© 2005  Karen Selick
Polygamy--Two Rights Shouldn't Make a Wrong
An edited version of this article first appeared in the August, 2005  issue of Canadian Lawyer
If you wish to reproduce this article, click here for copyright info.


Polygamy—Two Rights Shouldn’t Make a Wrong

 It’s perfectly legal in Canada for an adult who lives alone to have sexual relations with a different partner every day of the week.  Something else that’s perfectly legal is for a group of celibate adults to reside in a house together—sharing the chores, sharing their meals, and even pooling their finances if they wish.  

What’s not legal is trying to combine the two—having your multiple sex partners move in so that you can share the joy of sex as well as the joy of cooking in the comfort of your mutual household.  Do that, and you could find yourself charged with polygamy under section 293 of the Criminal Code. 

Prosecutions for polygamy seem to have been very rare in Canada.  The only reported case I could find was from 1937.  This may change in the near future.  The community of Bountiful, B.C. has been making headlines recently over allegations that a group of breakaways from the Mormon church are practicing polygamy.  

Talk about strange bedfellows!  Both feminist groups and mainstream Christian groups, not known for seeing eye to eye very often, are lobbying for the B.C. government to press charges.  

Although sharing a husband with another woman wouldn’t be my cup of tea, I don’t understand why our lawmakers insists that polygamy be outlawed.  Some of the Bountiful women declare unambiguously that they enjoy their way of life, that they are there voluntarily, and that they don’t want their “plural marriages” broken up by criminal charges. They cite the sharing of household chores and the caring relationship with their co-wives as among the advantages. 

Is it not conceivable that these are fully informed, psychologically healthy individuals, free from duress and telling the truth?  If so, that would mean that polygamy is in their case a victimless crime—a mere offence against state fiat, rather than a violation of their rights or anyone else’s. 

Those campaigning for prosecution allege there is more sinister behavior in Bountiful.  “It’s basically incest and pedophilia that’s going on there, in our opinion” says Jancis Andrews, an activist urging prosecution.  

Those are troubling allegations.  But pedophilia is a crime in its own right.  So is holding someone against her will.  So is intimidating or threatening someone.  So is fraudulently marrying a second spouse when you’ve lied and led her to believe you weren’t already married.  These are all crimes that have genuine victims, i.e. persons who don’t want done to them what is being done, or who are too young to legally consent to what is being done.    If such crimes are occurring, the answer is simple:  we should prosecute for them.  But we shouldn’t outlaw something that in many cases is a consensual, victimless activity on the mere off-chance that it will make it more convenient to catch people who are committing different crimes.  

While legal polygamy seems unthinkable to most Canadians today, it actually has a very long history.  Economist Theodore C. Bergstrom, in his paper “On the Economics of Polygyny”, says:  “Of 1170 societies recorded in Murdock’s Ethnographic Atlas, polygyny (some men having more than one wife) is prevalent in 850.”  Polygamy was not outlawed in the United States until 1862.  

The bible is full of prominent figures who had multiple wives:  Abraham, Jacob, David, and Solomon, to name a few.  One Catholic with whom I debated this point told me these cases were God’s way of “warning us by example” that polygamy “doesn’t work”.  However, if the existence of domestic discord among biblical polygamists speaks poorly for polygamy, what does today’s rampant divorce rate say about the wisdom of monogamy?  

Ironically, when the legal challenge to the constitutionality of Canada’s anti-polygamy law does come, it will probably not come on the grounds of liberty or privacy, but on the grounds of religious freedom.  The Bountiful group, members of the Fundamentalist Church of Jesus Christ of Latter Day Saints (FLDS), say polygamy is an important tenet of their religion.  Outlawing it is tantamount to forbidding them the freedom to practice their faith.  Earlier this year, an American polygamist urged Utah’s Supreme Court to strike down the polygamy ban as an unconstitutional violation of religious freedom.  That decision is still pending as I write this.  

The Muslim religion also permits polygamy.  Western Standard magazine recently reported that one Islamic group in Vancouver cites the legalization of polygamy as “one of [the] group’s long-term goals.”  The 1998 case of Ali v. Canada (Minister of Citizenship and Immigration) held that an immigration officer had rightly refused Mr. Ali’s application for permanent residence because he had two legal Kuwaiti marriages and planned to bring both his wives with him to Canada.  It’s not hard to imagine that future rulings of this kind might be appealed on the grounds of religious freedom. 

What irritates me is the people who are absolutely positive that their way is the best way, but who are afraid to put it to the test.  Give people the freedom to choose and let’s see what happens.  If mainstream Christians are right that monogamy is superior to polygamy, simply let the two systems operate side-by-side and watch all the Muslims be won over.  If you’re not prepared to allow that test, doesn’t it suggest that you harbour uncertainty about the superiority of your own system? 


- end -


..... ..... 

       November 20, 2005