(no subject)

[theweaselking]

Mormons: once again, ruining things for everyone.

(Short version: Plural marriage remains illegal among consenting-adults-as-equals because Mormons insist that trafficking children for sexual purposes is a religious obligation *and* that it's the same as plural marriage, and the Mormons themselves were the test case before the court.)

Comments

Re: flames.... at the side of my face.... red.... burning.....

[theweaselking.livejournal.com]

I can *kind of* see the judge's point.

Mormons: "Your ban on polygamy is an unfair infringment on our religious freedom. The specific implementation of the religious practice you're outlawing involves great harm to our members and society in general."

Judge: "Your practice involves great harm to your members and society in general. Laws restricting *your* practice of this are thus a justifiable infringment on your religious freedom"

Poly people: "But what about OUR freedom? The law also restricts us, and we don't harm society when we do this."

Judge: "This case is about if the law is just in restricting THEM from doing it THEIR WAY, not about if it's just restricting YOUR WAY. If you were the plaintiff, maybe, but you're not. Nobody is asking if the infringment on YOUR rights is justified, only if the infringement on THEIR rights is justified. And them? They're fucked up."

Re: flames.... at the side of my face.... red.... burning.....

[aeduna.livejournal.com]

granted... but:
""As Chief Justice Robert Bauman recognized, this case is about two competing visions — one of personal harm versus state intrusion. As he clearly found, there is profound harm associated with polygamy, particularly for women and children," said [B.C. Attorney General Shirley] Bond.""

That's not just making comments about religous freedom. That's making broadsweeping comments about polygamy, and the effects it has. Its two statements away from "sex with ducks" from the mouth of attorney general, not just a single page media review of a 300 page judgement...

[theweaselking.livejournal.com]

Historically and anthropologically, he's got a point: polygamy is very strongly correlated with great harm to the status of women and children.

The problem here is that the affected parties include both brainwashing cults who raise children for the purpose to selling them into sexual slavery while telling them that this is absolutely required in order to get into heaven, and sane consenting adults who want legal protections for all their life partners rather than having to choose only one.

And the judgement has ruled against the first group and caught the second in the crossfire, since the first group were the plaintiffs and the question was whether or not restricting the first group from their entire practice of polygamy, slavery and all, was justifiable.

[aeduna.livejournal.com]

I still feel the answer is to persecute the specific harming actions, such as carnal knowledge of a minor, etc, rather than to have a blanket approach against one of their practices that overlaps those actions. In the article, most of the arguments of "this is bad" were being applied to behaviour that is incidentally related to polygamy, but actually sourced from the religious nutbaggery.

It reads like "we can't actually ban you from being Mormons and being creepy, so we'll go after the thing that makes you different".

I'm all for punching brainwashing cults in the exuberance, but I'm also not keen on blanket laws that don't actually address the problems that purport to be put in place to solve. (See our local "people are stabbing and machetteying one another, so we'll make it really hard to have ornamental swords".... Obviously).

[lederhosen.livejournal.com]

If it was just a coincidence that polygamy and child abuse were showing up in the same places, I'd agree with you. But I argue (see comment below) that there's a causal link. If you took a completely atheist community and convinced them that "two wives for each man, one husband for each woman" ought to be the norm, you would see similar problems emerging.

[theweaselking.livejournal.com]

Yup. The fact that this law *also* prevents non-gender-weighted non-general plural marriages is a side effect: Those people were not the plaintiffs.

[aeduna.livejournal.com]

Sorry, are you arguing that child abuse comes naturally out of a multiple-adult-relationship situation? woops, read comments out of order, will reply to the other one.

[torrain.livejournal.com]

It's cool, I had exactly the same reaction, and would probably have tried to bite a hole in someone or something if your comment hadn't been helpfully edited to clue me in to the fact that what was being said was not only more but different.

ETA: Much love for the phrase I'm all for punching brainwashing cults in the exuberance, by the way.

[lederhosen.livejournal.com]

FWIW, I am actively poly myself, so I certainly wouldn't argue that :-)

But to me, what matters is that people get to make their own choices, according to a 'consenting adults' principle. FLDS-type polygamist groups offer less choice than vanilla monogamous society; the fact that the relationship they happen to enforce has some superficial similarities to the one I and my partners chose doesn't make them My Brothers In Oppression.

If anything, more like Those Arseholes Who Spoil It For The Rest Of Us.

[lirion.livejournal.com]

The abuse that he is referencing comes about as a result of the unfair power dynamic in the situations. That dynamic isn't about multiple partners, it's about lack of choice for the women and children involved.

That's not about people choosing to have multiple partners. It's about control and some fucked up religious views. Therefore, making polygamy illegal won't stop the abuse or harm, because it's addressing the symptom not the problem.

[lederhosen.livejournal.com]

Religion certainly plays a big part, but multiple-partner relationships aren't just symptomatic here. Supply and demand - if each man needs two wives, and each woman is only allowed one husband, women become a valuable commodity and the social definition of 'women' gradually creeps downwards through the teens.

Sure, child abuse is common in a lot of religious sects, including monogamous ones. But in the ones that require polygyny without permitting polyandry, it seems to be virtually universal.

This is about one particular implementation of multi-partner relationships; as you know I have no beef against poly as a choice between consenting adults. Unfortunately laws aimed at the former tend to hurt the latter as well.

[torrain.livejournal.com]

> Historically and anthropologically, he's got a point: polygamy is very
> strongly correlated with great harm to the status of women and children.

Should that maybe be polygyny specifically? I realize polyandry might also have some bad effect (fraternal polyandry comes to mind, although I couldn't point to a study to say that's fair), but I'm pretty sure that there've been studies showing that children of a poly marriage in a culture that operates with the concept of partible paternity actually tend to do better.

(I may be bogging down in specifics here.)

[tisiphone.livejournal.com]

lol @me commenting a month late, but actual examples of culturally practiced fraternal polyandry (such as in Tibetan mountain peoples) aren't all that kind to women and children. For one thing, it reverses the gender-balance dynamic of polygyny, leaving many women without husbands. For another, women aren't actually granted more rights; it's a patriarchal property rights relationship, not a matriarchal relationship. The net effect of fraternal polyandry is that women are stuck caring for the domestic and sexual needs of a large number of men, only some of whom (if any) they may actually have an emotional relationship with, and some of whom will be highly inappropriate in terms of domestic partnership due to being far too young or too old. In return, women aren't granted any additional rights and don't gain status in society. In one article I've read on the subject, women that don't marry actually consider themselves superior to their married sisters because they have significantly more freedom. Basically, it's not really much better for the position of women or children than polygyny is, it's just (slightly) differently sucky.

[torrain.livejournal.com]

I did say that yes, I suspected fraternal polyandry might have a bad effect. :) But that's one example of polyandry, and specifically the effects of it on women; children aren't mentioned. I'd want to see more examples and more studies before I was comfortable saying that polyandry was close to as strongly correlated with harm to the status of women and children as polygyny; and to say it's close to as bad for both groups strikes me as a prerequisite for being comfortable with the statement that polygamy (as a whole) is very strongly correlated with etc.

[tisiphone.livejournal.com]

The number of studies related to polyandry generally is limited because it's exceptionally rare.

Re: flames.... at the side of my face.... red.... burning.....

[elmo-iscariot.livejournal.com]

Regardless of whether some, most, or all polygynous Mormons are abusive, though, it remains the abuse that's the harmful behavior, not the polygyny. They were claiming a right to plural marriage, not a right to abuse wives and children.

This ruling is roughly the equivalent of a judge noting that lesbian relationships have a greater than average correlation with partner abuse*, and upholding a ban on lesbianism on the grounds that the specific lesbian challenging the ban has in fact abused a partner. The character of the claimant, and whether the claimant is guilty of another crime, wasn't the question before the Court.

By the judge's logic, would it also be appropriate to uphold a total ban on all religious practice, so long as the person in front of the bench was a fundamentalist Mormon? After all, his specific religious beliefs are arguably a more central part of his abusive behavior than his polygyny. It's easy to have a plural marriage without abusing anybody; it's much harder to unabusively follow a fundamentalist religion that teaches all women should be submissive to their husbands.

I'm not familiar enough with Canadian law to know whether secular polyamorists will have standing to file a similar suit, but I hope they do. I'd be very interested to see if the results are different.

[* - This is probably not true. It's a for-the-sake-of-argument.]

Re: flames.... at the side of my face.... red.... burning.....

[elmo-iscariot.livejournal.com]

Let me see if I can put this another way:

Some members of a Louisiana branch of the Ku Klux Klan, which has been putting on increasingly ridiculous public rallies for decades, decides to revive the good ol' days and add occasional lynchings to their repertoire. Some are caught and prosecuted, but actually rooting all of them out proves extremely difficult.

So the state passes a ban on public demonstrations.

When a Klan representative sues to have the law overturned, the LSC judge says "yes, you have a Constitutional right to demonstrate, but I think your demonstrations are harmful, so the ban stands."

[theweaselking.livejournal.com]

I'm not saying the judge is *right*, I'm saying I understand his logic.

Imagine a ban on, say, dogs. On the original grounds that everyone breeding dogs is breeding bad dogs who get lose and cause damage and are a general nuisance.

Owners of an abusive puppy mill that produces inbred, deformed, and poorly behaved dogs, who release feral packs of dogs into their neighbour's yards, sue on the grounds that they have a Charter right to breed and own dogs.

The judge looks at the law, and confirms that yes, there IS a Charter right to own and breed dogs, and that yes, this law DOES violate it.... but then looks at the section that defines when such violations are permitted, and declares that this law's violation of *those particular breeders'* rights is justified.

The court does not address the rights of people other than the plaintiffs, because that's not the job of the court. That question is not something that the court *can* rule on, legally.

(And before you get on about having a section that says when your rights are allowed to be abrogated: You've got that, too, you just phrase it differently. You've got a right to be free, and then they can put you in jail for murder. You've got a right to be proof against unreasonable search and seizure, and then a legal definition of "unreasonable". You've got a right to practice religion without interference, and yet illegal acts as part of a religious practice are not protected. You've got the same thing we do, just not as clearly delineated.)

[elmo-iscariot.livejournal.com]

Like I said over at my place, I think what's happened here is that I'm inappropriately applying my instincts based on American review of laws burdening enumerated rights to a Canadian court, which is obviously illegitimate. Since I'm almost completely ignorant of Canadian standards for review, I won't presume to know better than a Canadian high judge whether he's applied them correctly.

And before you get on about having a section that says when your rights are allowed to be abrogated...

Dude, I'm not going to tell you how to run your country. :) Even if I was that arrogant, my country has far too many windows for me to go throwing stones.

But do take a look at my reply to you over there. Browsing the actual decision, it looks like the judge meant to slap down consensual polyamorists right along with fundamentalist Mormons. His language is... pretty damning.

[theweaselking.livejournal.com]

I think he very well might have, but that doesn't change that:

1) Laws against polygamy have been declared a violation of charter rights
2) This violation has been declared a justifiable violation because of the negative effects of how Mormons do it. Not violating their rights would be worse.

Which leaves the obvious argument open: A group says "all those reasons you said it was definitely a societal ill? Those don't apply to how we do it, and we can prove it. Therefore, the second part can't apply to us."

That argument, if successful, would necessitate the law being modified to exclude them, since they've demonstrated that the infringing law does NOT justify violating their rights, since *not* violating their rights would not create a greater wrong.


Now, the end result really might be the eventual addition of a
3) And we have to violate the rights of non-Mormons, too, because we can't apply the law only to some people and the way Mormons do it is really way too damaging.

Which would be bad - but it might also be
3) The law must be rewritten to prevent only how the Mormons do it, since their way is damaging, while allowing how *you* do it since your way is demonstrably harmless.

[jsburbidge.livejournal.com]

The normal response is "it's up to the legislature". Judges will "read down" a law to preserve it by restricting its application to what is justifiable, but they won't import detailed conditions to do so.

Drafting a version of the law which excludes the problematic Mormon version isn't all that hard (e.g. requiring a minimum age of, oh, say, 30 before someone can enter into a poly marriage would probably do it, but that wouldn't be very popular with the poly community), but doing it well would be a bit of a challenge. You also have to thread the needle of immigrants with pre-existing polygamous marriages, many of which are de facto as strongly characterised by suppression of the women as Mormon ones (e.g. the family involved in the Kingston killings which is now on trial), and which other non-Mormon religious polygamous traditions you want to exclude and which ones you want to support.

IANAL, but I am an LL.B. I do wholeheartedly agree that judgements are treated as narrowly as possible as deciding the issue between the parties in front of the judge (I will ignore judgements in rem and Declaratory judgements) and that it would have been pretty well impossible to have a judgement explicitly upholding the law for this set of facts while also explicitly striking it down on another set of facts which were before the court.

[theweaselking.livejournal.com]

It's not specifically Mormon poly setups you want to prevent, it's societal one-directional *required* poly setups - where everyone is expected to be in a poly marriage and all poly marriages are one-man-many-women.

The Mormons just happen to be the ones in court, here.

[jsburbidge.livejournal.com]

That's why it's difficult -- a section specifically forbidding Mormon setups would be easy to write (although you'd probably need the notwithstanding clause to make it stick). Distinguishing between marriages which follow polygynous-only guidelines along with associated problematic patterns from polyamorous ones which are based on a relation between equals and only happen to be polygynous is more difficult. You could make a general provision and leave it for the courts, but that would make for a ton of uncertainty until a large body of case law built up.

[elmo-iscariot.livejournal.com]

I have to run now to family Thanksgiving, but very briefly:

My concern is with the judge's explicit acceptance of the Amicus brief holding that

the harms associated with the practice are endemic; they are inherent. This conclusion is critical because it supports the view that the harms found in polygynous societies are not simply the product of individual misconduct; they arise inevitably out of the practice. And many of these harms could arise in polyandrous or same sex polygamous relationships, rare as those appear to be. Here I mention, without limitation, harm to children (for example, from divided parental investment or as a result of less genetic-relatedness of family members), to the psychological health of the spouses, and to the institution of monogamous marriage.
...
When one accepts that there is a reasoned apprehension that polygamy is inevitably associated with sundry harms, and that these harms are not simply isolated to criminal adherents like Warren Jeffs but inhere in the institution itself, the Amicus’ complaint that there are less sweeping means of achieving the government’s objective falls away. And it most certainly does when one considers the positive objective of the measure, the protection and preservation of monogamous marriage. For that, there can be no alternative to the outright prohibition of that which is fundamentally anathema to the institution. In the context of this objective, there is no such thing as so-called “good polygamy”.

Not to say another court won't ignore his ruling or interpret it out of existence, but this judge seems pretty clearly to have accepted the premise--not that specific cultures with plural marriage are bad and must be suppressed--but that plural marriage itself causes the ills of those cultures.

I have a feeling Canada will eventually recognize plural marriage (and almost certainly before the US does), but this ruling? I have a hard time believing it's a good sign for the short term.

I hope you're right, and look forward to being proven wrong.

Re: flames.... at the side of my face.... red.... burning.....

[theweaselking.livejournal.com]

PS: I'm not a lawyer. Not *at all*. So I could be completely full of shit about what this means, in practice - but I think I've got a pretty good handle on it.