Last week, a much-awaited ruling was handed down in British Columbia. Nobody’s very happy with it, although the people the judge was trying to upset don’t seem to be.
The issue at stake was Canada’s law outlawing polygamy. A sect of the Fundamentalist Church of Jesus Christ of Latter Day Saints was challenging the law on religious grounds. Also challenging the law were polyamory-activism groups seeking legal recognition of their unions. On the other side, defending the law, were those trying to protect young people from the harm done by the FLDS and “traditional” marriage defenders.
The sides were a mishmash, and the ruling followed suit. In essence, very little was changed. The law stayed in place, but Justice Bauman clarified that it did not apply to non-marital situations. Given that Canada has strong common-law (non-marriage) relationship recognition, and a conservative religious trend, this is a good thing. It will keep the law from being used to prosecute the polyamorous who live together as a group.
However, the ruling does nothing to put their relationships on the same legal footing as monogamous marriages, and the reasoning the judge used is not the most sound.
Justice Robert Bauman’s judgment is an exhausting and comprehensive display of philosophy, social scientific inquiry, history, religious and cultural studies. It serves to demonstrate, yet again, that judges are experts in law and tend not to be very good at any of these other things.
On his way to upholding the law, Justice Bauman takes a tour through the days of the Roman Empire and ancient Greece all the way to the United States prohibitions before finally getting to Canada. This prolonged discussion is used to justify the assertion that polygamy is inconsistent with Western values.
The underlying purpose of a law is integral to judicial analysis of its constitutionality and here the decision’s historical analysis is unconvincing. As University of Ottawa law professor Carissima Mathen has noted, the law as originally enacted in 1892 was rooted in discrimination against other religious beliefs and practices and not, as Justice Bauman found, motivated by a concern for women and children. As she points out, marital rape was not even considered a crime at the time; the notion the law was for the protection of women is silly.
An even more significant problem with the analysis of social science evidence and expert opinion in the decision is the question of the negative “societal” effects of polygamy. Justice Bauman was convinced by the assertion that polygamy “creates a pool of unmarried men with the attendant increase in crime and anti-social behaviour.”
The fear that lifting the prohibition of polygamy will result in a surge of polygamous marriages and a measurable increase in crime is absurd. The judge’s willingness to accept this logic underscores the problem of a court of law assessing the value or weight of social scientific evidence.
His basis for this was testimony from scientists whose testimony was full of data on the “Western” development of monogamy and modern data on the treatment of women in (almost exclusively) societies using models of polygamy rooted in Abrahamic religions. In short, that testimony did nothing to separate the effects of living in the authoritarian religious groups that currently practice polygamy from the effects of the polygamy itself.
He also relied on the testimony of evolutionary psychologist Joseph Heinrich:
First, like other animals, human males and females have different mating strategies rooted in the nature of primate sexual reproduction. Females are limited in their direct reproduction to the number offspring they can rear to maturity in their lifetimes, and are necessarily committed to high levels of investment, at least in the form of providing the egg, gestation and lactation. In contrast, with little investment (sperm and a small effort), males can potentially have thousands of offspring that they can decide to invest in, or not, based on the costs of obtaining mates vs. the impact of additional investment in their offspring. Because human offspring benefit from the investment of both parents (at least in ancestral human societies) females seek to form pair-bonds with those males who are best able to invest in their offspring (males possessing high social status, wealth and valued skills). A female does not generally benefit from establishing simultaneous pair-bonds with multiple males because (1) she can only have one pregnancy at a time (so lots of sex with different males does not increase her reproductive success), (2) this brings males into conflict (sexual jealousy) and (3) this creates confusion regarding male paternity (and greater paternity confidence increases paternal investment). In contrast, males benefit both from pursuing additional pair-bonds with different females at the same time, and from additional extra-pair copulations (short-term sexual relationships).
This reasoning, of course, has all the problems of this sort of evolutionary psychology [ETA: see here for more detail on those problems], but that didn’t stop the judge from leaning on these projections of the status quo to support the status quo. Nowhere in the expert testimony were any of the few anthropologists who study modern polyamorous communities; any information on whether these non-religious relationships are polygynous, polyandrous, or both; or any description of how women and children (the groups the ruling was intended to protect) fare in those communities. Those groups might as well not exist for all the data they provided.
So in the end, by not considering data outside the authoritarian Abrahamic traditions or making comparisons specifically to monogamy within authoritarian Abrahamic traditions, the judge has made a ruling based on the problems of polygamous authoritarian religious marriage that only applies to polygamous marriage and not at all to authoritarian religion. Beyond that, by specifying that the problem is only with marriages, the FLDS has already said that they now know how best to circumvent the law.
That means that the reasonable part of what this ruling was intended to do–protect those coerced into these marriages–is undone by the ruling, while the less defensible portion–the legal codification of a social norm–stands. That is not the mark of a good legal decision.