Tuesday, March 24, 2009

Coyne vs. Flanagan on polygamy

Apparently there is some sort of court challenge to polygamy laws going on and two heavyweights in small-government thought have weighed in on the topic.
Tom Flanagan favours keeping polygamy illegal by striking down the court challenge of Winston Blackmore and James Oler from Bountiful, British Columbia. According to Flanagan, the Charter shouldn't be a problem.
[...] the Charter also says all rights are subject "to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society."
Many other "free and democratic" societies, including the United States and many European countries, have criminalized polygamy, and their courts have always upheld such laws against legal challenge. What the U.S. Supreme Court said in its 1878 Reynolds decision is still compelling: Religious freedom means the state cannot punish people for religious opinions, but it can certainly regulate secular institutions such as marriage.
(Emphasis mine. Take note, all those who don't want to see churches forced to perform same-sex marriages. This isn't good for anyone.)
Flanagan believes that decriminalizing polygamy would lead to something resembling complete havoc, including the breakdown of democratic society, the undermining of equality, the overwhelming of the immigration system and the creation of an even slipperier slope than gay marriage could conjure up for the expansion of legal rights to another group of people. (Oh noes.)
I have more faith than Flanagan apparently does in the persistence of democracy and equality, and I don't think that "but the U.S. does it that way!" is much in the way of justification, but hey, if everyone agreed with me this blog would be boring.
Andrew Coyne, on the other hand, can't figure out why, exactly, polygamy ought to be a criminal activity.
It isn’t the discriminatory impact of Sect. 293 that condemns it, but simply that it is overkill. We don’t need to criminalize polygamy, not because we think it’s right or even acceptable, but because it is not the sort of behaviour properly addressed by the criminal law, and because we have other, less intrusive means of registering society’s abhorrence. And if we don’t need to criminalize a thing, we probably shouldn’t.
[...] consider the kinds of things that are not prohibited between consenting adults. A man may have sex with as many women (or men) as he likes, serially or coincidentally, individually or all at once. He may father children with any or all of them. He can marry one of them, and have sex with the rest. He can live together with all of them and their children, so long as they don’t marry or have sex. All of these things he can do without being charged with a crime. The only thing the law prohibits him from doing is marrying (or living in “conjugal union” with) more than one woman at the same time.
Coyne points out an (unfortunately) rare point - if we don't like polygamy, that's no reason to criminalize it. We can, for one thing, refuse to recognize it. We can also shun, roundly condemn and scowl at those rascally polygamists without spending the time or resources to put them in jail.
What on Coyne's laundry list of non-criminal activities is so different from polygamy? And assuming the husband and all the wives (or all the husbands... do people do that?) entered into their marriage (or marriages? I'm clearly not up to speed on polygamist lingo) willingly, where's the victim?
We can, and should, go after anyone who forces someone into marriage or sex or takes advantage of a child. Mixing this up with criminalizing polygamy more generally encourages polygamists to live in compound-like communities without outside influence - something I can only see increasing the chances of those sorts of abhorrent and legitimately criminal behaviour taking place.
Besides, woudln't we all rather the police spend their time investigating, arresting and prosecuting one murderer than a thousand polygamists? If nothing else, this should be a matter of priorities.
Full Flanagan and Coyne articles at the links.
h/t Ker for sending me another great Coyne piece.
Cross-posted to The Shotgun.

2 comments:

Kevin said...

Not to takes sides on this issue but I would point out that most countries that allow polygamy do not allow polyandry (One wife many husbands). That would not be the case in Canada if one is allowed so would the other. This could lead to some interesting child custody/support cases and also to chained marriages. It could indeed over time change the fabric of our society.

Scary Fundamentalist said...

Kevin:

Modifications to the institution of marriage have already drastically changed the fabric of our society; no-fault divorce and same-sex marriage are two big ones. If it wasn't a bad idea for those issues, then it isn't a bad idea for this one.

You can't use cultural customs to validate or invalidate particular policies. Just because certain Arab societies extend their mandated division of male/female roles into this particular policy doesn't make it bad.

Don't get me wrong - I fully disagree with polygamy. I just find everyone's reason for condemning it to be hypocritical if they don't also condemn similar policies in the past that have dramatically affected the institution of marriage.