Do we need laws banning polygamy?

This is the hot topic for the week, following the judgment of a Canadian court upholding a ban on polygamous marriages.

Here are two online 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 freethoughtblogs.com.

I have a lot of sympathy for both of these pieces. That’s not to say that the case is wrongly decided as a matter of law – I think that’s quite a difficult question, and I’d like to think about it further. In particular, I would like to – *sigh* – read the 300+ page judgment in its entirety (does anyone have a link for it?).

One interesting issue for legal theorists is this: what if a statute was initially enacted to achieve a purpose that was in breach of such concepts as freedom of religion (which might have constitutional protection), but is now, generations later, best rationalised on some other, seemingly legitimate, basis? Should we now see the statute as serving a legitimate secular purpose? Perhaps … but it’s not just obvious. What if the constitutional protection of freedom of religion came along after the statute was enacted? Does that make a difference? I don’t see a clear philosophical answer to questions like that. Maybe it’s just a policy question. I’m open to hearing some views.

In any event, public policy on this issue in Canada will now be in a mess. It’s clear that the state won’t register polyamorous relationships (polygynous, polyandrous, or more complicated) as marriages. I could agree with this – in fact, I argue for exactly this in Freedom of Religion and the Secular State (though not with any great enthusiasm … see for yourself if you don’t mind shelling out).

But that doesn’t mean that all such relationships are prohibited. You’d think it might end there, in fact: in Canada, polyamorous relationships are not prohibited, but nor are they registrable as marriages with whatever social and legal benefits that might entail. Full-stop. I could go along with that. But it seems that there is going to be a middle category of relationships that are actually prohibited, if they show sufficiently marriage-like properties – perhaps including extra-legal recognition as marriage through a religious ceremony. If so, that is just a mess. I don’t necessarily mind the state deciding what relationships it will extend its blessing – and certain legal privileges – to. But I don’t want it getting into the bedrooms of consenting adults with criminal bans on their private erotic arrangements, for which they are asking for no particular privileges from the state.

We should try to avoid dogma … especially if we haven’t read a legal judgment in its entirety, so as to see the full argument. I’d like to know more about the judge’s reasoning. But at the moment, I’m very sympathetic to Heartfield and Zvan.

What do you think?

Leave a comment ?

15 Comments.

  1. “But I don’t want it getting into the bedrooms of consenting adults with criminal bans on their private erotic arrangements, for which they are asking for no particular privileges from the state.”

    Even if they are related?

    I am against all state regulation of sexual matters (between consenting adults) and wish the state would also stop deciding which relationships they will give legal and financial protections and benefits to. The state should treat people as individuals and the only time a relationship should enter into the state’s purview is when there is a legal (contractual) agreement between individuals that is disputed.

  2. In theory, I’d get the state out of the marriage and mating game entirely (where consenting adults or near-adults are involved).

    I don’t think that’s going to be a practical policy proposal for the foreseeable future. Accordingly, I’m interested in what the second best (but perhaps practical) policy option might be. In my view, it will have to include, for example, recognition of same-sex marriages (this is the argument pursued in Freedom of Religion and the Secular State).

    But I do agree (if this is what you’re saying) that the best long-term solution is for the state to get out of this business more or less entirely. There’s then a question of having good laws relating to property distributions when the relationships of financiallly interdependent people break down … and good laws about issue to do with the welfare of children.

  3. It’s a tricky issue, but there are good reasons for the state to refuse to endorse legal sanction of polygamy.

    Polygamous societies (which are typically polygynous) can suffer from significant social disruption by restricting the number of females available to be wed. What often happens is fierce status battles between males, with high status males having multiple wives leaving many other males with none.

    Monogamy was an important cultural innovation, even if it is against our nature to some degree, and cultures that promote monogamy will more likely experience greater stability and social harmony than those that promote polygamy.

    However, that doesn’t mean the state need mandate against polyamory or prevent individuals from maintaining multiple consensual relationships. While polyamorous individuals could always end up being married in everything but name and legal status, as long as the practice didn’t extend beyond a minority, it wouldn’t necessarily be significantly disruptive.

    Ideally there’d be cultural (rather than legal) norms encouraging monogamy and discouraging polygamy – although it’s worth remembering that the law is just one (more sophisticated) arm of culture.

    Gay marriage is a different issue entirely. Assuming parity between gay men and women, it wouldn’t disrupt the availability of partners for heterosexual couples – although it’s an empirical question whether that’s actually the case.

    It might seem crass or counter-intuitive for us to talk about state regulation of love, but it’s not necessarily a bad thing. In today’s spirit of rampant individualism (particularly evident in North America) it’s easily forgotten that we’re a social animal, and community/cultural/social/political regulation of individual behaviour that can harm others or behaviour that can disrupt social harmony is a powerful and important innovation that enables us to live in the ultra-social societies we have today with a minimum of disruption.

  4. Tim, I disagree that it’s a tricky issue, it seems one of the simplest – get the state out of people’s bedrooms.

    “Polygamous societies (which are typically polygynous) can suffer from significant social disruption by [made up reason]“

    Indeed, but the same could have been said of democracy in the time of monarchs, industrialisation when we were agricultural, health care, pensions, non-arranged marriage, gay marriage, trial by jury etc. etc. It is not a free state’s business to interfere with social disruption – stability is the aim of totalitarian regimes.

    The fact men and women are free means that the historical problems of the past are irrelevant, which isn’t to say we won’t have new ones but you cannot use 15th century countries to suggest what might happen in the 21st century.

    “Monogamy was an important cultural innovation”

    The history of which has nothing to do with love or freedom of choice so I can’t see what relevance this has in today’s society.

    “cultures that promote monogamy will more likely experience greater stability and social harmony than those that promote polygamy”

    Completely unsubstantiated. Also somewhat irrelevant since we are talking about the state NOT promoting any arrangement over another.

    “it’s worth remembering that the law is just one (more sophisticated) arm of culture”

    I don’t remember peer pressure raiding my house at 4am and removing my freedom.

    “community/cultural/social/political regulation of individual behaviour that can harm others”

    How does allowing people the freedom to love whomever they wish harm others? Must we regulate a (straight)woman for each (straight)man? If we don’t we surely harm people. Sorry, unless you can point out a direct harm then this is just an argument straight out of the Christian sexual morality playbook.

  5. Hi, Russell. Here’s the whole long, messy judgment: http://www.courts.gov.bc.ca/jdb-txt/SC/11/15/2011BCSC1588.htm

    Tim, you’re making the same assertions many of the expert witnesses did at the trial. However, like them, you aren’t showing your work. In order to make the case that this ruling is what it should be, you have to demonstrate two things: (1) that polygamy outside authoritarian culture presents the same problems and (2) that allowing these relationships as long as they are not called marriages will somehow prevent the problems.

  6. I recently read an article about a Mormon guy with 3 wives and 24 children (more coming soon, I assume). If the point of legally sanctioning marriage is because it benefits both partners and progeny, the benefit has to be badly diluted here, I would think both for the wives and for the children, but most obviously in the case of the children. Fathers can’t be good fathers to 24 children at the same time, surely.

  7. “If the point of legally sanctioning marriage…”

    I thought the original point was so that a man could legally own his wife and/or there be a legal arrangement between moneyed families.

  8. Thanks for the link, Stephanie. Guess I’ll now have to find a large chunk of time to read it.

    Re the original point of officially sanctioning marriage … well, it’s actually very difficult to say what it is. I’m tempted to say that it’s to give some assurance of paternity by forbidding women to have sex outside an approved arrangement. But it doesn’t work like that in polyandrous societies. There may be no single point to marriage across all societies, and we might even question whether marriage is a unitary phenomenon.

    Still, most or all societies have seemingly felt it necessary to have some regulation of who can have sex with whom. There are probably a few reasons we could think of why that might be the case. The keeping women in line one, so as to ensure paternity, has probably been a biggie in most times and places.

    Generally speaking, though, modern governments have abdicated that field. As far as the criminal law is concerned, we can all have as much “fornication” or “adultery” as we like, with people of either sex, and in groups of whatever size might be practical (provided that everyone is consenting and is of a certain level of maturity).

    If we get involved in domestic relationships of mutual dependence, there might be repercussions in civil law (e.g. for equitable redistribution of property rights if a relationship eventually ceases). If children result, there will be legal oversight of their welfare. But the criminal law no longer interferes in the actual sexual arrangements. That leaves marriage with a lot less work to do than in previous societies.

    I question whether we need, in contemporary societies, to have such a thing as marriage at all – insofar as we’re talking about relationships being recognised by the state. Which is not to say that it’s practical for the state to get out of the marriage business altogether at this point in history. That’s not a change that could get any public support.

    Still, if we’re going to continue for the foreseeable future to have state-recognised marriages, while at the same time not forbidding “fornication” and “adultery”, there’s a fair bit of thinking to do about what marriage now really means and exactly what role the law should play in it.

  9. Keddaw, I don’t think we share a similar notion of what freedom, culture and the state are all about. And these differences probably underlie our thoughts on polygamy.

    The fact men and women are free means that the historical problems of the past are irrelevant, which isn’t to say we won’t have new ones but you cannot use 15th century countries to suggest what might happen in the 21st century.

    I’m no libertarian. I believe freedom is important, but as an instrumental good not an end in itself. We serve our interests better living socially, and living socially requires that we relinquish at least a portion of our freedom to behave in ways that harm others or harm the common good. That still leaves a tremendous amount of room for freedom, but pushing freedom too far can be harmful to us, to others and to the broader society.

    I also don’t agree “the historical problems of the past are irrelevant”. There are some problems that crop up in all societies past and present, such as how to prevent cheating or tragedies of the commons, or how to manage the allocation of resources (including mates). Culture is one tool to regulate behaviour to manage some of these problems. Law is another more recent innovation which is like cultural norms except it introduces a third party to arbitrate disputes.

    It is not a free state’s business to interfere with social disruption – stability is the aim of totalitarian regimes.

    This might be the case if you value freedom or believe in autonomy above all else. I don’t. So I think it is the state’s business to manage social disruption if we choose it to do so. And I think there are very good reasons to choose it to do so.

    How does allowing people the freedom to love whomever they wish harm others? Must we regulate a (straight)woman for each (straight)man? If we don’t we surely harm people. Sorry, unless you can point out a direct harm then this is just an argument straight out of the Christian sexual morality playbook.

    I thought I made it clear that the state shouldn’t get involved in who people can and can’t love, only whether it legally endorses polygamous marriages. And the only thing my arguments have in common with Christian sexual morality is they happen to endorse only monogamous marriage. I, however, am not against polyamoury or gay marriage. And my justifications are entirely naturalistic not religious. For the record, my philosophical background is in looking at moral and social behaviour from a biological and evolutionary perspective.

    Stephanie, indeed I haven’t provided evidence. There is plenty of empirical evidence to show the differences between monogamous and polygamous cultures in terms of social structure, Alexander (1987) for one.

    (1) that polygamy outside authoritarian culture presents the same problems and (2) that allowing these relationships as long as they are not called marriages will somehow prevent the problems.

    (1) I do concede it is possible that a state that allows both monogamous and polygamous marriage wouldn’t lead to the disruption I’m claiming would occur. But I worry that it would. I think most people are happy being monogamous, so perhaps that’s naturally self-regulating. But it could open the door to cultural norms promoting polygamy, and these could drive things towards disruption.

    (2) And I agree that polygamous relationships outside of marriage or ‘open marriages’ can flourish regardless of the law, and I’d be very reluctant to have the state get involved in that at all. But at least having a legal provision only for monogamous marriage would put a potential break on it becoming widespread. But, of course, there’s no way to fully control it, and I don’t for a moment think the state should be “in the bedroom,” as it were.

    And in response to Russell’s comments, I do think (modern) marriage has an important, although by no means indispensable, role to play. Marriage (done right) is a publicly announced contract between two individuals committing to a relationship, giving them both control over the circumstances and conditions of the relationship. It is an example of costly signalling that encourages commitment, making it harder to leave on a whim (although it should definitely not be too hard to leave). And it provides legal protection to both individuals and helps with arbitration over shared possessions responsibilities, such as to children, should the marriage dissolve.

    Without the institution of marriage these things could all still be sorted, but there’d be greater risk of one side gaining more power in determining the terms of the relationship, and that would probably be the males.

    This is not a black and white issue, but a sliding scale. Marriage as a cultural convention and a legal norm is a useful tool, although not fool proof. But I do think allowing polygamous marriage could drive towards significant social disruption.

  10. I am descended from Mormon polygamists – my Great-Great Grandfather had two wives – rather a modest harem by Mormon standards. What I believe the Canadian Judge was ruling on wasn’t Polygamy in the theoretical sense that several commentators have here characterized it – but the very real Mormon version which is a much bigger phenomenon than many would believe. The theoretical version – consenting adults – is a fiction. The real version is one of the most repressive, destructive, insidious institutions to survive the nineteenth century. Polygamy in practice is child rape, sex trafficking and tax fraud. It is multi-generational organized crime with a very deviant sexual aberration woven into its fabric. It thrives in my state – Utah – where it has always been tolerated by the the police and prosecutors with a wink and a nod. One reason is fear – people who take on polygamy die violent bloody deaths. It is also rampant in Arizona, Idaho, Colorado, Mexico and Canada. Make no mistake, it springs from fundamentalist Mormonism. The Big church denounces it publicly but privately tolerates the practice as keeping the true flame alive. The Big church only denounced it to avoid destruction by the US in the 1880’s ad 1890’s – but never truly changed the cultural view of the practice as bizarrely sacred.

    The answer? The State should truly get completely out of the marriage business. Marriage can be sacred if folks wish to have their particular faith tradition say so. Marriage can be then be any combination of consenting adult mammals – just don’t ask society at large to give any rewards or sanctions for any particular arrangement. The actual polygamists really care about these things – they desperately want to be validated by society. Denying them that acknowledgement would be the best way to deal with the situation. Ignore the marriage aspect and prosecute the child-rape, the tax- fraud, the child abuse and the refusal to educate minors. That would pretty much put all the married males in jail which is where they belong. The cast-off males (we call them Lost Boys – and there are thousands) would not be punished. Texas is dealing with this the right way, punishing the sex crimes. It is working.

  11. Tim, nothing you said in response to Russell’s comments supports or requires the state to be involved or for it to between only two people (regardless of gender).

    Even in an all-straight monogamous society with 50% male and 50% female not everyone will have a partner.

    What you are proposing (rather, what exists) is that the state incentivise people to get married who would not otherwise make a financial and legal commitment to each other for the legal and financial benefits the state bestows on such relationships. That people think this is a positive state of affairs blows my mind. Taking polygamy and gay marriage out the equation, this still results in a number of marriages that people are getting into for the wrong reasons.

    Speaking as a single person, I feel it is quite a liberty for the state to take more money from me to subsidise people in legal relationships who already benefit from shared housing costs and bills. If they have children they again benefit, at my expense since I have no kids, both directly through tax breaks and child credits (which I am against) and public education (which I am in favour of). All unmarried people subsidise married people (whether single, straight, gay, polyandrous or simply non-married) and there is no justification for it.

  12. I agree this ruling seems to make a mess of Canadian policy on polygamy. While I like the result (unless the fundy Mormons really do figure out how to game the system), I’m afraid the logic escapes me. Cohabitation is still OK, consenting-adult sex (in whatever combination of number and genders) is still OK — but hold some ceremony about it (even if no special legal status is sought, as is the case in a conventional wedding) and suddenly it’s deemed a “marriage” and it’s illegal? Doesn’t that violate free speech?

    IANAL, but to me the central issue in this was always to come up with a coherent definition of “marriage” — but the one the court seems to have used makes no sense to me.

  13. Re:-
    “I recently read an article about a Mormon guy with 3 wives and 24 children (more coming soon, I assume).”
    That’s eight per wife on average. I may be wrong but the man sounds sexually rampant and irresponsible. He does not suffer the burden of pregnancy, nor I guess is much involved in fatherly care. I know almost nothing about the Mormon religion so perhaps I should not criticise adversely, and they must do what they think is best. For me however, it seems a loathsome state of affairs.

  14. The question Russell is actually asking: “… what if a statute was initially enacted to achieve a purpose that was in breach of such concepts as freedom of religion, but is now, generations later, best rationalised on some other, seemingly legitimate, basis? Should we now see the statute as serving a legitimate secular purpose?

    I think one ought to assume that a given society is formed around some set of “foundational” principles, for which the statutes are implementing legislation. The question asked arises as a society evolves (eg from Theocratic to Secular (or vice versa, if the Dominionists have their way)): that is to say, the set of foundational principles changes (for example, from a Paulist conception of marriage (you can’t really justify calling one man-one woman “Biblical”) to a Libertarian conception). It seems obvious that statutes should be measured according to what “we” believe these days, not what “we” used to think. (Of course there is a historical drag: “foundational” can be taken as in “the principles upon which this great nation was founded” rather than the analytical sense I intend above. That’s not altogether a bad thing; unregulated movement can destroy stability.)

    Regarding the News of the Day, what McKay Edwards said: “Ignore the marriage aspect and prosecute the child-rape, the tax- fraud, the child abuse and the refusal to educate minors.” Just apply the principles of Liberal Secularism to the situation; no need to try to one-size-fits-all among the Mormon cultists and relatively mainstream social innovators just because they share the word “polygamous”: ie, the court decision is wrong.

    … BTW, the linked news article said: “The court upheld the existing law, saying it is constitutional except where it applies to children between the ages of 12 and 17. This means that polygamy is a crime and anyone who practises it can be prosecuted, but not children caught up in it through no choice of their own.” That seems to imply that it can be legal to have a marriage with a 12-year old in Canada??? That’s a problem could easily be solved. Seems to me.

  15. Interesting and readable article. For polygamy is a crime and who practises it is persecuted. And it is prohibited in earth and heaven.
    Thanks for sharing this, good luck.

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