Gay marriage & the BC polygamy court decision

It's not often I get to gloat in this blog and say "I told you so", but I'm going to indulge a little today. I saw the recent BC Supreme Court decision on the Bountiful polygamists coming, and I was correct in saying that allowing gay marriage in Canada did not set a precedent that inevitably lead to legalized polygamy.

Way back in 2007 I responded to an article by David Warren in the Ottawa Citizen in a post I called The polygamy red herring. Warren had written that

polygamy follows "multiple parentage" as night follows day. It likewise followed from same-sex "marriage" -- for if the institution cannot be restricted to one man and one woman, how otherwise can it be restricted?

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Long ago, we realized the marriage formula "one man, one woman" must secure the hearth of our settled culture -- that no other arrangement could possibly end well. The centuries pass, and we manage to forget why we came to that conclusion, and start tinkering with it again. Civilized men and women have their own taboos -- founded in reason and historical experience -- and the one against polygamy is (or was) among the most powerful. Cross the essential taboo lines, dare others to cross, and the superstructure of any society comes down, whether that society be civilized or primitive.

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Wake up, gentle reader. If you don't want polygamy in Canada, you had better start making a loud noise. For the internal enemies of our civilization have laid all the groundwork for this coup de grace.

In my response, I wrote:

Even rabid libertarians acknowledge that not all individual rights are worthy of protection. John Stuart Mill, in his great essay “On Liberty”, laid the framework that has guided most western common law rights traditions: he wrote that individuals are entitled to life, liberty and property rights only so far as the exercise of those rights does not harm the rights of others. You may have the right to keep plutonium in your garden shed, but if it makes your neighbours sick or you are planning to build a weapon of mass destruction with it, then the state is justified in restricting this right to property.

It is difficult, in my mind, to argue that gay marriage infringes on the rights of anyone else. If a homosexual couple gets married, I can’t see how this significantly harms heterosexual couples or society at large. Similarly, if the state recognizes that a child has three legal parents, I don’t find the argument that this harms children very convincing. I think it makes sense from a libertarian perspective for the state to recognize that there is no valid reason for people not to exercise their liberty in this regard.

However, a very strong case can be made that polygamy does create harm. First of all, let us recognize that in societies that practice polygamy, it almost always means that one man has multiple wives, and not the other way around. In a population that statistically has a 50-50 split between males and females, and where males take multiple wives, the logical result is that many young men are prevented from taking wives of their own. The result in these communities is that surplus young men are frequently ostracized or banished from their communities against their will. This phenomenon is well documented in polygamist communities in the U.S. and Canada. This alone would justify the state’s intervention in limiting a man’s right to take multiple wives.

Furthermore, polygamist communities have a disturbingly high rate of incest, child abuse and wife battering. In Utah, where approximately 2% of the population are practicing polygamists in spite of a legal ban on plural marriage, the Los Angeles Times reported in 2001 that polygamist communities had extraordinarily high levels of these crimes, as well as widespread reliance on welfare, unusual levels of child poverty, wide-ranging tax fraud, limited education, and over-taxed public services. It is difficult to prosecute polygamy in Utah because the victims in these cases rarely press charges and it is almost impossible to compel witnesses to testify. However, there is no doubt in most people’s minds (including most Mormons) that polygamy should be illegal - the harm it produces far outweighs the rights to liberty of its practitioners. The state is fully justified in prohibiting it.

Opponents of gay marriage (and now “multiple parents”) argue that once the precedent for “non-traditional” family arrangements has been set, there is now no argument for continuing to insist that other non-traditional practices like polygamy remain illegal. Nonsense. The state has imposed limits on heterosexual marriage for centuries; the courts have upheld traditional taboos against marrying your mother, or your sister, or your dog. It is a legal requirement for heterosexuals to limit the number of their spouses to one. Homosexual marriage has the same legal limits - the centuries-old common law traditions have not been overturned, they have been extended, to include gay couples.

Gay marriage is now legal because its opponents could not muster up enough support for the argument that it caused harm to society. Fair enough. However, it would be difficult to make the same argument for polygamy, and the courts can and will recognize this. In my opinion, the moral floodgates have not been opened - everyone take a pill and relax.

Justice Bauman of the BC Supreme Court apparently has a similar opinion:

Chief Justice Robert Bauman wrote that Section 293 of the Criminal Code, the law banning polygamy, does, in fact, run counter to sections of the Charter of Rights and Freedoms. In particular, he made reference to Section 2, which protects such fundamental freedoms as freedom of religion, and Section 7, which guarantees the autonomy of the individual.

He ruled, however, that the ban remains constitutional under Section 1 - allowing "reasonable limits" on absolute rights that can be "demonstrably justified" - because the harm that flows from polygamous relationships outweighs any violation of constitutionally protected rights.

Section 1 of the Charter of Rights and Freedoms states that in Canada, rights (including the right to religious freedom) are not absolute:

The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

As reported by Lorne Gunter of the National Post, Justice Bauman clearly outlined the justification for limiting the religious rights of the Bountiful polygamists:

Yet as B.C. Supreme Court Chief Justice Robert Baumann ruled on Wednesday, in upholding the constitutionality of Canada's anti-polygamy laws, "there is no such thing as 'good polygamy.'" While in theory polygamy should be an individual right, nowhere - at least not in North America - does polygamy exist without harm to children and mental damage to spouses. Therefore, Judge Baumann reasoned, while banning polygamy violates the religious rights of fundamentalist Mormons, that right is outweighed by the harm the practice necessarily does to women and children.

"The harms associated with the practice are endemic; they are inherent," the judge wrote in a 357-page decision. "This conclusion is critical because it supports the view that the harms found in polygynous societies are not simply the product of individual misconduct; they arise inevitably out of the practice." It is simply impossible to allow polygamy without condoning abuse.

Gay marriage has none of the inherent harms associated with it that polygamy does; I can't think of any situation where anyone would be coerced into a gay marriage (well, none that wouldn't similarly apply to heterosexual marriage) nor can I see any realistic harm to society at large that automatically ensues from allowing gay couples to marry.

Before Justice Baumann's ruling, the Bountiful case had skittish politicians paralyzed with indecision. We shouldn't confuse a failure of will on the part of the authorities to enforce the law with a collapse of the moral order brought on by gay marriage. Even though the ruling pointed out potential problems and loopholes in Canada's anti-polygamy laws and is likely to be appealed to the Supreme Court of Canada, there is no excuse now for governments not to act against the criminal offence of polygamy in Bountiful and elsewhere. Failure to enforce the law now can only result from spineless politicians trying to avoid confrontation. Don't blame gay couples for this.

"The decline of marriage isn't the fault of gays"

James Taranto at the Wall Street Journal wonders why opponents of the recent legalization of gay marriage in New York aren't also up in arms about a law passed last August instituting "no-fault divorce" in the state. After all, isn't it all about defending traditional marriage?

Last August, to far less public attention, lawmakers in Albany enacted legislation making New York the final state to institute no-fault divorce, thereby abolishing even the pretense that marriage is a lifetime commitment under the law. Under this regime, marriage is a lifetime commitment only until one spouse decides otherwise.

As a Bloomberg report noted at the time, the Legislature took this step for a good practical reason, "to reduce long, cutthroat court battles over who's to blame when marriages fail":

"There is a human cost and a financial cost" to a system demanding fault-finding, Robert Ross, supervising judge of the matrimonial division in Nassau County, New York, on Long Island, said before the bill became law. "It's hard to know what impact a new law will have, but we do know that a grounds trial, and the expense and delay associated with it, is not a good thing."

New York's previous fault-based divorce system was out of step not only with the laws of the other 49 states but also with a culture in which divorce is commonplace and marriage for life is no longer the norm. This state of affairs has multiple and mutually reinforcing causes: female careerism, which reduces the value of the traditional male provider; the social acceptability of nonmarital sex (still quaintly termed "premarital"), made possible by the easy availability of contraception and abortion; and welfare and child-support laws that create incentives for childbearing outside marriage.

None of these developments have anything to do with homosexuality. Deroy Murdock made a good point some years back when he observed, in a column posted at NRO, that "social conservatives who blow their stacks over homosexual matrimony's supposed threat to traditional marriage tomorrow should focus on the far greater damage that heterosexuals are wreaking on that venerable institution today."

Edward Morrissey at The Week makes a similar point:

Part of the decline of families that began in the 1960s can be blamed on cultural changes and rebellion against older social paradigms, and some on government interventions, such as welfare regulations that undermined marriage specifically. It also resulted from liberalized divorce laws, especially so-called no-fault divorce. While divorce was never illegal, until the latter half of the twentieth century, government treated marriage as an actual contract whose abrogation carried substantial civil liabilities. To obtain a divorce, a spouse needed actual grounds for termination of the marital contract, and courts, at least theoretically, issued property and custody settlements on the basis of fault. At the least, this approach made divorce costly and potentially ruinous, which may have left unhappy marriages in effect, but also solidified the stability that social conservatives seek.

After no-fault divorce and its equivalents prevailed, there were no substantial penalties for abrogating the marital contract. The original intent of no-fault divorce was to make the process easier and get courts less involved, and on those counts, it succeeded beyond anyone’s imagination. One spouse can end a marriage and end up with half the property and custody merely by walking out on the other. It’s the only kind of legal partnership in which one party can opt out with little consequence just because he might find another potential partner a little more attractive, or has unilaterally tired of the other partner.

American marriage didn’t get devalued because New York’s legislature followed that of New Hampshire and Vermont in legalizing same-gender marriage. It got devalued when we began treating marriages as less important and less binding than business partnerships.

Morrissey's solution is to get the state out of marriage altogether:

Instead of demanding that states define and enforce marriage in a narrow sense, conservatives should demand that government stay out of defining and performing marriages at all. Couples that want to form partnerships should create a legal relationship based on existing contract law that is neutral to issues of gender and sexual preference. When one partner wants to end a partnership, then the terms of the contract should be enforced by courts. That will not only get rid of government as a spiritual arbiter in marriage, a role for which it has repeatedly proven unsuitable, it would encourage couples wishing to marry to discuss and agree in great detail the terms of their relationship up front. That kind of preparation — and the knowledge that a court will enforce a partnership agreement — will produce better and longer-lasting partnerships, in part by discouraging impulsive decisions to leap into marriage in the first place.

Essentially, we would replace government-defined marriage with civil unions, or domestic partnerships. What would happen to marriage? Those who want to enter into a marriage relationship would have to go to the places better equipped to deal with sanctification: churches, synagogues, mosques, and temples. Will that mean that some churches have different definitions of marriage? Possibly. Some churches may decide to marry same-gender couples, others may not.

However, when government gets out of the marriage business, it won’t be anyone else’s business, and it will end government definitions that end up being seen as endorsements of certain lifestyles or denunciations of others. At the least, it would save the people who fought to get government to define marriage from the regret of watching how it gets defined as tradition wanes.

I think it is hypocritical for people who oppose gay marriage on the grounds that it amounts to a "war on the family" to remain silent about no-fault divorce and extending the legal rights of marriage to common-law partners, both of which have had far more impact on families than gay marriage ever will. Morrissey's suggestion makes sense to me: let churches define what the religious sacrament of marriage means, but extend the secular legal and contractual benefits of partnership to gays and straights alike.