The extension of civil marriage to same sex couples has put the question of the permissibility of polygamy into a new light.
Opponents of same-sex marriage raised the spectre of Charter-mandated legalization of polygamy as the next wrenching lurch down the slippery slope to a godless society or, at least, extreme social dysfunction.
If marriage no longer unites one male and one female, why restrict its benefits to two persons?
The extension of civil marriage to same-sex couples does not push us down this precipice, because the Charter does not categorically reject all traditional restrictions on civil marriage.
The common law rule barring same-sex conjugal couples from civil marriage reflected the faith-based view that marriage disciplines sexuality, supports procreation, and secures a stable family. This rule breached the Charter’s equality clause without justification, because it did not respect the equal dignity of gay and lesbian individuals and couples who desired the benefits of the civil version of this institution.
The Charter precludes public policy based on the fully discredited claims that homosexuality is abnormal, deviant, and/or harmful to the individual, the conjugal couple and their children, and the larger community.
While the Criminal Code prohibition against polygamy reflects, in part, the desire to protect traditional notions of marriage, it also reflects apprehension of the real harms related to polygamy.
Would prosecution alleviate these harms?
The B.C. government appointed Richard Peck as special prosecutor to evaluate the prospects of a successful prosecution against polygamists in Bountiful, B.C., a fundamentalist Mormon community.
He determined that prosecutions based on sex-related charges might fail due to lack of evidence from victims of these practices.
He recommended against prosecution based on s. 293 of the code, which renders polygamy an indictable offence, as well, until the Charter issues are settled by a reference case.
How strong are the Charter arguments?
A court would likely determine that prosecution for entering into a polygamous relationship, as a religious rite, amounts to a breach of freedom of religion. It is just as likely that it would also determine the breach justified under s. 1 of the Charter.
The justification argument would rest on the many studies that lay out the harms posed by polygamous relationships, which undermine the best interests of male and female children and adolescents, the equality of women in the family, and the rights of women to live their lives as full members of civil society.
Communities based on polygamy have certain social patterns that a court would deem harmful. These communities must minimize the social unrest that would plague a community in which many men have numerous wives and others have none.
To this end, they expel young men who, often without any warning, find it necessary to make their way in the world estranged from their families, without economic support, preparation for higher education, or job training.
Young women are similarly under-educated. They are prepared for a patriarchal home in which multiple wives and many children vie for preferences, attention, and resources. These women enter into marriage and procreate at a very young age.
Marriages and parental relationships tend to be centrally arranged and rearranged. Women derive little security during the currency of the marriage or at its end. Health problems stem from the fact that the husband has multiple sexual partners as well as the custom of early childbearing and large families.
Polygamous marriages thus deny women and children many of the legal rights that support their individuality, freedom, and equality. They also undermine entitlements mandated by international human rights instruments.
The constitutional permissibility of prosecution under s. 293 notwithstanding, we must be aware that criminal proceedings would destroy the established family life of many people as well as their community structure, producing acute social distress and economic insecurity. As a society, we have recoiled at state intervention that destroys families.
Other policy options must be developed to address the harms in issue without producing the suffering attendant upon prosecution.
Education is a good place to start. British Columbia could, for example, tighten its regulation of the curriculum and teaching in the schools in Bountiful, which are partially publicly funded. Young women and men might then be able to imagine and seek out different paths in life as equal and autonomous individuals. They might be able to make complaints and testify about criminal acts.
It might also be possible to investigate whether public funding now supports polygamous families, such as welfare payments and support for “single” mothers.
As part of this long-term approach, it would be appropriate to continue denying immigration of polygamous couples and families.
In forging public policy, it is important to distinguish between polygamous marriage within authoritarian religious communities and polyamorous relationships. The latter do not necessarily pose harm. They presumably involve mature, informed, and consenting adults, who have access to reproductive health information and health-care services, full exit rights, and access to enforcement of the relevant legal entitlements and protection.
Any debate on the appropriate public policy in this context must remain attentive to the harm posed to vulnerable persons in the light of the legal, constitutional, and international norms in play.
Lorraine E. Weinrib is a professor at the Faculty of Law, University of Toronto.