Laws governing polygamy in various countries

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Disclaimer:

The following essay is for general information only. Do not use it to make any personal decisions without first consulting a lawyer knowledgeable about family law in your country.

Laws concerning polygamy in the United States:

All of the states in the U.S., have active laws which declare polygyny to be a criminal offense. However, Utah has a history of condoning polygyny, as long as the spouses are not too public about it. Although there are tens of thousand members of various Mormon denominations currently engaged in the practice in Utah, only two persons have been charged in recent decades. Both actively promoted polygyny in Utah, and were an major embarrassment to the state government.

In 2003, the U.S. Supreme Court issued a ruling in Lawrence v. Texas . The case involved two homosexual males who had been convicted of same-sex behavior. At the time, this was a criminal act in Texas. Justice Anthony Kennedy wrote for the majority stating:

"The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. Their right to liberty under (the Constitution) gives them the full right to engage in their conduct without intervention of the government....[They] are entitled to respect for their private lives...The state cannot demean their existence or control their destiny by making their private sexual conduct a crime....In our tradition the State is not omnipresent in our home...Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct." ₁

Justice Scalia wrote that the majority Justices pretended that they have left enough freedom:

"so that we need not fear judicial imposition of homosexual marriage, as has recently occurred in Canada...Do not believe it...[The majority opinion] dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned." ₂

He also wrote that laws against bigamy, adultery, prostitution, bestiality and obscenity were  susceptible to challenges. ₃ One possible addition might have been public nudity.

The immediate effect of this ruling was to overturn anti-sodomy laws in 13 states. But the long range effects of the decision may well extend far beyond the activities of gays, bisexuals and lesbians. Justice Scalia and many other constitutional authorities have suggested that this decision makes it impossible for states to make or enforce laws criminalizing behavior, if the only basis for the law is that the activity is considered immoral by most of its citizens. In short, states can no longer legislate morality.

Justice Kennedy's statement might be interpreted as implying that American citizens have the right to engage in various behaviors "without intervention of the government " even including the choice of more than one spouse. States may no longer be able to criminalize polygyny and polyandry -- one woman marrying more than one man.

This conjecture has yet to be tested in a court. Recycling Justice Kennedy's ruling with the substitution of "polygamous" for "homosexual" might decriminalize polygamy across the U.S. However, with the recent confirmation of two new strict constructionists as Justices in the U.S. Supreme Court, a decision similar to Lawrence v. Texas which would decriminalize polygamous family structures is unlikely. In fact, it is quite possible that Lawrence v. Texas itself may be reversed during this decade.

Laws concerning polygamy in Canada:

The Criminal Code of Canada:
The Code is in force in every province and territory in Canada.

Right after Section 289 "venereal diseases, which has been repealed, comes a series of "Offences Against Conjugal Rights." Section 290 discusses bigamy. Section 293 covers polygamy. The latter states:

1. Every one who
   (a) practises or enters into or in any manner agrees or consents to practise or enter into
   (i) any form of polygamy, or
   (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 mentioned in subparagraph (i) or (ii), is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.
    
2. Where an accused is charged with an offence under this section, no averment or proof of the method by which the alleged relationship was entered into, agreed to or consented to is necessary in the indictment or on the trial of the accused, nor is it necessary on the trial to prove that the persons who are alleged to have entered into the relationship had or intended to have sexual intercourse. ₄

It is unclear from a literal interpretation of the section 289 how it would differentiate among:

Polygamy as openly practiced in British Columbia (BC) for many decades:
Members of the Fundamentalist Church of Jesus Christ of Latter Day Saints (FLDS) have openly practiced polygyny in both the U.S. and Canada. In 1990, some women who had fled Bountiful, BC demanded an investigation into why the police were ignoring the multiple marriages in the town. Two years later, the Royal Canadian Mounted Police (RCMP) conducted an investigation in Bountiful and recommended that charges of polygamy be laid against two men. ₅

The Attorney General of the province of British Columbia decided to not proceed. He had obtained two independent legal opinions, both of which agreed that the courts would probably find the federal law against polygamy to be unconstitutional. The law conflicts with the Mormons' religious freedom as guaranteed by Canada's Charter of Rights and Freedoms -- Canada's constitution. If brought to court, the Province would probably lose the case. More information about the BC case.

Study of polygamy funded by the federal government:
During 2005-FEB the Canadian government introduced Bill C-38 to Parliament to legalize same-sex marriage. A few weeks earlier, the Justice Department and Status of Women Canada issued a $150,000 grant to three law professors at Queen's University in Kingston, ON. The grant funded a study of the legal and social aspects to polygamy. A document issued by Status of Women Canada in 2005 stated:

"In order to best prepare for possible debate surrounding Canada's polygamy policy, critical research is needed...It is vital that researchers explore the impacts of polygamy on women and children and gender equality, as well as the challenges that polygamy presents to society."

The report was issued on 2006-JAN-12. It recommended decriminalizing polygamy in Canada ₆ and changing "...legislation to help women and children living in plural relationships." _7,8

Beverley Baines is one of the report's authors. Referring to Section 293 of the Criminal Code, she said:

"The polygamy prohibition might be held as unconstitutional. The most likely Charter [of Rights and Freedoms] challenge would be brought by people claiming their freedom of their religion might be infringed. Those living in Bountiful would say polygamy is a religious tenet."

Martha Bailey, the main author, told The Canadian Press that criminalizing polygamy serves no good purpose. She asked:

"Why criminalize the behavior? We don't criminalize adultery. In light of the fact that we have a fairly permissive society, why are we singling out that particular form of behavior for criminalization?...No one is actually being prosecuted but the provision is still being used in the context of immigration and refugee stuff. People are not being admitted to the country."

Ms Bailey noted that various Canadian laws should be changed to protect women in polygynous relationships by providing them spousal supports and inheritance rights. She said:

"They are denied access to our divorce law.... You have a great deal of difficulty claiming your rights with access to children, custody of children and financial support for the children. We are starting to make accommodations for some small things in some of the provinces [such as] extending support law to women and children in any kind of marriage."

"Polygamous marriages are legal in some countries. They come to Canada, the vast majority of them will not know the law and they have no legal protection. They could be prosecuted. Suddenly, they're living in fear." _7,8

Ms. Bailey said that removing it from the Criminal Code would not require marriage laws to recognize polygamous relationships. It would only decriminalize it. The third professor involved in the report is Bita Amani.

Laws concerning polygamy in other countries:

References used:

1. "High Court Rejects Sodomy Law," CBS News, 2003-JUN-26, at: http://www.cbsnews.com/
2. Tim Harper, "Sodomy laws struck down: Highest U.S. court says Texas statute unconstitutional. Dissenter warns of legalized marriage for homosexuals," Toronto Star, 2003-JUN-27, Page A3.
3. Linda Greenhouse, "Justices, 6-3, legalize gay sexual conduct in sweeping reversal of court's '86 ruling. Cite privacy right. Texas sodomy law held unconstitutional - Scathing dissent," The New York Times, 2003-JUN-27, Page A1 & A19
4. "Unofficial versions of the Criminal Code of Canada, sections 279 to 317," at: http://lois.justice.gc.ca/
5. "Polygamy in Canada: Hunting Bountiful. Ending a half a century of exploitation," The Economist, 2004-JUL-8, at: http://www.economist.com/
6. "Government Study in Canada Recommends De-criminalizing Polygamy," TruthBearer.com, at: http://www.pro-polygamy.com/
7. Martha Bailey, et al., "Expanding Recognition of Foreign Polygamous Marriages: Policy Implications for Canada," Status of Women, Canada, at: http://www.swc-cfc.gc.ca/
8. Melissa Leong, "Legalize polygamy: study. Ottawa paid for report that says Charter might negate criminal ban," National Post, 2006-JAN-13, at: http://www.canada.com/
9. "Polygamy in Canada: Legal and Social Implications for Women and Children – A Collection of [four] Policy Research Reports," Status of Women, Canada, at: http://www.swc-cfc.gc.ca/

Copyright © 2006 by Ontario Consultants on Religious Tolerance
Originally written: 2006-AUG-20
Latest update: 2006-AUG-21     
Author: B.A. Robinson