We believed in Plural Marriage, and despite our best efforts, and the fact that my Dad had only one wife, the secret would slowly leak out. We were the odd ones, sectioned out, teased and name called by our peers, sniffed at by the adults, and in most cases blatantly talked about and snubbed.  This was true at the corner store, at the gas station, and for me, in school by my teachers, whom at first I was enamored with, but then as the coolness turned cold, I learned not to trust.

            It was not this treatment though that kept us quiet and secluded into our own home.  It was the threat of being found out for our beliefs. We had to watch every reference made in public and around our LDS relatives.  We could not let on to our religious leanings. My grandfather had been put into jail for the practice of Plural Marriage, arrested in the 1944 raid.  This a man I knew as a good and honest man, and if they could put Grandpa Dave into prison I wondered how would my Dad possibly be protected?  In fact when he was 12 years old he and his younger siblings were taken into court and called on to testify against their Dad. How would I ever, ever be able to do such a thing as that?

            I remember full well coming out of a “cottage meeting”, we dared not meet formally in a church, I was holding my father’s hand as we came down the gravel drive, when we spotted the men in black suits standing behind the parked cars taking down the license plate numbers in their little spiral notebooks. I don’t know for sure if they were FBI, or just spies for the Mormon Church.  I do know my father’s hand tightened as he stopped right in his tracks and I could feel the worry travel through him and into me. I knew at that point I would never talk, never share with my friends, my cousins, and associates who we were and how we believed.  No one was going to steal my Dad from me, no one. I would protect him the best I could and silence was that way.

            Well, that was the early sixties, and this is a new millennium, right?  Not so much. Fear still exists. With dealings such as the 2008 raid in EldoradoTexasthe specter becomes real, giving fear flesh and bone.

 Living with the shroud of being underground, secretive and not forthcoming cheats a person out of fullness, out of legitimacy and slants their life in unreasonable ways.  I don’t want this for my children or my grandchildren. I don’t want fear of raids, of separation, imprisonment haunting their lives. So, if I want change I must bring about that change…each generation is entitled to build their own institutions, and I am able to build upon the steps of those that have moved before me, aiming for a stronger foundation for the exercising of our rights for those that are our future.

~Written by A Woman’s Place~

Jul 20, 2011

Joe Carter

http://www.firstthings.com/onthesquare/2011/07/the-present-state-of-our-polygamous-future

In an interview on the science in science fiction, novelist William Gibson noted, “[T]he future is already here. It’s just not evenly distributed yet.” What Gibson meant was that the innovations in science fiction could already be found—at least in embryonic form—in our current ideas or technology. Much the same could be said about future social and legal norms concerning the institution of marriage—they are already here, they’re just not evenly distributed yet. 

A prime example is the social and legal acceptance of polygamous marriage. The legal bulwark against polygamy was the first to go, dismantled by the Supreme Court rulingLawrence v. Texas. “Liberty presumes an autonomy of self,” claimed Justice Anthony Kennedy in the majority opinion, “that includes freedom of thought, belief, expression, and certain intimate conduct.” 

As Justice Antonin Scalia recognized in the minority opinion, the decision could be used to legalize bigamy and would be a “massive disruption of the current social order.” Last week the New York Times featured a story about a polygamist who is suing the state of Utah to overturn its anti-polygamy law that proves Scalia a prophet:

The lawsuit is not demanding that states recognize polygamous marriage. Instead, the lawsuit builds on a 2003 United States Supreme Court decision, Lawrence v. Texas, which struck down state sodomy laws as unconstitutional intrusions on the “intimate conduct” of consenting adults. It will ask the federal courts to tell states that they cannot punish polygamists for their own “intimate conduct” so long as they are not breaking other laws, like those regarding child abuse, incest or seeking multiple marriage licenses.

One man’s slippery slope is another’s ladder of progress. Homosexual activists needed over thirty years to go from Stonewall to Goodridge. But they have paved a clearer path for polygamists. And, unlike gay marriage, polygamy already has a long-standing cultural precedent. All of the major world religions—Judaism, Islam, Hinduism, Buddhism, and Christianity—have at one time in their history condoned the practice of taking multiple spouses. 

The same holds true for most every culture on earth. Out of 1170 societies recorded in Murdock’s Ethnographic Atlas, polygyny (the practice of men having more than one wife) is prevalent in 850. Even our own culture, which has an astoundingly high divorce and remarriage rate, practices a form of “serial polygamy.”

Advocates for same-sex marriage often refer to polls showing the social acceptance of homosexual relationships as a justification for expanding the definition of marriage. From this we can adduce, a fortiori, that since polygamy has an even stronger claim to historical and cultural acceptance, it should be included in the new expansion of marriage “rights.” 

The appeal to “rights” also undercuts any reason to give special preference to same-sex relationships over polygamous ones. The precedents established in Lawrenceand Goodridge are equally applicable to polyamorous relationships and homosexual couplings. As Scalia noted in his dissent, as long as polygamists are not violating established laws or committing child abuse, states no longer have the authority to regulate their living arrangements. 

With this decriminalization comes the inevitable push for acceptance. It happened with homosexual relationships and it will happen with polyamorous ones too. And why should society deny a man the right to marry all the women he loves? What reasons do those who favor gay marriage have for excluding polygamy? Having rejected all arguments from nature and reason when they were used against their position, what do they have left to justify their discrimination? 

The answer is nothing but arbitrary personal preference. Those who truly believe that homosexuals have a legal right to marry someone of the same gender have undercut the grounds for barring polyamorous groups from doing the same. If a man can marry another man why should he be barred from marrying two or three or four men if he chooses? 

Unfortunately, many advocates of same-sex marriage are coming to the same realization, and instead of reconsidering their position, they merely shrug. They agree that allowing one requires allowing the other. But for them, polygamy is at worst an unfortunate but necessary tradeoff on the path to normalizing same-sex unions. 

As usual, the progressive legal scholars are ahead of the curve. Six years ago Jonathan Turley, a law professor at George Washington University, made an eloquent case for the legalization of polygamy:

When the high court struck down anti-sodomy laws in Lawrence vs. Texas, we ended decades of the use of criminal laws to persecute gays. However, this recent change was brought about in part by the greater acceptance of gay men and lesbians into society, including openly gay politicians and popular TV characters.

Such a day of social acceptance will never come for polygamists. It is unlikely that any network is going to air The Polygamist Eye for the Monogamist Guy or add a polygamist twist to Everyone Loves Raymond. No matter. The rights of polygamists should not be based on popularity, but principle.

Turley was far too morose in his assessment. It took less than a decade for Kody Brown—the polygamist plaintiff mentioned in the New York Times article—to get a reality TV show. In late 2010, TLC premiered “Sister Wives,” featuring Kody, his four “wives” (he’s legally married to only one woman), and their sixteen children. The promotional material on TLC’s website invites us to “Follow the Brown family and see how they attempt to navigate life as a ‘normal’ family in a society that shuns their polygamist lifestyle.”

After watching the entire first season I can testify that the Brown family is rather “normal”—at least by the standards of our twenty-first century “anything goes” culture. Sure, they’re a bit weird. But who isn’t nowadays? And by society’s moral logic, if you get to know someone and they seem nice and normal then you can’t condemn their lifestyle choices. As long as their flagpole is attached to a well-kept cottage, why shouldn’t they be able to let their freak flag fly?

My fellow Christians are already leading the apathetic shrug of “tolerance.” As one woman wrote on the TLC website:

First off I am not a Mormon, I am Baptist, and let me tell you, those who judge these people remember you shall be judged as you judge. This family is happy, these women all agreed to the arrangement. It is no different than a man having 4 mistresses and children by them. This way they all know about one another, there is no lying, no cheating, there is acceptance and an abundance of love. They need to be left alone to raise their children. God Bless the Browns and keep them safe.

That just about says it all, doesn’t it? 

The social acceptance of polygamy is already here; it’s just not evenly distributed throughout society. At least not yet.

On the Morality of Polygamy Law: Freedom vs Harm

Should polygamy be legal? This question is at the core of the landmark polygamy case slowly working its way up the Canadian justice system. To answer this, we look at the balance between harm and freedom. The balance in this case is contrasted to the case of gay marriage.

That restricting the ability to legally engage in polygamy is restricting freedom is obvious. That it is often a religious freedom doesn’t specifically matter to me – although as a practical matter this will be argued in court as explicitly religious freedom being infringed on – for I think that whatever the justification, if people have a desire to do something then restricting that desire is a restriction of freedom.

On the other hand, there is the potential that polygamy leads to harm. As Craig Jones, a lawyer for the BC government puts it, “all forms of polygamy contribute to the discrimination of women and the sexualization of young girls”. Now polygamy has been heavily stigmatized as well as poorly represented by the occasional – but much publicized – genuinely predatory people or in very different cultures and so it gets a perhaps poorer representation as harmful than is justified. However, for the purpose of discussion let us just accept at face value all of this alleged harm.

The result is we now have to balance these two sides. On the one side, we are restricting freedoms and on the other we are preventing harm. It should be noted that the burden of proof is firmly in the latter camp to establish harm. That polygamy is sufficiently rare in Canada that this case is just now coming up is not a sufficient reason to objectively restrict freedoms; indeed, we should attempt to never do this unless clearly justified. The harm must be clearly proven to exist otherwise we default to the position that freedom must be allowed.

However, this still isn’t sufficient. One must further demonstrate that simply restricting the alleged predatory components is not sufficient to eliminating the harm. This is important because a lot of the harm gets conflated in this way. Is the problem consulting adults engaging in polygamy or sex with young girls, because the latter is illegal and polygamy laws don’t change that.

My view is that it should be legal. Polygamy has a very large cultural stigma that is impeding the legal freedom of people to marry how they choose. The alleged harm it does I think is both overstated and not at all obvious that restricting polygamy is fixing the specific problems we wish to address.

All of this has an interesting consideration with respect to gay marriage which has the same background of a cultural stigma and then an argument of freedom versus harm. With gay marriage however the alleged harm was very tenuous at best. People have argued things like that it breaks down the family unit, is bad for kids etc etc yet these statements have been proven wrong in study after study. Even if one falsely believes in a net harm, the freedom trumps the harm almost regardless; I don’t care how much harm gay couples might do it is still the right thing to do for them to have the right to marry. Even if the studies were wrong and one could demonstrate a small difference between, say, gay and straight parents as aggregates, the enormous diversity within either populations would utterly dominate this difference and allowing gay marriage is still unequivocally the right thing to do.

Returning to polygamy, we can learn something from the gay rights struggle. We can learn how this tactic of claiming harm to restrict freedom has been used before and proven false. We can learn how activities that are stigmatized as socially deviant get attacked on the basis of unjustified harm. We can deduce that thus is more than likely the case here as well and hence that we should support polygamy. I accept the framing of harm vs freedom for this is the framing by which we should consider all government impositions on freedom (such as locking up murderers, say) but what I don’t accept is that the balance in this case is on the ‘harm’ side.

 

The overwhelming majority of Canadians do not want to live in a polygamous household and, from an economic perspective, that observation is a bit of a mystery.

For a country like Canada, in which wealth is very unequally distributed,economic theory predicts that wealthy men should have more of everything, including wives. This doesn’t suggest that wives are property. It suggests that if income matters then women who are maximizing their welfare, and the welfare of their children, should prefer to be the second, third, fourth wife of a very wealthy man to being the only wife of a poor man. Yet, despite high levels of inequality, the industrialized nations of the world all have adopted monogamy as the dominant marriage institution.
The explanation for why monogamy is preferred has to do with the way in which personal wealth is generated in industrialized nations.
In industrialized nations wealth is generated by those who are highly skilled. There is an economic argument for having only one spouse in an economy where wealth is a function of education – better educated men want to have better educated children and the best way to do that is for those children to have a well educated mother. Educated women have more bargaining power in the household and are better equipped to negotiate an arrangement where they are the only wife. Less educated women marry less educated men, but those men can only afford one wife anyway, and so monogamy pervades.
In Canada we don’t have monogamy because the laws enforce this marital arrangement, we have these laws because historically this has been the arrangement that the majority has preferred.
So the question is, if monogamy is the best arrangement for those who can afford additional spouses, why does this institution need to be enshrined in the law? In the economic sense a policy is not optimal if someone can be made better off without making others worse off. If this is the criterion, then it has to be that criminalization of polygamy not be an optimal policy. If we allow everyone to act in their own best interests when making marriage choices, and assume that parents act in the best interest of their children, then surely those who chose to live in a polygamous household are better off than they would be in a monogamous household. They have to be because that is the arrangement they have chosen.
You can’t make someone better off by forcing them to choose an alternative form of marriage that they do not prefer.
You may be worried that someone is being made worse off – the poor guys who can’t find a wife because some men are taking more than their share. But, there will never be so much polygamy in Canada that it will add to the pool of men who will never marry.
Anyhow, the fact that so many women prefer to remain single than to be married to man who they don’t desire as a husband is a much bigger contributor to bachelorhood than polygamy ever will be.

Link to article

The polygamy reference case has already made a valuable contribution: It has focused the debate on the question of harm. Apologists for the current law are now having to try to show that polygamy, in and of itself, always and necessarily hurts people. I don’t believe they’re succeeding, but I do see this as a promising first step toward creating a rational and effective legal strategy for dealing with abuse in polygamous communities.

Modern law — and modern secular ethics, which defaults to some version of the Golden Rule — is heavily influenced by the principle articulated by philosopher John Stuart Mill: “the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.”

That’s not to say there aren’t Canadian laws that have little to do with protecting individuals from harm; the polygamy law is one of them. But the modern proponents of the law know they have to work harm in somewhere, or the law risks being struck down, because courts these days tend to be very reluctant to tell consenting adults what they can do in their own bedrooms.

So the proponents argue the law is necessary to prevent associated harms.

Crown counsel Craig Jones tried to cover all the philosophical bases he could, and made a fine mess in the process, saying the law must be upheld to confirm the government’s right to “impose some fundamental codes of moral behaviour for the protection of the vulnerable and to promote and advance our highest aspirations of equality and social justice.” The “protection of the vulnerable” bit is in there to make John Stuart Mill happy.

The harms to be prevented include forced marriage, rape of young girls, expulsion of young men, and unequal family dynamics.

Forced marriage and rape are already illegal.

I’ve read the argument that we need the polygamy law because the police and Crown aren’t enforcing other, sounder laws at their disposal that prevent forced marriage, or child abuse.

It’s true that it can be difficult for victims to testify against abusers who are in authority over them.

That’s true outside of polygamous contexts as well, and it’s something the justice system must work to overcome, without requiring the clumsy workaround of an extra law that allows the state to keep one small but irksome peephole into the nation’s bedrooms.

If some jerk who lives in a polygamous commune, or some other fundamentalist society, has only one wife, and she’s 13, and he hits and rapes her and tells her to shut up and keep sweet — well, all of that is illegal and should be prosecuted, even though the 13-year-old might be brainwashed and terrified. But you tell me how a polygamy law can help that girl.

Many laws, the polygamy law included, sometimes require the co-operation of victims. It’s worth noting that the polygamy law is rarely enforced and has not prevented any of the harms we’re all talking about.

The polygamy law manages to be both overreaching in principle (criminalizing consensual behaviour) and inadequate in practice (it hasn’t stopped the abuse it supposedly targets).

As for unequal family arrangements, that’s a more difficult question.

If we make polygamy illegal because, most of the time, polygamous unions involve patriarchal gender roles, are we also going to make patriarchal gender roles illegal in monogamous unions? If so, we’re going to have to build a lot more prisons.

The relevant question, for the law, is not the number of people in the relationship, but whether they’re adults who have freely consented. If the women in relationships of any number are being compelled or detained — well, again, there are laws against that, and they ought to be enforced. And it’s going to take hard work to get those women to come forward and seek help, polygamy law or no polygamy law.

If we Canadians decide to uphold the polygamy law — by, for example, telling our representatives to use Section 33 of the Charter — we’ll be guilty of shrugging off the harm principle when it seems inconvenient.

Which principles, then, will form the basis of our law? In the absence of secular liberalism, which culture or religion gets to impose its sexual morality on the rest of us?

That’s why it’s important to strike down this law, and replace it with a sound legal strategy to enforce existing laws, to put abusers behind bars without incidentally criminalizing consensual sexual behaviour.

This case tests our willingness to tolerate needless exceptions to the principle that the government can only compel our behaviour when that behaviour affects other people.

At the core, this case isn’t about freedom of religion, or freedom of association. It’s about freedom, full stop.

Kate Heartfield is a member of the Citizen’s editorial board.

Link to article

I find it interesting that opinions on conjugal socialization are fast evolving toward a more liberal stance. Freedom of choice regarding consenting adult relationships is the new trend in our modern world.

Here is the link to the blog.

~Submitted by HJD

The URL link (true story) referenced in the piece, is the basis for the satire on the abuse suffered from a “monogamous” society. When the mind set of people begins to finally realize that a lifestyle choice doesn’t commit abuse, or a crime and that people do, we may begin to see more tolerance for lifestyle choice. After all, it takes a live person to pull the trigger of a gun, so should we punish guns or the people who misuse them?

Click here for the story.

~Submitted by HJD

Law is Cool Podcast: Polygamy and the Law

Also, check out one of the significant comments from that podcast…

ShermanP on February 15th, 2009 5:48 pm
Don Morgan, Saskatchewan Attorney General,Canada, allows Polygamy, which is against Federal Criminal code law(he does not report his own alleged Criminal code violation of the law, which wouled be to assist in the creation of Polygamous relationships, consenting for unwilling victims etc.)to RCMP):
Two members of a Mormon splinter group were charged recently with practicing Polygamy in Bountiful, British Columbia, Canada. On has claimed religious persecution by government.
The federal Criminal Code of Canada states:
S. 293. Everyone who
(a) practices or enters into or in any manner agrees or consents to practice
or enter into
(i) any form of polygamy
(ii) 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,
or
(b) celebrates, assists or is a party to a rite, ceremony, contract or
consent that purports to sanction a relationship [that is polygamous]
is guilty of an indictable offence and liable to imprisonment for a term
not exceeding five years.”
This section is very general, capturing formal and informal arrangements.
It captures cohabitation as well as marriage; and it encompasses
both heterosexual and same sex relationships.
However, that has changed now and Polygamy is legal in at least one Canadian province. Indeed, two different Attorney Generals of that province and at least four Family Court (Queens Bench) justices have commented and argued in public court cases that a married woman may also have same time conjugal unions. Don Morgan of the Saskatchewan Party, who is also Don Morgan Attorney General of Saskatchewan and its’ Justice Minister has commented that Saskatchewan legislation allows multiple conjugal unions and that persons do not need to formally end a marriage to be legally recognized as having other legal spouses in Saskatchewan. His argument is the same as his predecessor Attorney General. Basically, Section 51 of Saskatchewan Marital Family property Act states:
“Rights of new spouse
51 Where a person becomes the spouse of a person who has a spouse, the rights
pursuant to this Act of the subsequent spouse are subject to the rights pursuant to
this Act of the prior spouse.”
As early as 1999 and again in 2009 different Queens bench judges have ruled that a married woman may also legally have other conjugal partners under the laws of Saskatchewan. They contend that this does not violate the Federal Criminal code that clearly does not allow plural conjugal unions to exist at same time. In both cases Saskatchewan Attorney General representatives appeared to argue in favor of multiple conjugal unions and in both cases the Federal Attorney Generals declined to appear to defend Canada’s Polygamy law.
Canada’s Immigration rules do not allow potential immigrants to be both married and also claim another spouse, either as a cohabitation spouse or married.
The case of Ariza v. Canada (2007) denied entry to Canada to a Muslim who might have claimed to have a wife in the Philippines and a common law cohabitant wife in Canada concurrently. The summary can be found at canlii.org under Ariza V. canada.
Summary is:
“[8] Further, as the appellant lives in Canada and has lived in Canada on a continual basis since 1992, and the applicant lives in the Philippines, there is no factual basis upon which to entertain the possibility that this relationship could be saved under a different classification, such as the concept of common-law marriage. The other concept created in the law in 2002 having to do with conjugal partnership is also of no help, as a conjugal relationship needs to be, by definition, an exclusive relationship. It is not open to the appellant to claim that she is in an exclusive relationship with the applicant, where he is still involved in a legal marriage with his first wife.”
Now, The persons charged with Polygamy in Bountiful (a different town/ province in Canada)are accused of practicing Polygamy in Canada. On two fronts. One, having more than one spouse at the same time. Second, providing consent and assistance to the formation of simultaneous conjugal unions as “bishops” of the sect.
One must query why Don Morgan as Justice Minister of Saskatchewan, in a province a short distance away from British Columbia provides unilateral consent and assists with allowing multiple conjugal unions as valid under Saskatchewan law, yet British Columbia Attorney General does not allow Polygamy; are the Attorney Generals reading the same Federal law?
In the case of Saskatchewan Polygamy, two married women claimed to have a legal conjugal relationship with other men while still legally married. Both men denied this and said they just lived in the same house with the married women and hence had the right to not be legal spouses while the women were married to others. They argued they had the constitutional right to not be the spouse of a person that already had a spouse and they be entitled to live under a “shacked up” but not legally the spouse of a married person”. Don Morgan of the Saskatchewan Party and his constitutional lawyers argued that the women were entitled to have another spouse under Saskatchewan law, even tho they remained married to another. Morgan believes that people do not need to formally end a marriage to take other spouses. In Winik V. Saskatchewan trustee, the Queens bench judge ruled:
“21] With respect to the first issue, the continuing marriage of Maureen Winik would not necessarily have hindered the formation of a common-law relationship with Randy Wilson. The formation of a common-law relationship does not involve the solemnization of a marriage. Rather it requires a mutual intention to enter into a permanent and exclusive matrimonial relationship”
“To constitute a marriage valid at common law, that is, in the absence of a statute otherwise specifically providing, it is not necessary that it should be solemnized in any particular form or with any particular rite or ceremony. All that is required is that there should be an actual and mutual agreement to enter into a matrimonial relation, permanent and exclusive of all others, between parties capable in law of making such a contract, consummated by their cohabitation as man and wife or other mutual assumption openly of marital duties and obligations.”
“As the formation of a common-law relationship does not require the solemnization of a marriage, there is no risk of violating the criminal sanction against bigamy. The formation of a common-law relationship is not hindered by the existence of a subsisting marriage. Mutual intention of the parties consummated by their conduct, perhaps with an expressive public component, is all that is required for the formation of the relationship.”
The judge decided to make formal and legal the subsequent spousal relationship unilaterally ( providing consent and assisting)as follows:
“[40] Maureen Winik, as the common-law spouse of Randy Wilson at the time of his decease, has standing to challenge the constitutional validity of the relevant provisions of the Act.”
Interestingly, the judge may have determined the new spouses had an exclusive and monogamous relationship, despite the fact that Winik was married and the man had also fathered a child with a different women during their cohabitation!
You can read the case and decide for yourself.
The question is, if it is illegal in Canada to have plural spouses in valid constitutional law, and Don Morgan and his Saskatchewan party allow same time multiple conjugal unions, why does British Columbia charge Bountiful members who have done no more? Since Osler and Blackmore (Bountiful) are charged under the Federal Criminal Code Section 293 with having multiple conjugal relations and also performing multiple conjugal relationship consent by sanctioning plural unions, why aren’t the Saskatchewan Attorney Generals and Saskatchewan Queens Bench judges also charged with creating these plural conjugal relationships under law and assisting and consenting to them?
It seems apparent that the Bountiful residents, Muslim immigrants and others wishing to practice Polygamy in Canada will need to live in Saskatchewan Canada to have legal Polygamous unions.
Some other provinces in Canada allow multiple conjugal unions if they occurred in a place that allows them. Immigrants must prove their place of origin does allow Polygamy. Since Saskatchewan Canada allows simultaneous conjugal unions it seems unfair that Muslims and others are persecuted for their Polygamist religious beliefs when it is perfectly legal in parts of Canada. Charge them all or charge none as the saying goes! Who will charge Don Morgan and his family court judges?

]]> http://merrywives.org/2010/11/11/polygamy-and-the-law/feed/ 0 e1guapo