Saturday, August 11, 2007

The implications of 'family diversity'

From the Post - Criminal act or religious right?

To understand the moral and legal conundrum of polygamy in Canada, consider that when the Canadian Bar Association discusses the matter at its annual meeting next week, it will be part of a larger discussion about the "implications of family diversity."

The practice of having multiple spouses -- illegal for more than a century -- is being considered alongside serial monogamy, surrogacy arrangements and same-sex relationships as being among those societal changes "charting new legal territory for family relationships" being examined by a panel probing what it means when the law moves into the bedrooms of the nation.


"Family diversity". That pretty much includes everything, doesn't it?



Jason Gratl, a criminal lawyer and president of the B.C. Civil Liberties Association, said it is important to distinguish between a moral disdain of polygamist marriage and a desire for a legal recourse to crimes sheltered "by the insular community structures and bonds of loyalty."

"It's tempting to point at polygamy as the determining factor which creates abuse," he said. "But one should resist that temptation in light of the fact that similar abuses occur in quite ordinary marriages. And no one is suggesting wiping out the institution of marriage because some of those marriages lead to insular family structures."


Absolutely. There are many marriages where one party is very controlling and manipulative. And child abuse can occur in any family situation.



And we're not just talking about polygamy in Bountiful:


Beverley Baines, a law professor at Queen's University, was coauthor of a report released last year that said Section 293 would likely fail a court challenge and called for polygamy to be decriminalized. (The report did not call for legalization, which she said would mean a change to the Marriage Act.)

She said if polygamy was no longer illegal, it could then be studied and really understood -- not just in the context of the goings on at Bountiful, but also how common the practice may be among Canada's many immigrants who may come from countries where polygamy is not unusual.




However, Katherine Young, a professor of religion at McGill University, believes the legalization of same-sex marriages has changed the rules.

"Once you start to change definitions there can be a whole set of repercussions," she said. "[Now] you're going to have to argue whether there's any substantial reason to restrict marriage to two people. The last argument was whether we have to restrict to two people of different sex, now we have to make an argument why it should be restricted to two. And now we have even weaker grounds for doing it."

But let's have none of that slippery slope argument!! Pull-eeze.



Irwin assured us that it would never happen:

Justice Minister Irwin Cotler had earlier denied there was any link between the two issues. "We don't see any connection – I repeat, any connection – between the issue of polygamy and the issue of same-sex marriage," he said Thursday.

Too late to turn back the tide people. Let's just cut the crap and admit it.


* * * *

Related: Obviously Queer Liberal would not agree with me, but he does reference a very interesting article in today's Globe by Margaret Somerville.

And Eric weighs in again here.

Koby gives his opinion here.

I am definitely outnumbered, but that's o.k. I love a good debate.

13 comments:

C. LaRoche said...

Right, but ultimately no government will attempt to change the definition to include polygamy unless there is a politically advantageous reason to do so. Does anyone out there honestly think that a government supporting polygamy would gain popularity in cities, Quebec, or other electoral hotspots?

(I don't, but am open to being convinced otherwise...)

The debate should be refocussed: if, for whatever reason, the definition of marriage were further expanded, would such an expansion create a dissonance with the Charter of Rights and Freedoms?

Joanne (True Blue) said...

Does anyone out there honestly think that a government supporting polygamy would gain popularity in cities, Quebec, or other electoral hotspots?

Laroche, I think the first step would be decriminalization of plural unions in their many forms. The rest may or may not follow from there.

Kingston said...

Joanne, I do not think the politicians are worried about doing it at all, the will just let the supremes do it for them

Joanne (True Blue) said...

Kingston, you're absolutely correct. The supremes and the justice system.

SouthernOntarioan said...

Kingston, I was about to say the exact same thing. The governments will just let the courts strike down the law against polygamy and will then shrug their shoulders and say 'we can't do anything!'

Anonymous said...

I don't care about this issue at all.
I do however care that taxdollars may be being spent supporting services in a community where polygamy is illegal.

Where does it all end if a government were to support it?

I don't think any gov't would.

liberal supporter said...

the will just let the supremes do it for them
The supremes do not make law. They can strike down laws that are unconstitutional. They can interpret laws in ways not intended by Parliament, but they do not "make" law.

In the SSM case, gays were excluded from marriage to each other simply because of their genders being the same (sexual discrimination), which is unconstitutional.

Discrimination by number of participants does not infringe any individual rights. Discrimination by number of marriages you can have at a time (one) does not infringe any individual rights.

There is no constitutional reason to change "marriage" to include relationships with more than two people, or to allow more than one at a time. Bigamy is still illegal.

You may see more recognition of realities, that people do live in communal relationships, but what the adults do in the bedroom has no bearing on it. There can still only be conventional two person legal marriages in such a group, and each person can only be in one marriage at a time.

Joanne (True Blue) said...

You may see more recognition of realities, that people do live in communal relationships, but what the adults do in the bedroom has no bearing on it. There can still only be conventional two person legal marriages in such a group, and each person can only be in one marriage at a time.

I'll buy that, but what about the simple decriminalization of polygamy and any plural common law union? I'm assuming that in the eyes of the law any plural or communal relationship would be technically illegal? No?

Kingston said...

LS, I am suggesting that the supremes will do that it as a charter challenge under Freedom of Religion not under finding the law concerning the definition of marriage in error. I know if I was to fight it, that would be the angle I would take.

Kingston said...

PS. My orginal post was unclear, I know they do not make law, but they can force changes to the law. Heck in some cases they can force laws to be made can they not.

Joanne (True Blue) said...

Heck in some cases they can force laws to be made can they not.

I think they have the power to strike down laws if they are found to be unconstitutional.

C. LaRoche said...

Not of this would be as significant a debate if there wasn't such a taboo surrounding federal use of the notwithstanding clause.

The decriminalization of polygamy will require Parliamentary action since Parliament must ultimately pass all changes to law advanced by the SCC. If the SCC rules that the Canada Marriage Act (or what have you) is in violation of the Charter, and that polygamy should be decriminalized under that Act and in accordance with the Charter, I would assume any ruling party/coalition would find itself in unpopular straits if it did not re-criminalize polygamy after-the-fact, through Parliament, either by invoking the notwithstanding clause, advancing a Charter amendment, or finding some nook in Parliamentary convention that can skirt the issue (think of what Harper did by conventionalizing -- rather than formalizing -- Senate reform).

In other words, the "unpopularity" of section 33 might suddenly outweigh the unpopularity of decriminalizing polygamy.

I am, of course, assuming that the decriminalization of polygamy would be sufficiently unpopular.

Joanne (True Blue) said...

I wonder what the popular opinion would be if the difference between decriminalization and legalization were properly explained?

In some ways, decriminalization would protect women the way it is apparently supposed to protect women in the sex-trades. Children can ensue from either situation, and need protection as well.

It is happening, and it is only going underground as a result of both being a criminal offense.

I'm going to be away from the computer for a while, LaRoche, but feel free to leave a comment, and I'll deal with it after my hiatus.
Thanks.