In February, 2005, Vic Toews, who was then Justice critic for the opposition Conservatives, said changing the definition of marriage would open the door to court challenges from people who wanted polygamous unions.
But even those who argued in favour of expanding the definition of marriage to include same-sex couples say they anticipated this sort of legal manoeuvre.
David Rayside, a political science professor at the University of Toronto who studied the same-sex debate, said yesterday he is not at all surprised that the defence is being attempted in a polygamy case. But he doesn’t think it will fly.
“The claims by same-sex couples were, in some respects, very conventional,” he said. “In fact, there has been no significant change in the direction of moving beyond two people.”
This is exactly what people have been warning of. We’ll see how far it goes in Canada. What, precisely, confines marriage to two persons only, if we drop the traditional Western marriage of one man and one woman?
It sounds like there may be a statutory definition somewhere to save the day, but the commentators in the article make rather feeble, question-begging arguments:
[blockquote]”Daphne Gilbert, a law professor at the University of Ottawa, said the argument promised by Mr. Blackmore’s lawyer is predictable but without merit. The monogamous aspects of formal same-sex relationships are “actually in keeping with our view on marriage,” Prof. Gilbert said.[/blockquote]
That is one aspect of traditional marriage, but if you can change one aspect of marriage, why not others? Why is this aspect different?
[blockquote]Polygamy, on the other hand, has a completely different dynamic, she said.
“First of all, it’s not a one-on-one partnership.”[/blockquote]
See above.
[blockquote]”Secondly, the dynamics of polygamous relationships in Bountiful certainly involved serious harms around the age of the women getting married, whether or not they are truly consenting to the marriage, the extent to which parental involvement is a coercive part of those marriages, and the patriarchy of how those marriages operate.”[/blockquote]
These problems relate to how and not [i]if.[/i] Presumably, polygamy among consenting adults would overcome these objections.
[blockquote]”And even if a lawyer could prove that a ban on polygamous marriage is a violation of the Charter, the government is entitled to defend the ban on the basis of greater societal good, Prof. Gilbert said.”[/blockquote]
Which again begs the question. These people like one portion of the slippery slope, but not the portion a bit down the slope. They may convince a judicial decision maker of similar temperament, but their reasoning is not compelling.
🙄
As a lawyer I’ve always thought there was no way you could stop polygamy once you have same-sex marriage. If the courts are being honest, the same arguments that compel one mandate the other as well.
A polygamist could rightly respond that the arguments being put forward against polygamy are the same types of “irrationalities” that were used against same-sex marriage: societal good, harming families, not fitting within the “traditional definition,” etc.
These arguments are just as “polyphobic” as they are “homophobic.” Once they have been ruled insufficient in the same-sex context, you must reach the same conclusion as to polygamy.
In fact, what is the rationale at present, since virtually all laws governing sexual behavior have been thrown out? It is perfectly legal for a man to sleep with ten women, father children, and then not have any responsibility other than what can be compelled by a civil child support case. There’s no criminal penalty.
But if the same man wanted to “marry” the ten women and become legally committed as a spouse to care for them and any resulting offspring, that man has committed a felony and goes to prison.
It makes no sense.
Many people have forgotten about the US Supreme Court decision in the Lawrence case (repeal of Texas sodomy statutes) which said that government has no place restricting the private consensual sexual contact of adults. This case was intended to allow for same-sex physical relationships, but it did not specifically limit the gender or number of adults who could be part of a relationship. There’s no reason that individuals who are engaging in consensual, committed polygamous relations can’t claim that they are protected by the same “right” that was established in the Lawrence case. This case in Canada is following the same basic premise; if there is a right for any two people to have a sexual relationship, no rational or logical reason can be advanced for limiting such relationships to two people, since the qualities of being “consensual” and “committed” are not unique to a particular number of partners.
I’m not advocating for or railing against any point of view here; just illustrating that a logical premise is either valid, or it is not; and the number of people involved in sexual relations within this “logical premise” cannot be limited for any rational reason, once the right of sexual freedom has been established.
#4 Uh Clint wrote:
[blockquote]There’s no reason that individuals who are engaging in consensual, committed polygamous relations can’t claim that they are protected by the same “right†that was established in the Lawrence case.[/blockquote]
Yes, you are exactly right. And that was exactly the point of Scalia’s dissent in Lawrence, that once you created a “right” that overrode the ability of the State to regulate sexual conduct, anything would be lawful:
[blockquote]”State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers’ validation of laws based on moral choices. Every single one of these laws is called into question by today’s decision; the Court makes no effort to cabin the scope of its decision to exclude them from its holding.” (Scalia, J.)[/blockquote]