British Columbia Supreme Court bars prosecution against polyamorists unless they enter into “marriage” or contracts
Relationships between more than two people were ruled lawful in Canada – unless such a relationship is formalized with a commitment ceremony or relationship contract. Even those who attend a ceremony or assist with a contract sanctioning a relationship between more than two people could face criminal liability—so think twice before attending a polyamorous commitment ceremony in Canada.
On November 23, 2011, the British Columbia Supreme Court ruled Section 293 of Canada’s Criminal Code constitutional. Section 293 explicitly bans conjugal unions of more than 2 people and any form of polygamy. As explained in a previous blog post, many polyamorous Canadians were concerned they too, were subject to criminal penalty based on the text of the law:
“293. (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 (a)(i) or (ii),
is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.”
In 2009, the Lieutenant Governor of BC asked the court for a ruling on whether it could use s293 to prosecute two leaders of the FLDS community in Bountiful, BC. The Canadian Polyamory Advocacy Association, concerned that the law could also criminalize consensual polyamorous relationships, intervened in the case, arguing that the law violates the Canadian Charter of Rights and Freedoms.
The British Columbia Supreme Court ruled that s293 is constitutional, and thus polygamy continues to be illegal in Canada. However, the court clarified that non-monogamous unmarried relationships are not subject to criminal sanction. While this statement served as a relief for polyamorists in the province, it also created a confusing legal ambiguity. Living in a multi-party marriage is illegal, regardless of the genders of the people involved, while living in an unmarried multi-party relationship is not. Since there is no way for more than two people to officially marry in Canada, how can a multi-party marriage be distinguished from a multi-party relationship?
Justice Bauman’s ruling assumes that there is such a thing as “marriage” that exists independently of law and into which people can enter without any legal approval or recognition. Since participating in a “marriage” could make polyamorous families into criminals, it would seem important to have clear guidelines for how to achieve this legally illegitimate state of “marriage” – and how to refrain from achieving it in order to avoid violating the law. Justice Bauman excuses himself from that task: “I am not definitively defining “marriage”; it is not my task on this reference to do so.”
Justice Bauman offers no elaboration beyond the text of s293 itself, which states: “Everyone who… celebrates assists or is a party to a rite, ceremony, contract or consent that purports to sanction a relationship” is criminally liable for polygamy. According to s293, “sanction” by means of “rite, ceremony, contract, or consent,” is what separates an unmarried from a married relationship.
The implication is that polyamorous relationships are permitted, but holding a commitment ceremony or signing a cohabitation contract would create a “marriage” and make the “spouses,” guests, officiants, and lawyers into criminals. Sanction by “consent” implies that even a private verbal expression of commitment to a multi-person relationship constitutes a “marriage” and subjects the “spouses” to criminal liability.
Thankfully, neither B.C. nor any other province has demonstrated or expressed any interest in prosecuting polyamorous spouses so people probably do not need to worry about promising to love and care for their polyamorous partners and accidentally ending up “married.”
However, this law continues to criminalize many consensual adult polyamorous relationships, lumping them in with coercive polygamous marriages. One of Justice Bauman’s reasons for upholding this invasive law is to protect women and children in polygamous families from forced marriage, rape, abuse, and trafficking. However, these abuses are already crimes. Instead of encouraging law enforcement to prosecute these offenses, the court’s interpretation of s293 discourages healthy families from creating intentional commitments, celebrating these commitments with their community, and creating legal contracts to offer their families stability and legal protections. The danger is that the court’s ruling may harm many more families than it helps.
This battle is not over yet. The case may be appealed to the B.C. Court of Appeals and even Canada’s Supreme Court. In the meantime, polyamorous families in British Columbia may choose to practice civil disobedience of this law in the form of commitment ceremonies or legal contracts. If the law is ultimately ruled unconstitutional, it could pave the way for powerful recognition of the right to formalize relationships without state intervention.
For a great roundup of reaction articles on the case, see: http://polyinthemedia.blogspot.com/2011/11/canada-polygamy-ruling-win-loss-or-draw.html
Book Review: Is Marriage for White People? How the African American Marriage Decline Affects Everyone by Ralph Richards Banks
BY: KATHLEEN S. PETERS
Is Marriage for White People? How the African American Marriage Decline Affects Everyone provides a historical and sociological analysis of the declining marriage rates in the African American community. The first book by Stanford Law professor Ralph Richard Banks, Is Marriage focuses specifically on middle-class African American women and discusses why, of all Americans, this group is the least likely to marry and the most likely to divorce. Through sociological studies and numerous interviews with professional African American women, Banks narrows down what he sees as the main problems in African American relationships and offers some suggestions for future action to remedy these trends. While he raises some interesting points and seemed to do his homework as far as statistics, Banks sorely lacks a deeper analysis of the issues he discusses, especially with regards to gender.
Banks organizes his book fairly thematically, covering a wide range of topics and their effects on African American marriages and relationships. One such topic is the educational gap within the African American community. Banks discusses how African American women finish high school and college at higher rates than African American men and how this leads to not only different values being placed on education, but also disparities in income between the genders. While in other racial groups men’s income still exceeds that of women, Banks states that on average this is the opposite for African Americans (Banks 40). Banks also points out the horrifically high incarceration rates and mortality rates of Black men, and how this phenomenon not only breaks up African American marriages but decreases the number of available Black men. Another one of Banks’ stronger chapters discusses fears and concerns some Black women have of interracial relationships, particularly with white men. He brings up not only the cultural and family expectations that Black women will date only Black men, but also fears that white men would be dating Black women for the wrong reasons (152).
While Banks’ makes some valid arguments, there are also some major issues with his discussion of African American marriage. First of all, Banks looks at the issue of African American relationships and marriage solely through a heterosexual lens and completely ignores the existence or possibility of LGBT African Americans. Apart from one fleeting (and somewhat offensive) comment one single interviewee made of how “even they [gay couples] can get married,” there is no discussion of LGBT African Americans, the issues they face in the dating scene, or what they want in their romantic lives (16). Another assumption is that Banks does not discuss or question the necessity of marriage in the first place. He states that in Europe it is much more common for “couples to maintain long-term stable relationships without being married.” Citing an unidentified study by the Max Planck Institute for Demographic Research, Banks states that 91% of cohabiting couples in the United States either separate or marry within a few years (24-25). That statistic and others used throughout the book could be given more context than Banks provides. Overall, Banks assumes that marriage is the goal of all the individuals that he interviews, and that the women who state otherwise are few and far between (14). Banks also frequently uses the desire of African Americans wanting to get married as evidence against claims that declining Black marriage rates are due to “deviant values” within the community (70). While Banks is correct in countering these Moynihan-esque* arguments, he does so by othering those who do not want to get married.
My largest problem with this book, however, is the lack of a gender analysis. The majority of Banks’ information comes from interviews with African American middle class women. Banks uses several quotes from his interviewees, which often perpetuate gender stereotypes of a woman feeling incomplete without a husband/nuclear family. This may have been the true feelings of the women Banks interviewed, thus I cannot judge their experiences or the reasons for their comments. However Banks could have provided greater context for why these stereotypes still exist and the way U.S. society fosters these beliefs. The need for deeper analysis of these interviews is most apparent when issues of gender and class overlap. Banks describes many middle class women saying that when they were pregnant, they often made a point to always wear their wedding ring out in public so as not to appear like the “[poor], unwed black mother, immoral, promiscuous, irresponsible.” They wanted to be “the antithesis of that portrayal of black women” (72-73). While it may be true that there are active efforts to counter stereotypes put forth by a white-dominated, patriarchal U.S. society, for Banks to leave these quotes unexamined is irresponsible and helps to validate these stereotypes.
Another example of unexamined gender stereotypes is in his sixth chapter, “Power Wives.” Banks states that because there is an education and income gap between Black men and women, Black couples often have switched traditional gender roles with the wives being the breadwinners. Banks states that this gender imbalance puts “understandable pressure” on the husband, makes him “feel less of a man,” and “reminds [him] in a humiliating fashion of his own failure to fulfill the role of the husband” (95). Banks often writes, almost nostalgically, of how previous generations did not have to deal with such challenges to gender roles, and ultimately implies that these traditional roles made marriages simpler and easier. Banks states that his book is going to counter the idea that Black women are too picky and demanding in relationships, however this is just one example of how he in fact perpetuates that image.
Banks’ ultimate conclusion to the declining rates of African American marriage is for Black women to be as open to marrying “out” of their race as they are to marrying “down” from their class. He states that if Black women opened themselves up to dating men of other races that they would be more marriage possibilities and that this could solve some key issues within the Black community. “Recall that relationships are negotiations and that, as in any negotiation, which party prevails depends on the power that that person can bring to bear…the better one’s options outside of the relationship, the more power one has within it” (180). Thus while as of now Black men have more power in relationships because of the disproportionate gender ratio, if Black women opened themselves up to more dating options then Black women would get married more frequently, Black men’s leverage would decrease, and Black women would gain more bargaining power in their relationships.
While this solution may be Banks’ attempt to make the best out of the current situation, this conclusion is flawed because it not only places the blame on Black women, but it ignores many of the societal factors Banks refers to throughout his book. Not least of these factors is the huge (and I mean huge) percentages of Black men in prison and the way the U.S. education system handles Black male youth. Instead of Banks’ focusing on what Black women can do to better the rates of Black marriage, why not address the prison industrial complex and the reasons there are these disproportionate incarceration rates in the first place? Why not discuss how our education system could be improved and truly address the achievement gap? That would be much harder than simply telling Black women to date “out,” but it might get more to the heart of the real issue.
*For more info on The Moynihan Report read our review of Freedom Is Not Enough.
Such sad news: Paula Ettelbrick died last week. She was a good friend to AtMP. Everyone in our community should learn about her wise work. Please take a few moments to read some of the widespread coverage, and join our heartfelt condolences to her family.
The New York Times has a story by Tara Parker-Pope, “In a married world, singles struggle for attention.”
Bella DePaulo’s new book, Singlism, is mentioned. I am one of over two dozen contributors to the book. Bella blogged about the NY Times article.
Happy Unmarried and Single Americans Week!
Ann Schranz, board member
BY: JESS GAFKOWITZ
Since 2010, I’ve been eagerly tracking the status of the Every Child Deserves a Family Act, a bill that if passed into law, would benefit the lives of thousands of people.
Over 120,000 foster children in the U.S. are waiting to be adopted. However, some folks are being kept from fulfilling their dream of adopting a child based on their marital status because of discriminatory state adoption laws or individual screening and placement policies carried out by agencies throughout the country. Unmarried different-sex and same-sex couples are often left out, even though many would be great parents. They just need to be given that chance! Every potential parent should be screened carefully, just like any other. Only the best interests of each child should determine who is right for them.
The ECDFA is a conscious effort to prohibit further discrimination in adoption or foster care placement on the basis of marital status, as well as the sexual orientation or gender identity of prospective adoptive or foster parents.
YOU can help ensure states and agencies treat all children and families equally by taking this simple action today:
June was a great month for AtMP! Four members were published in the NY Times in an ongoing discussion of same-sex marriage.
- On June 23, Katherine M. Franke’s op-ed, “Marriage is A Mixed Blessing” was published. In the article, Franke voices her concerns about the pressure for same-sex couples to marry. She wonders whether these couples will be able to hold onto the rights and benefits they currently have even if they choose to stay unmarried. Franke also points out the reality that many same-sex couples have found and developed ‘nonmarital ways of loving’ and do not intend to abandon them now that same-sex marriage is legal in New York.
- On June 27th, Nancy D. Polikoff’s letter to the editor was released in response to the article “New York Opens Doors to Gay Weddings.” Polikoff was worried her employer would end domestic partner benefits once DC passed legislation allowing same-sex couples to marry. Since the state enables both same and different-sex couples to register as domestic partners, they are able to adequately care for one another. Financially intertwined partners are eligible for domestic partner benefits.
- Kevin Maillard’s opinion piece, “Are Religion and Marriage Indivisible?” presents slightly different concerns. He notes that the religious exemption regarding recognition of same-sex marriage has implications beyond the wedding day. Some religious traditions ignore the evolution of the modern family.
- And most recently, Judith Stacey’s opinion piece, “Unequal Opportunity,” counters the two main arguments about same-sex marriage in New York, 1) It “hammers the last nail in the coffin of an endangered, sacred institution” and 2) It is an “unadulterated victory for equality, democracy and human rights.” Instead, Stacey proposes it puts social pressure on more couples to marry and worsens discrimination against unmarried people. She concludes her article by urging the “need to develop family policies that give greater recognition and resources to the growing array of families formed.” *We urge all AtMPers to follow this article with Nancy Polikoff’s fantastic book, Beyond (Straight and Gay) Marriage.
The reality is clear, many families are still unable to care for one another despite same-sex marriage being legal in seven states.
What do YOU think?
The Alternatives to Marriage Project represents a broad coalition of individuals and families who believe in choice and fairness. Freedom to marry should be one of those choices – as should freedom not to marry yet still be treated fairly under the law.
Book Review: Unhitched by Judith Stacey
BY: STEPHANIE S.
For those of whom “ethnography” is a scary word (as a former student of anthropology myself, it at once is and isn’t), consider Judith Stacey’s new Unhitched instead, a series of poignant, insightful, funny and sometimes instructive stories.
I have longed for a reference book that can help me confidently answer the ubiquitous claim that monogamous marriage between one man and one woman is, always has been, and always will be the bedrock of society. Unhitched is that book.
Stacey guides us through family structures largely unfamiliar to mainstream America (gay parenting arrangements in LA, or “El Gay” as she dubs it), as well as through structures in faraway lands about which Westerners purport to know much. She then transports us to remote territory in southwest China, where we find a poignant refutation of the “bedrock of society” claim among Mosuo people who, as Stacey puts it:
Directly contradict the three basic contemporary convictions about marriage, parenting and family life that I identified in the introduction to this book: (1) marriage is a universal institution; (2) the ideal family structure for raising children is an “intact” family consisting of a married heterosexual couple and their biological children; (3) children generally, and boys especially, need and yearn to know their biological fathers.
Before venturing to China, she looks to South Africa for an example that may have more immediate resonance with a Western audience. She uses the simultaneously acceptable practice of polygamy and the constitutionally legal, but socially scorned gay partnerships in South Africa to reject the “slippery slope” argument often espoused by the Global Religious Right. This is the idea that conferring legal recognition on gay partnerships will lead to a host of (other) social ills . . . polygamy, bestiality, the end of the world via violent, global earthquakes on a certain date, what have you.
However, she fails to elucidate why the slippery slope argument is a problem. Is it a problem? Is she perhaps nudging us to come to our own conclusions here? She can’t do ALL the work for us, after all. I found myself wondering: Just what is wrong with the legal acceptance of one non-normative practice leading to acceptance of another practice? In not fully teasing this out, she tries to distance herself and us from the slippery slope argument.
Something that is slippery, however, is the language used throughout Unhitched. From using “feminine” in quotes to describe a preference for sexual exclusivity (using it in quotes doesn’t get you off the hook for unpacking loaded terms), to drawing an unusual distinction between “predestined” and “situational” gay male parents in LA, to pinning polygamy as a “sexual behavior” (I am not making the argument that polygamy is anything more or less than a behavior, instead, I am illuminating that Stacey uses this term without recognizing the implications and parallels between her terminology and how homophobic leaders have denigrated queer sexuality by rendering it as nothing more than a “behavior),” a careful read of Stacey’s work will leave the reader questioning just whose definition of terms are being employed and the extent to which we can successfully reclaim, rebrand and reinvent words to our own, progressive ends.
One of the charming aspects of this ethnography is that at times it reads like a relationship guidebook. For example, as she unearths the ways in which the people she investigates negotiate complex familial decisions, she explains “the two . . . spent the next two years carefully discussing their familial visions, values, expectations, anxieties, and limits” (Stacey 75). That sounds like a good starting point for any decision made in the context of a relationship!
Unhitched is punctuated by statistics (albeit sometimes flimsy ones, such as a survey of just 94 gay men in LA on their views on parenting that is used to support the claim that “most gay men seem to be able to forego parenthood without serious regrets” [Stacey 80]). Despite this limitation, she has a well grounded historical perspective and much insight to offer from her extensive field work.
Unhitched reflects a deep understanding of and appreciation for the complexities of parenting, partnering, and living on the margins of society. I hope that you pick up a copy of Unhitched and feel as challenged, inspired and satisfied as I did!
Stephanie S. is a volunteer with AtMP and works in the reproductive rights movement in the mid-Atlantic.
And did you see bell hooks’s fabulous quotation about the importance of alternatives to marriage vs. “marriage equality” in the print edition of Ms. Magazine? It’s worth the cover price! Here’s another presentation of her wise words, from the Ms. Blog:
I think the emphasis should return to the core struggle, which is the struggle for civil rights, the protection of anybody in long-term partnerships, and that should include a friend. There’s just a whole world of need out there, and need for respect for caregiving, for who does the work.
Book Review: Touching the Trees by Jennifer McBride
BY: KATHLEEN S. PETERS
In Jennifer McBride’s first novel, Touching the Trees, she recounts numerous moments in her life that led to reflection, fear, pain, love, transition, or peace. Written as a series of loosely connected memories and short stories, McBride takes the reader through the early years with her eventual husband, as well as the long and emotional divorce that ended her marriage. She also writes about her grandmothers and her admiration for them as strong, independent women who both left their marriages for different reasons. She talks about her children and how she hopes will not need to make the same mistakes she did to finally become happy and satisfied with their lives. Touching the Trees moves slowly and will undoubtedly strike each reader differently based on their individual experiences, but there are some gems of advice and hope that keeps pulling the reader back in.
This book is written for those who are in struggle, on the verge of a transition, or perhaps just experienced a major life change. In her introduction, McBride states that she hopes “this book will boost your strength to start or continue on your journey. Better yet, maybe it will inspire you to look and listen for lessons in your particular circumstances.” However if you are not in a position of drastic change or shifting self-reflection, this book may come across as slightly self-absorbed or leave you wondering why you should care about these stories. I had these thoughts often throughout the book, especially when the chapters did not relate to one another or it was a seemingly random story that did not have a broader message attached to it.
Yet then there are chapters such as “Abortion and the Egg Farmer’s Daughter,” which describes the abortion McBride and her now ex-husband had when they were younger and not ready for children. She puts a new spin on the term “pro-life” and tells how the abortion made her appreciate life more and pushed her to live it to the fullest to make meaning out of the abortion. “Walls and Bridges” is another great chapter that discusses the different ways people relate to one another and the opportunities for connection each type of relationship allows. McBride asks: are you putting up walls between you and others to forgo uncomfortable conversations, or are you building bridges to allow for vulnerability and trust? “Superfamily” is also a beautiful chapter, and perhaps the one that relates most to Alternatives to Marriage. This chapter goes over the different definitions of family and how sometimes your closest relationships are with those with neither blood nor legal relation. One chapter shortly after this describes how she and her current partner are committed to spending their lives together and becoming a family, yet not wanting marriage or any other labels attached to their relationship. McBride describes the peace that comes from making this decision, yet also the difficulties with having to explain it in a society that still lives in a world of boxes and classifications.
While these and other chapters carry strong and heartfelt messages about love, strength, resilience, and relationships, others lose the book’s momentum and make you wonder why you are reading it in the first place. Yet once again, this may not be the impression everyone gets depending on where they are in their lives. Regardless of your impression, McBride opens herself up to share deeply personal and emotional experiences with the reader, and she takes you through her transitions to the life she is in now.