Canada polygamy ruling: Win, loss, or draw?

Reactions are spreading to Wednesday's court ruling in Canada, in which British Columbia Chief Justice Robert Bauman upheld Canada's anti-polygamy law while narrowing its scope. As part of his ruling, he drew a new distinction that puts "common law" polyamorous households and intimate groups outside the law's reach — unless they perform a marriage ceremony or "sanctioning event" obtaining some sort of sanction from some kind of authorities, formal or informal, and/or the community, in ways not well defined. To catch up on the news, see my previous post. [See also this key followup that may clarify the situation.]

The T-shirt version of the 335-page ruling as it applies to us is displayed above courtesy of the Canadian Polyamory Advocacy Association (CPAA), which intervened in the case to argue for legalization. Click the image to read the fine print. (And yes, you can buy the shirt.)

The case isn't settled. George Macintosh, the court-appointed lawyer who argued to decriminalize polygamy and lost, says he will likely appeal the decision. He has until December 23rd to file an appeal.

[UPDATE December 21: In a surprising development, Macintosh said today that he will not appeal Chief Justice Bauman’s finding.]

You can google up lots of coverage of the ruling in general.

Modern polyamory was a sidelight in the case, even though poly households across Canada far outnumber the patriarchal polygamists whom the case was primarily about. Polyamory would probably have been ignored altogether if the CPAA hadn't pushed its way in. As it was, polys maintained a big foot in the door from start to finish. The CPAA seized a place for us in court, in the national debate, and ultimately in the court's ruling. As commenter Tom G. says,

I am still trying to wade through the whole [ruling], but overall, other than the brief disappointment at not winning the lottery, I think it got exactly what CPAA needed to get from being an intervenor in this case.

More importantly, I don't think [1037] would've happened without CPAA's involvement, and for that I'd say it's an awesome result with very much thanks going to the CPAA leadership.

I also think it's very important that the clarification that leaves poly relatively safe from persecution will be indispensable in paving the way forward for more polys to become public.

Paragraph [1037] is the one declaring that the law against polygamy "is not directed at multi-party, unmarried relationships or common law cohabitation". This narrows down the law's target from the previous, very broad class of multiple "conjugal unions," poorly defined, which has stood since 1890. Multiple conjugal unions have now been explicitly declared legal in Canada if they are not "marriages." For this purpose, the judge defined a "marriage" as something created in a formal sanctioning event or ceremony, "whether sanctioned by civil, religious or other means, and whether or not it is by law recognized as a binding form of marriage."

That leaves a lot of room for confusion. And criticism for arbitrary hair-splitting and line-drawing. Indeed, the judge defended this act of line-drawing by comparing it to the difference between a .07 and .08 blood alcohol level; the practical difference may be insignificant, but if a "bright line" is to be drawn at all it has to be located somewhere.

So apparently if three friends agree to a life commitment together they're fine, if they tell others about it they're fine, but if they make the agreement in front of their community with applause and cake, they remain liable for up to five years in prison. And so do the guests who applaud and eat the cake.

[UPDATE: This is apparently not so. Simply performing a marriage-like ceremony falls well short of making it an actual (illegal) group marriage as the judge defined a "marriage," said CPAA attorney John Ince in an open letter to the polyamory community two weeks later after examining the decision more fully. Apparently, we're almost totally in the clear — regardless of any rings, vows, cake, and cheering family and friends.]

Not that such a wacky prosecution is ever likely to be brought. Me, I wouldn't worry.

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The CPAA and its lawyer John G. Ince cheered the overall result in their press release issued to the media hours after the decision. And Ince said in one of his national media appearances that while the ban on marriage-like ceremonies is troubling, "The formality of marriage is really not a big issue in the polyamorous community."

That got him in hot water with other CPAA members and on poly lists. He defended the statement as being factually correct — only a few polys seek formalized group marriage — though of course it's indeed a big issue for those who do.

Ince continued his reply on a private list (reprinted with permission):

Had the law been clear from the beginning that live-in polyamorous relationships were not prohibited, and that the only prohibition was on marriage, I doubt we even would have participated in the case. Our overwhelming concern was ensuring that people in the position of our [affidavit filers] would not be considered criminals just because they lived together.

...I think that Canadians need to understand that our dominant mission in this case is to protect common law families from criminal sanction. I also think that only once that principle is accepted can we take the next step. Gay history shows that liberation comes in steps. First gay relationships had to be accepted as legitimate and non-criminal. Once that occurred, then gay marriage followed. I think our normalization will follow the same course.

None of this is to support the judge's ruling that prohibits any form of multi-party marriage for anyone. I have stated in the media that I believe this is wrong, and makes no legal sense, and will continue to say that. But that is a secondary issue. The key issue that the media and that Canadians need to hear is that common law polyamory is valid and lawful.

Like it says on the shirt.

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One poly family that would still seem to be illegal was interviewed yesterday in the online newspaper the Vancouver Courier:

Court ruling mixed blessing for polyamorists

By Peter Tupper

Some Vancouverites in "polyamorous" relationships are feeling a mixed sense of relief after a court decision upheld Canada's law regarding multiple marriages. Released Wednesday, B.C. Supreme Court Justice Bauman's 335-page decision says the Criminal Code section that prohibits polygamy does not cover the various forms of consensual, non-monogamous relationships known as polyamory.

"My personal relationship is not illegal according to the definitions of this decision," said Zoe Duff, one of the directors of the Canadian Polyamory Advocacy Association who is in a polyamorous arrangement with two men. "That's a relief."

However, Bauman's decision also says formal marriages, legally recognized or not, with more than two people are against the law. This includes both Mormon fundamentalists with multiple wives in the Interior town of Bountiful and polyamorists who have formalized their relationships with ceremonies.

John, who asked that his real name not be given, shares an East Side house with a woman, another man and a child in what they call a triad relationship. "In our situation, we are one of those groups of polyamorists that [the decision] is not a victory for," John said. "We did participate in a ceremony. While it wasn't legal or religious, we had a full ceremony, we had rings, we had cake, we had guests, we had a ceremony."

His partner, who asked her name not be published and who is legally married to John, said she feels sad for her family. "In a situation that was based on deep love and caring, I have been now defined as something that Canada sees as criminal."

Justice Bauman's decision comes from a request from the B.C. Attorney General to the Supreme Court about whether section 293 of the Criminal Code is consistent with the Charter of Rights and Freedoms. The section is an old, rarely used law that makes practising polygamy, or even attending the ceremony of a polygamous marriage, an offence punishable by up to five years imprisonment. The attorney general hoped to use the law against the Mormon fundamentalist splinter group of Bountiful, a small community in south-east B.C. that practises polygyny: men having multiple wives....

Read the whole article (Nov. 25, 2011). The writer once worked for Ince.

"John" in this story tells us,

Our family has been discussing this a lot since the ruling, and while we feel pleased for most of the Poly Community we are not happy about how it maintains that we are criminals. Not that we think the police will be knocking at our door, but it is the principle of it.

The reporter is doing a longer story on our family that will come out in January.

In Xtra, "Canada's gay and lesbian news":

MPs react to BC polygamy ruling

Legal expert says decision leaves room for appeal

By Dale Smith / National / November 24, 2011

The decision from the BC Supreme Court upholding the constitutionality of laws against polygamy received unanimous support from all [political] parties in [Canada's capital] Ottawa on Nov 23, with justice minister Rob Nicholson announcing the [Conservative] government is “pleased with the decision.”

The court ruled that polyamorists should be allowed to have multiple relationships so long as they don’t get married, but polygamy will remain a crime.

...“We’re satisfied with that ruling,” says NDP justice critic Jack Harris, noting he hopes it will not be appealed....

...Liberal MP Scott Brison also approved of the ruling. “It reminds us is that the Conservatives’ fear-mongering decision that somehow upholding the Charter of Rights and Freedoms and extending same-sex marriage rights would lead to polygamy was totally bogus from the beginning,” he says.

Green Party leader Elizabeth May notes that the decision acknowledges there is an infringement on Charter rights in that people in polyamorous relationships cannot get married, but it’s considered reasonable under the circumstances. She says the nuance in the decision will affect a number of different communities.

“It’s important for people in the polyamorous community to be assured that this is not affecting them,” May says. “It’s clear that the attention that the court gives to harm is particularly to those who might be coerced at a young age.”

Carissima Mathen, associate professor of law at the University of Ottawa, is disappointed by the decision because it doesn’t challenge the arbitrary nature of laws singling out relationships based on the number of persons involved.

“The court really didn’t do anything with the definition of the crime, so polygamy is supposedly justified because it constitutes all these harms to women and children, but it can be applied to any relationship regardless of the breakdown of the genders,” Mathen says....

...Mathen says Chief Justice Robert Bauman’s ruling is also problematic because it makes the distinction that polygamy is related to marriage, and polyamory is simply social arrangements involving intimate relationships.

“The fact that the Criminal Code does mention conjugal unions, he denudes that of all meaning, but at the same time he’s presented us with a real conundrum as to when something will be considered a polygamous marriage and when it won’t,” Mathen says. “His intent, I think, was to somehow carve out a space for polyamory, but functionally I don’t know how that’s going to work.”...

Read the whole article.

A Ottawa Citizen column, reprinted elsewhere, dissents from the mainstream congratulations to the overall ruling:

Heartfield: We don't need a polygamy law

By Kate Heartfield

OTTAWA — Every time a woman gives birth in Canada, she has a one-in-15,000 chance of dying. Should women be allowed to choose how often they incur that tiny risk?

I ask this ridiculous question because apparently one Canadian judge thinks Canadian women can't be trusted to make that decision, or many others, for themselves....

...The demographic argument is a great big shiny distraction, and the judge was duly distracted. He says women in polygamous communities are at increased risk of harms including physical abuse, depression, loss of autonomy and yes, the physical risks that come with choosing to have more children.

Aren't many women in monogamous relationships subject to those same harms? The judge dismisses that question, saying he was only asked to look at polygamy. "That harm may arise out of other human relationships, that is, monogamous ones, seems beside the point."

Actually, that is the whole point. This is a question of criminal law, not social policy. Marriages don't commit crimes; people do. It is the abuse itself, not the kind of relationship it happens in, that ought to be criminal. And indeed, is criminal.

In buying into the notion that our laws should attempt to manipulate our demographics, not govern our behaviour, the judge has underestimated the role of human agency. Criminalizing the community takes the emphasis off the moral responsibility of the abusers themselves (after all, they're only creatures of a bad marital code) and patronizingly assumes that no adult woman should be able to choose, freely and competently, to enter into a plural marriage.

But she can enter into a plural common-law relationship — which the judge decided is perfectly legal.

That's just weird.... If the harms that arise from polygamy are really about things like how many women are available to how many men, why does it matter whether there's a ceremony or not? Bauman says evidence of a ceremony is not necessary to make the relationship a marriage, but is one factor the courts could consider when deciding whether a group of polygamists is illegally married or legally cohabiting.

...The very real crimes to women and children in communities such as Bountiful, B.C., must not go unpunished. But this ruling, which has very little to do with those crimes, ought to be overturned.

Here's a powerful dissent by a columnist in The Globe and Mail, sometimes called Canada's newspaper of record, to the most conservative and troubling of Bauman's declarations:

We have as many double standards on polygamy as Solomon had wives

By TABATHA SOUTHEY

I have concluded that this case is essentially about harm; more specifically, Parliament's reasoned apprehension of harm arising out of the practice of polygamy. This includes harm to women, to children, to society and to the institution of monogamous marriage.

—Chief Justice Robert Bauman in the B.C. Supreme Court decision this week that upheld the constitutionality of Canada's anti-polygamy laws

A list of things that have been decried as threats to monogamous marriage: contraceptives, gay marriage, sex education, out-of-wedlock cohabitation, lewd dancing to rock 'n' roll, women in the work force, legal alcohol, naughty films, no-fault divorce and educating women.

Yet even though all these things came to pass — and several of them would be a fair trade for monogamous marriage — the institution is still here. Possibly monogamous marriage isn't the fragile flower it's made out to be.

But Parliament's chivalrousness toward it, as reaffirmed by Chief Justice Bauman's ruling, makes me nervous anyway.

It assigns an inherent moral value to a particular kind of union over other kinds of relationships entered into by consenting adults, and I hate that. What's more, upholding a law that violates our Charter right to religious freedom in the name of protecting women and children from trafficking, rape, abuse and forced marriage is just faulty logic: These are already crimes.

Claiming they're more common in polygamous communities is suspect. Chief Justice Bauman specifically interprets the law as not applying to polyamorous relationships, so clearly the number of sex partners a parent has is not in itself construed to be the problem. Might it not be more accurate, then, to say these crimes are more prevalent in, say, religious cults — whatever their matrimonial arrangements?

...Chief Justice Bauman again confuses correlation with causation by basing his ruling partly on the fact that women in polygamous relationships “have more children, are more likely to die in childbirth and live shorter lives than their monogamous counterparts.” While this is probably true, it probably stems less from the fact that these women share one husband (a circumstance that might easily lead to women having less sex and fewer babies) than the fact that many women in polygamous relationships belong to religious sects that forbid contraception and whose doctrine dictates that women should bear lots of children.

Were the judge to extend his compassion for women further, we would have to look at Catholic and other religious teachings that have similar outcomes. Statistically, women who are married to one man are likelier to have more children and die in childbirth than women who aren't married at all, so we might as well conclude that marriage itself damages women's health.

This ruling demonstrates the tendency to compare only the best monogamous relationships against only the worst polygamous relationships. I've seen hard-core feminists get 18th-century sentimental over monogamous marriage when polygamy is mentioned. They even stop saying “patriarchal,” and require resuscitation.

...Monogamy isn't threatened by a small sect in British Columbia, and enshrining it won't alter the members' religious beliefs. But this ruling should concern all those perfectly nice Canadians for whom monogamy is no more an institution than is the missionary position.

Read the whole article (Nov. 25, 2011), and note the many positive comments.

John Bashinski, one of the CPAA's chief organizers and a member of an MFM triad family that submitted an affidavit in the case, was interviewed at length on CBC's "The Current," broadcast nationally:

...There are plenty of people today cheering the ruling, which stems from a case centred on a breakaway sect of the Mormon Church in Bountiful, B.C. But others argue that polygamy in Canada has — unjustly — been given a bad name. They say there are thousands of Canadians in polygamous or polyamorous relationships that are perfectly healthy ... that do not involve coercion, or abuse or trafficking of child brides.

Last November on The Current, we heard from a polyamorous family in Montreal ... Kimberly Ann Joyce, her two partners, Warren Baird and John Bashinski - and their then 3-year-old daughter, Kaia who is now 4.

John Bashinski also happens to be secretary of the Canadian Polyamory Advocacy Association — one of the interveners in the B.C. Supreme Court polygamy case. He joined us from Montreal this morning.

Listen here. Comments Carole Chanteuse of CPAA, "I would have to say he absolutely nailed all the points that needed to be made, and they let him do it and just keep talking!"

Here is another dissent to the idea that the ruling counts as a win:

Queer Ontario Denounces Court Decision on Criminal Code Section 293

The decision... found Section 293 to be constitutional because it supposedly protects women and children from the supposed harms of polygamy. While this may sound commendable, the ruling reveals that [Bauman] was more concerned with preventing the formal recognition of multi-partner relationships than protecting abused persons.

For one, Bauman determined that section 293 only applies to multi-partner relationships that take the form of a marriage — without clearly defining what a “marriage” is — leaving unmarried and cohabiting common law partners free to live their lives without fear of prosecution (Paragraphs 1023 and 1037 of the ruling). Similarly, Bauman ruled that the law applies to polyandry and same-sex polygamous relationships... because the government has an interest in the preservation of monogamous marriage, and the protection of individuals and society from the harms believed to be associated with polygamy [Paragraph 982].

“This creates a strange predicament,” notes Martin Otárola, Queer Ontario’s Secretary, “where individuals are free to form relationships with more than one partner, but are suddenly at risk of being charged with a criminal offence if they ever attempt to formalize their relationship. This begs the question: What is it about polyamorous relationships that make them perfectly acceptable under the law when they exist informally, yet so threatening once a request is made to have the rights, recognitions, and benefits afforded to married couples extended onto them? There is absolutely no logic behind this arbitrary distinction.”

...“Social conservatism seems to have led the judge to some illogical conclusions,” notes Alana Boltwood, Chair of Queer Ontario’s Research & Education Committee. “People should be free to love – and marry – whomever they please. We support consensual, honest and responsible relationships between any number of people.”

You can read Queer Ontario’s policy statement on non-monogamous relationships at http://queerontario.org/2011/11/24/non-monogamy-policy . Queer Ontario would like to thank the Canadian Polyamory Advocacy Association for their contributions to the British Columbia case.

Read the whole statement (Nov. 24, 2011).

See also Dawn Davidson's similar dissent from the "yay we won" stance.

Discussion is rolling at the Loving More Polyactive Yahoo group.

Carole of the CPAA says it "will shortly be putting out a more formal and considered statement of its 'take' on the litigation."

Other noteworthy media coverage of the polyamory angle is in my previous post. I'm not trying to keep up with all of it!

Cheers to the dedicated, intelligent, effective activists of the CPAA and especially John Ince. Starting from nothing two years ago, they organized from scratch and succeeded in getting a bad law redefined to explicitly legalize polyamory in Canada, if there is no formalized group marriage performed by a sanctioning authority. More broadly, they have helped turn an unknown word and an unimagined, paradigm-breaking concept into background knowledge for much of a nation's public.

Going forward, the group plans to stay involved in the expected appeal and perhaps the re-drafting of laws in the coming years — and to help make polys safe to be out and to fearlessly assert their place in society.

All this will be contingent on money and resources. Send them a donation; click the yellow button. I've just done it, and I say you should too.

Cheers,

Alan

(The shirt above is another of their ideas for public education going forward.)

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