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.