Dec 022010

polygamyThe recent court case of Winston Blackmore and James Oler of Bountiful, B.C. has ignited considerable debate over the practice of polygamy and of the definition of marriage.

The issue can be examined from many angles.  There are moral, religious and legal arguments for and against polygamy.  However, I particularly found interesting the growing list of non sequitur arguments.

The cases in Bountiful and similar cases in the United States seem to focus, at least with the public, on perceived violations of the rights of the women or children involved or on the authoritarian nature of the husband or of the church elders.

It is claimed that because some of these wives were married while under the age of consent therefore polygamy should be illegal.  Or, because the women entered into the marriage without fully being able to consent due to either their age or intense pressure from their church, then polygamy should be illegal.  The fact is that these non sequiturs can apply to monogamous marriages as well and are no

The real issue is not the perceived rights abuses in any particular case, but whether or not the state should recognize polygamous marriages when it comes to such matters as the legitimacy of the children, the obligation of raising children, the disposition or sharing of assets should the marriage fail and the couple or couples separate.  In other words the only reason the state should take an interest in the definition of marriage is when children and property is involved during a dispute.

Historically, the institution of marriage was often very informal and did not require the sanction of either a church or the state.  In some cases all that was required to be married was for the couple to simply say to each other “I marry you.”  They then acted as a household or a family.

As it stands now consenting adults can and do enter into all kinds of conjugal relationships.  A man does not need state approval to share a bed with as many women as he pleases or even to have children by these women.  Likewise a woman can share her bed with whomever she pleases.  People can co-habit and enjoy sexual relationships with people of any number and of any gender.  It is not the state’s business.  This is as it should be.

If I were a libertarian I would say that this is all that is required of the state.  To stay out of the affairs of consenting adults and let them live their lives as they choose.

But I am not a libertarian and there is a definite role that the state has to play when it comes to what kinds of unions or marriages it will officially recognize.

While historically marriage has taken many forms, from the casual “I marry you” to the elaborate and codified marriages we see today there has been one lasting aspect of marriage that must involve the state.  That aspect is marriage as contract.

When a man and a women marry they have, in all cases, committed themselves to shared obligations and responsibilities.  In most cases it centres on the raising of children.  You may share your bed with anyone you please but once a child is born as a result then there are obligations which the state must be witness to in the event that either parent reneges on their responsibility to the child and the other parent.

I’m willing to bet virtually everyone who is listening to this and who is married has never had to show their marriage certificate to anyone ever.  That is until there is a dispute which causes separation, divorce, the splitting of property or the custody of a child.  Even then, I wonder how many judges have tested a claim to responsibility by demanding the certificate of marriage be shown to him.  My marriage certificate has lain untouched in my safety deposit box for 23 years.

Marriage is, for the most part, a civil agreement which is recognized by everyone tacitly, unquestionably.   That is if you went to a garden party and introduced someone as your wife who would even think of challenging you on the fact.  It is a word of mouth arrangement that is almost never tested or contested until one of the couple acts in contradiction to the contract: by acting adulterously, by running off with the kids, by seeking divorce and claiming that your collection of Beatle’s albums is actually hers.  That is when we need the state to act.

It is for this reason, I believe, that many states have been reluctant to recognize marriages other than the traditional one-man/one-women kind.  Because no matter how many women you are married to a child is only born of one woman and fathered by one man.

In a polygamous relationship if there is a disruption in the contract say for example if the husband dies, do the other wives have a legal responsibility to rear the children of the other wives?  If a wife divorces her bigamous husband can she walk away and let him and his other wives take care of the children she had by him?  If there are no children involved and a polygamous marriage breaks up, how shall the household’s assets be divvied up?

The complex web of responsibilities in any non-traditional marriage can be a legal nightmare.  That is why the state has a right to decide whether or not to recognize a non-traditional marriage.  This is not to say that such marriages cannot exist de-facto as they often do, it is recognition of the fact that for legal purposes, in a society that respects contracts, the definition of marriage be limited, or the very least clearly defined.

Should we fine or jail people who have open marriages, polgynous marriages, polyandrous marriages or gay marriages?  I would say no.  But I believe that when people enter into such relationships they ought to realize, from the outset, that should some dispute occur which requires the courts to decide ownership of property or custody of children the outcome may not be one that they could expect given their intent to enter into a relationship not recognized by the state.

(Originally broadcast on Just Right #179, Dec  2, 2010.)