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Not tonight dears, I have headaches

This Magazine Staff

Gay marriage isn’t even a legislated fact in this country, and already people are getting ready for polygamy. As was widely reported yesterday, the federal secretariat on the Status of Women has sent out a call for proposals on research pertaining to the social effects of polygamy. Of course, this only confirms what conservatives have long been saying: gay marriage is a slippery slope, down which lies polygamy, pedophilia, bestiality, and all other sodomic and gomorric activities.
Some thoughts:
1. Given the reasons for which gays are being allowed to marry, it is hard to see how a principled stand can be taken against polygamy or polyandry, or multiple-gay/multiple-lesbian marriages. That is, given that we have accepted that those with whom you decide to have sex and enter into a spousal relationship is none of the state’s business, it is hard to see how the number of people with whom you so decide would be the state’s business.
2. I think we’ll see a polygamy case go to the courts soon enough, and have any laws against it struck down by the lower court. It’ll end up with the Supremes eventually, with a recapitulation of the whole gay marriage/waffling by parliament/calls for the notwithstanding clause etc. stuff.
3. One argument the courts could use is this: They could claim that the anti-polygamy laws are justified (under s.1 of the Charter) in a free and democratic society on the following grounds: the risk of the harm done to society, in particular to children in polygamous families, outweighs the rights of those who wish to so engage. Thus, you can’t have three wives for the same sorts of reasons you can’t yell fire in a crowded theatre, i.e., too dangerous.

4. It is interesting to note that this is manifestly not the kind of reasoning the Supreme Court undertook in the gay marriage decision. That decision was based entirely on reasons of equality and state neutrality. To the best of my knowledge, the court did not consider and weigh evidence about the possible harm or effects of gay marriage on society. It was seen as a question of rights, not outcomes.
5. In which case, why look at outcomes with respect to polygamy?
6. Even if this slope slips us all the way to polygamy, pedophilia and bestiality do not follow. The difference is, of course, that the former is based on consent, the latter two are not.
7. It is hard to see what the real worries over polygamy might be. The standard feminist objection is that polygamy tends to occur in strongly patriarchal cultures or communities, where women don’t really “consent” to the multiple wives scene. They either consent because they have no option, or because they have false consciousness.
But of course, that was always the standard feminist objection to single heterosexual marriage. Consequently, if feminists can accept that our society is now liberal enough (i.e. no longer so oppressively patriarchal) that a woman can freely enter into marriage with a man, then it is hard to see why two women couldn’t freely enter into marriage with a man.
8. And this is why many left-wing women’s groups find themselves in a bit of a pickle. Having fought for the rights of gays to marry, they find themselves opposing the elimination of the polygamy laws. Yet the reasons they have given for why gays should be allowed to marry are the exact reasons polygamists will use. And again, I don’t have any sense of what principled line could be drawn between the two. If anyone has such a sense, I’d love to hear it.

Here is
Andrew Coyne’s take. One thing to note about Coyne’s arguments on this (as on gay marriage): He frames the question in terms of harm. That is, it is the outcome of the policy that should guide our decision making.
Question for the audience. Is this sound reasoning? Should consequences determine the extent of rights? This is an old argument, but points to the natural tension between utilitarian reasoning and rights-based reasoning. Utilitarians have always found the idea of rights distasteful, ever since Jeremy Bentham called rights-talk “nonsense on stilts” (or, as a prof I had once put it, “bullshit on rollerskates”).
Coyne is an interesting case here, because on questions of rights he is usually hardcore Trudeauvian. That is, I don’t imagine Coyne would be willing to put all of our rights to the consequentialist test; the whole point of a right is that it is a “trump” card that the individual gets to play against collective “greater good” policies.
Anyway, it’s going to be an interesting debate.

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