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Vol. 8, No. 3, 2009
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get government out of marriage biz




Bruce Korol is a lawyer and writer in Calgary.

In his article, "It's inevitable: The courts will legalize polygamy" (Ottawa Citizen, April 7), David Warren laments the foregone conclusion that courts will legalize polygamy, and rails against the constitutional climate that has made it possible.

But why is polygamy criminalized in the first place and why are conservatives like Warren so adamant in keeping it that way? A 2006 study by three law professors at Queen's University concluded that criminalizing polygamy serves no useful purpose; polygamy is rarely prosecuted, and anti-polygamy laws likely violate the guarantee of freedom of religion.

Polygamy also has a history that predates monogamy by thousands of years, yet polygamists remain unfairly persecuted in North America.

It is present in many cultures, and given its past religious importance there's no doubt it's a legitimate religious belief, Warren's misgivings notwithstanding.

If the arrangement is among consenting adults then the government has no legitimate authority in interfering in the relationship. It's extremely problematic for the state to wield its coercive power against polygamy without clear evidence of an actual crime.

The polygamists' claim for legal recognition is bolstered by same-sex marriage. Winston Blackmore will cite gay marriage laws in his defense, which is a scenario that was predicted by many critics -- such as David Warren -- when same-sex marriage was legalized.

If two men or two women wish to marry each other and it infringes on no one else's rights, then the government shouldn't stop them. Same thing goes for polygamy. Consensual adults should be free to marry whomever they please.

The contradictions are apparent and polygamists see it as an issue of unequal treatment under the law.

When the Utah ban on polygamy was challenged in 2004 (a challenge that was eventually dismissed), Dani Eyer, executive director of the ACLU of Utah, said the state will "have to step up to prove that a polygamous relationship is detrimental to society . . . There's no denying that thousands and thousands are doing that here and will maintain that it's healthy . . . The model of the nuclear family as we know it in the immediate past is unique, and may not be necessarily be the best model. Maybe it's time to have this discussion.''

The practice might be frowned on but one doesn't have to condone the practice to recognize the heavy-handed senselessness of criminalizing it.

The more important argument for polygamy is that government should stay out of marriage.

Polygamists have refused to acknowledge the state and its intrusion into their private affairs, and so they should. There's no legitimate reason for the government to dispense morality edicts on what is properly the private sphere.

The impending court battle allows pro-family advocates who were against same-sex marriage to bring up the same public-policy talking points, but someone's private marriage isn't a matter for public debate. This is something gays didn't comprehend when they begged the government to legally recognize their relationships and it's something the traditionalists miss when they want to be the only ones to have their marriages granted state legitimacy.

A legal marriage should be between those involved in a committed relationship without state interference. David Boaz, executive vice-president of the Cato Institute, had this to say in a 1997 article calling for the privatization of marriage: "If they wanted to contract for a traditional breadwinner/homemaker setup, with specified rules for property and alimony in the event of divorce, they could do so. Less traditional couples could keep their assets separate and agree to share specified expenses. Those with assets to protect could sign prenuptial agreements that courts would respect. Marriage contracts could be as individually tailored as other contracts are."

Consenting adults choose relationships that work for them whether they are monogamous or polyamorous.

Maybe Warren is wrong and the anti-polygamy law eventually will be considered valid because it protects women and children and promotes "Canadian values." British Columbia Attorney-General Wally Oppal might also be right when he claims that most Canadians find polygamy morally repugnant. But neither personal feelings nor constitutional parsing should dissuade us from this essential point: Government should stay out of the marriage business -- and that includes marital structures the majority disapprove of.



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