Doesn't look like it will be all that slippery.
Polygamy, on the other hand, has a completely different dynamic, she said. "First of all, it's not a one-on-one partnership. Secondly, the dynamics of polygamous relationships in Bountiful certainly involved serious harms around the age of the women getting married, whether or not they are truly consenting to the marriage, the extent to which parental involvement is a coercive part of those marriages, and the patriarchy of how those marriages operate."
And even if a lawyer could prove that a ban on polygamous marriage is a violation of the Charter, the government is entitled to defend the ban on the basis of greater societal good, Prof. Gilbert said.
Don Hutchinson, the legal counsel for the Evangelical Fellowship of Canada, said there have been several court decisions around same-sex marriage that could be used to defend polygamy. But he is counting on Parliament's current definition of marriage, which prevents multiple spouses, to douse the polygamy debate, he said.
"I am hopeful that where the courts will land is where they landed in the same-sex reference case in 2004," said Mr. Hutchinson, "that they will say, 'You know what, marriage [is] defined by Parliament and we're going to stick with that.' "
Salt Lake City lawyer Rodney Parker, who has represented members of the polygamous religious community in the United States, said yesterday the legalization of gay marriage in Canada will allow the court to focus directly on the defendants' constitutional rights in a way that U.S. courts could not.
With the Supreme Court of Canada decision legalizing gay marriage, Canada is "further down the path" than the U.S. on marriage issues, he said.
"It is a defence we've argued for in the states," Mr. Parker said in a phone interview from his office. The arguments, however, were ineffective because U.S. prosecutors went after sexual crimes, not polygamy. "The cases we had down here so far involved minors. Oler's case does not involve a minor."
Three possibilities are mentioned for distinguishing the polygamous and same-sex marriages.
1. Marriage is reasonably defined as a pairing.
2. The polygamous relationships involve "serious harms" and can be prevented on that basis.
3. Parliament can make a "social good" argument in the case of polygamy.
The last seems interesting in connection with Jerry Brown's Prop 8 brief, in which he argues that the legal question the S.C. must face is whether there is a compelling reason to abrogate the fundamental right to freedom that includes marriage. I.e. one might grant (if one were arguing in California) that polygamy falls under the protection of the right to freedom, and still make it illegal if you have a compelling reason for doing so.
The courts should not (though they might) be able to say 1 without also recognizing a long standing male-female pairing precedent.
Number 2 might be true, but that would require legislative action, not simply a court ruling (unless constitutional democracy doesn’t mean anything anymore.)
Number 3 is where the courts would be most likely to rule. In the US the phrase, “… secure the general welfare,” has been used to justify all sorts of obviously unconstitutional laws. I don’t know about Canada.
On a personal note, I have no problem with polygamy, so long as all involved are consenting adults.
What you say about 1 is interesting. If the argument were an appeal to tradition then it seems right, i.e. no reason to deny polygamous marriage (there have been more societies that recognize polygamy than same-sex marriage). If the argument were a sort of evo-bio-psych argument then it seems that there’s no reason to prefer pair-bonding for procreative purposes than harems, and so again no reason to prevent polygamous marriages if same-sex marriages are permitted. So in terms of definitional arguments about marriage, it looks like the slope might be slippery.
#2 would presumably involve letting stand the ban on polygamous marriages because the court might recognize that the serious harms are grounds for government concern. This would be an argument that the government has the right to prevent some forms of marriage, even while recognizing a right to freedom that encompasses marriage, coupled with the argument that while same-sex marriages do not give grounds for government concern, polygamous marriages do (whether this last point is essential or contingent can be left open, i.e. whether there is something in the nature of polygamous marriage that tends towards risk of “serious harms” or whether it just happens to be true that in groups that endorse polygamy, there tends to be other forms of abuse or injustice that go hand in hand with it and which are facilitated by polygamy).
#3 may be the same thing as #2 ultimately, depending upon what might be meant by “social goods.” Is it a threat to “society at large”? Or, a risk for some members of society if we allow polygamy? The latter would seem to be the same as #2. What the other notion would look like is unclear (how polygamy would harm society at large is unclear to me).
Of course, I’m talking about all of this without any real knowledge of the Canadian system.
Hmmmm, after thinking about 1, I want to change my dismissal in the comment. It seems to me that one might agree to:
PB: Human Beings have been selected for dispositions towards pair-bonding. The dispositions are effected as emotions (jealousy, love, etc.) These dispositions led to greater reproductive success through increased reproductive opportunities and greater care for offspring (which explains why we have this “nature”).
And then argue that the institution of marriage provides (should provide) the legal and practical structure that conforms to these facets of human nature.
This would entail that marriage can be reasonably defined as “pair-bonding” without the limitation of reproductive biological possibility that leads to the argument against same-sex marriage and to the current incoherence of the institution of marriage that such a limitation seems to entail.
Couple this with an argument that typically polygamy involves either an increased risk of harm, or is not obviously compatible with gender equality, or perhaps tends to reinforce a sort of sexism and injustice and the argument of form #1 above might succeed. This claim would be controversial for some.
If you start making arguments based on a presupposed “human nature,” then you run the risk of being considered to dehumanize anyone who proclaims not to have such a nature. I mean statistics show that a large majority of humans have it with their ‘nature’ to be heterosexual. You were right the first time, argument #1 has no teeth.
I certainly would not claim that someone who does not have the emotional tendencies that lead to pair-bonding is not human. The position I’m considering is that we have disposition that tends to make us seek pair-bonding relationships.
I tend to think that you are right that the argument “has no teeth” since it will just reproduce the circularity of arguments against same-sex marriage. But the difference between the two is interesting. The argument opposed to same-sex marriage tries to define marriage by its evolutionary “purpose” (or benefit). The argument that I’m exploring rests on the claim that we are disposed to form strong emotional bonds with another. The question is whether if that’s true, does it provide good reason to distinguish polygamy and marriage? I think it probably does not.
The argument still needs some reason to be concerned that polygamy threatens social goods or leads to dangers of serious harms.
One might mention that polygamy however justified in other ways would really confuse Estate Lawyers, such as the Mrs. But perhaps considering the billables, that wouldn’t necessarily be a bad thing.
Colin,
I was not implying that you meant to dehumanize anyone. I was pointing out the emotional argument that would likely be raised to pigeonhole you into appearing bigoted if you made that argument in any public venue. Though I guess that doesn’t really matter here…