Thursday, January 8, 2009

Michael Coren will be licking his hateful lips...

Ooh, now we'll find out if 'Freedom of Religion' guarantees in the Charter of Rights mean that men in Bountiful, B.C. have the right to marry underage girls. This case is headed to court.

Michael Coren wrote last year that equal marriage for gays and lesbians inevitably meant that Canadians would soon see the legalization of polygamy.

I disagreed with him then and I continue to do so. Will Canadian courts rule that a man's right to (mis)interpret his religion and marry multiple numbers of women circumvents the rights of women to live free from sexual abuse or exploitation? It'll take a long time to find out, but I'm confident courts will rule accordingly. Then Coren will have to think up other reasons why equality under the law in Canada for gays and lesbians is a "big mistake".


Skinny Dipper said...

In the long run, I think the two men win their cases in the Supreme Court.

Section 293 of the Criminal Code of Canada deals with the number of married partners. It doesn't deal with the age of the brides (or spouses) or whether or not the men's wives have been abused. I do think the men will be convicted in the lower courts as these courts do not deal with constitutional matters, just the Criminal Code laws. The Supreme Court will deal with religious rights.

It should be clear that the men have been charged with having more than one married spouse. They have not been charged with child abuse or forcing women or girls to marry them or other people. These things may or may not have happened. However, s. 293 only deals with the number of spouses.

Matt Guerin said...

Thx for the comment. True the men haven't been charged with child abuse, etc. in these cases.

However I was speaking about "abuse" or exploitation in more general terms vis a vis polygamy. Marriage laws in Canada demand that the partners involved enter into the arrangement as equals of their own free will. To say these marriages are equal to two-partner marriages is a stretch. I don't believe the Supreme Court will rule on this simply looking at the numbers of women involved and the religious arguments, ignoring the other facts of the cases. And of course all aspects of the law including the jail sentences will be under scrutiny here - the courts could rule the marriages aren't legal, but also rule that jail sentences aren't warranted, that some other punitive measure is necessary. We'll see.

KC said...

If there is one thing I've always agreed with the anti-SSM folks about is that polygamy will be legalized eventually, and I have no real problem with that. There are probably good reasons why polygamists shouldnt be able to use their polygamous state for preferential tax treatment and public entitlements but in terms of criminalization the basis to interfere with that personal choice is weak.

Yes there are issues of child and spousal abuse in ultra-religious sects but those are separate offences under the code that will remain criminalized. I also agree that marriages should never be recognized by the state if they are entered into involuntarily.

But THOSE are the problems at Bountiful, not polygamy in and of itself. It is entirely plausible that 3 or more consenting adults can enter into functioning polygamous marriages by their own free will. I see no reason why I should have the right to interfere in that relationship, and believe the prohibition is overly broad.

Just as I would never desire to enter into a same sex marriage, I would ever desire to enter into a polygamous marriage; but the fact that I wouldnt shouldnt effect anyone else.

KC said...

Sorry... I would "never" desire.

Christian said...

You mean Coren hasn't used the "next people will want to marry their pets" argument ?

Matt Guerin said...

Practically speaking, the only people who seriously enter into polygamous marriages are those who do it for religious reasons, and normally that involves exploitation and subjugation of women or girls by older men.

I don't agree it's entirely plausible that non-religious people could enter into three-way marriages that work. In my mind, when you marry someone you are committing 100% to the other person - one can't, by definition, commit oneself 100% to two people. Anyone can enter into any unique-style relationships involving more than two people, but that doesn't mean they are "married" unless we redefine marriage to include such relationships. I don't believe that our country will be compelled legally by the courts to recognize such relationships as marriages. Thus it will remain a public policy choice and I think most people will continue to want marriage to only be the unique union of no more than 2 people...

KC said...

Matt - With respect, no one should care what you or I think of their reasons for entering into a marriage. It is entirely plausible and in fact happens illegally in many places. It doesnt take a whole lot of internet searching to find it.

Frankly Im somewhat surprised to hear someone whose blog is called "Queer Liberal" to care what "most people continue to want marriage to only be", to talk about marriage as a "public policy choice" that some seek to "redefine". A few years ago some folks were willing to concede that same sex couples "can enter into any unique style relationships... but that doesnt mean they are 'married unless we redefine marriage'".

This is about freedom of choice. We're not even at the point of talking about state sanctioned polygamous marriages. We're still at the stage of decriminalization. At the very least THAT should occur.

If you abuse you wife, or enter into a marriage with a child of course you should be punished; but putting aside the issues of state recognition for a moment at the very least you should be able to go through a form of ceremony with more than one adult and call those people your wife or husband. That is a valid personal choice that should be respected.

For your reference:

293. (1) Every one who

(a) practises or enters into or in any manner agrees or consents to practise or enter into

(i) any form of polygamy, or

(ii) 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, or

(b) celebrates, assists or is a party to a rite, ceremony, contract or consent that purports to sanction a relationship mentioned in subparagraph (a)(i) or (ii),

is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.

Matt Guerin said...

This site is called "Queer-Liberal" for many reasons, and it's not because I'm on the far left of the gay community. Think of queer in all of its uses to get where I'm coming from. Queer-Liberal could in fact mean at times "conservative"? I think I try to find a balance between left and right on many issues, although primarily I do start from a progressive viewpoint.

This issue has to do with whether or not the state is compelled by the Charter to recognize polygamous marriages due to freedom of religion. I say no, but we'll see what the court says.

If the courts won't compel governments to recognize such marriages as legitimate (as they did for SSM), then the issue becomes a public policy discussion. We may choose to extend marriage rights to polygamous relationships and there we go. Should we go there? I don't think the Canadian people are ready to accept that, but if the court rules that way we'll see. It's hard to ignore the inherent exploitation in such relationships as they exist in the real world.

I certainly wouldn't judge anybody for trying out a three-way relationship based on mutual respect, although personally I have enough difficulty just making it work with just one guy, let alone two.

Is this an equality issue? No because the anti-polygamy laws apply to all equally. And what you're talking about is three-way relationships that aren't based on religion, but based on other things. Do they have a Charter right to be recognized as marriages?

KC said...

It depends on which Charter challenge you mean. Im not convinced that the court would require state recognition of polygamous marriages at this point, but on a challenge to the criminal code provisions I think it is almost a slam dunk.

Given the scope of the prohibition it wont be a justifiable limit on freedom of religion. The Court is not going to question the sincerity of the beliefs and they dont get into whether or not an act actually accords with the mainstream interpretation of the religion, so the violation of freedom of religion isnt going to really be a question. Its a pretty low threshold.

If anything it'll depend on the reasonable limit test. The protection of women and children will be seen as a legitimate state objective; but upholding public views on traditional morality will not so that argument will fail there. With respect to the legitimate objectives they'll fail on the proportionality and rational connection tests. It is actually illegal in Canada to go through a ceremony and calling it a wedding with more than one person in Canada, even if it is not recognized as a legitimate marriage by the state. That is pretty heavy handed. The Court will never see that as sufficiently connected to the objectives (however legitimate) to uphold such a strict prohibition..

I'll leave the issue of state recognition of polygamous marriage for another day. But I highly doubt the the court will uphold criminal charges against people who have a ceremony, live together and call one another husband and wife.