On November 22, 2010, after years of growing concern and controversy, the Supreme Court of British Columbia opened the debate on the constitutional validity of the Criminal Code prohibition against polygamy. The reference case, arising out the failed prosecution of two prominent members of the Fundamentalist Mormon sect in Bountiful, British Columbia, has sparked a heated debate between academics, experts, and legal authorities on whether the prohibition should be struck down due to constitutional infringement or upheld because of the belief that polygamy is associated with gender inequality and the exploitation of women and children. Despite the large number of government officials, interveners, and experts weighing in on the issue of polygamy in Canada, overwhelmingly the focus in the case, and in academic literature generally, has been on religious and cultural forms of polygyny: the formal or informal marriage of a man with two or more wives. However, what is often ignored is that multi-partner conjugality comes in radically different forms, each with different personal and social effects. Polygamy is a general term that subsumes more specific forms and practices, such as polyandry, polygyny, and polyamory. Within the Canadian context, available evidence indicates that polygyny is the predominant form of polygamy practiced. In addition to emerging anecdotal evidence of its presence among some Canadian Muslim and Aboriginal groups, polygyny is well documented among fundamentalist Mormons in British Columbia, and has become the focal point in the Supreme Court reference case. In Canada, there is little evidence of polyandry, where one woman has more than one husband. In the past few decades, however, evidence has gathered as to the growing number of polyamorous relationships that diverge from the traditional multiple partnerships of polygyny or polyandry. Polyamorous arrangements “vary as to the number of people involved, the sexes of those involved, the sexualities of those involved, the level of commitment of those involved, and the kinds of relationships pursued.” The variance of these relationships both in terms of structure and egalitarian founding principles distinguishes them from the patriarchal norms traditionally associated with polygyny. In light of this distinction, scholars argue polyamory merits close attention in re-thinking monogamous paradigms, particularly in terms of coercive criminal polygamy laws and marriage law more generally. Despite the fact that polygyny continues to be the predominant form of multiple-partner unions in Canada, the traditional normative manner of viewing polygamy as gender-discriminatory and patriarchal ignores minority conceptions of sexual identity and intimate relationships. In Canada, non-monogamous patterns of intimacy continue to be ascribed the status of the “other”—of deviation and pathology—and in need of explanation, or alternatively are ignored, hidden, avoided and marginalized. This “mono-normative” perspective tends to universalize the exclusive, dyadic structure of the couple and elevates monogamy as the hegemonic norm. Marianne Pieper, who coined the term “mono-normativity”, argues that: the mono-normative matrix is a complex power relation, which (re)produces hierarchically arranged patterns of intimate relationships and devalues, marginalizes, excludes and ‘others’ those patterns of intimacy which do not correspond to the normative apparatus of the monogamous model. Mono-normativity is based on the taken for granted allegation that monogamy and couple- shaped arranged relationships are the principle of social relationships per se, an essential foundation of human existence and the elementary, almost natural pattern of living together. Laws which make it a criminal offence to practice polygamy, and which limit marriage to two individuals, reinforce certain hegemonic beliefs about sexual identity, intimate relationships, and the ideal family structure. Rooted in queer theory, this paper seeks to question the boundaries of monogamy and polygamy in Canada. By deconstructing monogamy, I will contest the belief that it is a natural, universal norm, and demonstrate that it is instead a socially constructed institution rooted in cultural supremacist, classist and sexist ideals. In rejecting the categorization of intimate relationships, this paper will highlight that marriage and intimate relationships can encompass a zone of positive and socially acceptable possibilities. Re-thinking and deconstructing monogamous paradigms may reveal polygamy as a legitimate way for individuals to exercise their autonomy, sexual preference, and expressions of love. This paper is divided into four parts. In Part I, I discuss how polygamy is regarded in Canada by reviewing the history and current treatment of polygamous unions both under criminal law and the law of marriage. By distinguishing between the various forms of non- monogamies, I will reveal that it is a fallacy to automatically conclude that polygamy leads to sufficient social and personal harms to merit criminal sanction. In Part II, I attempt to deconstruct the institution of monogamous marriage and reveal its true socially constructed evolution. Despite marriage’s predominantly Christian and racist history, I will argue that formal marriage recognition remains symbolically significant in Canada and that, if the prohibition against polygamy is struck down, expanding the definition of marriage to include more than two people would be in accord with Canada’s recognition of diverse family forms and equality protections. In Part III, I propose a different way to look at the monogamy versus polygamy debate though the lens of queer legal theory. Through queer theory, I will question the categorization of intimate relationships and reveal the difficulties of pursuing change through the Charter. Finally, in Part IV, I will make suggestions as to how the law can move towards a more pluralistic conception of personal relationships.
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Erin Fowler, "A Queer Critique on the Polygamy Debate in Canada: Law, Culture, and Diversity" (2012) 21 Dal J Leg Stud 93.