Do the math

Guess who's coming to dinner? Looks like Bob and Carol and Alice, but not Ted. Ideas matter, and polygamy is a bad one whose time has come. Some people deny the doorbell is ringing. The Globe and Mail's Margaret Wente wrote, "Until [Tory leader Stephen] Harper brought it up, there was no polygamy debate, except on the outer lunatic fringes . . . " If true, it wouldn't be very reassuring, given Parliament's overwhelming vote in favour of traditional marriage in June 1999, and then justice minister Anne McLellan's assurance that "the definition of marriage [as] 'the union of one man and one woman to the exclusion of all others' [was] considered clear law by ordinary Canadians, by academics and by the courts" and the House was wasting its time on "a motion, on which, I suspect, there will be no fundamental disagreement inside or outside the House." Yesterday's lunatic fringe, today's orthodoxy. But in any case it's not true.

Polygamy was not brought up on the outer lunatic fringes. A federal department, Status of Women Canada, suddenly offered a big pile of cash money for quick research hostile to it--and not to help pass the long winter nights. For more than a decade, the British Columbia provincial government has been afraid to crack down on open polygamy amongst some of its more eccentric rural residents for fear of what the courts might do. B.C. Attorney General Geoff Plant just confirmed that two separate confidential legal opinions from senior jurists lay behind his letter to a newspaper in 2003 saying, "The province has questions about the constitutional validity of the Criminal Code provisions that make polygamy a criminal offence." Some lunatic. Some fringe. Thoughtful citizens must recognize that the gay marriage saga shows our courts to be anything but shy about following modern human rights logic wherever it may lead.

Justice Minister Irwin Cotler says it leads nowhere: "Polygamy is a criminal offence, it is illegal. Same-sex marriage is constitutional and valid." Perhaps he never heard before of a court striking down a law and making something previously illegal, um, legal. For instance, two people of the same sex marrying. More lucid commentators have assured us that court rulings allowing two people of the same sex to marry don't say more than two people can marry. True, but irrelevant. If courts can strike down one restriction on marriage, they can strike down another one if the same logic applies. It probably does.

Until very recently, marriage was understood to be something that existed independently of our wishes, a social or theological reality to which human law and institutions could conform well or badly at their own peril. It may sound comically fusty in this context, but we still understand many legal matters precisely that way: we do not think murder is wrong because it is illegal; we insist that it be illegal because it is wrong. But recently, positive (man-made) law has elbowed aside natural law in many areas, including family, so that statutes no longer reflect reality but, instead, create it.

The most egregious example was the U.S. Supreme Court ruling in 1992's Casey vs. Planned Parenthood upholding the right to abortion because "at the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life." And while we may in principle reject U.S. influence, too often in practice we conform to it. Thus Public Health Minister Carolyn Bennett defended gay marriage, after polygamy had raised its ugly head, by saying: "This country is only as strong as the people who decide to look after one another in individual family units that they should get to define . . . Whether people are comfortable or uncomfortable with same-sex marriage is not the issue anymore. The issue is, are you prepared to turn human rights on and off like a light switch." So what if "they" wanted to define it as patriarch and three young wives? Are you prepared to turn human rights on and off like a light switch? Because logic has no off switch.

The big bite of the apple is not any particular alteration of the definition of marriage to meet our needs. It is the concept that we may engage in such alterations at all. Indeed, the Law Commission of Canada, in a 2002 report Beyond Conjugality, speculated about abolishing marriage entirely, in favour of a voluntary institution with various legal rights and duties available to two individuals who cared for each other, including a disabled person and a caregiver. If we can expel love and sex from marriage, and husband and wife, it borders on feeble-minded to insist the "two" is sacred.

As for democracy, Bennett took the increasingly common position that the notwithstanding clause is an embarrassing anachronism because "minority rights isn't a place where majority rules." By that logic, if the courts bestow polygamy upon us, the fact that a majority disagrees will be mere bean water--if one even does. A 2003 survey by sociologist Reg Bibby found 20 per cent of Canadians willing to accept polygamy, although, thus far, only four per cent were positively in favour. How long ago were just a fifth of us ready to accept gay marriage? And did it matter?

It gets worse. Kate Heartfield, a member of the Ottawa Citizen editorial board, recently noted that the Criminal Code prohibits "any kind of conjugal union with more than one person at the same time, whether or not it is by law recognized as a binding form of marriage," and regardless of how it was entered into and whether it involves sex. This ban on a lifestyle not just on its legal recognition, she says, means "the polygamy law is not analogous to the question of same-sex marriage. It is analogous to the criminalization of homosexuality." If so, it won't last long in court. As theologian and philosophy professor J. Budziszewski observes in his book, The Revenge of Conscience, people "are more logical than they know; they are only logical slowly." So are courts, rather more quickly.

Better set a few extra places at the table.

[First published in Western Standard]

UncategorizedJohn Robson