Monday, December 12, 2011

Reacting Continues to Canadian Court Ruling on Polyamory and Polygamy

I’ve been leaving the reaction to the ruling by the B. C. court to other people for the most part, but I did want offer my thoughts, especially looking at the media coverage as I can. Happily, as polyamory becomes more widely recognized and understood, there are other bloggers and columnists who are doing a great job advocating for this freedom of association and the polygamous freedom to marriage. That leaves me more time to do the same work on behalf of consanguinamory as we move towards full marriage equality.

If you haven’t seen it yet, check out John Ince’s open letter to the Canadian polyamory community, which he makes clear convey his thoughts, not legal advice, and not the official policy of the Canadian Polyamory Advocacy Association (CPAA).

The good news…

In general terms, I think that the decision allows us to do virtually anything the vast majority of polyamorists would want to do.

The bad news…

The judge interpreted Canada’s criminal law against polygamy narrowly so that it only criminalizes non-monogamous relationships that are a) institutionalized b) marriages.

This means that poly people can live together or not, have children with many different people, or go from relationship to relationship, or marry and divorce, marry and divorce, and that’s all fine... as long as they don’t make a formal commitment to that is institutionally recognized to more than one person at a time. What’s the sense of that?

An interesting issue would arise should a polyamorous couple want to borrow the institutionalized structure of a group that is not formally polyamorous. For example, say there is a ceremony that is overtly defined as a “marriage”, that also follows Wiccan traditions and which is presided over by an accredited Wiccan official. Or say there was a break-away sect of the Catholic Church led by a former priest who has a congregation and who will “marry” anyone or any number of people, using all the trappings of the Catholic Church.

I think the prosecution could make a strong argument that there was sufficient “borrowed institutionalization” applying to these official purported “marriages” to make them offend the law. Hence any explicitly purported “marriage” conducted by any official from a real community would not be advisable in my opinion. If you want to call your ceremony a marriage, getting any “official” involved increases your legal risk.

Having an “official” from a community preside at a ceremony increases the risk of criminalization, but if you are determined to do that, your legal situation will be better but not absolutely secure if you do not call the ceremony a “marriage” and even better, formally disavow that the process is a “marriage”.


We need to remember that the gay marriage issue was the last major legal issue to be resolved about gay equality, not the first. If there are polyamorous people who want exactly what homosexuals got, who want the right to traditional institutionalized poly marriage, then the first step toward that goal is resolving all issues pertaining to pensions, and immigration in a purely co-habitational context and then some time in the future seek the final step of the legal recognition of polyamorous marriages.

That may be the way it ends up happening, but it seems like those issues could be resolved with relatively minor adjustments in law, allowing for more than one spouse at a time. It seems a little like going into the southern US fifty years ago and desegregating so that African-Americans are integrated, but not Latinos or Asians, and telling them to go back and go through the steps taken by African-Americans. Why not just grant full marriage equality? Equality just for some is not equality.
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