Friday, December 09, 2011

Polygamy Ruling Raises Deep Questions about Rights and Responsibilities

In a landmark ruling the BC Supreme Court upheld the prohibition against polygamy to prevent harm to women and children. The ruling’s strong focus on the positive obligations of the state to protect the rights of children sets an important precedent in Canadian jurisprudence. A seeming lack of coherence between citing harm to the institution of monogamous marriage as a ground for prohibition and then allowing plural common law relationships will likely give rise to an appeal. The judgement recognizes that this ruling is an infringement of the right to religious freedom, but argues that it is a justified infringement because of the harm done to women and children.

The ruling raises deeper questions about the nature and scope of human rights, about the balance between different rights when they come into conflict, and about limits to the accommodation of religious and cultural diversity. Probing these issues, which permeate our society, leads back to the philosophical and religious roots of what justice means. Plans by the Institute of Christian Studies to explore what we really mean when we appeal to social justice and human rights in cases like this are timely.

Kathy Vandergrift
Chair, Canadian Coalition for the Rights of Children


  1. At least as presented in the blog entry, I find this a fascinating example of political liberal thinking. I am imagining that legal marriage is here being looked at as if it were the social contract that founds a state. The persons who live within the resulting family (the state) are related to it and its founding social contract (marriage) in the way that individuals are related to the state and its founding social contract in liberal political theory. Since the social contract represents the individuals' voluntary ceding of autonomy in order to accomplish certain goals such as the protection of property, life and liberty to a collective (the state established via the social contract), the state becomes the collective protector of these rights. If a state fails to live up to its responsibilities a citizen can protest. If the failure is root and branch the citizen legitimately rebels, for the state ceases to be in effect, i.e., it breaks the social contract in virtue of which it exists. By analogy, family members cede to the family and its structure of authority a certain autonomy in order to procure something like the preservation of life, property and liberty (probably like the medieval notion of a privileges rather than the state of freedom-from we today think of). If a family does not do so and that failure is deemed systemic (that is part of the warp and the woof of the family), the social contract can be legitimately thought to be broken. There is no marriage and hence there is no legitimate family. Anyway, that is what leaped out at me in what might have been a moment of over active imagination. Still, let's imagine I am on to something here. What would that mean? Surely family is not well understood by analogy to the state (and vice versa). Nor is marriage well understood as an analogy of the social contract. So can children's rights conceived as liberal political theory conceives of political rights really be used to contest the legality of polygamous marriage? That is the question I am left with.

  2. Hi Bob. I think the answer would be yes, children's rights can really be used to contest the legality of polygamous marriage.

    Understanding the relationship between individual and state through the idea of the social contract, and granting that the state's authority is made legitimate by that, doesn't mean that the state needs to view the family as a similar relationship or that the state needs to cede its own authority to the logic of that analogy. The state's legitimacy is still established by fulfilling its duty to serve its citizens, including children, and the test of the legitimacy of any type of marriage is based on that duty of the state.

    It seems to me that the sticky part here is related to what Kathy identified as a likely cause for appeal: different treatment of plural common-law marriages and plural marriages with the sanction of an authority (even if only the authority of the local community not the state). If children's rights are used to make the latter illegal then why not the former too?

    Or put another way, does the sanctioning of marriage by an authority introduce risks to children that do not exist in unsanctioned marriages such that the state needs to closely regulate or ban sources of authority other than itself with respect to marriage?

  3. Okay but here's the thing. Isn't the arguement used in the decision that statistically the children of polygamous marriages undergo a higher incidence of abuse of various kinds than children of monogamous marriage. If the averages used were to change, say, because of the relative economic and cultural privilege of polygamous families with respect to monogamous families, would one then have to change the legal definition of marriage to denote polygamous marriages and to preclude monogamous marriages? Is that really how the legal argument should take place? In other words, how does one decide upon the "what" referred to by the term "marriage"? Surely, statistical examinations of outcomes cannot bear the weight they have been asked to bear in this decision? Or have I misrepresented the decision. Over to you Kathy? Anybody?

  4. I see your point and think we have more or less converged at that particular crux. I don't know if a statistical claim regarding harm was used or only the particulars of the case in question.

    You raise a question that is interesting on its own. I would reply "if not statistics, then what?"

  5. That is a big question. Historically in the reformational tradition we have wanted to say that marriage and family have quality of their own that one encounters already in ordinary experience. They have an ethical quality rooted in healthy human interconnections, i.e., interconnections indicated in the old-fashioned word troth. Trothful relations between spouses, siblings, and between parents and children are qualitatively different from the justice centred relations between citizens and governments. Such a distinction emerges from the fusion of close observation, even social scientific observation, philosophic intuition and a commitment to the guidance to be had within the Christian Scriptures as they live and breathe within the community of believers. Such an emergence, is clearly and self-confessedly neighbourhooded, as Cal Seerveld is wont to say. But something like the fusion of observation (experience), philosophical intuition and religious orientation (or its equivalent among those who lay claim to no such religiosity) might still make a contribution in what would have to be a far wider and plural discussion. It might even be a contribution whose base is capable of encorporating the quantitative results of the social sciences and contextualize them within qualitative considerations.

  6. I get the distinction you are making but I don't see how a court could use it or even if it should try. Falling back to the relative certainties available to us all; quantifiable observations of things that most of us would call "harm"; keeps the court credible by virtue of being seen as impartial. Aren't our qualitative judgements, as citizens who all have a stake in seeing justice served, already accounted for in the definitions of "harm" employed? For example, the elevated risk of domestic violence, which can be quantified, is chosen (presumably) because we collectively judge that to be a worthwhile measure, but there are undoubtedly other things that could be measured that we do not collectively consider worthwhile (or harmful enough) to measure when the purpose is to set them against things like religious freedom and individual liberty (which are themselves collective qualitative judgements).

    For background, here is a CBC article on the ruling. It won't be clickable but will work if pasted into the browser address bar.

  7. Hey, Daryl, I think I have to amend my first comment. While I do think that the ethos of politics and government is deeply inflected by liberal political theory, I think it is theory modified by the need to decide who "speaks" for those citizens who are politically disabled whether by virtue of some disability, one or another systemic disadvantage, or by virtue of age. The state in that context takes it upon itself to be the decision maker in the decisions around the identification and protection of the life, property and liberties of such people. It is in this context that the state looks to the outcomes for children of belonging to this or that kind of family with its foundation in this or that kind of marriage. If the outcomes for children are far worse in families built upon polygamous marriages, the state as represented in this instance by its courts has a responsibility to protect such children. At any rate that might be a more accurate reading of the rationale behind the recent decision Kathy reported on. I suppose one has to estimate what increase in the average levels of abuse legitimate this kind of protective move (ruling that a particular form of marriage is illegal and hence no marriage).

  8. That certainly appeals to my own sense of how justice ought to work. I certainly didn't mean to imply that judgement in the framing or interpreting of laws ought to be mechanistic. I think even fuzzy ideas like "harm to the institution of marriage" are perfectly valid but I can hear the can of worms opening already so won't say more about that.

    I wonder, though, how we approach issues that really ask for a lot of non-empirical consideration: wisdom, informed intuition, and so forth? For example, couldn't an assertion regarding "protecting the institution of marriage" be suspect of merely serving someone's biases, or be considered to be evidence that the institution itself is questionable? During the height of debate about the gay marriage issue I heard some suggest that the government should be out of it altogether and that marriage should only be a private matter, administered by churches perhaps but having no legal status.

    Am I just suffering from a case of wanting to have my empirical cake but eat wisdom too?