Created on Thursday, 01 December 2011 03:01
Written by Staff Editor
A Canadian judge has defended monogamy as a key principle of western civilisation. How does that sit with gay marriage laws? Neil Addison - guardian
Judges in Canada do not normally find their judgments reported around the world, but chief justice Bauman of the British Columbia supreme court has managed it with section 293 of the Criminal Code of Canada
, which deals with the legality of a Canadian law making polygamy a criminal offence
The issue here is this: how does a self-consciously modern, liberal society continue to criminalise a form of marriage that has existed throughout the world for millennia, when it has at the same time legalised a completely new form of marriage between same-sex couples?
Prior to large-scale postwar Muslim immigration the only real experience of polygamy in Europe and North America was with Mormons, who practiced polygamy (aka plural marriage), until it was banned by the mainstream Mormon church in 1890.
Since 1890, groups of fundamentalist Mormons have continued the practice in isolated towns, one of which is Bountiful in southern British Columbia. When the Canadian police eventually decided to prosecute two self-appointed Mormon bishops for polygamy, the question was raised whether the law against polygamy was legal under the Canadian charter of rights and fundamental freedoms – a part of the Canadian constitution which in large parts follows the wording of the European convention on human rights
Supporting the Mormon polygamists was the secular Canadian Polyamory Advocacy Association
, which advocates legal recognition not just for traditional polygamous relationships, but also polyandry (more than one husband) and more complex multi-individual and multi-sex relationships.
A central argument was based on a 2003 case Halpern v Canada
, which legalised same-sex marriage in Canada. Prior to 2003, Canadian law had followed the traditional definition of marriage laid down in the English 1866 case Hyde v Hyde
: "The voluntary union for life of one man and one woman, to the exclusion of all others." This definition was followed by the US supreme court in the 1878 case Reynolds v USA
, which was also a case involving Mormon polygamists.
In Halpern v Canada, the Canadian courts had decided that this definition was in breach of the charter because it prevented marriage between people of the same sex, and so the Canadian parliament was obliged to change the definition of marriage to "the lawful union of two persons to the exclusion of all others".
What the polygamists argued is that this new definition discriminates against them because it continues to insist on monogamy in the same way that the previous definition insisted on both monogamy and heterosexuality. It was a logical argument that was rejected by Bauman who in his judgment gave a spirited defence of the virtues of monogamy as being a fundamental principle of western civilisation.
Bauman said that the preservation of monogamous marriage "represents a pressing and substantial objective for all of the reasons that have seen the ascendance of monogamous marriage as a norm in the west," and that "the law seeks to advance the institution of monogamous marriage, a fundamental value in western society from the earliest of times." He also launched an all-out attack on the concept of polygamy, which he said "has been condemned throughout history because of the harms consistently associated with its practice". "There is no such thing as so-called 'good polygamy'," he added.
Now, I agree with Bauman in his defence of the importance of monogamous marriage to society. But I find it difficult to see the logic of defending monogamous marriage as the historic norm in the west when the laws of Canada have already departed from the principle that it is heterosexual, monogamous marriage that is essential to social stability. Put bluntly, if heterosexuality is no longer legally, morally or socially relevant to marriage, why should monogamy continue to be so important?