Wednesday, January 21, 2009

Defence to invoke gay marriage as polygamy trial begins in B.C.

This is quite the interesting article this morning.

I find myself in agreement with Ottawa law professor Daphne Gilbert who says the monogamous aspects of formal same-sex relationships are "actually in keeping with our view on marriage" while polygamy is not.

"First of all, [polygamy] is not a one-on-one partnership. Secondly, the dynamics of polygamous relationships in Bountiful certainly involved serious harms around the age of the women getting married, whether or not they are truly consenting to the marriage, the extent to which parental involvement is a coercive part of those marriages, and the patriarchy of how those marriages operate."

And even if a lawyer could prove that a ban on polygamous marriage is a violation of the Charter, the government is entitled to defend the ban on the basis of greater societal good, Prof. Gilbert said.

One more aspect I'd like to add: gays and lesbians come to their sexual orientation like heterosexuals - we don't choose to be gay. The only marriage partners we should choose, if being honest and authentic, are members of our own gender. There is nothing natural about the desire to have multiple marriage partners. Polygamists are not born that way! They truly choose that lifestyle.

When one gives it some rational thought, one realizes the comparisons between same-sex marriage and polygamy are truly weak.


Chrystal Ocean said...

In general, I abhor polygamy, specifically as it is practised in Bountiful; it's harmful to everyone except the few men in power. Women, girls and 'leftover' boys are all hurt.

However, am against the outlawing of polygamy per se because am against governments intervening in personal relationships. Crimes which are done in ANY relationship are punishable by law. So when underage girls are forced to wed, women are abused and boys deemed in excess are abandoned, then the law should go after the perpetrators of such crimes.

Polygamy itself, however, shouldn't be deemed a crime. That two people forming a union has been the traditional view of marriage doesn't obviate the fact that tradition shouldn't be the arbiter of what's right and what's not.

Jay said...

Hi Matt,
From my personal experience, background in biology and knowledge of demographics I can say that I am coming around to the notion that monagamy is no more natural than polygamy. We have just applied rules to make people conform to an ideal that I am starting to think is extremely difficult for many to live up to.

Its very sad and devastating to discover you aren't your partners only one. I had my marriage disintegrate because of that. The people I have met since have had the same thing happen to them.

We have a 50% divorce rate and stats show that 70+% of people in relationships/marriages have had affairs. Add to this the fact that we are animals evolved from apes who do not have monogamous relationships. Indeed males are biologically predisposed to spreading as much DNA as possible and women have a very short refractory period between orgasms because they were intended to have multiple sex partners to ensure the most fertile partner fathers the child.

Not sure if many agree but this is what I am seeing around me.

I am more concerned about the women than the relationship. If accepting polygamy means access to these women by social services, then by all means allow it. Otherwise its only going to be driven underground where there will no way to assess the women's well being.

Matt Guerin said...

Chrystal, I agree that criminalizing polygamy may no longer be appropriate. There are many laws on the books that need to be revised - such as the ban on gay threesomes!

Jay, you have some interesting points and you've nailed it on the head. Although I'm still not convinced that anyone can only function within polygamous or multiple partner relationships. I do know that many people can live devoted to one person for their lives. As we get older, the option of screwing around with multiple partners is simply ridiculous to me. Human life is about more than screwing around with new people, despite what some vapid gay men out there like to believe (I'm not saying that you feel this way.)

But yes there is much to the argument that not everyone is cut out for monogamy. But that is a separate issue from the polygamy debate.

KC said...

As I have said here before... Yes the government will be able to try to defend the band on the basis of greater societal good (ie Section 1 of the Charter) but will fail on the legal test for that. All the 'societal bads' of polygamy are already criminal offences (minimal impairment), and given the massive scope of the prohibition (proportionality) and the potential--no matter how rare--for non-oppressive, consensual polygamous marriages (rational connection) there is no way this stands up. I cant think of many other Oakes test applications that are more straightforward than this one.

I dont think Professor Gilbert has done the thorough legal analysis here (its actually quite disappointing to see ANOTHER article from a law prof that fails to do so). Dont forget that even during the SSM debate the anti-SSM folk were able to rustle up a handful of academics to "justify" their legal position.

Personally the choice v. biology argument carries very little weight for me. The freedom to make choices about your private life is the cornerstone of a liberal society.

Matt Guerin said...

KC, Gilbert's arguments relate to why the legalization of SSM doesn't mean we have to legalize polygamy as well. She explains why the comparison isn't a valid one and I agree with her.

You have argued well against the need to criminalize polygamy, but haven't (and I don't think you've tried) argued that the state must recognize such relationships as civil marriages.

Some have argued that monogamy isn't necessarily biological or realistic for all. But that doesn't mean the only alternative is polygamy.

KC said...

Sorry Matt. I thought the debate WAS over criminalization, not recognition. My understanding from your previous post was that you opposed both.

She still misses the boat on the basic legal reason why a challenge of non-recognition would fail. Since recognition is a positive state entitlement, as opposed to a negative deprivation of liberty the case would pretty well have to be made under s. 15, rather than s. 2; and polygamy hasnt been recognized as an "analogous ground".