When the British Columbia government’s polygamy reference case opened at the province’s Supreme Court on November 22, 2010, a stream of participants and witnesses, including representatives from the Canadian Coalition for the Rights of Children, REAL Women of Canada, the Christian Legal Fellowship, and academic experts, testified about the many harms associated with polygamy. Carolyn Jessop, who fled a Fundamentalist Church of Jesus Christ of Latter Day Saints (FDLS) community in Utah with her eight children in the middle of the night, summed it up well: “Polygamy is not pretty to look at. It is nice that it is tucked away in a dark corner where nobody has to see its realities, because it’s creepy.”
But George Macintosh, the amicus curiae appointed to present the opposing argument, came out swinging. He characterized Section 293 of Canada’s Criminal Code, which bans polygamy, as an overly broad and grossly disproportionate law rooted in Christian prejudices, a law demeaning to polygamists. Women in polygamous marriages anonymously testified that they were happy, that they’d made the right decision. According to CBC, the BC Civil Liberties Association argued that “consenting adults have the right — the Charter protected right—to form the families that they want to form.” And the Canadian Association for Free Expression maintained that the legalization of same-sex marriage in 2005 strengthened the individual’s right to enter a polygamous marriage.
The rights argument carries considerable weight in a liberal society. But something that hasn’t been fully considered but should be factored in to any reasonable decision is that rights can’t be separated from the culture in which they arise. They are inextricably linked to institutions that form the backbone of a society, and in every society throughout history the fundamental organizing institution has always been marriage.
From the beginning, it seems, marriage has been a financial agreement, a way of distributing resources. But it has not been exclusively monogamous. In old Babylonia, for example, a marriage contract might include a stipulation for polygamy. While polygamy would never be the primary form of marriage — as the case of Bountiful, B.C., illustrates, huge segments of the male population would be out of luck — it was certainly widespread. And it’s clear that it provided unique advantages.
Polygamy acted as husbandly insurance against an individual wife’s barrenness, as well as high child mortality rates, and made ill or aging wives less burdensome. With so many children, polygamists had plenty of sons to work the land or contribute to their commercial ventures; in militaristic societies, these sons were prized as military recruits. Daughters, less valued, were still useful for domestic work, or to be advantageously married off to polygamous men.
Polygamy is also entrenched in another ancient institution, patriarchy, and in this context of women’s assumed dependence it actually offered them certain protections. The expandable nature of the polygamous union meant there was a better chance another man would take in a wife who wanted to leave her current husband, or whose husband wanted to leave her. It also meant men were less likely to renounce unwanted, old, sick, or barren wives in the first place; even if they were shunted aside in favour of younger, healthier women, they at least remained married. Co-wives would typically share a residence or compound, co-operating in household duties, including raising one another’s children.
And yet such unions could also very easily succumb to ever-simmering tensions and jealousies. This was especially true with regard to children, rivals for their father’s attention and resources, and whose interests each mother attempted to promote at the expense of the other children. Moreover, an unhappy woman had little choice but to endure her lot; even if the prospect of single life seemed preferable, she would be forced to leave her children behind, possibly with an angry father and vindictive co-wives.
While early Christian patriarchs were polygamous — the Biblical King Solomon, with 700 wives, spectacularly so — the Church gradually renounced the practice, largely because Greco-Roman culture happened to prescribe monogamy. Christians born into the monogamous tradition explained away the Old Testament’s stories about polygamy as a fast track to fulfill God’s instructions to populate the world when it had fewer people; in chapter 7 of On the Good of Marriage, AD 401, St. Augustine wrote, “Now indeed in our time, and in keeping with Roman custom, it is no longer allowed to take another wife.”
By about 1300, Christianity had spread across Europe, and despite pockets of resistance — the sixteenth-century Anabaptists, for instance —installed monogamy along with it. Little changed until, in the eighteenth century, the Western world was rocked by the combined force of the Enlightenment and the Industrial Revolution. While philosophers and political thinkers challenged age-old assumptions about authority, industry created a resource-rich middle class, which increasingly populated cities, where word spread quickly: the divine right of kings had given way to the notion of universal rights to life, liberty, and property.
These new ideas ultimately altered the balance of power between men and women, and transformed society and marriage. The family’s control over its children’s marriages was increasingly tempered by a regard for individual preferences, and the idea of marrying for love gained momentum. Love would provide companionship, emotional satisfaction, and, most important, an end to the cruelty that marked so many marriages. Women saw love as the lifeline to a decent life, an assurance that they would be treated respectfully by their husbands.
But as love and marriage became increasingly linked in the popular mind, so did the idea of ending loveless marriages — a significant peril of this new incarnation of monogamy. For the profoundly religious, dissolving a marriage isn’t an option, but by the nineteenth century the traditional authority of Christian churches had declined significantly, and divorce became a legal rather than a moral issue. In 1968, Canada passed the Divorce Act, with provisions for no-fault divorce and universal access to spousal support. By making it feasible for women to leave, divorce law had effectively liberalized marriage.
Meanwhile, a great deal of liberal infrastructure was developing around the concept of monogamy. Take personal income tax: first levied in 1917 to finance the First World War, it became the welfare state’s greatest source of revenue, and the calculation always assumed monogamy, simply because that was the only legal form of marriage. The same basic configuration has shaped most modern benefit programs: social assistance, Employment Insurance, Old Age Security or the Canadian Pension Plan, private health insurance, and pensions.
In this context, polygamy has come to seem an abomination. After the FDLS established a community in Lister, B.C., in 1946, polygamous men in the U.S. who struggled to support huge households began to flock there. Their Canadian(ized) wives were eligible for free medical care, day-care subsidies, and eventually the Old Age Pension. As soon as the women were impregnated, their status as technically single mothers also entitled them to claim welfare assistance and other child benefits, a practice known as “bleeding the beast.” By the early 1980s, several hundred members lived in the community which in 1984 was renamed Bountiful.
There is something unsavoury about the FLDS, a religious group headed by smug patriarch Winston Blackmore, taking advantage of Canada’s liberal institutions, but isn’t that bad taste the best test of our commitment to liberalism? Why shouldn’t we find a way to advocate on behalf of FDLS members to practise polygamy unhindered, on the grounds of religious freedom? Why not, in fact, open up marriage to polygamists by legalizing the right to engage in it?
In answering that question, it’s useful to imagine for a moment doing so. Among all the benefits programs we would have to overhaul, perhaps the most satisfying would be welfare, since we could prevent the wives of Bountiful from “bleeding the beast.” But complex issues would arise to adapt various benefit programs that hinge on marriage, and in all but welfare the project would be further confounded by the fact that multiple wives would cost the provider more. Furthermore, distinctions could lead to court challenges, and require wide-ranging legislative changes. When the Ontario court ruled, in 1999, that the definition of common law marriage included same-sex unions, the provincial government had to amend sixty-seven statutes, but that’s nothing compared to the nationwide administrative crisis that would ensue if we attempted to accommodate polygamy.
The thornier issue, however, is marriage itself. The legislated definition of marriage as “the lawful union of two persons to the exclusion of all others,” was only just passed in 2005, and would be easy enough to fix by deleting the second clause. But divorce law, which is how the state promotes equality within monogamous unions, is ill equipped to do the same within polygamous ones. Provincial laws currently ensure that when two parties end a marriage, assets accumulated during the relationship are divided equally, with limited exceptions. How much of a husband’s contribution to the marital property would a departing wife receive if she had eight co-wives? One-tenth? But what if those wives appeared on the scene later or earlier — or both? It would not only be infinitely complicated to apply divorce law to polygamy; it would never meet Western liberal standards of fairness. A husband could always dilute his wife’s stake in the family assets by unilaterally deciding to marry another wife.
American legal scholar Adrienne Davis, who believes that conventional family law rooted in monogamous marriage may not be up to attempts at cobbling polygamous marriage onto it, points out an alternative: commercial partnership law. Typically used when two or more parties go into business, according to Davis it would certainly address “polygamy’s central conundrum: ensuring fairness and establishing baseline behaviour in contexts characterized by multiple partners, on-going entrances and exits, and life-defining economic and personal stakes.”
But this is not what polygamists want, and it’s not what we want. Remember, liberal marriage was built on the concept of love; it’s hard to imagine a way of squaring this with the filing of an annual marriage report.
In our longing to ensure that everyone enjoys every possible right, we have been willing to stretch our imaginations, swallow our bile, and give polygamy a chance. That is no less than our values demand of us. But legalizing it is not ultimately in the same category as legalizing gay marriage. While much has been made, in particular, of the parallel between sanctioning same-sex unions and sanctioning polygamy, not least by polygamists themselves, the outcomes couldn’t be more different. The former brought people into an existing system of rights; the latter poses a significant threat to that system.
And that’s probably our cue, as a liberal society, to hold our noses and draw the line.
From the National Post, June 7, 2011.
A longer version of this piece appeared in the May edition of The Walrus magazine.