That's History: Marriage laws have long evolved to respect personal choice

The mass wedding of some 60 gay and lesbian couples at Casa Loma during the World Pride event in Toronto got me thinking about how laws restricting who can marry have changed over time. It’s easy to forget that the prohibition on same-sex marriage is only the most recent legal impediment to marriage to have fallen.

The equivalent to the gay marriage issue in the 19th century was, believe it or not, marriage with a deceased wife’s sister. Ecclesiastical law rendered such marriages voidable, but the English Marriage Act of 1835 made them absolutely void. The move was highly controversial. Reform of the law was subject to debate at Westminster almost every year until such marriages were finally validated in 1907. W.S. Gilbert and Arthur Sullivan satirized the phenomenon in Iolanthe, referring to the “annual blister, marriage with deceased wife’s sister.”

As with gay marriage, religion played a huge role in the debate. Anglican canon law regarded relationships by marriage as equivalent to those by blood. Thus, a man committed incest by marrying his deceased wife’s sister and the bishops in the House of Lords staunchly opposed reform for decades.

In Confederation-era Canada, the pre-1835 English position was thought to apply. Reform came in 1882 after a failed attempt in 1880 promoted by Catholic Conservative MP and later Supreme Court justice Désiré Girouard.
The religious aspect played out somewhat differently in Canada where Anglicanism was less hegemonic. Many Protestant, Catholic, and Jewish clergy interpreted the biblical passage upon which the prohibition was based as forbidding only contemporaneous marriage to two sisters at a time when Jewish law permitted polygamy. Thus, there was no problem with sequential marriage to two sisters after the first had died. But an important theme in the debate was the same as with gay marriage: The restriction in question could be framed in some sense as being an artificial and manmade prohibition on loving relationships that were socially valuable.

The 19th century saw a plethora of race-based marriage restrictions south of the border. Laws in many states prohibited intermarriage between whites and a whole range of other races from blacks to native Americans to Asians. When the U.S. Supreme Court finally declared such laws invalid in 1967 in Loving v. Virginia, 16 states still had them.

There was pressure in Canada to introduce such prohibitions after 1867, but Parliament never even debated or adopted such laws. That’s not because Canada was necessarily more enlightened on racial issues but instead reflected the greater value placed on patriarchy. Race-based marriage impediments restrict a highly valued right: that of men to choose their own marriage partners. (The 19th century assumed males were the active parties in the mating game, of course.) Only a more fundamental purpose — that of maintaining white privilege itself — could justify such an interference.

In Canada, however, white superiority was something people could take for granted. Canadians no longer saw the aboriginal population as a menace after the failed Northwest Rebellion of 1885 and other racialized populations were too small to threaten the entrenched assumptions of white privilege. There was simply no need to restrict people’s marriage choices in the name of a supposed higher purpose. Canadian attempts to discourage “miscegenation” (a word invented in the 1860s to make racist concerns about mixed-race breeding sound scientific) were more indirect. On the Prairies, the law forbade Asian employers, who were often restaurant owners, from hiring white women employees based partly on racist stereotypes of lustful Asian men
seducing vulnerable white girls.

In addition, social pressure alone was strong enough to discourage interracial marriage if not prevent it altogether. As Constance Backhouse has shown, as late as the 1930s the Canadian branch of the Ku Klux Klan actively harassed interracial couples with a view to preventing them from marrying.

Finally, there’s the issue of polygamy. The federal government regarded polygamy among the Mormons, some immigrant groups, and aboriginals as a grave problem in the 19th century and sought to suppress it. The Department of Justice eventually decided that marriages according to native custom (whether between indigenous parties or mixed marriages) would be valid even if they were potentially polygamous but actual polygamy wasn’t permitted even if both parties were indigenous.

In the 21st century, Mormon polygamy again became an issue in Canada and many scholars thought it couldn’t withstand a constitutional challenge. The B.C. Supreme Court upheld the Criminal Code prohibition on polygamy in 2011, however.

Marriage prohibitions related to polygamy and close family relationships are considered valid as preventing different types of harm. They have endured, but all others have fallen by the wayside as respect for personal choice in intimate matters has become the law’s main guiding principle.

Philip Girard is a legal historian and professor at Osgoode Hall Law School. He’s also associate editor at the Osgoode Society for Canadian Legal History. His e-mail address is [email protected].

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