Law

To the Exclusion of All Others

In a liberal society, is polygamy still intolerable?

From the May 2011 magazine
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Illustration by Tomasz Walenta

Two decades ago, RCMP officers drove up a winding road through the Creston Valley of southeastern British Columbia, past fields of timothy hay and cottonwood stands, to an unmarked settlement known as Bountiful. It looked a typical rural town—homesteads bordered by well-kept yards full of children running and swinging and cycling—but, in fact, the officers had come to investigate a complaint that two local patriarchs, young gun Winston Blackmore and his fifty-seven-year old father-in-law Dalmon Oler, were polygamists—an offence under Section 293 of the Criminal Code.

All 1,000 or so residents of Bountiful are members of the Fundamentalist Church of Jesus Christ of Latter-day Saints (FLDS), a Mormon sect that believes God’s chosen leaders should each marry several virgins and “multiply and replenish the Earth… that they may bear the souls of men.” Unashamed, Oler invited the officers into the fifteen-bedroom home he shared with his five wives and forty-eight children. Blackmore, who in addition to leading Canada’s FLDS operated a multimillion-dollar logging, trucking, and manufacturing business, was cagier about numbers, only admitting to having more than one wife. He was rumoured, however, to have at least twenty-five (many underage at the time he married them), and more than eighty children.

After a year-long investigation, the case seemed completely straightforward, but lawyers knew otherwise. While the Criminal Code defines polygamy as a crime, the Charter of Rights guarantees religious freedom, and in the summer of 1992, after consulting various constitutional experts, the BC attorney general’s office officially rejected the RCMP recommendations, on the grounds that Section 293 was invalid. Blackmore, puffed up with victory, is said to have mounted a framed copy of the Charter on his office wall.

But his troubles were far from over. Blackmore would soon became embroiled in an internecine leadership struggle with James Marion Oler, son of Dalmon; more concerning, Bountiful suffered from growing image problems. In the wake of the thwarted charges, BC’s secretary of state for women’s equality commissioned a committee on polygamy issues, which in May 1993 issued Life in Bountiful, a powerful indictment of polygamy, in particular forced marriage and extreme demands of obedience. “When does a culture stop being a culture,” the report concluded rhetorically, “and start being abuse? ” A decade later, one of the committee members, escaped FLDS wife Debbie Palmer, published Keep Sweet, a sensational memoir dedicated to her eight children, “who lived through unspeakable horrors before I brought them out.” And in 2008, Vancouver Sun columnist Daphne Bramham published The Secret Lives of Saints: Child Brides and Lost Boys in Canada’s Polygamous Mormon Sect, which documented, along with the sad fate of Bountiful’s girls, that of its boys, who were yanked from school and put to work, or expelled from the community to eliminate competition for brides.

The year after the book was released, BC’s attorney general, Wally Oppal, laid polygamy charges against Blackmore and James Oler (who replaced the former as bishop in 2002) and had the RCMP arrest them. In his determination to do so, however, Oppal had ignored government lawyers who maintained the charge wouldn’t stand up to a Charter challenge, instead appointing successive independent prosecutors until he found one who recommended laying charges, which the court then quashed on procedural grounds. (Blackmore is now suing the BC government for expenses related to “unlawful” prosecution.) When Oppal lost a subsequent election, his successor, Mike de Jong, filed a constitutional reference in which he asked the BC Supreme Court to contend with the conflict between the Criminal Code and the Charter of Rights at last.

When the trial opened on November 22, 2010, a stream of participants and witnesses for the government, including representatives from the Canadian Coalition for the Rights of Children, REAL Women of Canada, the Christian Legal Fellowship, and academic experts, testified about the many harms associated with polygamy. Most convincing, perhaps, was the testimony of former FLDS members. Carolyn Jessop, who fled a community in Utah with her eight children in the middle of the night, summed it up well: “Polygamy is not pretty to look at. It is nice that it is tucked away in a dark corner where nobody has to see its realities, because it’s creepy.”

But George Macintosh, the amicus curiae (friend of the court) appointed to present the opposing argument, came out swinging. He characterized Section 293 as an overly broad and grossly disproportionate law rooted in Christian prejudices, a law demeaning to polygamists. Women in polygamous marriages anonymously testified that they were happy, that they’d made the right decision. According to CBC, the BC Civil Liberties Association argued that “consenting adults have the right—the Charter protected right—to form the families that they want to form.” And the Canadian Association for Free Expression maintained that the legalization of same-sex marriage in 2005 strengthened the individual’s right to enter a polygamous marriage.

The rights argument carries considerable weight in a liberal society—if it didn’t, we wouldn’t still be faced with the Bountiful problem. We’ll find out what the court makes of it all by the end of the year. Something that hasn’t been fully considered but should be factored in to any reasonable decision is that rights can’t be separated from the culture in which they arise. They are inextricably linked to institutions that form the backbone of a society, and in every society throughout history the fundamental organizing institution has always been marriage.

One of the oldest extant marriage documents comes from ancient Babylonia, in the reign of Ammi-ditana (1683–1640 BC): the dowry register for Sabitum, daughter of Ibbatum, who gave her as wife into the house of Ils˘u-ibni, for his son Warad-Kubi. Sabitum’s dowry consisted of two beds, two chairs, one table, two chests, one grindstone, one grindstone for flour, one ten-litre container, and one empty s˘ikkatum jar. In return, Ibbatum received ten silver shekels, and he tied that money into the fringe of Sabitum’s dress to be given back to Warad-Kubi. From the beginning, it seems, marriage has been a financial agreement, a way of distributing resources.

But it has not been exclusively monogamous. In old Babylonia, for example, the marriage contract might include a stipulation for polygamy; Warad-Kubi may have taken more wives than Sabitum. (This arrangement is more precisely called polygyny, but because the alternative form of polygamy—one wife with many husbands—is so rare, the distinction is rarely made.) While polygamy would never be the primary form of marriage—as Bountiful illustrates, huge segments of the male population would be out of luck—it was certainly widespread. And it’s clear that it provided unique advantages.

Polygamy acted as husbandly insurance against an individual wife’s barrenness, as well as high child mortality rates, and made ill or aging wives less burdensome. If it was taboo to have sex with pregnant and lactating women (which increased a nursing child’s chances of survival), new fathers suffered neither sexual privation nor a waiting period to produce another child. And with so many children, polygamists had plenty of sons to work the land or contribute to their commercial ventures; in militaristic societies, these sons were prized as military recruits. Daughters, less valued, were still useful for domestic work, or to be advantageously married off to polygamous men.

Of course, polygamy is entrenched in another ancient institution, patriarchy, and in this context of women’s assumed dependence it actually offered them certain protections. Consider Sabitum again: She was very unlikely to try to leave her husband—if she did, she was to be tied up and drowned. If he renounced her, he was to pay her a small lump sum, but in the absence of any kind of social safety net she would essentially be left destitute. If he died, she was in even worse shape. The expandable nature of the polygamous union meant there was a better chance another man would take her in. It also meant men were less likley to renounce unwanted, old, sick, or barren wives in the first place; even if they were shunted aside in favour of younger, healthier women, they at least remained married. (Polygamy was particularly useful in wartime, when there were fewer eligible men.) Co-wives would typically share a residence or compound, co-operating in household duties, including raising one another’s children. To overworked women who dreaded the sexual relations that could result in yet another pregnancy, the arrangement might have seemed like a godsend.

And yet it could also very easily succumb to ever-simmering tensions and jealousies. This was especially true with regard to children, rivals for their father’s attention and resources, and whose interests each mother attempted to promote at the expense of the other children. In all but the wealthiest households, supporting so many adults and offspring was a strain on the patriarch, and some of his dependents inevitably lost out. Moreover, an unhappy woman had little choice but to endure her lot; even if the prospect of single life seemed preferable, she would be forced to leave her children behind, possibly with an angry father and vindictive co-wives. Being trapped in this way meant there was always tremendous potential for injustice in the polygamous union.

Islam, which permits but does not prescribe polygamy, tacitly acknowledges that potential with guidelines. “Marry such women as seem good to you, two and three and four,” it says in Surah 4:3 of the Koran, “but if you fear that you will not do justice (between them), then (marry) only one or what your right hands possess; this is more proper, that you may not deviate from the right course.” The sacred text also limits wives to four, no two sisters at the same time, and even then warns, “You will never be able to do perfect justice between wives even if it is your ardent desire, so do not incline too much to one of them (by giving her more of your time and provision) so as to leave the other hanging,” so that she feels neither married nor divorced (Surah 4:129).

Islamic polygamy remains strongly rooted in places like Kuwait, Saudi Arabia, Mali, and Nigeria. In West Africa, the continent’s most polygamous region, an estimated 40 percent of all marriages are polygamous. It’s therefore not surprising that a burgeoning immigrant polygamous community can be found in Canada. Immigration officials don’t generally admit multiple wives, but there are reports that religious leaders in Toronto and Ottawa are performing polygamous marriages. One imam from Scarborough, who spoke recently with the Canadian Press, estimates there are some 200 such marriages in the Greater Toronto Area alone. In a 2007 Maclean’s article, several Muslim immigrant women explain that polygamy solves certain problems, such as a wife’s barrenness or even her time of the month: “Rather than a man getting into a wrong thing in dating women and bringing a sickness—AIDS and all that,” one says, “better he should marry [additional wives].” But while a Muslim leader from Mississauga insists Canada should allow polygamy (“We should respect different people”), the immigrant community has been conspicuously silent during the BC trial, most likely because it doesn’t want to further compromise its position in a country that has, like others in the West, summarily rejected polygamy.

While early Christian patriarchs were polygamous—the Biblical King Solomon, with 700 wives, spectacularly so—the Church gradually renounced the practice, largely because Greco-Roman culture happened to prescribe monogamy. Christians born into the monogamous tradition explained away the Old Testament’s stories about polygamy as a fast track to fulfill God’s instructions to populate the world when it had fewer people, and theologians eventually made it official. In chapter 7 of On the Good of Marriage, AD 401, St. Augustine wrote, “Now indeed in our time, and in keeping with Roman custom, it is no longer allowed to take another wife.”

As with polygamy, women’s subordinate status shaped this version of marriage; wives had no legal status apart from their husbands, and vowed to serve and obey them in return for protection and support. Privileged men could indulge in romantic, erotic love affairs with mistresses, flaunting them as a polygamist would an appealing new wife, without greatly damaging their marriages or their wives’ status. Their resources (and, postmortem, their estates) remained the inheritance of their wife’s children; their illegitimate children had no claims at all. Monogamy seldom provided fathers with a large pool of potential workers, but then slavery and serfdom made for good substitutes.

By about 1300, Christianity had spread across Europe, and despite pockets of resistance—the sixteenth-century Anabaptists, for instance—installed monogamy along with it. Little changed until, in the eighteenth century, the Western world was rocked by the combined force of the Enlightenment and the Industrial Revolution. While philosophers and political thinkers challenged age-old assumptions about authority, industry created a resource-rich middle class, which increasingly populated cities, where word spread quickly: the divine right of kings had given way to the notion of universal rights to life, liberty, and property.

These new ideas ultimately altered the balance of power between men and women, and transformed society and marriage, its core institution. The family’s control over its children’s marriages was increasingly tempered by a regard for individual preferences, and the idea of marrying for love gained momentum. Love would provide companionship, emotional satisfaction, and, most important, an end to the cruelty that marked so many marriages. Women saw love as the lifeline to a decent life, an assurance that they would be treated respectfully by their husbands. As a result, many resisted marrying until they inspired love (and not just interest in their dowries) in a prospective husband. In a journal entry dated March 6, 1830, for instance, Upper Canadian Mary Gapper reported that she’d agreed to marry Edward O’Brien only after concluding that she would gain “the possession of a heart capable of entering into all my views & feelings & attached to me with an affection so exactly suited to my humour that I sometimes almost fancy that I must myself have dictated it.”

But as love and marriage became increasingly linked in the popular mind, so did the idea of ending loveless marriages—a significant peril of this new incarnation of monogamy. For the profoundly religious, dissolving a marriage isn’t an option, but by the nineteenth century the traditional authority of Christian churches had declined significantly, and divorce became a legal rather than a moral issue. In 1857, the British Matrimonial Causes Act made divorce available to Canadian women, but only if they could prove adultery coupled with perverse or cruel behaviours such as bigamy, incest, or bestiality, and even then only by act of Parliament. A small cohort of women seeking divorce ventured south of the border, where it had been widely available by mid-century. Over the next few decades, however, incremental reforms to Canadian property law gave married women the right to retain their own wages and eventually, by 1884, to manage and dispose of their own property. The conditions under which departing wives could gain custody of their children were also expanding, and by 1887 the court was basing its decisions on the best interests of the children and the condition of both parents. In 1968, Canada passed the Divorce Act, with provisions for no-fault divorce and universal access to spousal support. By making it feasible for women to leave, divorce law had effectively liberalized marriage.

Meanwhile, a great deal of liberal infrastructure was developing around the concept of monogamy. Take personal income tax: first levied in 1917 to finance the First World War, it became the welfare state’s greatest source of revenue, and the calculation always assumed monogamy, simply because that was the only legal form of marriage. Single men were presumed to need less money and were taxed 4 percent on all income over $1,500, while married men were entitled to an exemption on the first $3,000, enabling them to support two-person family units. Today, the basic personal exemption ($10,382 for 2010) applies equally to all, but tax benefits and credits are calculated according to marital status, which of course still means one spouse or none. And the same basic configuration has shaped most modern benefit programs: social assistance, Employment Insurance, Old Age Security or the Canadian Pension Plan, private health insurance, and pensions.

It is in this context that polygamy has come to seem an abomination. Except for a few isolated cases, it was rare until the sudden appearance of the Church of Jesus Christ of Latter-day Saints in the 1830s. Joseph Smith was living in Pennsylvania when an angel named Moroni revealed to him the location of a set of buried golden plates engraved with sacred text, which he then translated using seer stones and published in The Book of Mormon. God also told him that in order to be “exalted” in the afterlife, certain leaders should marry more than one woman and have many children. Smith obeyed, marrying a succession of women, many of them teenagers or the wives of other men. He might have got away with it, but he decided to run for president in 1844, and was eventually murdered by an armed mob. His successor, Brigham Young, led the Mormons to the isolated frontier of Utah, but the government wasn’t about to forget about them. In 1878, a year after Young died, having “sealed” with or married fifty-six women who collectively bore him fifty-seven children, the US Supreme Court criminalized polygamy. Canada followed suit twelve years later with Article 278 of the Canadian Criminal Code, which outlawed “what among the persons commonly called Mormons is known as spiritual or plural marriage.”

To save their church and their hides, most members of the Church of Latter-day Saints officially renounced polygamy, but a small breakaway group of ex-Mormons, the FLDS, established polygamous communities in remote areas of Utah, Arizona, Texas—and, in 1946, Lister, BC. Not only was the town remote from “gentile” society, but its founders also assumed that the Canadian government, which had been recruiting badly needed settlers from persecuted European sects such as the Hutterites and Doukhobors, would keep its distance. Later, polygamous men in the US who struggled to support huge households flocked to Lister, where they could rely on help from the state: their Canadian(ized) wives were eligible for free medical care, daycare subsidies, and eventually the Old Age Pension. As soon as the women were impregnated, their status as technically single mothers also entitled them to claim welfare assistance and other child benefits, a practice known as “bleeding the beast.” By the early 1980s, several hundred members lived in the community, including Winston Blackmore, one of the thirty-one children of Ray Blackmore, an early bishop of Lister. On assuming the mantle in 1984, Winston renamed it Bountiful.

There is something unsavoury about a smug patriarch like Winston Blackmore taking advantage of Canada’s liberal institutions, but isn’t that bad taste the best test of our commitment to liberalism? Rights advocates are accustomed to holding their noses. When a human rights complaint was brought against Alberta pastor Stephen Boissoin for a viciously homophobic letter to the editor published in the Red Deer Advocate in 2002, a spokesman for the gay rights group Egale responded, “When that opinion is vehement and hurtful, it’s even more challenging to defend the right of that opinion to be expressed… [But] support his right, we must. If Boissoin was no longer able to share his views, then who might be next in also having their freedom of expression limited.” And, by the same token, a handful of conservative Christians have advocated for civil same-sex marriage. So why shouldn’t we find a way to advocate on behalf of Winston Blackmore in his struggle to practise polygamy unhindered, on the grounds of religious freedom? Why not, in fact, open up marriage to polygamists by legalizing the right to engage in it?

In answering that question, it’s useful to imagine for a moment doing so. Among all the benefits programs we would have to overhaul, perhaps the most satisfying would be welfare, since we could prevent the wives of Bountiful from “bleeding the beast.” This would entail creating a system to accurately assess household income in a family with multiple earning spouses, as well as accounting for economies of scale, i.e., the second wife should be less expensive than the first, the third less expensive than the second, and so on. But exactly how much less expensive? And how would the money be divided among the wives? The same complex issues would arise in the process of adapting various benefit programs that hinge on marriage, and in all but welfare the project would be further confounded by the fact that multiple wives would cost the provider more. Consider Old Age Security: currently, a recipient’s spouse is entitled to an allowance. If that remained, the Blackmores’ household alone could collectively stand to clear more than twenty-six times the norm; on the other hand, any attempt by the government to cap benefits for legally married plural spouses would undoubtedly lead to costly constitutional challenges. When the Ontario court ruled, in 1999, that the definition of common law marriage included same-sex unions, the provincial government had to amend sixty-seven statutes, but that’s nothing compared to the nation-wide administrative crisis that would ensue if we attempted to accommodate polygamy.

The thornier issue, however, is marriage itself. The legislated definition of marriage as “the lawful union of two persons to the exclusion of all others,” was only just passed in 2005, and would be easy enough to fix by deleting the second clause. But divorce law, which is how the state promotes equality within monogamous unions, is ill equipped to do the same within polygamous ones. Provincial laws currently ensure that when two parties end a marriage, assets accumulated during the relationship are divided equally, with limited exceptions. How much of a husband’s contribution to the marital property would a departing wife receive if she had eight co-wives? One-tenth? But what if those wives appeared on the scene later or earlier—or both? Finally, what, if any, of their contribution would she have a right to? The women didn’t marry each other; they married their husband. And that’s why it would not only be infinitely complicated to apply divorce law to polygamy; it would never meet Western liberal standards of fairness. A husband could always dilute his wife’s stake in the family assets by unilaterally deciding to marry another wife.

American legal scholar Adrienne Davis, who believes that conventional family law rooted in monogamous marriage may not be up to attempts at cobbling polygamous marriage onto it, points out an alternative: commercial partnership law. Typically used when two or more parties go into business, according to Davis it would certainly address “polygamy’s central conundrum: ensuring fairness and establishing baseline behaviour in contexts characterized by multiple partners, on-going entrances and exits, and life-defining economic and personal stakes.” Of course, there would be a huge administrative cost to both adapting the model to marriage, and to ensuring that over the course of a union all partners consented to any new additions to it and renegotiated their respective rights as the landscape changed. More to the point, however, this is not what polygamists want, and it’s not what we want. Remember, liberal marriage was built on the concept of love; it’s hard to imagine a way of squaring this with the filing of an annual marriage report.

In our longing to ensure that everyone enjoys every possible right, we have been willing to stretch our imaginations, swallow our bile, and give polygamy a chance. That is no less than our values demand of us. But legalizing it is not ultimately in the same category as granting a pastor the right to express his loathing of homosexuality, or as legalizing gay marriage. While much has been made, in particular, of the parallel between sanctioning same-sex unions and sanctioning polygamy, not least by Blackmore himself (at one point, he went so far as to suggest that the marriage of one of his Canadian wives with an American wife was proof of his support for gay marriage, and not a ploy to outfox immigration regulations), the outcomes couldn’t be more different. The former brought people into an existing system of rights; the latter poses a significant threat to that system. And that’s probably our cue, as a liberal society, to hold our noses and draw the line.

Elizabeth Abbott has written eight books, including A History of Marriage (2009) and A History of Mistresses (2003). Sugar: A Bittersweet History was shortlisted for the 2009 Charles Taylor Prize.

Tomasz Walenta, whose work has appeared in the Los Angeles Times and the Wall Street Journal, has won two Applied Arts Awards for illustration, in 2003 and 2004.

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