Panic over polygamy

Between Status of Women Canada, Stephen Harper and the Canadian Islamic Congress, we are now in the early stages of a fullblown panic over polygamy, proving once again that bedfellows make strange politics. First came reports that the Status of Women department was urgently seeking research that would buttress the current legal proscription on polygamy against Charter challenges. That was all the evidence the federal Conservative leader needed to advance the necessity of legislation banning gay marriage, otherwise “the next thing on the Liberal agenda will be polygamy and who knows what else.” By week’s end the president of the CIC, Mohamed Elmasry, was quoted pointing out that polygamy was less harmful to children than extra-marital affairs. Leave aside whether polygamy is or is ever likely to be on “the Liberal agenda.” Is there reason to believe that, the door having once been opened to gay marriage, it will prove impossible to close, whether to polygamy or any other variants on the traditional (western) definition of marriage as “the union of one man and one woman”? Is Mr. Harper right to say that, unless we “draw the line somewhere,” we will be presented with “demands that just get more and more radical”? Is his Justice critic correct in arguing that, if marriage can be redefined as two persons, it can as easily be defined as three? Are we at the top of a slippery slope, from which there is no escape? Help! I can’t breathe! But wait a minute: Why should the two issues be linked in this way? What’s the connection? If anyone wanted to challenge the current ban on polygamy, after all, they could do so now. As they could have last year, or the year before that, or the year before that. There is no reason they have to wait for the courts, or Parliament, to pronounce on gay marriage. The courts could accept their “demands,” if they were of a mind to, without ever having ruled on whether two men or two women should be allowed to marry -- just as the courts remain at liberty to reject them, regardless of the “precedent” established by legalizing gay marriage. That’s because the two are entirely separable issues. The one is about whether the general legal preference for monogamy may be reserved to heterosexuals, or whether it must be extended to homosexual couples. The other is about the preference for monogamy itself. True, both are instances of “discrimination” -- in one case, against homosexuals, in the other, against polygamists. Had the courts outlawed discrimination of any kind in the marriage laws, we would not need to worry whether polygamy would be next: it would already be here. But that’s not what the courts have ruled, and nothing obliges them to do so in future. Contrary to popular belief, the Charter of Rights does not forbid all forms of discrimination, even with the help of activist judges. The proscription applies only to the list of enumerated grounds, to begin with, or to similar grounds “read in” by interpretation. Even here, it is not discrimination, as such, that is prohibited, but unreasonable discrimination: as with other Charter rights, the right to equal treatment under the law is subject to “reasonable limits.” That’s an obvious necessity, since every law discriminates against someone: lawbreakers, for starters. It was the courts’ judgment that, the state having established a particular legal status for monogamous marriage, it was unreasonable to reserve this only to heterosexuals. Whether that seems as persuasive to you as it does to me will depend on whether you agree that the essence of marriage, at least as far as the law is concerned, is monogamy -- and not, as others argue, procreation. But nothing in the legal definition of marriage says anything about children. You are not required, as a condition of licence, to produce offspring. You are required to be monogamous. Adultery is grounds for divorce. Infertility is not. If marriage is, legally speaking, about monogamy, and if there is no evidence to suggest that allowing homosexuals to wed will change that, then it follows that there is no reasonable grounds for preventing them from doing so. And lacking such reasonable grounds, the constitutional basis for the traditional definition of marriage falls away. Maybe you don’t agree with that line of argument. But you must agree there is nothing in it that requires the courts to find that defining marriage in monogamous terms is also unconstitutional. They might rule that way: who can say? But there is nothing that obliges them to do so. Suppose they did. Either that would be a terrible thing, or it wouldn’t. Either, that is, there is a good reason to ban polygamy, or there isn’t. If there were, and if the courts were obtuse enough to find otherwise, and if enough people felt strongly about it -- well then, the ruling would simply be set aside: either by invoking the notwithstanding clause, or (preferably) by amending the constitution. And if we can’t think of a good reason why polygamy should be banned, then what would be our objection to legalizing it? The slippery slope, in other words, is an illusion. Nothing connects gay marriage to polygamy. Nothing obliges the courts to overturn the ban on polygamy, and nothing would prevent the majority from reinstating it if they did. We are not prisoners of unreason, however much some might pretend we are.