CPAA Lawyer: Canada Decision a Clear Win

After two weeks of analyzing the British Columbia Supreme Court's ruling to support Canada's anti-polygamy law, attorney John Ince — who represented the Canadian Polyamory Advocacy Association in the case (and is poly himself) — has issued an open letter calling the ruling a nearly total, flat-out win for polyamorists. Although the ruling was hard on polygamists, Ince says it probably lifts the threat of criminality even from most wedding-like ceremonies, vows, and rituals that polyamorists would care to perform.

The crucial point: it's not a group "marriage" under the polygamy law unless it is binding and enforced by some sanctioning authority. It's not a marriage under the law if the parties can undo it just by walking away — i.e. without some authority granting them a divorce.

The "authority" here might be nothing more than a cult leader with acknowledged enforcement power over a small community, such as among fundamentalist Mormons. But without it, an intimate, life-pledged, ring-exchanging group relationship is not a marriage, it's a friendship. And now, after 121 years, it's legal in Canada.

Ince begins by warning that he's not giving legal advice and you should consult a lawyer for your circumstances. Nor is he speaking for the CPAA. He then continues:

In general terms, I think that the decision allows us to do virtually anything the vast majority of polyamorists would want to do.

That is not to say that I agree with all of the court’s conclusions. I think he made errors in his Charter analysis and I think the scope of the prohibition he ultimately defined is still overbroad and unconstitutional. I think this judgment could be overturned on appeal.

But while I may disagree with many of the judge’s points, his conclusion is very positive for our community. His decision makes it clear that polyamorists are not criminals, and this is a major step forward for our community to gain social acceptance and become more integrated into mainstream Canadian culture.

The Decision

The judge interpreted Canada’s criminal law against polygamy narrowly so that it only criminalizes non-monogamous relationships that are a) institutionalized b) marriages. The law, he said, protects the “institution of monogamous marriage”. He concluded that the law does not apply to non-monogamous relationships in general.

Of the two terms “institutionalized” and “marriage” the former is the most important, not only because it narrows the second term, but also because the concept of “institutionalized” is clearer than the concept of “marriage”.

The judge discussed three types of institutionalized marriage, and they give a guide to what he means by “institutionalized”.

The first type is the institution of two-person heterosexual marriage. As the judge discussed, that institution has thousands of years of cultural practice behind it and in Canada 150 years of formal legal definition and sanction. It is clearly an institution.

As to the key elements of that institution the evidence suggests these things:

1) marriage has a community dimension because the marriage affects the wider community and not just the parties to the marriage;

2) the community must in some way formally sanction the marriage through an authority structure;

3) some form of marriage registration must occur so the community can determine a marriage has taken place;

4) the public nature of the ceremony is in part designed to tell others that the parties to the marriage are off-limits for sexual purposes;

5) because the marriage affects the wider community the terms of the marriage cannot be renegotiated by the parties themselves;

6) the parties to a marriage cannot dissolve it themselves; dissolution requires another public ceremony or involvement of third parties (from paragraphs 227, 1020, 1037-1042 of the court’s decision).

The formal sanctioning by the Canadian legal system in the last twenty years of a new form of monogamous marriage – homosexual – which the judge also recognized, shows that marriage can be institutionalized by new practices.

...The third type of institutionalized marriage discussed by the court was that of the Fundamentalist Church of Jesus Christ of Latter-Day Saints (the “FLDS”), a patriarchal, polygynous and fundamentalist sect which broke off from the Mormon church many years ago. That community, although a virtual legal outcast from mainstream culture, has a roughly 150 year marriage tradition and it clearly meets the above criteria of institutionalization.

...Muslim multi-party marriage traditions are similarly rich in institutional detail and long practice.

According to the judge’s decision, the FLDS and Muslim multi-party marriages are institutionalized and hence prohibited by the Criminal Code....

Application of the decision to polyamorists

Now I apply these points with the facts that I believe pertain to the polyamorous community in Canada.

I see no form of polyamorous marriage in Canada that could be called “institutionalized” within the meaning of the decision. Nowhere in the literature about polyamory filed in the court is there any discussion of such an institution in Canada or the U.S.

There are some polyamorous community values regarding relationship: such as that it is consensual, honest, and gender- and sex-orientation equal, but this applies to all relationships, not “marriage”.

There are also community values about personal autonomy and the overriding right of the individual to follow their own path in getting in and out of relationship, while respecting the interests and feelings of others, and those values are incompatible with the institutionalization of marriage as discussed above.

I conclude that given the lack of polyamorous history, sanction or support for “polyamorous marriage” that polyamorous people cannot form the type of marriages that the judge found are prohibited.

I go so far as to say that even if polyamorous people wanted to form such relationships, they cannot. The whole structure of institutionalization that the judge emphasized over and over again as key to his decision is simply lacking in our community.

Could this structure be created by a sect of polyamorists who want to create a specific form of polyamory for their members? Yes, but they would have to create rules of membership in the community, an ideology of marriage or rules of marriage, a process of formalizing marriage, punishments for breaking marriage vows, and ways to dissolve the marriage.

...Given the current Canadian polyamorous community, I believe such a sect would have very few members. But if there are people who really want marriage then they can form that sect and take their chances with the law.

How far can we legally go?

Because there is no polyamorous institution of marriage, how far can polyamorous people go in celebrating and formalizing their relationships? In my view: probably as far as they want.

The furthest would be to have a formal celebration, with vows, and rings, and even to expressly call it a marriage. This is probably not a prohibited form of “marriage” because it lacks the institutionalization discussed above. Specifically, it is entirely ad hoc and personal to the parties. There is no community structure defining any aspect of the marriage, no third party dissolving the marriage, no punishment for leaving the marriage.

...Avoiding use of the word “marriage” or even formally disavowing that the celebration is a form of marriage would remove any legal risk that I can see. These steps may not be necessary; however I would include them if I was involved in such a ceremony.

So I think we can have ceremonies where we celebrate our relationships. We can take vows of love and commitment. We can share rings. We can have contracts about finances, and child rearing, and health care. All of those things occur regularly in common law monogamous relationships.

Borrowing institutionalized structure

An interesting issue would arise should a polyamorous couple want to borrow the institutionalized structure of a group that is not formally polyamorous. For example, say there is a ceremony that is overtly defined as a “marriage”, that also follows Wiccan traditions and which is presided over by an accredited Wiccan official. Or say there was a break-away sect of the Catholic Church led by a former priest who has a congregation and who will “marry” anyone or any number of people, using all the trappings of the Catholic Church.

I think the prosecution could make a strong argument that there was sufficient “borrowed institutionalization” applying to these official purported “marriages” to make them offend the law. Hence any explicitly purported “marriage” conducted by any official from a real community would not be advisable in my opinion.... but if you are determined to do that, your legal situation will be better but not absolutely secure if you do not call the ceremony a “marriage” and even better, formally disavow that the process is a “marriage”.

Pensions, immigration, community property, child custody issues

...Because the court found that polyamorous relationships that are not institutionalized into a form of marriage are lawful, people in such relationships no longer have to face the chilling argument in child custody, immigration or other matters that they are criminals. That is obviously a very positive outcome of this case.

Further, nothing in this case prevents people in cohabiting polyamorous relationships from entering contracts with respect to most key family issues, such as community property and the care of children, and hospital privileges.

However many issues cannot be resolved by agreement of the parties but must be specifically authorized by legislation, such as immigration privileges or automatic community property or pensions. Laws do grant privileges to people who are legally married, and also many common law monogamous marriages.

Many polyamorous people want those same rights.

The problem is that polyamorous cohabitation is so new that society has not yet worked out how to apply the rights that monogamous couples enjoy to a multi-party cohabitation.

These rights are going to have to be worked out on a case by case basis over time. Gay couples won their battles that way. Over a period of a couple of decades they litigated many cases dealing with child custody, pensions, tax issues, etc. It was only after those other rights and obligations were established — allowing gay relationships to become mainstream — did gay couples ultimately gain the privilege to participate in institutionalized monogamous marriage.

We need to remember that the gay marriage issue was the last major legal issue to be resolved about gay equality, not the first. If there are polyamorous people who want exactly what homosexuals got, who want the right to traditional institutionalized poly marriage, then the first step toward that goal is resolving all issues pertaining to pensions, and immigration in a purely co-habitational context and then some time in the future seek the final step of the legal recognition of polyamorous marriages.

John Ince

The complete open letter is on the CPAA site (Dec. 11, 2011).

Update, Dec. 21: In a surprising development, George Macintosh, the court-appointed lawyer who argued to overturn Canada’s anti-polygamy law and lost, says he will not appeal Chief Justice Bauman’s finding.

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