Jackson Doughart
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The consequences of legalizing polygamy

The Charlottetown Guardian, 29 August 2011

In an opinion editorial from the Aug. 10 edition of The Charlottetown Guardian, Nick Kaminsky advocates the legalization and recognition of polygamous marriages in Canada. His argument focuses on two claims - first, that the redefinition of marriage to include same-sex couples legitimizes polygamous marriages, and second, that the current prohibition of polygamy violates the religious freedom of Mormon fundamentalists and Muslims.

The debate over polygamy is far broader than these claims and has actually been an important subject to social scientists for some time. However, the points raised by Kaminsky are enough to demonstrate the complexity of the issue, which I believe his article fails to adequately consider. Moreover, this debate sheds light on related social questions that need to be unpacked, including the distinction between civil and religious institutions and the role for religious beliefs in determining laws and public policies.

The first issue to address is the qualitative difference between monogamous same-sex marriages and polygamous ones, which Kaminsky represents as equally deserving of state protection by virtue of their minority statuses. While the legalization of gay marriage did require the rewriting of laws to include both opposite- and same-sex unions, it did not alter the monogamous nature of marriage. Rather, it amended an existing institution from which a group of people was excluded based on inborn sexual orientation. The constituent legal mechanisms of prenuptial agreements, spousal tax credits, the adoption and custody of children, and divorce remain unchanged in practical terms, since the traditional legal roles occupied by husband and wife were quite easily adapted to same-sex unions.

Obviously these arrangements would have to be significantly reworked in order to accommodate polygamous unions, and would affect the existing laws that pertain to civil marriage for monogamous couples, since changes would transform one's husband or wife from being one's spouse to being one of many possible spouses. The problem of dividing assets upon separation is already a complex legal matter and would be further complicated by adding additional partners.

On a more symbolic level, it seems to me that having multiple spouses would rather cheapen the idea of having a committed partner. The contemporary institution of marriage recognizes both partners as equal components to the union, even if one of them contributes significantly more to the couple financially. The way in which this philosophy would be adapted to polygamous marriages is unclear; would a union of one man and three women mean that each of the four partners is worth 25 per cent, or would the man be worth 50 per cent and each woman 16.7 per cent?

Another problem is Kaminsky's reliance upon religious beliefs as an argument for polygamy. While it is true that religious belief is protected as a fundamental liberty under the Canadian Charter of Rights and Freedoms, it does not rule religious practices outside of criticism; nor does it inhibit the state from enacting laws which contradict religious teachings or beliefs. A prime example is the legalization of gay marriage, which was passed despite religious objections, mostly from Christians. Another example is the A.C. v. Manitoba case from 2006, in which the Supreme Court ruled that a 16-year-old girl did not have the right to refuse medical treatment on religious grounds.

Regardless, a religious exception to the law for Mormon fundamentalists and Muslims would amount to a privilege for some citizens over others based on religion. The resulting legal arrangement, which would not apply equally to everyone, would be far worse than preventing the practice of polygamy. Any changes to the institution of marriage must be applicable to everyone and, consequently, any serious argument in favour of legalized polygamous marriages must be secular.

The distinction between religiously-approved unions and marriage as a civil institution is crucial. While religious authorities can bless or refuse to bless relationships by their own criteria, such theological arguments should carry absolutely no weight in determining the legal standing of relationships. For example, many Christian churches do not recognize same-sex unions and some do not recognize divorce, but these decisions are non-binding.

My final objection involves the reported human rights abuses at the Mormon fundamentalist commune at Bountiful, B.C. Among other crimes, girls as young as 13 have allegedly been married off to male religious leaders, subjected to substandard living conditions and trafficked to Mormon settlements in the United States. While it is theoretically possible to accept the polygamous union of consenting adults, one must keep in mind the practical implications of doing so for Bountiful, where the religious officials who share responsibility for these crimes are leading the movement to overturn the Canadawide polygamy prohibition.

None of these points necessarily provides a definitive argument against polygamy, though each of them does compel its proponents to appeal to a higher standard of argumentation. In order to reach this critical standard, Mr. Kaminsky will have to provide a defence of polygamy that does not rely on religion or on the expansion of monogamous marriage to include same-sex couples. Such a defence, though difficult to articulate, would provide some clarity in this otherwise complicated debate.

Jackson Doughart jdoughart (at) gmail (dot) com