This week a B.C. judge ruled to uphold Canada's 121-year-old law banning polygamy, bringing a temporary close to a case in which the law's constitutionality was called into question. In defending the ruling, Chief Justice Robert Bauman of the B.C. Supreme Court conceded that the ban on polygamy does infringe on religious freedom, however he maintained that this is outweighed by the harm that polygamy inflicts on women and children. In his ruling Justice Bauman also cited the damage caused to "the institution of monogamous marriage", being careful to ensure that gay marriage was conspicuously included his definition.
This is ironic, because reading the Judge's remarks, one can't help but conclude that if he had been asked to rule on the legality of same-sex marriage 20-years ago, he would have ruled against it and his reasoning would have been indistinguishable from the his ruling in the polygamy case. Indeed, these are precisely the same arguments that conservatives have used, and continue to use, in their efforts to forestall marriage equality. Needless to say, I disagree wholeheartedly with the Judge's ruling. My reasoning isn't because of any sympathy for the fundamentalist Mormons upon whom the law will have the greatest impact, but rather it's because the law banning polygamy, much like Canada's draconian marijuana legislation, infringes upon individual liberties and private citizens' right to make decisions about their own lives. I suspect that Justice Bauman's ruling is the result of his clinging to relics of 20th century social and political wisdom that society would do well to transcend. There are three major contentions from the ruling that I feel are incompatible with liberal democratic values, and that undermine to goals of a liberal democratic society.
1) Marriage is an institution that needs to be protected
The next time I hear some religious conservative pontificate about the sanctity of marriage, the institution of marriage, or some permutation thereof, I might just lose my lunch. In case people haven't noticed, marriage is a joke. Its roots in Western society come from patriarchal traditions in which women were passed from their families and to their husbands as property, much like we once did with slaves. Fortunately the role of women has evolved since those times, but this evolution has occurred in spite of marriage, not because of it. However, even if, for some reason, you're convinced that marriage is something that merits saving, then the first form of marriage you should consider banning is monogamous heterosexual marriage. If anybody is making a mockery of the institution, it's those of us who've never had to fight for the right to partake in it.
2) Banning Same Sex Marriage Infringes on People's Right to Religious Freedom
Although our Charter of Rights and Freedoms misguidedly affirms the right to freedom of religion, this section of the charter is both redundant and regressive. All religious rights that need to be upheld are already addressed in other passages, i.e. the right to freedom of thought, freedom of belief, and freedom of expression. Explicitly including religious freedoms in both the charter and the human rights code gives the false impression that otherwise-criminal acts can and should be excused if committed under the auspices of religion. Based on his comments, Justice Bauman appears to subscribe to this notion that religion makes unethical actions okay. If plural marriage were factually and demonstrably harmful to women and children (though I'm not convinced this is the case), then religion shouldn't even enter the discussion. The mere fact that Bauman feels compelled to rationalize the perceived religious discrimination in this case is problematic. Similarly, if my religion instructs me to prevent my children from going to the doctor when they become ill, or if my religion requires me to carry a concealed automatic weapon on my person at all times, I shouldn't be able to claim discrimination when I eventually get locked up. At most, religion should enjoy the same protections as other political and philosophical beliefs, since that is precisely what they are. The only difference is that, in general, political and philosophical beliefs are arrived at through some reasoned thought process, whereas religious beliefs tend to be based purely on unprovable dogma.
3) Women Need to Be Protected from Themselves
In his ruling Justice Bauman repeatedly cites the need to protect women and children from the harm caused by polygamy. I can understand the need to protect children (although I have yet to see any evidence of a causal link between polygamy and harm to children). But unlike children, women enter these relationships by choice. If they are being forced into these marriages, or are being manipulated and marrying while still underage then there are already laws to address that. Now, I'll be the first to agree that polygamy, especially in the fundamentalist Mormon tradition, is extremely patriarchal, and the women are not equal partners in those relationships. The resulting power imbalance means that they are more likely to suffer from intense jealousy, neglect, and overall feelings of inadequacy. But as adults, they have every right to inflict this fate upon themselves. If that's the way they want to live because they're convinced that it will allow them to become gods and rule over their own planet in some imagined afterlife, then so be it. As long as they aren't imposing this lifestyle on other people, I say go nuts. Although, it may be a little bit late for that.
