19 Feb 2009

Why we don’t need to make polygamy a crime

Maclean's Magazine - Canada February 18, 2009

A man can have sex with as many women as he likes. But he can’t marry more than one.

by Andrew Coyne | Opinion

Whatever you may have heard, the case of Winston Blackmore and James Oler, the fundamentalist Mormon preachers from Bountiful, B.C. whose polygamy case goes to trial next week, is not about religious freedom. Nor is it about gay marriage, or child abuse, or any of the other extraneous issues with which partisans of one stripe or another would like to festoon the debate.

It certainly isn’t about whether the two men are guilty of the crime of polygamy under Section 293 of the Criminal Code, which prohibits “any kind of conjugal union with more than one person at the same time whether or not it is by law recognized as a binding form of marriage.” The defence does not contest the charges, but rather intends to argue the law is a violation of their freedom of religion as guaranteed under the Charter of Rights.

They’re free to argue their case as they please, of course, but the argument for removing polygamy from the Criminal Code does not depend on appeals to religious freedom. It would make no more sense to charge an atheist with the crime than a backwoods preacher, if the law were not capable of defence on its own merits, nor would the harm to religious freedom be enough to invalidate the law if it were. We should consider the matter, rather, in light of what the criminal law is for: what sorts of things the state may rightly prohibit, and what it may not, mindful that the burden of proof is always on the state, not merely to prove that a crime has been committed, but that it should be considered a crime at all.

It isn’t the discriminatory impact of Sect. 293 that condemns it, but simply that it is overkill. We don’t need to criminalize polygamy, not because we think it’s right or even acceptable, but because it is not the sort of behaviour properly addressed by the criminal law, and because we have other, less intrusive means of registering society’s abhorrence. And if we don’t need to criminalize a thing, we probably shouldn’t.

Consider first that most of those involved (we’ll deal with the exceptions in a minute) are adults who freely entered into these relationships. The criminal law does not normally concern itself with acts between consenting adults, except where these result in some harm to another. Now consider the kinds of things that are not prohibited between consenting adults. A man may have sex with as many women (or men) as he likes, serially or coincidentally, individually or all at once. He may father children with any or all of them. He can marry one of them, and have sex with the rest. He can live together with all of them and their children, so long as they don’t marry or have sex. All of these things he can do without being charged with a crime. The only thing the law prohibits him from doing is marrying (or living in “conjugal union” with) more than one woman at the same time. (Well, not only that: it also includes anyone who “celebrates, assists or is party to a rite, ceremony, contract or consent that purports to sanction” such a relationship. It’s the 21st century, and we’re prosecuting rites and ceremonies.)

If the harm arising from polygamy were of a kind that required sending a man to prison, it could surely as easily be traced to one of its component acts: the sex, the multiple partners, the living together. Or if there is evidence that some of the wives were forced into marriage, or were underage—neither consenting, that is, nor adults—then prosecute these crimes under the relevant statutes. In neither case is there any need for a separate, additional charge of polygamy.

If we don’t like polygamous marriages, we don’t have to throw people in jail for performing them: we can just refuse to recognize them. Reserve the legal recognition of marriage to monogamous couples, as we do now, and leave consenting adults to work out the rest in private.

Isn’t this still discrimination? Wouldn’t the definition of marriage in monogamous terms be vulnerable to the same constitutional challenges by polygamy advocates that earlier overturned the definition of marriage as the union of one man and one woman? Aren’t we on that slippery slope that opponents of gay marriage warned us about?

Well, no. Yes, it’s discrimination. And yes, polygamists might challenge it in court. That doesn’t mean they’d win. The Charter does not prohibit all discrimination. It prohibits only those forms of discrimination that cannot be justified as “reasonable.” The reason the old heterosexual definition of marriage did not survive scrutiny was that its defenders could not convincingly identify the harm that would result if it were expanded to include homosexuals. But nothing in that implies that a reasonable case could not be made as to the harm—to the equality of women, to the raising of children, to the stability of marriage in general—that would arise from conferring legal status on polygamous marriages, with all of the rights that would accrue thereto.

And if we couldn’t? If we can’t show evidence of harm? If we don’t have a good reason to discriminate, then we probably shouldn’t.

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