Polygamy in Canada: a case of double standards: A Canadian judge has defended monogamy as a key principle of western civilisation. How does that sit with gay marriage laws?
Neil Addison
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.
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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".
hat 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.
