Dissolving Marriage

February 03, 2006, 8:05 a.m.
Dissolving Marriage
If everything is marriage, then nothing is.
By Stanley Kurtz
National Review Online, Contributing Editor

Canada, you don't know the half of it. In mid-January, Canada was rocked by news that a Justice Department study had called for the decriminalization and regulation of polygamy. Actually, two government studies recommended decriminalizing polygamy. (Only one has been reported on.) And even that is only part of the story. Canadians, let me be brutally frank. You are being played for a bunch of fools by your legal-political elite. Your elites mumble a confusing jargon to your face to keep you from understanding what they really have in mind.

Language Exam
Let's try a little test. Translate the following phrases into English:

1) Canada needs to move "beyond conjugality."

2) Canada needs to "reconsider the continuing legal privileging of marriage and other conjugal relationships."

3) Once gay marriage is legalized, Canada will be able to "consider whether the legal privileges and burdens now assigned to marriage and other conjugal relationships can be justified."
4) Canada needs to question "whether conjugality is an appropriate marker for determining legal rights and obligations."

[Answers: The English translation of #1,# 2, and #4 is: "Canada should abolish marriage." The translation of #3 is: "Once we legalize gay marriage, we can move on to the task of abolishing marriage itself."]

This argument was very publicly made to Canadians in 2001, when the Law Commission of Canada published its report, "Beyond Conjugality." But nobody got it. Everyone noticed that a government commission had backed same-sex marriage. But few recognized, grasped, or could bring themselves to take seriously, the central thrust of Beyond Conjugality: that after the legalization of same-sex marriage, Canadian marriage itself ought to be abolished. (For more on this, see my article "Beyond Gay Marriage")

Martha Bailey, Queens University law professor and chief author of the now infamous report advocating the decriminalization of polygamy, played an important organizing role in the Beyond Conjugality project (translation: the "Abolish Marriage" project). In 2004, Bailey published an article, "Regulation of Cohabitation and Marriage in Canada," arguing that, after the legalization of same-sex marriage, Canadians would be able to turn their attention to the more urgent business of abolishing marriage itself. (That article is the source of items #2, #3, and #4 above.) So it is hardly surprising that Bailey has now called for the decriminalization of polygamy. What's that you say? How does legalizing polygamous marriage advance the cause of abolishing marriage? Canadians, I'm going to have to spell it out for you in a way that Martha Bailey and her friends on the Law Commission of Canada will not.


The Plan
It's like this. The way to abolish marriage, without seeming to abolish it, is to redefine the institution out of existence. If everything can be marriage, pretty soon nothing will be marriage. Legalize gay marriage, followed by multi-partner marriage, and pretty soon the whole idea of marriage will be meaningless. At that point, Canada can move to what Bailey and her friends really want: an infinitely flexible relationship system that validates any conceivable family arrangement, regardless of the number or gender of partners.

The Canadian public cannot bring itself to believe that the abolition of marriage is the real agenda of the country's liberal legal-political elite. That is why everyone was surprised by Bailey's polygamy report, even though the judicial elite's intentions had been completely public for five years. (Granted, these intentions were telegraphed in a semi-incomprehensible intellectual gibberish, with the really scary stuff hidden in footnotes.)

If it were merely a matter of a few thousand so-called "Mormon fundamentalists," legalized polygamy wouldn't stand a chance in Canada. Even the addition of Canada's rapidly growing Muslim immigrant population wouldn't create a winning pro-polygamy coalition (although pressure from Canada's Muslims does matter). It's the many and powerful legal elites (including judges) - the ones who see marriage itself as an outdated and oppressive patriarchal institution - who make decriminalizing polygamy something to worry about.

What's that you say? You still don't understand how a bunch of liberal-feminist elites could even think about supporting an "oppressively patriarchal" institution like polygamy? I guess you still just don't get it. Read Bailey's report and you will see that she does not endorse traditional "patriarchal" polygamy. Bailey's whole point is that Canada can decriminalize polygamy without endorsing what "fundamentalist Mormons" or Islamic immigrants actually do.

But why would Bailey favor that? Simple. Canada's anti-polygamy laws stand in the way of Bailey's true goal: the creation of a modern, secular, "non-patriarchal" relationship system that would allow for marriage-like unions in any combination of number or gender. That would mean the effective abolition of marriage. But to get to the postmodern version of multi-partner unions, Canada's old-fashioned anti-polygamy laws have got to go.


The Coalition
Don't you get it? Canada's socially liberal legal elites are just using the gay marriage movement, fundamentalist Mormons, and Muslim immigrants to get what they're truly after: the slow-motion abolition of marriage. (According to Bailey, even many same-sex marriage advocates actually want to "reform" marriage out of existence.) And radical as that goal may seem, Canada is a whole lot closer to abolishing marriage than you realize. Canada's liberal courts have already knocked down most of the legal distinctions between marriage and unmarried cohabitation. Bailey's notorious report highlights that fact. "The legal significance of marital status has declined substantially in Canada," says Bailey, so why make a fuss about polygamy?

Martha Bailey isn't shy about making slippery slope arguments (to encourage the slip, not to fight it). Canadians have been told, openly and persistently, by their own legal experts, that the slippery slope is real. Yet Canadians simply refused to believe it, until Bailey's polygamy report came out.

Actually, Bailey's report is only one of four separate polygamy studies sponsored by Canada's Justice Department, two of which advocate decriminalization. The third study's arguments apply to traditional "patriarchal" polygamy alone, and would carry little or no weight against modern "polyamorous" unions (of the kind I wrote about in "Here Come the Brides"). Only one of the four government-sponsored polygamy reports offered arguments that might invalidate modern forms of multi-partner unions. Yet this fourth study omits key arguments against multi-partner unions, and would clearly have a difficult time overcoming the case made by the two pro-decriminalization studies.

In other words, to the extent that it's up to the sort of judges and legal experts favored by Canada's long-reigning Liberal party, long-term prospects for some sort of legalized multi-partner unions in Canada are pretty decent. To be sure, Canada's Conservatives now have a (tenuous) hold on power, and the Canadian public did not react well to the Bailey report. Yet Canada's left-leaning legal-political elite is a patient lot. In 2003, a survey conducted by Canada's Vanier Institute found that 20 percent of Canadians (25 percent of younger adults, and 33 percent of secularists) were willing to accept some form of polygamy, even if only 4 percent of Canadians personally approved of such unions. Given time, growing public tolerance, increased pressure from Muslim immigrants, incremental court decisions, continued growth in Canada's already burgeoning polyamory movement, and the return of a Liberal government, Martha Bailey and friends may yet achieve their goal.


Tactical Multiculturalism
Bailey's clever tactic is to appeal to Canada's powerful multicultural sensibility by allying herself with Muslim immigrants. Even though Bailey's proposal would decriminalize polygamy for Mormon patriarchs and postmodern polyamorists, she has almost nothing to say about those groups. Instead, Bailey focuses almost exclusively on the issue of Muslim immigration. Mark Steyn predicted this some time ago when he said that Canadian polygamy would "slip through under the guise of multiculturalism."

Stressing "the multicultural nature of Canadian society," Bailey claims that Canada has an urgent practical need for more Muslim immigrants. If Canada can just "expand the pool of applicants," says Bailey, it just may win "the global competition for highly skilled immigrants."


It's an odd argument. For one thing, rates of polygamy in the Third World tend to be lower among the highly educated. And Bailey herself claims that the number of polygamists who would actually immigrate under a liberalized law would "presumably" be "very small." So how can a minuscule number of polygamists boost Canada's pool of "highly skilled immigrants?" Bailey resolves the contradiction by claiming that all Muslims would be attracted to a country that proved its commitment to multiculturalism by welcoming polygamy. Still, it's tough not to suspect that Bailey is less interested in importing polygamous computer scientists from Africa than in using the Muslim community to achieve her ultimate goal of defining marriage out of existence.

Bailey is probably wrong on both counts. Instead of getting only a few polygamous immigrants but a lot of Muslim computer scientists, Bailey's plan would likely result in only a few computer scientists and a lot of polygamists. That's because Bailey would not only decriminalize polygamy, she would also allow all parties to intact polygamous marriages to immigrate to Canada. Big mistake.

After the Second World War, France expanded its labor force by allowing intact polygamous families to immigrate from Africa and the Middle East. By the 1990s, there were upwards of 200,000 polygamous family members living in France's impoverished suburbs. Since 1993, France has been torn by conflict over these polygamous families, sometimes trying to break them up, sometimes looking the other way. Many believe that boys from large and poor polygamous families with little fatherly supervision helped cause the recent riots in France.

Canada's Muslims seem interested in joining Bailey's slide down the slippery slope. While denying that Muslims were about to push for polygamy, Canadian Islamic Congress president Mohamed Elmasry caused a stir in 2005 when he publicly defended polygamy as "a positive family force." Sayd Mumtaz Ali, president of the Canadian Society of Muslims, was more forward when he said last year that if same-sex marriage were legalized in Canada, Muslim polygamists would be within their rights to push for legalization of their own way of life.


The Slope Slips
Of course, Ali is drawing a direct link between same-sex marriage and the push for legalized polygamy. Yet just last year, then Canadian Justice Minister Irwin Cotler famously said, "We don't see any connection, I repeat, any connection between the issue of polygamy and the issue of same-sex marriage." Calling such slippery-slope fears "alarmist," Cotler authorized the four just-released polygamy studies, in part to put an end to the claim that polygamy would follow same-sex marriage.

Apparently Martha Bailey missed the memo. Not only does Bailey call for decriminalizing polygamy, she directly links her legal argument on polygamy to same-sex marriage. This happens when Bailey confronts the barrier that adultery law poses to her plan to decriminalize polygamy. Although adultery is not a criminal offense in Canada, it serves as a way of proving the key ground of divorce, "marital breakdown." So if Canadian law recognizes adultery as a cause of marital breakdown, how can Canada accept polygamy? Easy, says Bailey. Why not just redefine adultery to mean, not sex with a third party, but sex with someone outside of a marriage of however many partners? To validate this reinterpretation of the meaning of adultery, Bailey points to the precedent of same-sex marriage, which forced a legal redefinition of adultery away from an opposite-sex dalliance. Hey, if we can redefine adultery for the sake of same-sex couples, why not redefine it to please polygamists?


Ultimate Goal
Bailey may not openly flog her ultimate goal of abolishing marriage in this report. Yet what Bailey's up to is clear enough when she carefully describes a 1998 report by the British Columbia Law Institute in which a "significant minority" of members favored a "multiple domestic partnership" system detached from the patriarchal "baggage" of traditional polygamy. This is exactly what Bailey is hoping to establish. Yet she brackets the proposal by saying that at the moment there is "no demand" for such a system.


Not so, as this 2005 Macleans article on Canadian polyamory explains. According to Macleans, polyamory "seems increasingly common" in Canada. And as organized polyamory groups proliferate, there has already been discussion "about creating a system of legal contracts around issues such as child custody and family rights."

Since polyamory is free of the "patriarchal baggage" attached to traditional polygamy, most of the arguments against multi-partner unions in the four just-released polygamy reports would not apply. Of course there are arguments against polyamory, it's just that liberal law professors don't know how to make them. In any case, Bailey is shrewd enough to see that, if she can only get Canada to set aside its laws against polygamy, the goal of supplementing (and eventually replacing) marriage with a modern domestic partnership system (allowing any combination of number or gender) would be achievable.

I've focused on Bailey, while touching only lightly on the three other polygamy reports. Yet taken together, these four extraordinary documents launch a serious public debate about polygamy. (I'll have more to say about the other reports in time.) The four Canadian polygamy studies are a time-capsule from the future, a preview of the argument we'll be having should same-sex marriage be fully established here in the United States. Once we're there, we'll be well on our way toward "removing conjugality as a marker for determining legal rights and obligations." Translation? By now I think you get it.