Dismantling The Saw About Polygamy and SGM

I see that a former Supreme Court Justice has a very similar take on the polygamy issue to what I have published on this blog before:

Claire L'Heureux-Dube, a retired Supreme Court of Canada justice, does not buy the argument that polygamy should be allowed in Canada in the name of freedom of religion.

"It is contrary to the equality of the sexes," L'Heureux-Dube said Thursday at a breakfast conference organized by Fatima Houda-Pepin, deputy Speaker of the Quebec national assembly.

L'Heureux-Dube, who has no problem with same-sex marriage, said the law is already clear in Canada and polygamy does not have the same acceptance as same-sex marriage.

...

"Marriage is a union of two people, period," she said, adding that Canada's Criminal Code clearly states that polygamy is illegal.

She makes one other very interesting comment, and it is one we should bear in mind when considering related subjects coming out of the United States, as well as some of the goofier things we've seen in Canada:

L'Heureux-Dube noted that in the United States authorities lay charges of sexual exploitation, rather than polygamy, because in the U.S. "freedom of religion has become a religion."

The retired high-court judge, who is still active at 81, said "reasonable accommodation" of religious differences is important, but it must be reasonable.

Revisiting the case of a Montreal YMCA that frosted its windows at the request of its Hassidic Jewish neighbours, she suggested a reasonable course for people who do not want to see women exercising in spandex.

"They should close their eyes," she said.

The simple fact is that the only people who claim any kind of relationship between SGM and Polygamy are the shrieking loons of the religious right. Nobody has ever put forth a single shred of coherent evidence that demonstrates even the slightest equivalency.

The coming trial will be very interesting indeed.

That Was Predictable

Sure enough, Winston Blackmore opened his mouth and the first thing he claims is that the charges against him are religious persecution:

“Tens of thousands of polygamists, among many different cultures, are hiding in plain sight all across Canada. They are known by their neighbours, police, legislators and the media just as we are,” he said. However those polygamists are accepted as active, valued members of the communities in which they live, he said.

“But they are not fundamentalist Mormons,” Mr. Blackmore added. “To us, this is about religious persecution. And persecution has always been about politics. Whatever else is involved in this, it is still all about politics.”

The argument that freedom of religion trumps the criminal code in this situation is intriguing. I think that the question that this raises is whether a specific religious practice is 'protected', regardless of whether it exploits people, or arbitrarily denies them other rights.

In the situation in Bountiful, there is the appearance of enough evidence to suggest that polygamy is in fact practiced by coercion. In which case, the situation falls well within the original intent of the polygamy laws - namely to protect people (in particular women) from exploitation.

What little I know of polyamorous relationships, they are seemingly more balanced than the situation in Bountiful - a relationship between peers, rather than what appears to be a basically subservient role for one or more members of the relationship.

The Bountiful situation is a much more rigid, inflexible model which places women in a position that inhibits their ability to exercise their individual rights under the Constitution.

So the question before the courts will in fact be whether or not the polygamous relationship that Mr. Blackmore is engaged in unreasonably restricts the rights of Mr. Blackmore's spouses to exercise their rights adequately.

I would argue that, for example, a religious believe that young males should be lashed to a stone and starved for six months would unreasonably restrict the rights of those lashed to the stone to exercise their rights. It would not be an unreasonable limitation on freedom of religion to consider that treatment criminal - likely along the lines of kidnapping, assault and unlawful confinement.

This is really the question which will ultimately end up before the courts in Canada.

This Is Going To Be Interesting

So, someone finally decided to lay charges in Bountiful.

“This has been a very complex issue,” said B.C. Attorney-General Wally Oppal. “It's been with us for well over 20 years. The problem has always been the defence of religion has always been raised.”

Mr. Oppal said some legal experts have believed that the charge wouldn't withstand a Charter of Rights challenge over the issue of freedom of religion.

“I've always disagreed with that,” he said. "Our belief is that it is a valid section [of the Criminal Code]."

Unless I miss my guess, but the arguments that will be used by the defense will rely heavily upon freedom of religion. Similarly, I expect that the prosecution will make arguments related to exploitation, and the social imbalance that has emerged in Bountiful.

Time to break out the popcorn and see what arguments are made in court.

Thoughts on the FLDS and Polygamy

With recent events surrounding the FLDS compound in Texas, I thought I would delve a little into the discussion of polygamy and why in a North American (and perhaps more broadly "Western") context it is a social structure which does not square with either our social norms or our laws.

The argument has been made repeatedly by various people that legalizing gay marriage would ultimately lead to legalization of polygamy. I do not believe that such is the case, and I will lay out some of my reasons for disagreeing with the initial claim.

In my view, the FLDS group stands as a case study in all of the things that can go horribly awry within the context of a polygamist society that is attempting to exist within contemporary society.

(1) Polygamy creates an environment which artificially imposes a secondary status on one of the parties. In the case of the FLDS, because they permit a man to have multiple wives, it is the woman who is relegated to a secondary status in the relationship. (Among other points, one has to wonder just what happens in these environments when a woman passes beyond her childbearing years, especially when the male is permitted to establish relations with women over a full generation younger than himself.

(2) Isolation. Although this is a reaction to both the group's perception of being persecuted, as well as laws which prohibit polygamy more or less across the western world, the FLDS response of walling themselves off from the rest of the world has proven to be a social disaster, as it removed some of the other social barriers.

Although modern society is strongly individualistic (I'll come back to this in a bit), we exist within the context of a very broadly based society that is anchored in a sense of national commonality. The self-imposed isolation of the FLDS has created an artificial tribal structure which operates with a hierarchy and set of social guidelines that are distinctly separate and at odds with the greater body of society around it.

(3) Ephebophilia

There are very serious allegations of child molestation involved here. I do not believe that the people involved here are psychological pedophiles, but legally they appear to have engaged in child molestation.

Superficially, I imagine that this has much to do with a combination of isolation, and the removal of the social barriers that would ordinarily prevent adults from expressing sexual interest in underage youth.

This is by far the most troubling aspect of the entire FLDS situation in Texas. In this situation, we have a series of decisions being made by the adults which profoundly affect their children in ways that are deeply negative to the psychological well-being of the individual.

Legal Considerations

There are significant legal considerations involved when assessing polygamy.

First of all is the fundamental principle in western legal traditions that rights are assigned to an individual. This means that the legal rights and status of each individual within the FLDS compound are in fact equally protected by law.

Yet, it is equally clear that the society that has been evolving within that compound does not in fact implement that legal equality. How can I make such a broad pronouncement without having seen the society intimately?

From where I sit, there is significant evidence from several respects. First of all, involving underage girls in sexual relationships speaks volumes about the social value that is being assigned to women in that context. The expectation appears to be that a woman's primary function in the world is the production of children, and her other attributes as a person take second place to that. One can imagine how that would translate into restricted access to education, as well as other subtle, arbitrary limitations being placed on these young womens' lives.

In general, legal rulings in both Canada and the United States have held that someone's rights cannot be arbitrarily abandoned. In other words, although you may choose not to exercise those rights, the right itself has not been removed. Polygamy, along with other tribal social constructs tends to focus upon collective rights which often conflict with individual rights and freedoms. Although our laws do reflect some sense of collective rights, they tend to do so only in areas where those collective rights are complementary to individual rights, not in conflict with.

I am certainly aware of polyamorous relationships which exist within the broad fabric of society. These are perhaps considerably different from the isolationist situation we have in Texas as they are attempting to exist within the overall norms of our culture. (How successfully is open to discussion, for I am not close enough to this subgroup in society to have any strong evidence either way)

The situation in Texas should be viewed as a caution flag when considering polygamy in the broader context of society and law. By placing itself apart from the broad fabric of society, the FLDS has created an environment where practices that are known to be damaging to individuals are sanctioned.

In many respects, this is not a condemnation of polygamy itself, but rather the Texas situation speaks loudly against any tribal social construct that attempts to hold itself apart from the social and legal fabric in society.

As with any social relationship, if the balance between the participants is not equitable, then one can expect all kinds of unfortunate outcomes. (It is not as if utterly dysfunctional or abusive situations don't happen in "traditional" marriage scenarios either) The real question is whether or not the Texas situation tells us something about the problems that polygamy can create, or does it merely show us the ugly outcome of strict social isolationism? (Just as the Jonestown incident tells us a great deal about the dangers when a religious cult goes too far)

I suspect that because polygamy tends to suggest a tribal social construct, and that it requires the gender which is on the "many" side of the relationship to accept a subservient status to the singularity (often male) that it would be hard for our lawmakers to create a law that would be able to define a legal recognition of polygamy that did not substantially infringe upon the rights of the parties involved.

Human nature is such that in any social construct a hierarchy of power will tend to emerge. This is not necessarily bad unless the hierarchy of power that emerges ceases to provide all participants with the right to decline their participation in the situation. (Someone under the age of majority is not held to have the capacity to make such decisions, and has a right to be protected from exploitation by their parents - something which the FLDS situation seems to have lost sight of)

To draw us back to the opening conversation, the key distinction I make between polygamous situations and same-gender marriages is that where most same-gender couples wish to exist peacefully within the fabric of society, we cannot make quite the same assessment of polygamy, which seems to often be associated with religious movements that wish to hold themselves apart from the greater body of society.