It’s time for another dust up on marriage. No, not same-sex marriage. This time it’s about polygamy. Gay folks could sit this out. But we shouldn’t.
Polygamy is illegal in Canada. The criminal code says no polygamous marriages. In fact you don’t even have to be married.
“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 — is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years,” states the Code.
There is a big fight brewing as the British Columbia attorney general tries to decide what to do about the Fundamental Church of the Latter Day Saints (FLDS) community in Bountiful, BC that openly flouts the law by practising polygamy. Since the 1990s successive governments have been worried about laying charges for fear that the polygamy law might not stand up under the Charter of Rights. Instead of getting into another high-profile marriage fight, they did nothing.
But it seems doing nothing is no longer an option. With the recent raid on a Texas FLDS compound, which saw more than 400 children taken into state custody, there is more and more pressure to do something. Much of the attention is focused on the fact that many of the teenage girls were married and had children, and several were pregnant.
The pressure to do something comes from the suggestion that some of the girls were Canadian and allegedly there is evidence of the trans-border movement of underage girls for the purposes of marriage between the Bountiful community and other FLDS communities in the US.
Added to this is the vitriol that has appeared in the media, with editorials and commentators demanding that the law be enforced.
Why should we care? Didn’t we just recover from the last marriage dust up, and the divisions that it produced within the gay and lesbian community? Why wade into this one?
For starters polygamy does not just involve marriage. It involves living in a conjugal union with more than one person. So, all those queer folks who are into polyamory — if they live together — are, in the eyes of the law, polygamists.
The criminalization of polygamy is one of the last vestiges of the criminalization of “deviant” sex and sexuality. Mostly it’s still criminalized because folks think it’s yucky. Not a very good reason, especially when you remember that’s why gay sexuality was criminalized too.
And the law as it currently exists doesn’t make a lot of sense. Here is what the bizarre patchwork looks like: Polygamy is illegal, but swinging is okay. So, you can have sex with someone in addition to your spouse, just as long as you don’t marry them or live with them. On the other hand sex with a person under 16 is illegal, but it’s okay to have sex with them if you are married to them (and some provinces will allow a person under 16 to marry if they are pregnant).
So sometimes, marrying the person will make things worse (polygamy). And sometimes marrying the person will make things better (underage sex).
What’s wrong with polygamy, anyways? Typically opponents point to the exploitation of women and children, particularly, forced underage marriage and sexual abuse.
Okay, these are not good things. But condemning them could actually go hand in hand with recognizing polygamy. In fact decriminalizing polygamy could make it a lot easier to go after these kinds of abuses by bringing the practice of polygamy above ground and regulating it. Why not go after the real problems and leave polygamy — who wants to marry whom — out of it.
Many queer folks recognized quite a while back that we should be involved in the fights to decriminalize sex work. We should be involved in this decriminalization fight too. It wouldn’t be popular. But it’s the right thing to do.