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Marriage types: Polygamy

Part 1: Ruling by the Supreme Court of British
Columbia that describes polyamory & polyfidelity

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The following description of Polyamory is copied from the ruling of Chief Justice Bauman of the Supreme Court of British Columbia concerning the Constitutionality of š 293 of the Criminal Code of Canada, dated 2011-NOV-23.

š 293 criminalizes bigamy and polygamy throughout Canada. 2 It was found to be constitutional by Chief Justice Bauman.

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Course of Proceedings: B. The Participants:

The three parties to this reference are the Attorney General of British Columbia [AGBC], the Attorney General of Canada [AG Canada], and the Amicus Curiae [Amicus]. As both Attorneys General take the position that s. 293 is constitutionally sound, the Court appointed the Amicus, who is publicly funded, to advance the case in opposition.

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The Evidence: A. Terminology:

[138]     Polyamory is subject to varied definitions but refers generally to consensual relationships in which participants have more than one [sexual] partner. The [Canadian] Polyamory Advocacy Association described it in these terms in its Opening Statement:

“Polyamory” is the practice of having emotionally intimate, sexual relationships within groups of three or more people, where at least one person in the group has more than one emotionally intimate, sexual relationship at a time and where all members of the group formally or informally adopt these principles:

a.         men and women have equal rights in establishing the configurations of the groups; no gender has privileges with respect to intimate relationships that the other gender lacks;

b.         no sexual orientation is regarded as superior to any other.

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[430]     Given the sheer diversity of its potential forms, a precise definition of polyamory is elusive. As Maura Strassberg explains in “The Challenge of Post-Modern Polygamy: Considering Polyamory” (2003) 31 Capital University L.R. 439 (at 439-441):

Contemporary practitioners have coined the names “polyamory” and “polyfidelity” to describe a wide range of partner arrangements that 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.

Imaged as a form of commitment which is flexible and responsive to the needs and interests of the individuals involved, rather than a rigid institution imposed in cookie cutter fashion on everyone, this new polygamy reflects postmodern critiques of patriarchy, gender, heterosexuality and genetic parenthood. Such a ‘postmodern polygamy’ might occasionally look like traditional patriarchal polygamy, but it differs in important ways. For example, it could as easily encompass one woman with several male partners as it could one man with multiple female partners. It also includes the expanded possibilities created by same-sex or bi-sexual relationships, neither of which in contemplated by traditional polygamy.

[431]     Polyamory is not casual group sex. Rather, its fundamental value lies in the relationships at its core.

[432]     Important tenets of the polyamory movement are that it is sex positive and all relationships are consensual.

[433]     Sex positive means that the movement puts a high value on sexual relations, some even viewing sex as sacred. This positive view of sex extends to both male and female sexuality.

[434]     Another foundational element to the practice is that each party must know of and consent to both the possibility and reality of other relationships within the group. This need for openness and consent at all times necessitates considerable self-awareness, communication, conflict resolution, and emotional processing on the part of all members.

[435]     Other than their relationship structure, polyamorists live mainstream lives fully integrated with their communities.

[436]     The word “polyamory” first emerged in general use in both popular culture and legal scholarship in the 1990s. The practice is not insignificant and has attracted considerable academic attention; one example is Strassberg’s article quoted above. A compendium of legal articles, Meg Barker & Darren Langdridge, eds., Understanding Non-Monogamies (New York: Routledge, 2010), was also filed in this proceeding.

[437]     Polyamory has also been the subject of popular literature. Three titles for a popular audience published since 2008 ... are:

  • Deborah Anapol, Polyamory in the Twenty-First Century: Love and Intimacy with Multiple Partners (Lanham, Maryland: Rowman & Littlefield Publishers, 2010);

  • Dossie Easton & Janet W. Hardy, The Ethical Slut: A Practical Guide to Polyamory, Open Relationships and Other Adventures, 2nd ed. (Berkley: Celestial Arts, 2009); and

  • Tristan Taormino, Opening Up: A Guide to Creating and Sustaining Open Relationships (San Francisco: Cleis Press, 2008).

[438]     There are many community organizations and groups for polyamorists in the United States, Canada and internationally. There are annual conferences for those engaged in the practice in Canada and the United States, as well as academic conferences on the subject.

[439]     There is [sic] limited data with respect to the number of people who engage in polyamory. In 2009, Newsweek did a profile on the practice: Jessica Bennett, “Only You. And You. And You.” (29 July 2009). It notes that an online polyamory magazine called Loving More has 15,000 regular readers. 3 The article further notes that some researchers estimate that openly polyamorous families in the United States number more than half a million.

[440] In Polyamory in the Twenty-First Century, Deborah Anapol refers (at 44) to data collected by Loving More and, extrapolating from that data, estimates that one out of every 500 adults in the United States is polyamorous. She says that others have speculated that a number in the range of 3.5% of the adult population prefer polyamorous relationships, which would put the figure at about 10 million people.

[441] The [Canadian] Polyamory Advocacy Association sought to collect data on the number of Canadian polyamorists living conjugally with two or more other people. Finding an absence of statistical data despite an exhaustive search of academic and popular literature, the Association created a web-based survey which ran from 7 April to 7 May, 2010.

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[442]     The survey had this introduction:

The Canadian Polyamory Advocacy Association (CPAA) 4 is doing a short survey on polyamorous households in Canada where 3 OR MORE ADULTS ARE LIVING OR HAVE LIVED in a single “conjugal union” or multiple, overlapping “conjugal unions”.

[443] Conjugal union, in turn, was defined as follows:

In this survey, a “CONJUGAL UNION” means a marriage, common law marriage, intimate partnership, handfasting, or any other marriage-like relationship.

Example: in a three person situation, people living in such a Conjugal Union could be in a “GROUP” (persons A, B, and C are in a Conjugal Union with each other) or in an “OTHER” arrangement (persons A and B are in a Conjugal Union and persons B and C are in a separate Conjugal Union, sometimes in the same household and sometimes in separate households).

[444]     The survey required respondents to confirm their belief in gender equality, thus ensuring that individuals in patriarchal polygamous households did not respond.

[445]     188 individuals responded that they had previously been or were currently living in a “conjugal union” of three or more people.

[446]     Carol Jean Cosco, a volunteer with the [Canadian] Polyamory Advocacy Association, deposes that this number under-represents the number of polyamorous conjugal households for several reasons: the survey was of short duration and published in English only; some people who are polyamorous are not familiar with the term; others who are polyamorous are not involved in online or polyamorous communities so are less likely to have been aware of the survey; and, many polyamorists are not “out” about their relationships and may have been concerned about responding to surveys.

[447]     Some of the key survey results include the following:

a)    There are at least 112 polyamorous conjugal households in Canada which are based on each gender having equal rights in their intimate relationships;

b)    76 respondents said they had lived in a polyamorous conjugal household in the past;

c)     The total number of women in such households was 167; the total number of men was 158. Another 40 self-identified as “other”, which includes transsexuals, androgynous and gender queer;

d)    99 respondents did not have any minors (under the age of 19) living in their households. 53 had one or two minors, 17 had 3 - 6 minors, and 2 had 7 or more minors in the household;

e)    16 conjugal unions of 3 - 5 persons were sanctioned by a rite, ceremony, contract or consent other than a legal marriage. 30 were marked by a personal or written commitment to each other;

f)      45 respondents reported that their conjugal unions had involved witnesses who celebrated, assisted them or were a party to the rite, ceremony or contract that sanctioned the relationship; and

g)    74 respondents reported that they believed they were limited in being able to express or practice their religious beliefs or to live in keeping with their conscience as a result of s. 293. Another 33 thought s. 293 “may” limit them in this way.

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This topic is continued in the next essay

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References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

  1. The text of Chief Justice Bauman's decision is at:
  2. The text of Section 293 can be found at:
  3. Loving More is a magazine that has been ".. supporting polyamory and relationship choice since 1985." See:
  4. The Canadian Polyamory Advocacy Association (CPAA) has its home page at:
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