A British Columbia judge will rule Wednesday whether Canada’s anti-polygamy law is consistent with the Charter of Rights and Freedoms. It’s a case that will almost certainly be appealed to the Supreme Court of Canada. Section 293 of the Criminal Code of Canada explicitly bans polygamy and threatens offenders with a five-year prison term. Bigamy is also named as a serious crime in Section 290 although there have been no successful prosecutions on either charge in more than 60 years. You can read more here.
In the meantime, while we’re waiting for the decision we can watch philosopher Elizabeth Brake discuss marriage on Philosophy TV here.
“As same-sex marriage gains acceptance, a greater number of caring relationships enjoy legal recognition. But what about polygamous and polyamorous relationships? What about non-romantic relationships, such as friendships? In this episode, Elizabeth Brake and Simon May discuss Brake’s controversial view that individuals should be allowed to assign the rights and privileges of marriage to whomever they want, so long as the purpose is to support a caring relationship. They also discuss the case for same-sex marriage (4:30), whether legal marriage should be abolished (33:48), caring relationships as Rawlsian primary goods (45:40), and May’s objection to polygamy (54:49).”
Feminist Philosophers 
I’ve never quite understood how the legal specifics of polygamy are supposed to work. Presumably the law recognizes only one marriage per person, so aren’t the other marriages just automatically null and void? And presumably living in a group relationship that isn’t legal marriage is not illegal. And the instances of child marriage are surely covered by laws against statutory rape and/or kidnapping.
So why and how is “polygamy” illegal? I just don’t get it.
The law does make living in a marriage like relationship with more than one person illegal. It’s not a matter of whether multiple marriages are legally recognized. This law criminalizes those relationships. And anyone who celebrates them! Here’s what Section 293 says:
293. (1) Every one 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.
Wow. Thank you for posting that. I find 293 (1) (ii) simply *shocking*. Unless I’m reading it incorrectly, it criminalizes all non-monogamous relationships, not simply the targeted polygamous sects.
You’re reading it correctly. Now it hasn’t been enforced in a very long time….Still, you might think we need some laws, perhaps even stronger ones than we have, to protect young girls in religious communities that practice polygamy, without thinking that we need this law. It’s a bit of a mess.
The difference of opinion between the two expert witness evolutionary psychologists — Todd Shackelford and Joseph Henrich — is interesting, too:
It is also the case that in the U.S. (at least in the state of Utah) entering into a marriage-like relationship while already being married is illegal:
“According to Utah’s bigamy statute, “A person is guilty of bigamy when, knowing he has a husband or wife, the person purports to marry another person or cohabits with another person.” Utah Code Ann. § 76-7-101(1) (2003). The law, therefore, applies not just to individuals who have obtained multiple marriage licenses, but also to those who are legally married to only one person, while also engaging in other marriage-like relationships that are not recognized by the state.”
http://www.acluutah.org/bigamystatute.htm
Like Matt, I have always been puzzled about the legal prohibitions on polygamy/bigamy. I continue to think that these laws make ‘living with’ more than one person equivalent to claiming to be ‘married to’ more than one person. (NB: I think the dstinction is nonsense, when the state only recognizes one such marriage.)
More generally, I have real concerns about polygamy (less about polyandry), because it so often appears to be , in fact, a spectacular system of oppression agaisnt women.
I’m sure we can imagine a genuinely free association of this sort, but they seem to be rare.
Update: the law was by the BC supreme court as a reasonable restriction on rights given the goal of preventing harm to women and children. More here, http://www.cbc.ca/news/canada/british-columbia/story/2011/11/23/bc-polygamy-ruling-supreme-court.html
I think frog’s update above was missing the key word “upheld”.
@Matt Drabek, though it obviously comes down to definitions, I’m not sure that Sec. 293(1)(a)(ii) criminalizes “all non-monogamous relationships” — does every non-monogamous relationship involve having a conjugal union (i.e. presumably, a marriage-like relationship, not just sexual relations) with two or more people at the same time)?
@frog, those aspects of the decision seem at least understandable and respectable…in that they advance worthy goals. I’m a little more skeptical of what the court added to ‘women and children’ as additional areas where the state should intervene (the clause that comes right after the one you draw attention to). I’m even more skeptical that the police and prosecutors will use the law responsibly and in the manner prescribed by the judge, but perhaps Canadian police and prosecutors are more trustworthy than American ones.
@Nemo, true enough. Non-monogamous relationships extend well beyond that. But the law does seems to criminalize all such relationships that are comparable to “boyfriend/girlfriend/partner” relationships among the monogamous: relationships that are loving, long-term, committed, and so on.
Yes, “upheld.” Danger of posting from your mobile!
But good news, I think. The Supreme Court does limit the scope of the law to marriages now. The judge in his decision says he agrees with the Attorney General of Canada, “The AG Canada submits that s. 293 prohibits practicing or entering into multiple, simultaneous marriages, whether sanctioned by civil, religious or other means. It is not directed at multi-party, unmarried relationships or to common law cohabitation. It captures both polygyny and polyandry.”
Full text of the decision is here, http://www.courts.gov.bc.ca/jdb-txt/SC/11/15/2011BCSC1588.htm
I agree. That does seem like good news.
I guess that is just in BC,for now.I expect this will be challenged in front of the Canadian Supreme Court…