Polygamy Panjandrum

David Warren's latest column, on the inevitability of legalized polygamy, is deeply confused, not to mention confusing.

Warren's argument, near as I can make it out, is that Canadian courts are on the cusp of "inevitably" (Warren's term) making polygamy legal in Canada, which (a) is an illegitimate activity on the part of the courts, and (b) will have dire social consequences.  Neither of those claims stand up to much scrutiny.

As Warren concedes, polygamy has been openly practiced in at least one Canadian community (Bountiful, British Columbia) for going on fifty years (until February of 2009) without a single prosecution being launched under the existing prohibition on polygamy.  That "fifty years" bit is important - if, as Warren seems to think, the Charter is all that is standing in the way of successful prosecutions for polygamy, how to explain the fact that no one was bothering to bring polygamy prosecutions in the decades prior to the Charter's introduction in 1982?  And what does it say about the validity of a law which is openly, wilfully and flagrantly flouted for decades on end without any repercussions?  Does it perhaps say the teeniest thing about the advisability of that law?

Worse, though, is the wilful misrepresentation of the current state of the law:

That the legalization of polygamy will have more immediate practical consequences than same-sex marriage can be easily seen. It will make Canada the first country in the Western world to be compelled to accept the multiple wives of immigrants from such countries as Saudi Arabia, where polygamy is legal; and others, as refugees from where it is not.

Regardless of whether Canada is in the vanguard on this point, Mr Warren should surely be aware that a number of Canadian provinces, including Ontario, already "accept the multiple wives of immigrants from ... countries ... where polgamy is legal" - and they do so not at the end of the whip of the judiciary, but after the considered deliberation of the legislature.  Thus, Section 1(2) of the Family Law Act (Ontario):

In the definition of “spouse”, a reference to marriage includes a marriage that is actually or potentially polygamous, if it was celebrated in a jurisdiction whose system of law recognizes it as valid.

This is not new.  Thus, when Warren goes on to argue that "[Court imposition of legalized polygamy] will have fiscal implications, as polygamous families sue to receive multiples of the benefits now received by common law and other two-adult families ... [and] will create a legal vacuum in which demands will be advanced for everything from public recognition of polygamous marriages to status claims by additional wives and sundry children", he again seems to be entirely unaware of the fact that under the current legal regime in Ontario, as enacted by the legislature, participants in polygamous marriages performed in other jurisdictions are already perfectly entitled to receive public recognition of those marriages and related status claims.  One might be of a mind to try and reconcile the divergent approaches taken by the Criminal Code and the Family Law Act regarding the advisability of polygamy (not hard to do, really - the former prohibits its occurrences in Canada, the latter sanctions it if it occurred in a different legal regime), but no such nuance is present in Warren's column.

Will the courts "inevitably" strike down the polygamy prohibitions of the Criminal Code?  I wouldn't bet the house on it - though it's certainly possible (most informed observers on the matter (see here for example) think it's a pretty close call, but my sense is that striking down polygamy on the basis of infringement of religious freedom will be seen as a step too far by the Court and one which they won't be inclined to take).  For the record, my own position on this issue accords roughly with what Jon Bricker calls "a libertarian stand" - "the state has no more place in the proverbial bedrooms of the nation when it comes to polygamy, than when it comes homosexuality and adultery".  I don't think the state should be encouraging polygamy, but I'm not sure why, absent coercion or fraud, we should be threatening to throw people in jail for it either.  The argument that "Canadian society/culture" has long rejected polygamy has much to recommend it, but one adopts a rather thin view of society/culture if you think that the only way in which a society/culture can express its values is by means of the criminal law.  Put slightly differently, if you need the full penal power of the state to reinforce the abhorrence of polygamy, then maybe the societal/cultural taboo against it is a little weaker than you'd care to admit.  Put even more slightly differently, nobody has bothered to enforce the polygamy prohibition, yet the practice is (and its practitioners are) still shunned by the vast, vast, vast majority of Canadians - so we clearly don't need the threat of the criminal law to undergird the social norm.

But of more concern than any gaps in logic or mistakes of law is this passage:

To ensure self-defeat, [the Harper] government is now mounting its whole case on "Canadian values." As one legal blogger writes, "Canadian values" currently embrace saving puppies, but eating cows. "Canadian values" would have some relevance to the case if Canadians had the right to decide whether they wanted polygamy to be legal; and if, moreover, Canadians were allowed to debate such issues openly, freed from the legal and other intimidations of the politically correct.

But we have lost that right, which has been transferred - thanks chiefly to the Charter, but also to various supporting trends in politics, jurisprudence, bureaucracy, and media - to special-interest activists who can afford lawyers and lobbyists to work the system.

That is such an utterly bizarre collection of assertions that I'm having difficulty separating them out.  (I'll leave aside the contention that the determination of the polygamy issue is being transferred to "special-interest activists who can afford lawyers and lobbyists to work the system" - a cabal which currently, as far as I am able to see, consists of the two men charged with violating the anti-polygamy provisions and their defence counsel.)  To begin, the notion that Canadians are somehow being prevented from "openly" debating the legality of polygamy is manifestly absurd (rendered no less so because Warren is openly debating the matter in a major newspaper in one of Canada's largest cities).  I'm struggling to think of a section of the Criminal Code which has been the subject of as much discussion over the last decade or so as Section 293.  There has been extensive coverage in major Canadian newsweeklies; reports commissioned by provincial governments [.pdf]; reports commissioned by the federal government [.pdf]; more news reports than you can shake a stick at; and more blog posts about it than there are minutes in the day.  The notion that this is an issue which is being obscured by "legal and other intimidations of the politically correct" is, to use the French, delusional.

Moreover, the notion that debate on this issue is being stymied or silenced is itself corrosive to public engagement - if people read Warren's column, not only are they misinformed about the facts, but they are left with the impression that forces are at work which are actively stifling debate, thereby reducing, baselessly, what little confidence people have left in the efficacy of our public discourse.

Comments

[Jurgen]

Saskatchewan doesn't "throw em in jail"..they allow Polygamy.
Section 51 of the Family Property Act has been used twice by women.. to get half of another (unmarried) mans home ( while they were also legally married to other men in Canada)..it works and was profitable. Therefore Polygamy is legal or the Saskatchewan judges would have charged the women with having more than one legal spouse.