Tag: family

Periodically, I plan to share “deep dives” into academic or legal issues relating to families, kinship, and care that fall outside of normative/legally protected models. This first deep dive will cover the Polygamy Reference – a legal case from 2011 in Canada that challenged the constitutionality of anti-polygamy laws. More specifically, it will consider the narratives that emerged throughout the reference proceedings about normative citizenship, who qualifies as a “family”, and why this is important to the state.

An important note: I am not a lawyer, and nothing in this post should be considered legal advice.

Introduction 

After decades of keeping a relatively low profile in Canada, the practice of polygamy came back under scrutiny in 2009 when a reference case was initiated in British Columbia to evaluate whether long-standing anti-polygamy laws were constitutional (Fowler, 2012). Throughout the reference process, polygamy was presented as a threat to the institution of monogamous marriage, which was idealized as an institution that protects women and children from harm. By framing polygamy as a threat to the “shared Canadian value” of monogamy, the ruling frames monogamy as the norm, and specifically locates it at the top of a hierarchy of relationships. This legal distinction contributes to social stigma that can have real consequences in the personal lives of polyamorous and other consensually non-monogamous people, as well as sexual and religious minorities more broadly, as it casts them as outside of sexual citizenship. Fears about contamination of racial and religious purity shaped the formation of anti-polygamy laws, and continue to influence their implementation and enforcement today. 

My arguments will be divided into four sections: In section 1, I will discuss the legal background of the polygamy debates in Canada. In section 2, I will discuss sexual citizenship and the ways that monogamy is constructed as a central component of Canadian identity and proper citizenship. This will include a discussion of social and legal discrimination against consensually non-monogamous (CNM) people that stems from their exclusion from sexual citizenship. In section 3, I will expand this argument to connect the racist history of anti-polygamy laws to their current implementation that advances Islamophobia and xenophobia through Orientalism. In section 4, I will consider arguments about the value of marriage and conjugality more broadly as an organizing structure of society and challenge the argument that laws against polygamy are justified because they mitigate harms to women and children.

I will begin with a brief note on definitions. For the purposes of this paper, polyamory, consensual non-monogamy, and ethical non-monogamy will be used interchangeably to refer to the practice of having more than one simultaneous relationship that can be romantic, sexual, and/or intimate in nature (Barker & Langdridge, 2010). It is critical to note that these terms are not always interchangeable outside of the current research and their definitions are contested. While polyamory is always considered a form of consensual or ethical non-monogamy, not all consensual non-monogamy is necessarily polyamory. However, as much of the existing research on the topic uses these terms synonymously, it is necessary to remain consistent by using them accordingly in this paper. Polygamy refers to the practice of having more than one husband or wife at the same time, and includes both polyandry (a woman having more than one husband) and polygyny (a man having more than one wife). It should be noted that almost all known cases of polygamy in Canada involve polygyny, and as a result, the term polygamy is generally used in the law to refer to the actual practice of polygyny (Chan, 2011). 

Section 1: Historical Overview and Legal Debates

To grasp how anti-polygamy laws have shaped Canadian norms and values, it is important to provide clarity about what exactly is criminalized in section 293 (s. 293) of the Criminal Code of Canada. The law states: 

Everyone who (a) practises or enters into or in any manner agrees or consents to practise or enter into i. any form of polygamy, or ii. any kind of conjugal union with more than one person at the same time, whether or not it is by law recognized as a binding form of marriage, or (b) celebrates, assists or is a party to a rite, ceremony, contract or consent that purports to sanction a relationship mentioned in subparagraph (a) (i) or (ii), is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years (Barnett, 2013, p. 64).

In the text of the law, conjugal union is not clearly defined. Barnett (2013) points out that requirements for conjugality that are used in family law including having a sexual relationship, cohabiting, raising children together, or being economically interdependent are not considered requirements for conjugality under s. 293, thus leaving the law open-ended and its enforcement up to the discretion of local law enforcement. In other words, the law does not clearly define what qualifies as a conjugal relationship, but simultaneously criminalizes the practice of being in more than one conjugal relationship at the same time. As will be demonstrated in the sections that follow, this ambiguity can have serious consequences for vulnerable populations and result in uneven and biased enforcement. 

While versions of s. 293 have been in existence since 1892, it has rarely been enforced (Fowler, 2012). It rose to prominence again in the case of R v. Blackmore, often referred to as the Bountiful case. It involves former bishops Winston Blackmore and James Oler, fundamentalist Mormons from Bountiful, British Columbia, who both have multiple wives and dozens of children. Earlier attempts to prosecute them were thrown out due to a lack of clarity in Canadian polygamy laws (Barnett, 2013), so on October 22nd, 2009, a reference case (dubbed the “Polygamy Reference”) was initiated by the Attorney General of British Columbia to interrogate whether s. 293 was constitutional (Barnett, 2013). At the end of the reference process in 2011, the court ruled that the law should be upheld (The Canadian Press, 2017). New charges were brought forward in 2014, and Blackmore and Oler were convicted of polygamy in 2017 (CBC News, 2017). 

The legal arguments against polygamy throughout the reference process were rooted in the idea that polygamy was a threat to the institution of monogamous marriage. By framing polygamy as a threat, the ruling also framed monogamy as the norm, and specifically located it at the top of a hierarchy of relationships. This was only possible through the “othering” of non-monogamous relationships, which were seen as “less than” monogamous relationships by default. In the Reference proceedings The Honourable Chief Justice Bauman stated: 

I would expand upon an important point with respect to the purpose of s. 293. In my view, it is directed in part at protecting the institution of monogamous marriage. At first blush, this characterization of its object seems to undercut the thesis that s. 293 is directed at addressing harm – the harm viewed as arising from the institution of polygamy.
I say this in response: the harms said to be associated with polygamy directly threaten the benefits felt to be associated with the institution of monogamous marriage − felt to be so associated since the advent of socially imposed universal monogamy in Greco-Roman society.

As I said above, the prevailing view through the millennia in the West has been that exclusive and enduring monogamous marriage is the best way to ensure paternal certainty and joint parental investment in children. It best ensures that men and women are treated with equal dignity and respect, and that husbands and wives (or same sex couples), and parents and children, provide each other with mutual support, protection and edification through their lifetimes.

The negative and the positive aspects of the polygamy prohibition are two sides of the same coin. The prohibition abates the harms to individuals and society associated with polygamy, and it protects and preserves monogamous marriage, the institution believed to advance the values threatened by polygamy (Reference re: Section 293 of the Criminal Code of Canada, 2011).

In the section that follows, I will discuss the ways that this law and its focus on monogamy as a universal social good contributes to dehumanization, stigma, and discrimination against non-monogamous people, even when those same people are not directly criminalized by the law itself. 

Section 2: Sexual Citizenship and the Non-Monogamous “Other”

As Brenda Cossman argues, citizenship is associated with a set of practices that define who has rightful membership in the nation state, and the acceptable sexual citizen is one whose sexuality aligns with normative relationship structures, that is heterosexual, repronormative, married, and monogamous (Cossman, 2002). This is why, according to Barker and Langdridge (2010), openly non-monogamous people “remain abject sexual citizens, often unable to claim the relationship rights gained by monogamous couples … they remain strangers in our midst” (p. 756). Building on this, Gaucher (2016) argues that an ethos of sexual responsibility is used to define who qualifies as an ideal sexual citizen in Canada, and this citizenship is then used as a tool of national unity and nation-building. This monogamous privilege is reinforced through mononormativity, which “was coined by Pieper and Bauer (2005) to refer to dominant assumptions of the normalcy and naturalness of monogamy, analogous to such assumptions around heterosexuality inherent in the term heteronormativity” (Barker & Langdridge, 2010, p. 750). 

When the Canadian Polyamory Advocacy Association (CPAA) filed as intervenors in the Bountiful case, their primary concern was that anti-polygamy laws could criminalize polyamorous people engaging in multiple simultaneous relationships. While Chief Justice Bauman was quick to insist that s. 293 would not be used against secular polyamorous relationships (for reasons that will be unpacked below), the direct legal impacts of the law are not the sole concern for consensually non-monogamous people. As Conley et al. (2013) point out, “legal precedents have the ability to mark a certain class or group of people as immoral or unworthy, by fact of unequal protection” (p. 5). In other words, the legal system can directly contribute to creating stigma and discrimination against certain groups (Conley et al., 2013). Barker and Langdridge (2010) argue that people who practice various forms of consensual non-monogamy are “demonized, pathologized, marginalized and subject to the social regulation of ridicule” (p. 756) and that these public perceptions contribute to further legal discrimination. Barnett (2013) highlights some of these possible areas of discrimination, including visitation rights, decision-making during health crises, employment discrimination, custody disputes, property ownership, inheritance, and partner immigration. While public information about the details of child custody cases can be difficult to come by, the National Coalition for Sexual Freedom reports that in 2018 they received seven requests for assistance from non-monogamous parents involved in custody disputes (“2018 Incident Reporting & Response Report,” n.d.). In 2017 they received 9 requests for assistance of a similar nature (“2017 Incident Reporting & Response Report,” n.d.). By treating non-monogamy as less moral or worthy than monogamy, the legal system dehumanizes everyone who falls outside of the monogamous ideal. 

Dehumanization occurs when a targeted group is seen as not sharing in the normative values of larger society, and is hence considered a lesser version of humanity (Rodrigues et al., 2018). This dehumanization can lead to social exclusion, violence, and denial of legal rights. In their study of attitudes towards consensual non-monogamy (CNM) in three European countries (Croatia, Italy, and Portugal), Rodrigues et al. (2018) found that participation in CNM was associated with greater degrees of dehumanization than sexual orientation. They hypothesized that perceived promiscuity may be a greater factor in discrimination than orientation: “dehumanization may be more aligned with a stereotypical view of promiscuous behaviors (Mak & Tsang, 2008; Wilkinson & Roys, 2005), rather than a stereotypical view of sexual orientation per se. This suggests that, in eliciting dehumanization, the deviation from mononormativity—typical of CNM partners—is stronger than the deviation from heteronormativity—typical of gay men—at least concerning romantic partners” (p. 510). Theorists such as Phillips (2014) have argued that sexual “immorality” and promiscuity are ultimately the primary targets of s. 293, as consensually non-monogamous people threaten the notion that pleasure is something immoral which must be controlled. She further argues that since criminalizing promiscuity would no longer be socially acceptable, Chief Justice Bauman “influences what he cannot directly regulate” (p. 157).  

This concern about non-monogamy advancing immorality and promiscuity and thus threatening the sanctity of marriage is further emphasized by Conley et al. (2013). Connecting it to the same-sex marriage debates in Canada and the United States, they highlight the way that fear-mongering about the possibility of needing to extend legal rights to consensually non-monogamous people in the future was used as justification to frighten people into voting against civil rights for LGBTQ+ people. This strategy would not have been so central to organizing against same-sex marriage if monogamy and its associated moral values of fidelity and restraint were not considered so critical to protect.  

In reaction to those critiques, the pro-same-sex marriage campaign in both Canada and the US also attempted to exclude and distance themselves from non-monogamous LGBTQ+ people and to conform queer relationships to more respectable norms, a process often referred to as homonormativity. As BJ Wray (2013) argues, the same-sex marriage campaign did not simply fail to address polygamy, polyamory, and group marriage, it actively disparaged it. According to Wray, same-sex marriage actually served to further entrench monogamy as central to Canadian identity, as the campaign relied heavily on arguments that LGBTQ+ couples were just like any other heteronormative couple in all ways except for their sexual orientation. This framing of same-sex marriage was actually directly noted in the Polygamy Reference proceedings, which highlighted the fact that same-sex marriage was legalized because these committed same-sex relationships helped reinforce and strengthen the institution of monogamous marriage (Phillips, 2014). 

People in monogamous relationships are not only viewed more favourably in terms of their relational model, they are also considered to be better citizens (by mainstream Western understandings of the term) overall. A study by Conley et al. (2013) found that participants perceived people in monogamous relationships as more invested in taking care of others, more law-abiding, more consistent about recycling, more likely to volunteer in their communities, more likely to donate to charity, more well-educated, and more generous tippers than people in consensually non-monogamous (CNM) relationships. This demonstrates the impacts of an ongoing process of “othering”, and can also result in overt revulsion towards non-monogamous people. Consider Dr. Carrie Jenkins, a prominent philosophy professor at the University of British Columbia who is openly polyamorous. In a profile on Jenkins, Weigel (2017) writes: “strangers threaten her on Twitter: ‘Why are you acting like this is an ok thing? Get herpes and die, slut. Sharia law looks more attractive by the day’. One message she shows me is from someone whose handle contains the name RAMBO and whose feed features pictures upon pictures of guns. Jenkins says that she feels safer living in Canada than she would if she lived in the United States, ‘but who knows? It takes only one angry man’” (p. B8). 

The threat of social exclusion, legal discrimination, and physical violence highlights the power of sexual citizenship as a normalizing force. Further, this discrimination encourages polyamorous people to depoliticize themselves and attempt to conform to more respectable norms of sexual citizenship by distancing themselves from swingers and other “less respectable” forms of non-monogamy, thus further entrenching normative sexual and relational models. For example, the Canadian Polyamory Advocacy Association (CPAA) was quick to point out in their challenge in the Polygamy Reference that polyamory conforms to respectable norms, stating: “polyamory is not casual group sex. Rather, its fundamental value lies in the relationships at its core.” They continued: “other than their relationship structure, polyamorists live mainstream lives fully integrated with their communities” (Reference re: Criminal Code, s. 293, 2010). This demonstrates that polyamorous groups feel they must align themselves with “respectable” heteronormative ideals in order to be taken seriously, and leaves no room for legal decisions that would provide meaningful rights to polyamorous individuals and families.

As Barnett (2013) points out, the CPAA actually went so far as to emphasize that they were not seeking positive rights: 

Stretching the zone of privacy, the CPAA emphasized that they simply do not want “the state in the kitchens and the front rooms of the nation” (Duff 2010, February 20). They asserted that, “[w]hatever flows from that—the rights of multiple partners to pensions, adoption or immigration sponsorship—are issues for future rulings many years, and many appeals, down the road” (MacQueen 2010, March 17) … They are not asking for their intimate practices to be sanctioned or supported, only decriminalized (p. 68).

This “don’t ask, don’t tell” approach to non-monogamy suggests that non-monogamous people may be contingently welcomed into the borders of sexual citizenship as long as they “do not challenge the dominant monogamist social order or its attendant distribution of resources” (Barnett, 2013, p. 72). In fact, the primary argument used by the Court to reassure polyamorous people that they were not within the purview of s. 293 was that they were “not part of an articulated community, not possessing a particular community religious practice, and not having relationships that are likely to be socially legitimated. Polyamorists were, explicitly, deemed not to be a threat to the state as long as they seek no social recognition for their relationships” (Barnett, 2013, p. 72). A number of theorists including Cossman, Berlant, and Warner (Cossman, 2002) have talked about the cost of this normalizing discourse. If rights are gained by conforming to respectable norms, this often occurs at the expense of transgression, subversion, and structural change. Under sexual citizenship, inclusion is only offered to those who are willing or able to be depoliticized and de-eroticized, and those who do not challenge oppressive structures or systems. In the next section, I will examine how this normalizing discourse originated as a form of state violence rooted in racism and xenophobia, and how that history continues to influence the enforcement of the laws today.

Section 3: Islamophobia, Orientalism and Homonationalism 

As Natalie Kouri-Towe (2012) points out, this shift towards including certain sexual minorities within sexual citizenship as long as they conform to larger normative relationship and family structures also acts as a tool to distract from the ongoing inequalities that still exist within the Canadian socio-legal context. She also argues that by including certain “respectable” minorities under the terms of individual rights, Western countries then use this “inclusion” to demonstrate how modern, liberal, and democratic they are, a concept that is referred to as homonationalism. She makes an interesting connection between the idea of homonationalism and Edward Said’s concept of Orientalism, in the sense that both address the ways that Western countries create an image of themselves as morally and culturally superior to cultures that they identify as “backwards” or “uncivilized”.

The connections between normativity, Orientalism, and polygamy become even more clear in the context of the “Zero Tolerance for Barbaric Cultural Practices Act”, aka Bill S-7. The intentions of this bill were clear: “to ward off the new threats to conjugality apparently posed by child marriage, forced marriage, and plural marriage, and to position them clearly as uncivilized and unenlightened practices of cultural outsiders” (Cossman & Ryder, 2017, p. 243).

This Act was heavily xenophobic and Islamophobic, and specifically identified polygamy as a barbaric cultural practice and grounds to deny admission to Canada for migrants. This reinforced the idea that monogamous marriage is literally central to Canadian citizenship, and cast certain religious minorities, including certain branches of Mormonism, certain branches of Islam, and some Indigenous practices as outside of sexual citizenship and the legal protections of marriage.

It also further entrenched the idea that polygamy is a “cultural practice”, which can in turn be prevented from infiltrating Canadian society by ensuring that polygamous “others” are kept out at the border. As former NDP MP Lysane Blanchette-Lamothe asked during debates about the Zero Tolerance for Barbaric Cultural Practices Act: “Could the parliamentary secretary tell me what culture is in Bountiful?” (Gaucher, 2016, p. 529). As Gaucher (2016) further argues, framing polygamy as a distinct cultural practice encourages a line of thinking that suggests that white Canadians are cultureless, while racialized immigrants bring “barbaric” cultural practices with them that must be resisted. This also explains the disproportionate focus on polygamy as practiced in certain small religious communities, rather than polyamory, which is practiced by a much larger percentage of the Canadian population, but is also often associated with whiteness (Barnett, 2013). Chief Justice Bauman did not shy away from this fear in his statements about the value of maintaining s. 293, and stated that legalizing or decriminalizing polygamy could result in the: “rapid production of certain immigrant groups” (Reference re: Criminal Code, s. 293, 2010).

This idea of polygamy as a cultural practice associated with a foreign “other” can also help explain the sudden uptick in enforcement of Canada’s polygamy laws in recent years. As previously mentioned, polygamy has been illegal in Canada since 1892, but in the over 100 intervening years prosecutions or even attempted prosecutions have been rare. Bountiful, the polygamous Mormon community in British Columbia at the centre of the R v. Blackmore case, existed quite openly for more than 50 years with little interest from law enforcement (Gaucher, 2016). It is here that Gaucher draws interesting parallels to debates around faith-based family arbitration policies in Ontario in the early 2000s. At the time of these debates, Catholic and Jewish tribunals had been operating (legally) for over 10 years, primarily overseeing family dissolution disputes (Gaucher, 2016). When Muslim leaders in Ontario advocated for faith-based arbitration tribunals that mirrored the Catholic and Jewish models, Ontario law was changed to ban faith-based tribunals outright. Similarly, polygamy in Canada flew under the radar for more than a century, until it became a useful tool to address xenophobic fears of rising Muslim immigration. 

At this point, it is helpful to consider the way race and especially Islamophobia has shaped the historical debates around polygamy in Canada, and how monogamous marriage has been used as a tool of the state to preserve white hegemony. From the original inception of the law to its current use, s. 293 has been used to police and discipline socially and politically marginalized groups, often along racial lines (Chan, 2011). As Denike (2010) points out, marriage advocacy in the United States has always been concerned with “distinctions of blood that served to naturalize racial difference and racial hierarchy” (p. 853). Although Mormons who practice polygamy in Canada and the United States are almost exclusively white, they have historically been framed as race traitors. This attitude is directly linked to fears of contaminating racial purity. This fear is clearly articulated by Lieber in his text On Civil Liberty and Self Government, published in 1874 and widely read at US colleges at the time: 

Mormonism, as Lieber claimed, “is one of those subjects in history that “make the beholder bend down his averted face and exclaim – ‘I, too, belong to this race!”‘ Its very presence takes “the whole race, … in its downward direction” and “throw[s] mankind back” (Lieber 1855, lOfn). The prospect of polygamy being practiced among us, as Lieber sees it and fears it, means that “our” society could become “bona fide Africanized,” or “so filled with Chinese that the whites were absorbed!” (Lieber 1855, 12). As Bruce Burgett succinctly puts it, the trouble with the Mormons, for Lieber, “is not that they are already ‘Asiatic,’ but that they are in the process of becoming ‘Asiatic,’ thus risking the ever expansive and always civilizing modernity of the ‘Caucasian race'” (Burgett 2005, 86). It was the job of Congress to maintain the unity of the nation, as Anglo-Saxon, and to eliminate the contagion of racial degradation that festered through polygamy” (Denike, 2010, 862).

Lieber was writing at a time when Utah’s possible inclusion in the Union was being considered and debated (Denike, 2010). Despite being white, the attempted exclusion of Mormons from both the literal and figurative citizenship of the nation was firmly rooted in Islamophobia and Orientalism. In discussions of polygamy at the time, parallels were frequently drawn to Middle Eastern “harems”, which were framed as symbols of excess and a lack of sexual restraint (Denike, 2010). Appealing to Congress in 1854, Benjamin Ferris referred to polygamy as the “‘offspring of lust,’ and argued it would ‘soon manifest in the rapid degeneracy of races’ (Ferris 1854, 247; cited in Ertman 2010, 313). It already ‘belongs now to the indolent and opium-eating Turks and Asiatics, the miserable Africans, the North American savages, and the latter-day saints” (Denike, 2010, p. 864). Mormonism at this time was frequently associated with “Mohamedism”, so much so that in many texts around this time, Joseph Smith, the founder of the Mormon Church, was referred to as the “second Mohamet” (Denike, 2010, p. 864). It is this American context that directly informed the creation of anti-polygamy laws in Canada, which were created in response to the threat of Mormon immigration to Canada from the United States (Fowler, 2012).

Returning to the present day, even in apparently progressive feminist discourse, the ongoing legacies of racism and xenophobia continue to shape polygamy debates in Canada. Throughout the multi-year Polygamy Reference process, numerous intervenors brought arguments forward both in favour of and in opposition to s.293 of the Canadian Criminal Code. One notable intervenor was the West Coast Women’s Legal Education and Action Fund (LEAF). LEAF’s position was that polygamy is inherently harmful to women and children, and therefore the laws against it should be upheld (Chan, 2011). By framing polygamy as inherently exploitative while leaving monogamy unexamined, LEAF contributes to a larger narrative that presents certain cultures and religions as “backwards” and discriminatory to women. (A quick side note here: reading I’ve done in the intervening years suggests that LEAF’s position on this has become more nuanced – and overall, they do important advocacy work on many topics). This functions by “reinforcing the dichotomy between a civilized, Western ‘us’ and a barbaric, non-Western ‘Them.’” (Chan, 2011, p. 17). This is part of a trend of associating discrimination experienced by racialized women as a result of a “sexist culture”, while discrimination experienced by white, Western women (at the hands of white, Western men) is perceived as being the result of bad behaviour from a few outliers. By failing to think of violence and oppression perpetrated by white men as “culture”, it is possible to overlook patterns of patriarchal violence and frame gender equality as a marker of progressive, Western civilization (Chan, 2011). “In this vein, Razack explains that ‘dominant groups are thought to have values while subordinate groups have culture’ and while the minority ‘culture’ is expected to ‘clean up its gender act,’ one that is framed as unchanging, backwards and barbaric, the unmarked gender practices of dominant groups remains invisible and un-interrogated as the norm” (Chan, 2011, p. 24). This approach allows feminism to be used as a cover for colonial projects that view Western perspectives on gender, monogamy, and marriage as the only path towards true gender equality. 

This is even more apparent when the differential treatment of polygamy and polyamory is factored in. Like Chief Justice Bauman, LEAF was quick to emphasize that their concerns about harm to women and children only extended to polygamy, not polyamory, despite the negligible differences between the two under the law. Chan (2011) cites Harsha Walia when she states: “while polyamory is used to define a relationship based on mutual negotiation between ‘independent people,’ polygamy refers to a ‘cultural practice.’ Such a dichotomy reinforces assumptions that women in racialized cultures are being more exploited and less independent than ‘autonomous women’ from dominant white cultures” (p. 26). In other words, polyamory is protected, in part, because it is associated with whiteness and therefore not considered a cultural practice. 

Section 4: Marriage, Conjugality, and Harm Reduction 

As the discussion of LEAF’s intervention in the Polygamy Reference makes clear, one of the other core justifications for anti-polygamy laws is that polygamy causes undo harms to women and children. Authors such as Benedet (2013) make this argument, claiming that polygamy is inherently exploitative: “the harsh realities of life in communities such as Bountiful should be seen not as harms associated with polygamy when practised in a closed religious society but as the predictable or inevitable manifestations of the harm of polygamy itself” (p. 177). In the Polygamy Reference proceedings, one of the other reasons Chief Justice Bauman ruled that anti-polygamy laws were Constitutional was on the grounds that the need to prevent harm to women and children outweighed potential concerns about violating religious freedom. Further, the other portion of the ruling that argued that polygamy presented a threat to the institution of monogamous marriage emphasized that part of the value of monogamous marriage was that it ensures the equal treatment of men and women and provides protection for women and children (Reference re: Criminal Code, s. 293, 2010). 

Despite this stated rationale, the evidence that monogamy is superior to polygamy for the protection of women and children is lacking. In a review of existing literature completed by Conley et al. (2012), they found no evidence to support the argument that monogamy was superior to polygamy in terms of relational adjustment, sexual benefits, sexual health, or benefits to children. Bailey and Kaufman (2015) raise the argument that polygamy may harm women and children by reducing the availability of emotional and financial support, dividing up inheritance, and minimizing the one-on-one time available to each spouse and child in these larger families. However this fails to consider that additional spouses or partners sometimes work outside the home as well, thus generating extra income for the household. Further, in monogamous relationships, people often seek emotional support from friends, family, and other people in their network, so it is not generally considered the sole responsibility of a spouse to fulfill this role. We do not attempt to criminalize large families where all of the children are conceived by (or adopted by) a monogamous dyadic couple, even though similar issues of divided attention apply. Finally, this conception of non-monogamous families is still dyadic couple-centric, and fails to consider the reality that some non-monogamous households are made of up interdependent relationships in which all of the adults in the household share emotional, romantic, and sexual bonds. Research by Barker and Langdridge (2010) found that approximately a sixth of consensually non-monogamous people stated that their relationship structure was a triad or a quad, which are characterized by these mutually shared bonds between three or more people. 

A number of feminist critiques of monogamous marriage paint it as an inherently patriarchal and capitalist institution (Barker & Langdridge, 2010). Some feminists argue that monogamy “privileges the interests of both men and capitalism, operating as it does through the mechanisms of exclusivity, possessiveness and jealousy, all filtered through the rose-tinted lens of romance” (Barker & Langdridge, 2010, p. 753). Further, monogamous marriage often reinforces socialized gender norms that keep women in the home providing free labour that supports the capitalist market, and this in turn keeps them isolated and cut-off from possible community. This is not only limiting in terms of possible political activism and organizing, but can also be dangerous in cases of abuse (Barker & Langdridge, 2010). As Chan (2011) points out, when monogamous marriages end in divorce, women are often left to join “the poorest class in society, that of single mothers” (p. 23). In other words, monogamy may expose women and children to many of the same risks as polygamy, with the added risk of isolation. By framing polygamy as the problem, it becomes easy to ignore the structural issues of patriarchy and capitalism which are arguably more problematic for women and children than the relational style of their particular family. 

Some scholars go a step further, and argue that polygamy and polyamory can actually be more empowering for women than monogamy. Chan (2011) points out that women in a plural marriage can form alliances that allow them to develop more agency and exert more power in their communities. In her first-person interviews with women in polygamous marriages in Bountiful, Angela Campbell (2009) found that many of the women she interviewed wielded considerable authority in their relationships. Barker and Langdridge (2010) argue that consensual non-monogamies can be a liberating alternative to the models of possession, ownership, and jealousy that often shape monogamous relationships. Phillips (2014) further argues that in interviews with polygamous wives, many report that the support of their co-wives allows them to pursue careers, take time for themselves, share the responsibility of housework and childcare, and have a more manageable work-life balance. 

As for harm to children, Phillips (2014) reminds us that children have been raised in villages and tribes for most of human history, and the idea that the monogamous nuclear family is the best environment for children is a recent (and predominantly Western) development and an idea supported by little evidence. Conley et al. (2012) cite ongoing research by Elisabeth Sheff on children in consensually non-monogamous households that found that these children were well-adjusted and happy with the arrangement of their families. The children interviewed in the study who ranged in age from 5 to 18 described themselves as feeling safe, loved, and secure. Although the older children indicated that they understood that the structure of their family was unusual, they reported that they did not find this problematic because in an era of blended step-families, it was easy for them to “pass” as a monogamous family. The older children also commented on the practical advantages of having more loving adults in the home, including support with homework, transportation, and emotional support (Conley et al., 2012). 

While we can be critical of marriage as a concept, it is also true that marriage is at the heart of the Canadian model of sexual citizenship and citizenship more broadly. Many benefits of the welfare state, as well as legal rights related to parenting, custody, medical decision-making, and so on are tied to marriage, which is defined as monogamous under Canadian law. The question of whether marriage and conjugality make sense as an organizing structure for society was central to the Law Commission of Canada’s 2001 report Beyond Conjugality (Cossman & Ryder, 2017). One of the major recommendations of the report was that relationships should be defined more by their level of emotional and economic interdependence, rather than conjugality. While the report recommended that conjugality should be decentred in legal regulation, the outcome of the report has been the opposite of what many hoped. Instead of using the findings of the report to reimagine the welfare-state in a way that separates the benefits from marriage and family, monogamous marriage has simply been expanded to accommodate more people (Cossman & Ryder, 2017). The Beyond Conjugality report also avoided the issue of polygamous and polyamorous relationships altogether. Even when advocating for truly radical proposals like removing the state from marriage, the report still only considered monogamous marriage. Cossman and Ryder (2017), who both worked on the original report, acknowledge that oversight: 

Polygamous and polyamorous spouses largely live in these kinds of emotionally and economically interdependent relationships, and their exclusion from rights and responsibilities undermines a range of important and legitimate government objectives. Their exclusion also runs counter to the principles of equality, autonomy, and state neutrality articulated in the report: “the state ought to support any and all relationships that have the capacity to further relevant social goals, and to remain neutral with respect to individuals’ choice of a particular form or status” (p. 256). 

The centrality of marriage as the organizing structure of Canadian society is an idea that is often considered beyond critique. For example, in 2001 the Supreme Court of British Columbia stated: “The legitimacy of the state’s interest in marriage is beyond question. There is no need for scientific evidence” (Bailey & Kaufman, 2015, p. 1761). Coming back to the question of whether it is more productive to abandon marriage as the organizing structure of the state or expand marriage further to be more inclusive to a diverse range of relationships, I remain undecided. I am sympathetic to Fowler’s (2012) argument about the cultural importance of marriage, arguing that it holds significant symbolic and institutional meaning that is deeply embedded in the fabric of society. However, Fowler also raises a critical point by Michael Warner who states: “even though people think that marriage gives them validation, legitimacy, and recognition, they somehow think that it does so without invalidating, delegitimating, or stigmatizing other relations, needs, and desires” (Fowler, 2012, p. 113-114). 

Conclusion 

The Polygamy Reference specifically framed one of the major harms of polygamy as the threat it poses to the institution of monogamous marriage, and further frames monogamy as central to Canadian identity, culture, and citizenship as well as the protection of women and children. This entrenches norms of sexual citizenship that exclude various relational, sexual and religious minorities. It is also rooted in a history of racism, xenophobia, and Canadian exceptionalism that reinforces white supremacy and Christian sexual ethics. This creates standards of respectability that everyone is expected to live up to in order to access individual rights like marriage and family that are recognized under the law, and also distracts from the role of structural issues like patriarchy and capitalism as underlying causes of harm to women and children. This in turn dilutes radical activism that focuses on structural change. 

There are some small signs of hope on the horizon for a more expansive future vision of acceptable relationship models in Canada. In April 2018, a court in Newfoundland and Labrador ruled that three unmarried adults in a polyamorous relationship were all the legal parents of a child born within that three-person relationship. When handing down the ruling, the judge stated: “I have no reason to believe that this relationship detracts from the best interests of the child” (MacDonald, 2018). This legal precedent directly challenges the centrality of monogamous marriage to Canadian society and family life, and opens the door to future shifts in the legal landscape that could provide better protections for all forms of consensual non-monogamy, polygamy included. 

References: 

2017 incident reporting & response report. (n.d.) Retrieved from: https://www.ncsfreedom.org/component/k2/item/779-2017-incident-reporting-response-report

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Reference re: Criminal Code, s. 293, 2010 BCSC 1308 (CanLII).

Reference re: Section 293 of the Criminal Code of Canada, 2011 BCSC 1588 (CanLII).

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