Quantcast

«

»

Nov 27 2011

Canadian Judge Mucks Up Polygamy Ruling

Last week, a much-awaited ruling was handed down in British Columbia. Nobody’s very happy with it, although the people the judge was trying to upset don’t seem to be.

The issue at stake was Canada’s law outlawing polygamy. A sect of the Fundamentalist Church of Jesus Christ of Latter Day Saints was challenging the law on religious grounds. Also challenging the law were polyamory-activism groups seeking legal recognition of their unions. On the other side, defending the law, were those trying to protect young people from the harm done by the FLDS and “traditional” marriage defenders.

The sides were a mishmash, and the ruling followed suit. In essence, very little was changed. The law stayed in place, but Justice Bauman clarified that it did not apply to non-marital situations. Given that Canada has strong common-law (non-marriage) relationship recognition, and a conservative religious trend, this is a good thing. It will keep the law from being used to prosecute the polyamorous who live together as a group.

However, the ruling does nothing to put their relationships on the same legal footing as monogamous marriages, and the reasoning the judge used is not the most sound.

Justice Robert Bauman’s judgment is an exhausting and comprehensive display of philosophy, social scientific inquiry, history, religious and cultural studies. It serves to demonstrate, yet again, that judges are experts in law and tend not to be very good at any of these other things.

[...]

On his way to upholding the law, Justice Bauman takes a tour through the days of the Roman Empire and ancient Greece all the way to the United States prohibitions before finally getting to Canada. This prolonged discussion is used to justify the assertion that polygamy is inconsistent with Western values.

The underlying purpose of a law is integral to judicial analysis of its constitutionality and here the decision’s historical analysis is unconvincing. As University of Ottawa law professor Carissima Mathen has noted, the law as originally enacted in 1892 was rooted in discrimination against other religious beliefs and practices and not, as Justice Bauman found, motivated by a concern for women and children. As she points out, marital rape was not even considered a crime at the time; the notion the law was for the protection of women is silly.

An even more significant problem with the analysis of social science evidence and expert opinion in the decision is the question of the negative “societal” effects of polygamy. Justice Bauman was convinced by the assertion that polygamy “creates a pool of unmarried men with the attendant increase in crime and anti-social behaviour.”

The fear that lifting the prohibition of polygamy will result in a surge of polygamous marriages and a measurable increase in crime is absurd. The judge’s willingness to accept this logic underscores the problem of a court of law assessing the value or weight of social scientific evidence.

His basis for this was testimony from scientists whose testimony was full of data on the “Western” development of monogamy and modern data on the treatment of women in (almost exclusively) societies using models of polygamy rooted in Abrahamic religions. In short, that testimony did nothing to separate the effects of living in the authoritarian religious groups that currently practice polygamy from the effects of the polygamy itself.

He also relied on the testimony of evolutionary psychologist Joseph Heinrich:

First, like other animals, human males and females have different mating strategies rooted in the nature of primate sexual reproduction. Females are limited in their direct reproduction to the number offspring they can rear to maturity in their lifetimes, and are necessarily committed to high levels of investment, at least in the form of providing the egg, gestation and lactation. In contrast, with little investment (sperm and a small effort), males can potentially have thousands of offspring that they can decide to invest in, or not, based on the costs of obtaining mates vs. the impact of additional investment in their offspring. Because human offspring benefit from the investment of both parents (at least in ancestral human societies) females seek to form pair-bonds with those males who are best able to invest in their offspring (males possessing high social status, wealth and valued skills). A female does not generally benefit from establishing simultaneous pair-bonds with multiple males because (1) she can only have one pregnancy at a time (so lots of sex with different males does not increase her reproductive success), (2) this brings males into conflict (sexual jealousy) and (3) this creates confusion regarding male paternity (and greater paternity confidence increases paternal investment). In contrast, males benefit both from pursuing additional pair-bonds with different females at the same time, and from additional extra-pair copulations (short-term sexual relationships).

This reasoning, of course, has all the problems of this sort of evolutionary psychology [ETA: see here for more detail on those problems], but that didn’t stop the judge from leaning on these projections of the status quo to support the status quo. Nowhere in the expert testimony were any of the few anthropologists who study modern polyamorous communities; any information on whether these non-religious relationships are polygynous, polyandrous, or both; or any description of how women and children (the groups the ruling was intended to protect) fare in those communities. Those groups might as well not exist for all the data they provided.

So in the end, by not considering data outside the authoritarian Abrahamic traditions or making comparisons specifically to monogamy within authoritarian Abrahamic traditions, the judge has made a ruling based on the problems of polygamous authoritarian religious marriage that only applies to polygamous marriage and not at all to authoritarian religion. Beyond that, by specifying that the problem is only with marriages, the FLDS has already said that they now know how best to circumvent the law.

That means that the reasonable part of what this ruling was intended to do–protect those coerced into these marriages–is undone by the ruling, while the less defensible portion–the legal codification of a social norm–stands. That is not the mark of a good legal decision.

Further Reading

21 comments

2 pings

Skip to comment form

  1. 1
    Michael D.

    Grumbles about his stupid politicians and representatives.

  2. 2
    Ace of Sevens

    It seems to me the problem is that we conceive of freedom of religion as including freedom to indoctrinate your kids and keep them from hearing anyone who disagrees with you, not polygamy.

  3. 3
    CanadianChick

    I really wish this had been a decision made as part of a court case instead of as a question to the courts…because at least then maybe SOMEONE would appeal?

    This is a terrible result. Referencing tradition AND evo psych? I groaned out loud when I read those things in the original decision (yes, I read the whole thing – reading BC Supreme Court decisions is a hobby of mine – a weird hobby, I admit).

    There are SO many things wrong with this decision, I’m not sure where to start…and that’s excluding the ‘tradition’ argument.

  4. 4
    Kevin, 友好火猫 (Friendly Fire Cat)

    And allowing same-sex marriage will create a large group of unmarried (insert gender here) as their potential partners marry each other.

  5. 5
    notscarlettohara

    I definitely agree that this was a bad decision, but I honestly can’t think of what a good one would have been. I can’t see a way to say that FDLS and Muslims can’t have their authoritarian religious polygamous relationships, while polyamorous ones are A-OK. It seems like somebody’s gotta get thrown under the bus either way :-/

  6. 6
    D. C. Sessions

    notscarlettohara@6:

    The problem with the FLDS etc. isn’t the polygamy, it’s the coercion [1]. Between raising the kids in isolated ignorance and their system of having all property and income controlled by the patriarchs, they have an unconscionable degree of control over their children even as adults.

    This would be a major problem regardless of the marriage arrangements. I might go so far as to say that the polygamy is a symptom rather than the real problem, except for the fact that the women are used in part as another form of “property” to control the men.

    If we want to break the abominations like the FLDS, we need to start with education — those kids need to have a viable alternative to lifelong captivity. In places like the Arizona Strip, it’s going to take money, not just occasional raids.

    [1] Leaving aside the Warren Jeffs-style child marriagerape. The cult control and isolation produce enough women who reach adulthood unwilling to leave that the system can continue without raiding for “brides.”

  7. 7
    Michael D.

    I have no idea if katherine was being sarcastic (probably) but just to point out we have same sex marriage up here and there’s no shortages of mates as far as I can tell. The world also hasn’t ended and as far as I can tell the ruling wasn’t followed by a huge spike in crumbling heterosexual marriages. Take that conservatives! :P

  8. 8
    Johnathon

    “However, the ruling does nothing to put their relationships on the same legal footing as monogamous marriages, and the reasoning the judge used is not the most sound.

    Well, that just ain’t true! The BC polygamy reference decision DID put common law marriages on equal footing with civil marriages. The new BC Family Law act DOES permit a civilly married person OR a common law married person to “become the spouse of a another person who has a spouse”.
    By removing common law marriages from definition of polygamy the judge allows the new BC family law act to become law, thus protecting polygamists ( as defined prior to his judgement)

  9. 9
    Stephanie Zvan

    Johnathon, there are common-law partnerships in Canada. There are no common-law marriages, at least on the federal level. The Canadian government is good about extending similar benefits to both spouses and common-law partners, but it’s still not marriage.

  10. 10
    freemage

    I’ll admit, I’m a bit ambivalent about polyamorous marriage.

    Not so much for the historical connotations of abuse (which, as correctly noted, stem from the authoritarian societies they took place in), but simply because it becomes a considerably more difficult process to describe in a legal context. Things like dissolution (divorce), survivor benefits and the like are all considerably more complex when you add a third (or more) partners to the mix.

  11. 11
    Gretchen

    I really, really don’t understand the whole “marriage civilizes men, and polygamous/polyamorous relationships equal more single men so legal poly relationships mean that there will be a whole bunch of single males out stirring up trouble” argument.

    Maybe I’m weird, but I don’t know any single males who say “Huh. Not married yet – think I’ll go steal some cars then.”

    Do we know where that particular line of logic comes from?

  12. 12
    D. C. Sessions

    Things like dissolution (divorce), survivor benefits and the like are all considerably more complex when you add a third (or more) partners to the mix.

    Other partnership groups seem to manage pretty well; law firms, to name just one example.

    The key is to have “bylaws” or other contractual provisions for the issues that are likely to arise and a fallback provision for resolving those instances that aren’t foreseen. Tragically, people seem to think that “marriage” takes care of all that and only find out too late that they are wrong.

    Example: my favorite reason for a pre-nuptial agreement can be summed up in two words: Terry Schiavo. A clause providing for automatic dissolution in case of permanent incapacity would have saved a lot of pain (and, yes, I’m quite aware of the irony of mentioning that in a thread on polyamory.)

  13. 13
    karmakin

    I mean socially I’m OK with polyamorous relationships if that’s what works for you, but I simply can’t see how it can be effectively and realistically extended from a legal point of view. A lot of the legal rights and responsibilities that come from marriage/common-law relationships are about exclusivity, that is, assigning one person that is your exclusive partner. Now, there are some that are not like this and maybe those can be extended out (such as immediate family for hospital visitation), but for the most part, I simply don’t see it as being legally realistic.

    The only way I can really grok it is by tearing down marriage/common-law rights/responsibilities as a whole, and that’s simply not something I’m comfortable with.

  14. 14
    F

    Well, most of the reasoning followed certainly is sloppy, whether it is the judge’s or some source on which he relied. Random selection:

    (so lots of sex with different males does not increase her reproductive success)

    Except, you know, being tight with a somewhat larger intimate and invested group of men and women. Who are interested in the welfare of all their children who take so damned long to become mildly self-sufficient. Better than a village, and does not have to follow any previous patriarchal sorts of polygamy.

    And I notice it is always polygamy, not polygyny, or polyandry or the more-inclusive polyamory (which excludes only relationships not primarily based on affection). So, I’m guessing current patriarchal thinking versus older patriarchal thinking, instead of a look at actual conditions.

  15. 15
    Kevin, 友好火猫 (Friendly Fire Cat)

    @Michael D:

    Yea, I was being sarcastic :p Just making the argument that’s usually made by fundies.

  16. 16
    freemage

    Other partnership groups seem to manage pretty well; law firms, to name just one example.

    The key is to have “bylaws” or other contractual provisions for the issues that are likely to arise and a fallback provision for resolving those instances that aren’t foreseen. Tragically, people seem to think that “marriage” takes care of all that and only find out too late that they are wrong.

    Example: my favorite reason for a pre-nuptial agreement can be summed up in two words: Terry Schiavo. A clause providing for automatic dissolution in case of permanent incapacity would have saved a lot of pain (and, yes, I’m quite aware of the irony of mentioning that in a thread on polyamory.)

    Wouldn’t that have led to Schiavo being stuck on life-support indefinitely (since it would have dissolved the union, ‘freeing’ the husband but also making her parents the sole arbiters of her health?).

    I’m not saying polyamorous marriage is impossible to implement–merely that it has hurdles (such as establishing all the necessary boilerplate) that need to be identified and cleared before instituting it as a legal certificate.

  17. 17
    D. C. Sessions

    Wouldn’t that have led to Schiavo being stuck on life-support indefinitely (since it would have dissolved the union, ‘freeing’ the husband but also making her parents the sole arbiters of her health?).

    Possibly so, but I’m much more concerned for the living than with the expensive mistreatment of a corpse.

    In any case, there’s no real problem with the termination clause including continued responsibility as next of kin (or any other “you can remarry but aren’t totally off the hook” arrangements.) I don’t worry about them for the seriously dead like Schiavo but for others a bit less extreme (Alzheimers, anyone?) I get a bit queasy at the idea of imitating McCain or Gingrich and just ditching them once they’re not convenient any more.

    Bottom line: “love is forever” is saccharine nonsense, and anyone pretending to be adult enough to make long-term commitments needs to accept that fact and plan for contingencies. Like death. Like divorce. Like disability.

    (Sorry, Stephanie, for the side-track.)

  18. 18
    Vicki, duly vaccinated tool of the feminist conspiracy

    We have ways of dealing with non-exclusive rights and responsibilities even now. If my husband and I weren’t married, and something happened to him, his parents would have shared/equal rights/responsibility to make medical decisions. Two parents are so common as to be invisible in these discussions. As it happens, his parents would probably agree on the decision: but the law gives that same shared/equal responsibility to long-divorced couples who did the custody hand-offs at the police station and haven’t spoken since their children’s eighteenth birthday. (This may be a relic of a time when the assumption was that the father would have the final say, but society manages with shared authority here.) Or, consider an unmarried person whose parents are dead, and who has two or more siblings.

    Frankly, if my husband and girlfriend were likely to disagree about my medical care in such a circumstance, it would mean there was something wrong with my relationship with one or both of them, because they should be trying to do what I’d want, based on what we’ve discussed over the years. And that would be true even if I wasn’t married: a marriage ceremony doesn’t eliminate the need for communication.

    An acrimonious divorce between three or more people would be legally messy, but the same is true of an acrimonious divorce between two. Yes, the more complicated things are the more likely you are to benefit from pre-nuptial agreements and such, but there’s no shortage of lawyers who’d be willing to help draft them, if the law recognized such marriages.

  19. 19
    Jay

    I really, really don’t understand the whole “marriage civilizes men, and polygamous/polyamorous relationships equal more single men so legal poly relationships mean that there will be a whole bunch of single males out stirring up trouble” argument. Maybe I’m weird, but I don’t know any single males who say “Huh. Not married yet – think I’ll go steal some cars then.” Do we know where that particular line of logic comes from?

    From countries in the world where there are gender imbalances due to sex selecting for males? That apparently causes quite a few social problems, and not just for the men.

    I’ve heard that polygamists solve the problem of gender imbalance and competition by expelling excess boys but that’s not a tenable way to go. Then there are the possible adverse effects on women, as the article noted in the OP states “There is incontrovertible evidence that in many cases polygamy reflects and reinforces gender inequality and can result in abuse, sexual slavery and the exploitation of children.” What do you do with examples such as that of a woman who was 15 when she was married off to a man of 57 who had five wives already?

    Unfortunately polygamy as it is practised by these religious sects is one man with many women, not any other form and I’d say this is the problem the judge was trying to address in looking at the legal challenges to the law outlawing polygamy. This unfortunately affects other forms of relationships that others might enter into freely, but I have difficulty seeing my way out of that one – if you allow for it, all must be allowed but one form (as practised by patriarchal religious sects) is problematic. I don’t completely buy the argument the harms such as child brides can be addressed via other laws effectively as it seems to me that in the cases of religious sects not allowing them to sustain a system that causes those harms would prevent the problem occurring in the first place.

  20. 20
    Stephanie Zvan

    Gretchen, Jay is right that we do have evidence of instability in the same places we have polygamy that can largely be attributed to young men. However, these are also very hierarchical societies that don’t put much investment into those young men. The young men (at least those who aren’t the sons of those in power, and sometimes those too) are seen as competition for the older men in power.

    The young men, much like the young women, don’t get a lot of education. They don’t get good job opportunities when they reach the age of majority. They are very much at loose ends with no chance of advancement in life. They also have very little prospect for marriage, but attributing their disaffection to only their marriage prospects strikes me as rather simple-minded. After all, we run into the same in places where monogamy and being trapped in poverty go hand-in-hand too.

  21. 21
    Gretchen

    OK, that makes sense to me… I keep running into the argument that marriage = stable men over & over again (came across it in the Economist on an article re: declining hetero marriage rates, among others) and just had no idea where to start looking for evidence to support or refute it. It’s just seen as a given, and it seems like a really fishy relationship in the 21st century, where marriage isn’t quite the indicator of economic stability & education as it once was. Must explore this further – I’m rather fascinated by the concept.

  1. 22
    Talking Philosophy | Do we need laws banning polygamy?

    [...] articles criticising the outcome of the case: one by Kate Heartfield, writing for The Province; the other by Stephanie Zvan in a post on her blog at [...]

  2. 23
    Readings in IQ and Intelligence | Almost Diamonds

    [...] Andrew Sullivan linked to my piece on the Canadian polygamy ruling. Unfortunately, around that, he’s spent the last three days how difficult the world is for [...]

Leave a Reply

Your email address will not be published. Required fields are marked *

You may use these HTML tags and attributes: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite="" class=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <strike> <strong>