Mark Steyn, who I normally have a fair bit of time for, has written his contribution to the latest round of the polygamy brouhaha. (In case you missed my most recent installment in this series, see here. If you need a refresher on my views about polygamy, here it is: polygamy is a bad practice, and you shouldn't do it; I don't think there needs to be a criminal law against it; I don't think the Supreme Court of Canada will strike down the anti-polygamy provisions of the Criminal Code of Canada.)
Over at Idea Anaconda, there is this request prompted by Steyn's article:
But, even if one supports gay marriage, it’s important to recognize that its legalization will bring real changes in the culture, polygamy being just one of them, and probably the least of them. The traditionalist opinion may be odious and intolerant to the gay marriage crowd, but the latter will win more credibility if they answer the objections of those like Steyn honestly and without hostility.
Fair enough. I will hereby try to answer the objections of Steyn honestly and without hostility (not that I think my previous answers to the objections of, say, David Warren, were dishonest and hostile). Here goes:
...
Well, that didn't work out so well. Look, I'd really like to respond to Steyn's arguments against polygamy, but I simply can't figure out what they are (Olaf does a marvelous job of pointing this out). Nowhere in his article does Steyn elaborate on the basis of his opposition to polygamy - presumably thinking that the practice is so obviously odious it requires no elaboration. Which may well be the case; but that's not really the debate which is taking place - the debate, to the extent it is taking place at all (for all of Warren and Steyn's lamentations, it's a bit unclear quite who the pro-polygamy armies consist of, other than the two shleps who have been charged), is not about whether polygamy is a good or bad idea, but whether there needs to be a criminal prohibition against it. Even on that count, however, Steyn's argument is, as with David Warren's before it, confused and confusing.
Firstly, Steyn's causal chains seem to be irredeemably broken: he seems to be taking the view that the government launching a prosecution for polygamy is somehow evidence that ... the entire culture is sliding towards a celebration of polygamy. Which is just bizarre - if everyone was cool with polygamy, wouldn't the government not be laying the charges? More bizarre still is the notion that the legalization of gay marriage was the catalyst for the sudden open-armed embrace of polygamy. Here is the chronology:
(1) 1892 to 2005 - no one is getting prosecuted for polygamy in Canada
(2) 2005 - gay marriage becomes legalized in Canada
(3) 2009 - some guys start getting prosecuted for polygamy in Canada
Incredibly, the Warren/Steyn interpretation of the foregoing is the precise opposite of what has actually occurred - they are reduced to celebrating the cultural fortitude of the days when there were no prosecutions for polygamy (even though it was occurring), and denigrating the cultural fortitude of the days when there are prosecutions for polygamy. It's nonsensical. More nonsensical still is the fact that everyone acknowledges that polygamy has been practiced, openly, for decades in Bountiful, British Columbia - certainly for decades prior to the legalization of gay marriage, decades, even, prior to the decriminalization of homosexual sex in 1969. So how is it possible that gay marriage was somehow the causal agent for polygamy?
By the end of Steyn's article, the causal links are simply melted down and cast away:
Madame L’Heureux-Dubé and her fellow progressives think that women’s rights and gay rights are like the internal combustion engine or the jet plane—that once you’ve invented them they can’t be un-invented. Yet tides rise, and then ebb. Forty years ago Nigeria lived under English common law. Now half of it lives under sharia, and the other half’s feeling the heat. Go back to Martha Bailey’s pitch for immigrants: how many highly skilled polygamists and their legions of wives have to emigrate to Canada before “the rising tide of cultural acceptance for gays” begins to ebb?
So... if I've got this straight (punny!), legalized gay marriage (which Steyn doesn't like) leads inexorably to polygamy, which leads inexorably to lots of anti-gay polygamous immigrants, which leads inexorably to gay marriage being frowned upon and possibly being made illegal again. Right. So... shouldn't Steyn et al be in favour of encouraging polygamy so as to achieve the desired end of rendering gay marriage unacceptable and/or illegal? Or am I missing something in the argument?
I think polygamy's a bad idea, for a host of reasons (not least of which is that I imagine it would leave you really tired), but I have no idea why we need it to be prohibited by the criminal law. I can tell you, definitively, that my views on polygamy are informed not at all by its legal prohibition. No one, ever, said to me "Bob, polygamy's a really bad idea and if you need any further proof, why it's prohibited in the Criminal Code of Canada" - they didn't need to. It's like murder, or other "crimes" that the fancy-pants legal philosophy types like to call malum in se - if tomorrow the government decided to repeal the Criminal Code prohibitions on murder, we wouldn't all suddenly go "Oh, so now it's morally okay to kill people". The criminal law is not morality - nor is morality the criminal law. It's nice when the two overlap, but if they don't, that's not a critical failing for either.
Take Tom Flanagan's argument, which Steyn references: "If this isn't properly defended, there will be a train of consequences flowing from a loss, which will lead to full-scale normalization of polygamy." Oh, you have got to be kidding me. A "full-scale normalization of polygamy"? This succumbs to what I like to call the "legal determinist" fallacy - that if something isn't expressly prohibited by law, suddenly everyone is going to run out and do it; or, in its a fortiori iteration, that if something was previously illegal, once it becomes legal, everybody will suddenly run out and do it. Every single Canadian citizen is perfectly free to buy as many Robbie Williams CDs as they want to. Oddly enough, not many of them do. Why? Who the hell knows? But the fact that something is legal doesn't magically render it fully "normalized" or cause human beings to become automata, unable to prevent themselves from carrying out the action in question. Our Criminal Code used to make it a criminal offence to attempt suicide - when that provision was repealed in 1972, Canadians didn't suddenly decide to try and off themselves. When gay marriage was legalized in 2005, millions of heterosexual Canadian males didn't suddenly say to themselves, "f**k it, I'm marrying Steve tomorrow". (Hell, not even homosexuals were all that fired up about getting married - a point which, bizarrely, the anti-SSM brigades then cited as proof that it should never have been legalized in the first place (bizarre because it contradicted their prior stance that legalizing SSM would result in a cultural tsunami that would bury heterosexual marriage).) There are centuries of cultural inertia behind our distaste for polygamy - the notion that our cultural aversion to polygamy is buttressed solely by section 293 of the Criminal Code not only does a disservice to our cultural heritage, it seems to completely misunderstand how our society actually functions.
Before leaving Steyn entirely, there is one argument he raises which warrants further consideration:
“Gay marriage, they assure us, is the merest amendment to traditional marriage, and once we’ve done that we’ll pull up the drawbridge.”
Claire L’Heureux-Dubé, the former Supreme Court justice, remains confident the drawbridge is firmly up. “Marriage is a union of two people, period,” she said in Quebec the other day. But it used to be a union of one man and one woman, period. And, if that period got kicked down the page to accommodate a comma and a subordinate clause, why shouldn’t it get kicked again? If the sex of the participants is no longer relevant, why should the number be?
There are the hints of a devastating argument in there: we redefined "marriage" so as to not take account of the gender of the participants, so how can we logically defend a definition of "marriage" which is limited to "two persons"? As Steyn says, if gender is no longer a limiting agent, why should the number of participants be? True enough. It is indeed extremely difficult to construct a logically coherent argument which allows marriage-regardless-of-gender, but draws the line at marriage-regardless-of-numbers. However, Steyn's argument misapprehends the nature of legal reasoning and quite why laws get struck down or upheld. In short, "logic" has little to do with it. We don't require our laws to be logically consistent - we require them only to be reasonable. If laws required "logic" to be valid, we'd have awfully few laws. What's the "logical" basis for restricting drivers licenses to those aged 16 years and older? Why not 14 years? Why not 32 years? Yet our courts don't strike down the age-based restrictions on driving, any more than they strike down speed limit laws, or laws prohibiting construction of buildings over certain heights, or laws prohibiting sexual relations with children under certain ages or any other set of laws which contain numerical or other conceptual limitations which cannot be defended on the basis of "logic". The prohibition against polygamy need only be reasonable: and in light of the relatively well-documented negative social repercussions which follow on from polygamy, my money is on the courts ultimately concluding that a prohibition of polygamy is, indeed, reasonable.
There is a genetic basis for the European peoples' preference for monogamy, Bob, to name one argument against polygamy.
I and others have made many arguments against polygamy at Maclean's and Olaf's, the feedback I'm getting is "lalalalala, I can't hear youlalalalalala". The libertarian's bread and butter argument - "what harm can it do?" - yeah, that's getting really old, because when we patiently explain in detail the specific harms, replete with academic studies and references to history, anthropology, science, and literature, the response is invariably one of "you're crazy" or "you're stupid".
If you think you have found the elusive "third libertarian response" to the conservative's opposition to polygamy then please, I'd love to hear it, but I won't hold my breath.
Here's a quick and dirty test: if, after reading all the comments at Steyn's and Olaf's (285+ comments at the moment), you still have not seen a single reasonable argument against polygamy, you probably don't have what it takes (open-mindedness, honesty with self, others) to debate these sorts of issues. I mean think about it: if polygamy were really that slam dunk of a case, it would've popped up on the radar prior to 2009, and you'd be able to cite all sorts of reasons and studies and articles explaining why it is a good thing for western civilization. So far, I have seen few if any such explanations from the pro-polygamy crowd.
Saying you oppose polygamy but think it should be legal is too clever by half. Freedom is only half of the endgame; without the yang of order, it's Somalia. I'd argue that most of what plagues Canadian society is a lack of order, not a lack of freedom.
Posted by: Libs Fail | April 11, 2009 at 09:05 AM
Libs Fail - There are lots of arguments against polygamy, many of which I am in full agreement with (for a good selection, see this post by Richard Posner and the ensuing comments). The issue is not the advisability of polygamy (it's inadvisable). The issues are (a) whether engaging in polygamy should be a crime punishable by the state, and (b) what consequences, if any, would attend the de-criminalization of polygamy. The answers, I venture, are "virtually none" to the latter and "no" to the former. You say that my response is too clever by half, but since cleverness is not one of my strong suits, we'll need to address what the actual merits or lack thereof which the argument possesses.
The implicit assumption in Steyn's (and, I presume, your) argument is that if the polygamy prohibition is lifted tomorrow, a significant number of people are going to run off and get themselves involved in polygamous relationships, thereby begetting any number of social ills. Frankly, that's just a bizarre assumption. Our social and cultural distaste for polygamy is not rooted in the Criminal Code - it precedes it and will endure beyond it. Lift the prohibition on polygamy tomorrow and its cultural impact will be virtually nil. We can test this already: family law in many provinces already provides for legal recognition of polygamous marriages performed in any jurisdiction which recognizes them. If there were some kind of pent-up demand for polygamy, we'd be seeing non-marginal numbers of people going overseas, obtaining polygamous marriages and then demanding their recognition here - but we're not. And to the extent that those in polygamous marriages are making demands for recognition, they evidently have caused no significant stress on our social systems (and even if they do, the problem lies with overly-generous welfare benefits, not our recognition of the marriage itself).
You then state this: "if polygamy were really that slam dunk of a case, it would've popped up on the radar prior to 2009, and you'd be able to cite all sorts of reasons and studies and articles explaining why it is a good thing for western civilization. So far, I have seen few if any such explanations from the pro-polygamy crowd". I'm not in the pro-polygamy crowd, and I don't think that polygamy is a good thing for Western or any other civilization. As for your reference to polygamy not having "popped up on the rader prior to 2009", the reason it has "popped up" now is because people are getting prosecuted for it. How it is that Mark Steyn and David Warren can bemoan any lack of cultural fortitude when, I repeat, people are getting prosecuted for it is simply beyond me. Crown prosecutors and the federal government have indicated a willingness to spend what will almost surely amount to hundreds of thousands of dollars in pursuit of convictions of people practising polygamy, and yet Steyn and Warren think this is somehow evidence that we, as a society, aren't prepared to stand up to the pro-polygamy hordes (which consist, as near as I can tell, of one rather shabby and isolated community in the BC hinterland).
As for your comment that "I'd argue that most of what plagues Canadian society is a lack of order, not a lack of freedom", I'd say that a fair chunk of what "plagues" us not a lack of order, but a simple failure to observe basic moral truths. We don't need the government to tell us that polygamy is bad idea; nor do we need them spending money and time on throwing people in jail for committing it.
Posted by: Bob Tarantino | April 11, 2009 at 09:57 AM
Thanks for the response, I think we differ here: "The answers, I venture, are "virtually none" to the latter" (decrim of polygamy).
You see the problem: the onus is now back on me to go through the lengthy and time consuming process of anticipating and researching and explaining the expected and unforseen consequences. Isn't that backwards? If you want to break a tradition going back millennia, shouldn't the onus be on you to do the 'splainin'? I'm asking rhetorically.
You just said a rather significant shift in a fundamental aspect of our society will have virtually no effect; come on now. No, gay marriage doesn't count as a precedent, as gays make up only ~5% of the population, polygamy is relevant to 100%. I don't buy the pent up demand argument either, remember that many of the people this will apply to haven't arrived in Canada yet. One Imam says he's done 30 recent polygamous marriages; the demand will only increase as immigrants make up more and more of Canada's population. I suspect it will be largely contained to "ethnic" communities if it does become legal, btw, and we may agree that "old stock" Canadians generally won't rush to get polygamy married.
I appreciate the clarity and civility, but I feel like I'm right back at square one, dealing with a complete blank slate.
Posted by: Libs Fail | April 11, 2009 at 10:57 AM
"You see the problem: the onus is now back on me to go through the lengthy and time consuming process of anticipating and researching and explaining the expected and unforseen consequences. Isn't that backwards? If you want to break a tradition going back millennia, shouldn't the onus be on you to do the 'splainin'? I'm asking rhetorically."
That's a fair point, so indulge me in ignoring the fact that it was intended as rhetorical and attempting an answer. You're absolutely correct that the onus is on those who who are seeking to overturn established cultural norms - and I think this is likely where we're getting disconnected. I'm not, at all, seeking to overturn our traditional cultural and societal aversion to polygamy - I'm arguing that removing the criminal prohibition of it is not going to bring social armaggedon. You might respond by saying that "removing the criminal prohibition" amounts to "positively endorsing the practice", and I think that's where we're losing each other. I think that our cultural aversion to polygamy, which is well-founded and deep-rooted, does not live or die by the answer to the question of whether it is prohibited in our criminal code.
"You just said a rather significant shift in a fundamental aspect of our society will have virtually no effect; come on now. No, gay marriage doesn't count as a precedent, as gays make up only ~5% of the population, polygamy is relevant to 100%."
I think we'll have to agree to disagree on this point - I simply don't see removing the criminal prohibition on polygamy as a "significant shift". If the government were going to start public campaigns encouraging people to enter into polygamous marriages and provide monetary incentives for them to do so, that would count as a significant shift. But I just don't think that people look to the government or the Criminal Code for their cues about the advisability of polygamy.
As for examples, they're going to be tough to come by, since we generally aren't much in the habit of effecting wholesale changes to fundamental institutions. But here's two examples which I think might be of relevance. Women refraining from baring their breasts in public is a fairly deep-rooted cultural norm, and it used to be punishable under the Criminal Code. In 1996 the Ontario Court of Appeal ruled (in R v Jacobs) that a female baring her breasts in public and walking around in an effort to enjoy the warm weather (in the absence of any sexual or commercial component to the activity) was not a crime. Has the incidence of women baring their breasts in public in Canada materially appreciated in the wake of that decision?
But while that example is closer to the question of polygamy in one respect (ie it's an instance of a criminal law being changed to permit behaviour which was previously prohibited), perhaps it's not sufficiently close in terms of the "fundamental" nature of the cultural norm. So let's try a different example: divorce. Massive changes to the laws surrounding divorce occurred in 1968 and 1985 - resulting in an explosion in the number of divorces and a decline in the marriage rate (see here for some illustrative charts). So, is the inescapable conclusion then that if we alter the criminal prohibition on polygamy, mutatis mutandis, polygamy rates are going to explode and the number of two-partner marriages will plunge?
I don't think that's the inescapable conclusion, because we're not comparing similar phenomena. Of course divorce rates went up in the wake of revisions to the laws on divorce: that was the whole point, to make divorce easier to obtain. Let's use a really bad analogy (but the only one I can come up with) by comparison: imagine there's an island (let's call it Island X) just off-shore; Island X is a wonderful place with excellent beaches bathed in sunshine and cool breezes; lots of people want to go to Island X. How do we know this? Because they're all lined up on the shore, gazing longingly at Island X. Every once in a while, some brave soul jumps in the water and starts swimming towards Island X - but it's a really, really long swim, and most people, as much as they want to get to Island X, just can't bring themselves to devote the effort to the necessary swim. The government comes along, sees all these people lined up on shore, and decides, hell, let's build a bridge to Island X. Lo and behold, swarms of people stream across the bridge and frolic on Island X. The story of Island X is the story of divorce. People wanted to get there, they had no easy way of getting there, government made it easier, lots of people took advantage of it. Pent-up demand was satisfied.
Now let's look at Island Y. Island Y sucks. It's miserable - cold, rainy and muddy, and, like Island X, it's far off-shore to boot. Few people want to go there. How do we know? Because only a handful of people are lined up on the shore, gazing longingly at Island Y. To make matters even more dismal, there's a government-employed security guard on the beach, and any time someone tries to swim over to Island Y (which is rarely), the security guard chases them and attempts to whack them on the head with a stick, discouraging them from attempting the swim. The government comes along, looks at Island Y, looks at the security guard and says to itself, why are we paying this guy to do this? Nobody wants to go over there anyways. So they fire the security guard. The number of people who want to go to Island Y doesn't increase at all - Island Y hasn't become any more attractive just because the security guard is gone. Every once in a while some poor shmuck gets up the gumption to swim out there, and when he gets there, he finds it's cold and miserable. But he's happy there - he likes cold and miserable. Island Y is the story of women baring their breasts, and, I suspect, the story of polygamy, if it ever were to be de-criminalized (as I've explained previously, I suspect it won't be). Nobody much wants to go to Island Y, and the fact that they're going to get a bonk on the head from the security guard if they try doesn't really much factor into things - it sucks to go there anyways, so no one much bothers. When the security guard is re-assigned, it still sucks to go there. No pent-up demand exists, so none gets satisfied.
Accepting for the moment the relevance of the foregoing analogies, they raise (among others) the question of whether there is any "pent-up demand" for polygamy. We seem to be in agreement that few, if any, current Canadians are going to be much interested in entering into polygamous marriages. Your assertion that it will be a problem among immigrants, by which I assume you mean largely Muslim immigrants, is then what we need to address. So, how much of a problem will it be? It's difficult to say with any certainty, but we have at least some indications. If we are to believe this story, we really don't have much to worry about. That story appears to be the sole source used by Mark Steyn in warning about the oncoming tide of polygamists. The story provides one single source, Aly Hindy, who says he's performed thirty polygamous marriages over the last five years. Assuming for the moment that we can believe Hindy's assertion, we're talking about 30 polygamous marriages being performed in a city of nearly 3 million people. There are, in other words, on the facts available to us, more polygamous marriages in the uni-cultural uni-religious town of Bountiful BC than in the largest metropolis in the country, which happens also to be the largest destination for precisely those immigrants who we think manifest the greatest likelihood of wanting to take up the practice. You'll have to forgive me for thinking this is something slightly less than a pressing issue. However, even if, on those numbers, it is a pressing issue, we know for a fact that the Criminal Code prohibitions on polygamy aren't doing anything to stop its occurrence. So we end up mostly back where we started: do we think that polygamy is sufficiently wrong, sufficiently evil, in and of itself, to warrant throwing people in jail for it? I'll go with "no", but, I note again, the government disagrees with me on this, pace Steyn and Warren.
Posted by: Bob Tarantino | April 11, 2009 at 12:33 PM
Good reply, gotta go, but one small correction, 5 years should be few weeks:
"Last year, Aly Hindy, a Scarborough imam, told the Toronto Star that he’d performed 30 polygamous marriages just in the last few weeks."
http://www2.macleans.ca/2009/04/09/we%E2%80%99re-in-the-fast-lane-to-polygamy/2/
Which is not to say that is not one of the better arguments I've heard in a while. BBL.
Posted by: Que | April 11, 2009 at 03:08 PM
I think Steyn made a mistake about the Star story. As you note, Steyn says Hindy had "performed 30 polygamous marriages just in the last few weeks". Here is the quote from the Star story, which I think he's referencing:
"Hindy, hardly a stranger to controversy, is well known for his friendship with the family of Omar Khadr, the young Canadian detainee at Guantanamo Bay, and his outspoken views on the implementation of Islamic law. In the past five years, Hindy said he has officiated or "blessed" more than 30 polygamous marriages; the most recent was two months ago. Even some imams in the GTA have second wives, he added."
Posted by: Bob Tarantino | April 12, 2009 at 03:17 PM
A genetically based opposition to polygamy per se is not solid - perhaps in enclosed religious communities, but in society in general you can have perfectly genetically "unwise" pairings, while having genetically "sound" polygamism - it just depends on who the partners are. If we want to get to a society where we do genetic testing before conception and the State makes this mandatory - god knows how many other freedoms we'd have given up before that one got there.
However, a procreationist based opposition is not new to someone who has watched the Godbotherers denounce gay marriage while mumbling behind their hands when challenged on the notion of invalidating the marriages of heterosexual infertiles.
The economic argument is more on point. Godbotherers oppose gay marriage in part because the gays will access social benefits that they currently pay for but do not receive on an equal basis. This entails an increase in the taxation required overall, but is unlikely to be onerous or economically repugnant, with the possible exception of singles who as usual get the shaft for not spawning and pairing. The question is whether a statistically typical polygamous family would, on net terms, be deemed to be getting a disproportionate benefit if extended on a basically pro rata basis.
A Heinlein-esque polygamist arrangement where spouses do not exist in a family head-chattels relationship would likely survive this argument, but a sole earner with multiple dependent and subservient spouses likely not.
That said, I found many of the specific assertions in Posner's article to be mince, since it defines heterosexual marriage to be the societal norm in a society where mating for life is becoming dwarfed from both directions - unmarried parents and multiple marriages with stepchildren.
Posted by: Mark Dowling | April 13, 2009 at 07:17 PM
Bob:
This was an enjoyable read.
I find myself wondering how a civil contract would be constructed for a polygamous marriage. To this layperson, it seems virtually impossible to put together--and the more partners, the more cumbersome the clauses. Too many perms and coms. Comments?
Posted by: Dr.Dawg | April 24, 2009 at 12:11 PM
I find myself wondering how a civil contract would be constructed for a polygamous marriage. To this layperson, it seems virtually impossible to put together--and the more partners, the more cumbersome the clauses. Too many perms and coms. Comments?
Hey Dawg - sorry for the delay in approving your comment - travelling for a couple of weeks. I agree that civil contracts for marriage would likely be complicated, but I don't think they'd be terribly arduous to assemble (besides, for sheer complexity, marriage contracts have nothing on, say, agreements which document financial transations). I think what would need to be done is something similar to what is in place for wills and testaments: a statutory framework which sets the ground rules (to address situations where the particular will/contract is deficient in some respect) and otherwise leaves the details to the contracting parties (who would no doubt be enthusiastically assisted by their neighbourhood lawyer who will be billing them by the hour...).
Posted by: Bob Tarantino | April 30, 2009 at 08:53 AM