Reflections on the Polygamy Reference Case

JMaddock — November 23, 2011

I have a couple of thoughts on today’s BC Supreme Court decision upholding Section 293 of the Criminal Code, which makes it a criminal offence to live in a polygamous relationship, punishable by up to five years of jail time.

First of all, I was amazed by how brazenly utilitarian the judge’s reasoning was, and how he generalized that the negative consequences of some polygamous relationships were reason enough to ban all polygamous relationships.

I was also surprised by some of the alleged “harms” of polygamy used to justify the criminal law. For example, it was alleged (and the judge accepted) that children from polygamous families “tend to suffer more emotional, behavioural and physical problems, as well as lower educational achievement…” The same generalization could undoubtedly be made about single-parent families, yet nobody is clamoring to make single parenthood illegal. (Here, it’s worth mentioning that the polygamous community of Bountiful actually has one of the best-performing schools in BC.)

Also, the judge found that “the inability of fathers to give sufficient affection and disciplinary attention to all of their children can further reduce children’s emotional security.” This is more an argument against large families, and again single parenthood, than it is against polygamy.

These same kinds of utilitarian arguments were basically declared off-limits when it came to granting marriage rights to homosexual couples, which demonstrates the effects that powerful, well-funded interest groups can have. It also demonstrates how much government loves to expand its own power (i.e. by expanding the institution of marriage beyond its traditional scope), but never to reduce it (i.e. by leaving people alone to make their own relationships and live their own lives). When government makes concessions to interest groups, it generally does so to increase, not reduce, its own power in the lives of citizens.

Now that the decision has come down (assuming it isn’t overturned on appeal), it will be interesting to see just how far the government is willing to go in persecuting Canadian polygamous communities, particularly the one in Bountiful, BC.

Time will tell if the police will actually go in with guns, break up a peaceful community, and turn several hundred children into wards of the State. If so, we could be looking at the residential school fiasco all over again. If not, this whole reference case was just a colossal waste of money.


Anonymous says

Very well written Jeremy. It would be interesting for them to hear the same case if three males or three females wanted to marry each other or look at relationships where no children were involved. Would the above arguments still apply? Also, does this ruling apply to civil unions?

— November 24, 2011

Jeremy M says

The law which was upheld applies to all “conjugal unions,” whether marriage or common law, and whether children are involved or not.

— November 24, 2011

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