What Does Canada’s Polygamy Decision Mean for Polyamorous Pagans?

Jason Pitzl-Waters —  November 26, 2011 — 30 Comments

On Wednesday the Supreme Court of British Columbia upheld Canada’s law banning the practice of polygamy (multiple-partner marriages). This legal battle was somewhat unique in that a legal alliance of fundamentalist Mormons and a polyamory advocacy group (the CPAA) stood together to challenge the law. In addition, Pagan families and clergy in Canada have filed affidavits of support in the decriminalization case there. The reason for this somewhat unlikely fellowship was made clear during the trial when the B.C. Attorney General’s office made very clear that polyamorous families would be treated like polygamous families in the eyes of the law.

When multi-partner, conjugal relationships are like “duplicative marriages,” Jones said they are criminal regardless of whether the individuals are heterosexual, gay, lesbian, bisexual or transgendered.Although he said ‘duplicative marriage’ need not be “exhaustively defined in advance,” Jones said all conjugal relationships involving more than two people are criminal if they go beyond “mere cohabitation” and have some form of imposed consequences related to entering or remaining in the relationship.”

However, while Chief Justice Robert Bauman upheld the law, he did seem to carve out exceptions for informal multiple-partner couplings, and provided a “road-map” for future challenges.

Robert Wickett, the lawyer for the Fundamentalist Church of Jesus Christ of Latter Day Saints, the polygamous community in Bountiful, said the B.C. Supreme Court decision actually offers a “road map” for would-be polygamists on how to avoid prosecution. […]  “[Judge Bauman] lays out for prosecutors and defendants what is lawful and not lawful,” Mr. Wickett said. “He has not said that three people living together is unlawful, but only [that] three people living together in a form of ‘marriage’ that had a sanctioning event or a religious ceremony. And so people looking at that definition, then, you could imagine how they [could] structure their affairs to stay within his definition.”

The Canadian Polyamory Advocacy Association says it is “relieved” at the exceptions in the ruling, but points out that polyamorous couples who have had a “sanctioning event or religious ceremony” could still be targeted by the polygamy law.

“Many polyamorous women, as well as men, have multiple partners, and polyamorists think men and women have equal freedom to define their relationships. The CPAA says the decision will relieve most polyamorists but, alarmingly, will harm those who make certain formal commitments. “The decision still criminalizes a segment of the polyamorous community if they have a marriage ceremony,” said Zoe Duff, a CPAA director and spokesperson. Duff also represents one of the five polyamorous families who provided evidence to the court. The decision clarifies that she is living legally with her two male partners.”

Considering how many Canadian Pagan polyamorous families have had public marriage/handfasting ceremonies this interpretation of the law places them on the same legal footing as a polygamous Mormon (or Muslim) household. This, in essence, forces consensual multi-partner arrangements to stay in the closet, and avoid anything that might be interpreted by a “sanctioning” event within their community. Thus, monogamy as a relationship structure is privileged above all others, even though the judge in this case acknowledges that this arrangement limits personal autonomy and religious freedom. As Jonathan Korman told me in my last piece on Paganism and polyamory, consensual multiple-partner arrangements present a fundamental challenge to the status quo that isn’t so easily swept under the rug.

“Polyamory constitutes a direct confrontation with questions about how we define our relationships. It says that we should not accept that our loving relationships must conform to a single standard. From that rejection of the cookie-cutter relationship standard follows hard personal and cultural questions about how we want relationships to work. Cultural conservatives find these questions frightening; without the standards they know and recognize, they fear that we would have no ethical standards at all. But many other people feel that the conception of marriage offered to them does not serve their needs but cannot imagine alternatives. Perhaps same-sex marriage has opened the door to more people thinking about these questions, creating an opportunity for a broader cultural conversation about the cultural and legal implications of polyamorous families. We may see a growing fascination with poly families coming, as people respond to them as a way to talk about the questions they encounter in their own relationships.”

This ruling seems to be something of a punt by Chief Justice Robert Bauman, all but acknowledging that this won’t be the end of the matter in his decision, while trying his best to create an understanding of the polygamy law that will only affect “harmful” manifestations of the practice. But his reliance on ceremony as a threshold for illegality creates more problems than it does solutions, and I have little doubt that we will see this issue back in the courts once again sometime soon.

Jason Pitzl-Waters


  • I’m tired of hearing ‘it challenges the status quo’ with so many arguments. So much of what is listed as the ‘status quo’ is so ridiculously recent to humanity’s history that it’s embarrassing people are so rigid.

    The only thing equal rights challenges is the colonizers and imperialists who don’t want to admit that more oft than not THEY are the backwards ones.

    • Be mindful of hateful words, Lamyka. Your comment says much, and smells of cultural supremacy, rather than of the tolerance you seem to be calling for. What is “backwards” is a matter of opinion, and no one person is provably more right or wrong than another in their way of doing things, or so it is said.

      • Baruch Dreamstalker

        Western culture has been slapping the label “backwards” on others for a long time. They can put up with it being applied to them.

        Appropriately, in some instances. I’ve started a fascinating book, “American Nations” by Woodard. The early French colonies tried to simultaneously be decent to the Natives and recreate feudal society in the New World. The designated peasants, indentured transportees, declined to settle into a serf role but lit out for the woods, where they adopted Native ways, sometimes literally. A lot of them married Native women which, in Woodard’s words, meant the Frenchmen were marrying up under the circumstances.

        Anyway, I think you should note Lamyka’s point as well as language: Challenge to the status quo is not a legitimate legal principle in a free society.

        • Can Western culture put up with being called “backwards?” Sure, though that depends on what one wants to call Western culture and what one defines as “backwards.”

          Reasonably, I would think in this age of “tolerance, understanding, and multiculturalism” that we would stop calling any culture “backwards” regardless of who or where it comes from.

          • Interesting, the guy saying Western culture can take the backwards label insult gets more likes than the guy saying that we should be tolerant and respectful of all cultures…

          • Baruch Dreamstalker

            Ah, the old liberal conundrum: Shall we extend radical tolerance to include tolerating intolerance? For the present, I say no. When “tolerance, understanding and multiculturalism” are nigh-universal, then we can be merciful and tolerant to those pockets that lack those qualities.

          • I get what you’re saying, Baruch, and I would even agree with you. The problem is when those who define “intolerance” do so in such a way that it is their “foes” that are the intolerant ones, but don’t see the intolerance in themselves. To me, it is no different from the Abrahamics who label us “evil” because we do not believe as they believe, or act as they act.

            So for me it’s not so much “shall we extend radical tolerance to include tolerating intolerance” as it’s “Is it hypocrisy to speak about tolerance, while being intolerant of those you do not like and deem ‘intolerant’ so that they loose the ability to defend their views in the public sector.”

            Look, there are things that shouldn’t be tolerated. Most religious radicalism, for instance, or hatred because someone is different. But if people insist that a culture is “backwards” just because they have issue with it (despite this the fact that the only reason we have the rights and freedoms we do have is because of that “western culture” via traditions handed down from our Pagan and Heathen ancestors) strikes me as, well, wrong. Now, no one has to agree with me on that, but name me one other dominant culture in all the world that has granted its people these rights.

            One cannot bring tolerance into the world, by being intolerant. They can only create a different form of intolerance than what came before.

          • Baruch Dreamstalker

            Alchemist, we need your perspective to remain in the conversation, for sure.

            “Tolerance” in biology means the ability to put up with an irritant. Somethings we should tolerate, some things we should not. And some things should not be “tolerated” because they should not be irritants — skin color differences, for example. If we find the latter irritating we need to do work on ourselves.

          • Okay, but is political/social tolerance the same as biological tolerance, or are they similar terms for things that are slightly different?

            I’m glad you think my perspective needs to stay in the conversation, to be honest I’m really just trying to learn this one, because what I thought was “tolerance” often time isn’t what “tolerance” is in practice. (Sometimes it seems I caught the buzz words and what they were supposed to mean, but didn’t realize their practice was something else.)

            I suppose the greatest question I have in relation to “tolerance” can be summed up “Who defines the tolerable and the intolerable.” Admittedly this is because of the “history is written by the victors” thing, where just because someone says something is the “truth” doesn’t mean it automatically is, as we Pagans and Heathens should know.

            To be honest I’m happy to do this with you folks, because while I know I can be a giant pain in the ass and hold many a view people don’t like, and I do ask people to question everything they believe, there are those here whom I have a respect for and who I gain much knowledge from.

  • Shan in Ontario, Canada

    Jason is right, the Judge has indeed ‘punted’ on this issue. Why should it be legal for poly relationships to co-habit, but illegal for poly relationships to co-habit while married to one another?

    I am glad that I am not at risk of criminal charges at present, but my partners and I (polyfidelous triad) want to Handfast next year, which with this ruling is still a criminal act in Canada.

    As a survivor of a monogamous, abusive, heterosexual, LEGAL marriage, and the aftermath where I endured legal attacks upon my parental rights when I divorced, and more legal custody attacks over my subsequent same-sex monogamous relationship (shot down in court as same-sex relationships now enjoy equal protection in law to hetero ones in Ontario), I and my children do NOT deserve to endure the same again over my healthy, nurturing poly relationship.

    My children are happy in our home, with their 3 loving parents. They have a fabulous step-mother and a step-father who provides them with a POSITIVE male role model. My children endured the hell of my marriage to their father (ending when they were 3 and 6), the legal turmoil that lasted 5 years afterwards as their father tried repeatedly to remove them from my ‘unhealthy influence’, which co-insided with his two subsequent unhealthy, abusive, hetero relationships that their visitation with him forced them to witness, and which put them at risk of, and on the receiving end of, more abuse.

    We don’t need an anti-polygamy law in Canada. Any and all of the issues of abuses in Bountiful and any other polygynous/polygamous situation can be addressed through other laws:
    -forced under-age sex/marriage
    -spousal abuse
    -child abuse
    As soon as you decriminalize multiple marriage, the women and children of Bountiful (and other communities like it; poly, Muslim, Mormon or other) can reach out for help from Police, Social Services and Welfare without fear of prosecution themselves.

    And HEALTHY poly families can live without fear.

  • Well, let me start by saying that personally, I think the government should stay out of the marriage issue. At best marriage is an oath between people, two or more, however you please. At worst, it’s between two or more families, and with the Gods presiding over the oaths. I do not think the state should have any say in the regulations of what marriage is. That is my personal opinion.

    I suppose the best way to look at this is baby steps. We have to remember the original reason for banning polygamy was because of spousal abuse and the like (as well as probably something to do with the Mormons). The fact is though, that in polygamous marriages, there is still what a number of people would consider abuse. While Pagan polygamy tends to be the healthiest, and Mormon seems to straddle the line on being good or bad, when you look at polygamy in say the Middle East and those that come from that region, there’s a lot of abuse, well documented (if often ignored for various reasons). So I can understand hesitation in fully embracing the legalization of polygamy.

    Now, I know I might tick a lot of people off with this next statement, but if you really need the State to recognize your group’s marriages, I wonder if it’s really about love or politics. No one should have to live in the closet or fear because of their marriage. But I think it is the people who should be important, not the government, and while I’m all for fighting for the rights of marriage, I would council people to put their relationships first, then worry about what a State says being “legal or criminal.”

    • Baruch Dreamstalker

      IIRC Utah gave the vote to women well ahead of other states because Mormons expected wives to vote with their husbands so, in the male-voter environment of the day, polygamy gave patriarchs an amplification of their vote. And iirc Congress would not permit that if Utah wanted to become a state.

    • Shan In Ontario

      Yes, we are indeed engaging in Baby-Steps.

      Section 293 of the Criminal Code of Canada purports to outlaw polyamorous people living together as families. It penalizes us as soon as we make a serious commitment (marriage ceremony of whatever sort) to one another. Section 293 will be challenged again and again, and go the the Supreme Court of Canada. I only hope it does sooner, rather than later.

      When you reference the Middle East, you have to take the general human rights situation there into account. Some Middle Eastern countries have better Human Rights records than others, but all fall short of North American standards. When women and children in general are non-persons, you get a greater capacity for abuses of them.

      This case is in Canada, which has a higher standard and better Human Rights record than the U.S., let alone the Middle East. Queer Marriage is a right here. Queer Adoption is a right. Our Charter of Rights and Freedoms guarantees these things, even when some Provinces are not as good as others in its application, the Charter is there if you need it. There is always room for improvement! 🙂

      You have to look at the historical context:
      Section 293 of the Criminal Code of Canada was put in place 120 years ago, when Canada was predominantly Northern European white descended and PROTESTANT Christian. Women and children were legally NON-PERSONS.
      Section 293 was put into place to prevent the American Mormon Church from establishing itself in Canada and practising ‘Celestial Marriage’. Muslim Immigration was practically non-existent and members of it and other religions that recognised multiple marriage kept their heads down. There was NO possibility of Paganism being openly practised in that context.

      Now look at modern Canada:
      Canadians pride themselves on a national identity of multi-culturalism. We pride ourselves that, unlike the American ‘Melting Pot’ mentality that Immigrants should assimilate, we celebrate and support Immigrants to retain their cultural heritage, while enriching the Canadian Identity. But Section 293 of the Criminal Code of Canada prevents Immigrants (and any generationally established people of non-Christian religions) from practising a part of those religions that sanctify multiple marriage (Muslim, etc.). It prevents Modern Pagans (and others) from practising Ethical Polyamory AND marrying/hand-fasting/pledging to one another. This is wrong. It is un-Canadian. It WILL change.

    • The Bony Man

      “Now, I know I might tick a lot of people off with this next statement, but if you really need the State to recognize your group’s marriages, I wonder if it’s really about love or politics. No one should have to live in the closet or fear because of their marriage. But I think it is the people who should be important, not the government, and while I’m all for fighting for the rights of marriage, I would council people to put their relationships first, then worry about what a State says being “legal or criminal.” ”

      I think you misunderstand the issue here. Polygamous/LGBT/any other kind of marriage fight is not about feeling good about our marriages. It is about the innumerable rights and privileges that legally recognized couples are allowed. Anything from inheritance rights, to hospital visitation, to tax filing, there are thousands of reasons why this is far more important than it might seem on the surface.

      Besides the fact that restricting consenting adults from marrying each other is tantamount to tyranny.

      • Because when one partner is incapacitated, the other partner(s) should be making the decision, not the government, hospital staff, school system (if kids are involved), insurance company, etc.

    • Thriceraven

      No one is looking for State recognition here. Just decriminalization. We just don’t want to be thrown in jail for

      • Thriceraven

        Sorry for the misfire above.

        No one is looking for State recognition here. Just decriminalization. We just don’t want to be thrown in jail and our families broken up for being handfasted to two men.

      • kenneth

        That’s exactly it. Nobody needs state recognition to legitimize an arrangement for its own sake, but they need to know that they won’t be criminalized for doing so. In addition, a recognized (or perhaps we should say registered) marriage arrangement gives all of its participants a certain standing under the law and rights within that arrangement. The laws that criminalize and/or officially ignore polyamory today offer perfect cover for the predators who take underage wives as concubines and virtual slaves.

  • Baruch Dreamstalker

    “[…C]eremony as a threshold for illegality” puts the polyamorous in a situation roughly like what BGLTs endured until quite recently: Legal to live together but they had to keep their commitment in the closet. Also a slap at Paganism, we being the traditions most delighted to ceremonialize non-patriarchal polyamory.

    Where the hell are the libertarians in this case? Isn’t this the epitome of government intruding into people’s lives!?

    • Charles Cosimano

      It really answers the question as to why the judge’s chambers had lots of padding and the bailiffs all wear white coats.

    • It’s Canada, do they have libertarians?

      • Baruch Dreamstalker

        Good question; it occurred to me as I was framing the comment. Any Canadians have an answer?

        • Dave

          As far as Americans understand it technically yes. The Libertarian Party in Canada is not what I’d call popular, they’ve never done well to my knowledge.

          Bloc Québécois and the Greens basically regulated them to the corner which should tell you something.

          I hear there’s some little “l” libertarians floating around here and there. They tend to hang out with various incarnations of the Progressive Conservatives mostly.

          There’s also Le Quebecois Libre which is in French and English. Apparently, it’s the most popular libertarian publication in the French language.

          Additionally there are provincial groups knocking around but by and large libertarianism isn’t well represented. At least not in the circles I tend to travel in.

          • Thriceraven

            Agreed. They exist, but are a very small political force. They have no nationally recognized voice (such as Ron Paul might be said to represent in the U.S.). As you say, Dave, the Greens are a *much* larger political force and they have still yet to win a federal seat, if that tells you anything.

      • Liz_Kate from Ontario

        A political party that’s not well known.

  • Marriage is criminalized, yet having six kids without benefit of any marriage ceremony, legalization of union, or even commitment is still acceptable. Sigh.

    • That’s because the six kids without the benefit of marriage can get government aid, which in turn creates voters for those that give them the money.

      Honestly, it’s all the Free Love thing. Have as many lovers as you want, with whatever gender/sex you want, but don’t you dare commit man. Probably because “commitment = ownership” or something in the minds of those who make such laws. Idk, it’s a mess of political ideologies with no real logic behind them on all sides of the fence.

      It’s about power, who has it and who keeps it, and how to take it away from the other guy.

      • Dave

        Honestly, it’s actually MUCH more likely to do with the Conservative Party’s phobia of anything that’s not like them. Just look at Stephen Harper.