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Sunday 23 November 2014


Marriage Equality: Un/Tainted Love

Posted in: Comment
By Craig Young - 23rd August 2012

polyamory.jpg
Family First is trying to railroad opposition to marriage equality by scaremongering about polygamy and polyamory. However, closer analysis reveals the full and utter absurdity of these claims.

Let's be clear about this. The Marriage Amendment Bill only seeks to amend the Marriage Act 1955 through substituting the monogamous recognition of same-sex couples wishing to marry, as well as a man and a woman. It does not involve any repeal of Section 205 of the New Zealand Crimes Act 1961, which prohibits bigamy and polygamy.

However, Family First argues that 'as a consequence' of same-sex marriage, there will be "inevitable" moves to decriminalise polygamy, as well as the eventual introduction of "polyamorous' relationships. McCoskrie is basing this on an infamous Stanley Kurtz Weekly Standard article from 2003, "Beyond Marriage." In the conservative tabloid, Kurtz refers to individual feminist family law activists that promote legal recognition of polyamorous relationships within the United States, as well as schismatic Mormon polygamist rights activists.

Predictably, there is little substance to this claim. Granted, the Canadian Law Commission did indeed produce a volume on polygamy back in 2001, entitled Beyond Conjugality: Recognising and Supporting Close Personal Adult Relationships. However, the story does not end there. Granted, the Law Commission report did raise doubts about whether the Canadian Charters of Rights and Freedoms, Canada's written constitution, meant that Section 293 of the Canadian Criminal Code, which bans polygamy, was in conflict with constitutional guarantees to religious freedom.

Canada's federal government was concerned about the potential conflicts that might arise, as was British Columbia's provincial government. Problems arose as a result of a schismatic religious group named the "Fundamentalist Church of the Latter Day Saints", which broke away from the mainstream Mormon Church when the latter church abandoned polygamy to join the United States in 1890. The FCLDS and similar rural cults did not accept the mainstream church hierarchy's decision and their fortified rural compounds and settlements are heavily male dominated, with domestic violence rife, as well as disturbing incidents of child sexual abuse through forcible child marriage and toleration of pedophilia. Fortunately for us, the FCLDS is restricted to North America, predominantly within the United States, but also in Canada and Mexico. It is British Columbia's "Bountiful" settlement which has been the subject of considerable litigation.

Rightly concerned about the reports of domestic violence and child sexual abuse, British Columbia's provincial government raided the Bountiful settlement, but was foiled by legal technicalities. Undeterred, they decided to ask the British Columbian Supreme Court for a 'reference case' about the legality or otherwise of polygamy within Canadian law. In November 2011, Justice Robert Bauman released a hefty 355 page decision about the current legal status of polygamy within Canada. Fortunately, given the ample evidence of violence against women and child sexual abuse, Justice Bauman ruled that Canada's federal and provincial governments should be able to uphold Section 293's legality. Notwithstanding its challenge to religious freedom, the aforementioned public interests trumped the question of religious practise in this context.

What about polyamorists? Like polygamists, polyamorists practise non-monogamy, but in a substantially different ethos. Polyamorists are heavily influenced by feminist and LGBT politics, so their relationships are consensual, egalitarian, nonviolent and circumscribed, and there are no restrictions on women's sexual freedom.

Moreover, polyamory is restricted to consenting adults. The Canadian Polyamory Association was an amicus curiae (associate appellant) in the Bountiful case, made a submission and sought to find out whether Section 293 also applied to the legality of ethical non-monogamy, as opposed to 'patriarchal polygamy.' To their relief, Justice Bauman found that while Section 293 banned polygamy, polyamory did not share the attributes of polygamy proper and was not criminalised under current Canadian law. The CPAA professed itself happy with this decision and will not appeal.

What about the prospect of polyamorist spousal rights litigation and activism? At present, apart from a tiny handful of feminist family law advocates of polyamory, there is no mass movement to do so, not even in relatively advanced jurisdictions like Canada, Scandinavia and the Netherlands, which have already recognised same-sex marriage. Before that happens, there will probably need to be psychological and other social scientific research to deal with what the benefits or otherwise of polyamory might be. This will probably take a decade or so to complete. It is certainly no reason to delay legislating for same-sex marriage now.

As for polygamy, there is no hope that it will ever be decriminalised in contemporary western societies. South Africa is the only developed country that has both same-sex marriage and straight polygamy. In 1998, the ANC recognised it in inheritance law and government social security payments. Bantu Africans and Muslim polygamists are the mainstay of South African polygamy, which renders it non-reproducible outside that context.

In virtually all other societies that allow straight polygamy, it is the case that male homosexuality (and sometimes also lesbianism) are criminalised. In some cases- Iran, Iraq, Somalia, Sudan and Saudi Arabia - it is considered a capital offence. Furthermore, apart from South Africa, none of the societies that have previously introduced same-sex marriage seem willing to do the same in the context of polygamy. Note the Canadian example above.

Finally, then, the polyamorist and polygamist brown herrings are easily dismissable. Given that polygamy seems correlated with violence against women and child sexual abuse, it would be abhorrent to even consider its decriminalisation. Same-sex marriage does not similarly victimise either women or children, nor do civil unions.

Recommended:
Reference re: Section 293 of the Criminal Code of Canada:2011 British Columbia Supreme Court 1588 CanLii: http://canlii.ca/en/bc/bcsc/ doc/2011/2011bcsc1588/ 2011bcsc1588.html
Ontario Consultants for Religious Tolerance- Polyamory: http://www.religioustolerance. org/polyamory.htm
Canadian polygamy laws upheld by British Columbia Supreme Court: CBC News: 23.11.2011: http://www.cbc.ca/news/canada/ british-columbia/story/2011/ 11/23/bc-polygamy-ruling- supreme-court.html
New Zealand Crimes Act 1961: http://www.legislation.govt.nz /act/public/1961/0043/latest/ contents.html
Canadian Polyamory Advocacy Association: http://www.polyadvocacy.ca

Craig Young - 23rd August 2012

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