by Lorne Gunter of the National Post, Justice Bauman clearly outlined the justification for limiting the religious rights of the Bountiful polygamists:
Yet as B.C. Supreme Court Chief Justice Robert Baumann ruled on Wednesday, in upholding the constitutionality of Canada's anti-polygamy laws, "there is no such thing as 'good polygamy.'" While in theory polygamy should be an individual right, nowhere - at least not in North America - does polygamy exist without harm to children and mental damage to spouses. Therefore, Judge Baumann reasoned, while banning polygamy violates the religious rights of fundamentalist Mormons, that right is outweighed by the harm the practice necessarily does to women and children.

"The harms associated with the practice are endemic; they are inherent," the judge wrote in a 357-page decision. "This conclusion is critical because it supports the view that the harms found in polygynous societies are not simply the product of individual misconduct; they arise inevitably out of the practice." It is simply impossible to allow polygamy without condoning abuse.
Gay marriage has none of the inherent harms associated with it that polygamy does; I can't think of any situation where anyone would be coerced into a gay marriage (well, none that wouldn't similarly apply to heterosexual marriage) nor can I see any realistic harm to society at large that automatically ensues from allowing gay couples to marry.

Before Justice Baumann's ruling, the Bountiful case had skittish politicians paralyzed with indecision. We shouldn't confuse a failure of will on the part of the authorities to enforce the law with a collapse of the moral order brought on by gay marriage. Even though the ruling pointed out potential problems and loopholes in Canada's anti-polygamy laws and is likely to be appealed to the Supreme Court of Canada, there is no excuse now for governments not to act against the criminal offence of polygamy in Bountiful and elsewhere. Failure to enforce the law now can only result from spineless politicians trying to avoid confrontation. Don't blame gay couples for this.

1 comment:

Alain said...

I suggest you not gloat too soon, for winning a battle does not win the war. It is only a matter of time before the same right will be granted to polygamy as to SSM. The demise of traditional marriage actually began with the granting of equal status to common-law relationships and SSM was the final push. I suggest that to argue in favour of SSM while arguing against polygamy is hypocritical.