[Originally posted at Canadian Lawyer]
If this case was about legal recognition of polygamy — with massive implications for family law and even immigration policy — it would be much more challenging.
At issue, however, is whether a polygamy should be a criminal offence. Federal and provincial governments, and many interest groups, argue that the Criminal Code provision is necessary to protect women and children coerced into abusive relationships.
Such activity is already illegal, however, and the way s. 293 is written criminalizes all polygamous relationships, even those involving consenting adults. I would be very surprised if the B.C. Supreme Court — and, ultimately, the Supreme Court of Canada — does not find that the section is overly broad and therefore unconstitutional.
The Supreme Court of B.C., of course, did uphold the constitutionality of s. 293. (This is why you shouldn’t take my stock market or fantasy football predictions, either.) But the debate isn’t over, and the anti-criminalization arguments summarized in my blog post will still be forcefully made by religious and pro-polyamory activists.
Craig Jones, who represented the British Columbia Department of Justice in the Polygamy Reference, could not disagree with these arguments more strongly. A longtime civil libertarian, Jones was confident the constitutionality of s. 293 would be upheld, but he initially did not personally take a strong position against the practice.
By the time the matter made it to court, however, he was convinced polygamy is an inherently harmful practice that should not be tolerated in a modern society. He explains his evolution, and the case against polygamy, in his fascinating book A Cruel Arithmetic: Inside the Case Against Polygamy.
In a polygamous society like Bountiful, B.C. — a mysterious, secretive colony populated by members of the Fundamentalist Church of Latter-Day Saints, the breakaway Mormon sect which practises “plural marriage” — this “cruel arithmetic” inevitably manifests itself in two ways. Every time a man takes an additional wife (polyandry, the taking of multiple husbands by a woman, is almost unknown) another man in the community is left with no one to marry. And as the adult females are married off, younger and younger wives are taken. The results: child trafficking, sexual exploitation of minors, and “lost boys,” who are marginalized and even expelled from their homes:According to Jones, it is not enough for the state to take action against only “bad” polygamy involving young children or coercion and abuse:
Again and again, the discussion circled back to the fact that academic writers seemed to consider only harm arising in polygamous marriages, not polygamous societies [emphasis added]. The focus was entirely on how to accommodate polygamous unions while minimizing or addressing possible harms to co-wives and children. The commentators concluded that banning polygamy was unconstitutional because the law could be written to apply only to “bad” polygamy, or the state could simply scrutinize polygamous marriages looking for abuse and crimes. But the “cruel arithmetic” effect on the targeting of girls, like the increased criminality of men in the polygynous society, would be felt everywhere, and this was so even if every polygynous marriage was harmless, egalitarian, and restricted to fully consenting adults.
One of Jones’s expert witnesses, Dr. Joe Henrich, forcefully made the case that a “nontrivial” increase in polygamy would result in higher rates of crime and anti-social behaviour from the growing number of unmarried males (this has been the experience in China, where the “one-child” policy has led to an imbalance in the number of males and females).
But surely if polygamy were decriminalized, very few Canadians would take up the practice, right? Jones isn’t willing to take that risk. He devotes a lengthy chapter to the findings of historians and evolutionary psychologists, who note monogamous societies are a relatively new development. And, of course, there are still many nations where polygamy is legal and/or widespread, and it’s not hard to believe immigrants from these societies would be attracted to Canada — multiple wives in tow.
A Cruel Arithmetic makes a very strong case against polygamy, but does it make a strong case for criminalizing the practice? I find Jones’ arguments compelling (as did the British Columbia Supreme Court, obviously) but I still believe consenting adults have an inalienable right to enter into whatever arrangements they want.
Indeed, adults can enter into polyamorous relationships, provided they don’t go through anything like a marriage ceremony. Once the relationship becomes a “marriage,” though, it becomes a crime. As the distinction between even monogamous marriage and common-law relationships becomes less clear, I believe this becomes increasingly hard to justify. Even Jones has a difficult time pulling it off, in my opinion:
There may be harms that attached to some “polyamorous” relationships that weren’t marriages. But in my view, there was something about marriage, about the invocation of some external authority with (even notional) powers of enforcement, that permitted polygamy “take” a spread. . . . Who knows, if polyamory really does take off, and if it caused the same problems as polygamy, perhaps the law would have to be changed to accommodate that new reality. But line drawing, as we would urge the Court, is Parliament’s business, and when dealing with a spectrum of risks and harms the line has to be drawn somewhere.
Jones puts forward evidence that polygamy leads to societal harms that justify infringement upon some individual rights. But we have to be careful about where that line of thinking can lead us (would an abortion ban be justifiable if social science research showed harm arising from a declining birth rate?).
There’s also the fact Canada has tolerated the practice of polygamy in Bountiful for decades. There might be a Criminal Code section that makes polygamy a criminal offence, but it hasn’t stopped a polygamous community of 1,000 people from developing in the B.C. interior. We’ve known what’s been going on there for years, but nothing was done about it. And the longer it takes, the harder it becomes to suddenly start prosecuting it.
Moreover, Canadians know the anti-polygamy law is almost never enforced, but that certainly hasn’t led to many more “plural marriages.” If anything, the existence of Bountiful — a closed, cultish community that feels like a throwback to the 19th century — has probably made polygamy less attractive to mainstream Canadians. Who wants to live like those guys?
The case against officially recognizing polygamous unions, however, is much more strong (if anything, A Cruel Arithmetic is useful for rebutting the argument made by anti-gay-marriage activists, that recognizing same-sex marriage will lead to a slippery slope toward officially sanctioning polygamy). We can respectfully disagree as to whether it should be a crime, but we can agree that polygamy is a very troubling practice.
More importantly, A Cruel Arithmetic describes this major Canadian constitutional argument in more detail than I’ve seen in any other book. The duelling lawyers and their personalities, the clashes within the civil service, the preparation and cross-examination of witnesses — it’s all here. And it is absolutely riveting, especially when Jones describes the dismantling of dubious “expert” witnesses trying to make the case that polygamy is not so harmful. I’d go so far as to say every law student should read it, and many practising lawyers could learn a lot from it, too. I certainly did.