Statement from John Ince: What this decision means for polyamorists
Dec 11th, 2011 | By Carole | Category: BlogOpen letter to the Canadian Polyamory Community from John Ince
Hello everyone:
It has been two weeks since the Polygamy Reference court decision was released by Chief Justice Baumann of the BC Supreme Court. I have thought a great deal about the case since then, and communicated with lawyers and people in our legal team about how that decision affects the members of the Canadian polyamory community.
Thoughts only – not advice and not the official position of the Canadian Polyamory Advocacy Association (CPAA)
These are my thoughts. And they are just that. Thoughts. These words are not intended to be legal advice to anyone. If you want such advice please hire a lawyer to get his or her opinion about the case and how it might apply to your own unique circumstances.
Also these are my personal thoughts. I am not expressing any official policy of the CPAA or anyone else.
In general terms, I think that the decision allows us to do virtually anything the vast majority of polyamorists would want to do.
That is not to say that I agree with all of the court’s conclusions. I think he made errors in his Charter analysis and I think the scope of the prohibition he ultimately defined is still overbroad and unconstitutional. I think this judgment could be overturned on appeal.
But while I may disagree with many of the judge’s points, his conclusion is very positive for our community. His decision makes it clear that polyamorists are not criminals and this is a major step forward for our community to gain social acceptance and become more integrated into mainstream Canadian culture.
The Decision
The judge interpreted Canada’s criminal law against polygamy narrowly so that it only criminalizes non-monogamous relationships that are a) institutionalized b) marriages. The law, he said, protects the “institution of monogamous marriage”. He concluded that the law does not apply to non-monogamous relationships in general.
Of the two terms “institutionalized” and “marriage” the former is the most important, not only because it narrows the second term, but also because the concept of “institutionalized” is clearer than the concept of “marriage”.
The judge discussed three types of institutionalized marriage and they give a guide to what he means by “institutionalized”.
The first type is the institution of two person heterosexual marriage. As the judge discussed, that institution has thousands of years of cultural practice behind it and in Canada 150 years of formal legal definition and sanction. It is clearly an institution.
As to the key elements of that institution the evidence suggests these things:
1) marriage has a community dimension because the marriage affects the wider community and not just the parties to the marriage;
2) the community must in some way formally sanction the marriage through an authority structure;
3) some form of marriage registration must occur so the community can determine a marriage has taken place;
4) the public nature of the ceremony is in part designed to tell others that the parties to the marriage are off-limits for sexual purposes;
5) because the marriage affects the wider community the terms of the marriage cannot be renegotiated by the parties themselves;
6) the parties to a marriage cannot dissolve it themselves; dissolution requires another public ceremony or involvement of third parties
(from paragraphs 227, 1020, 1037-1042 of the court’s decision which is at http://www.courts.gov.bc.ca/jdb-txt/SC/11/15/2011BCSC1588.htm )
The formal sanctioning by the Canadian legal system in the last twenty years of a new form of monogamous marriage – homosexual – which the judge also recognized shows that marriage can be institutionalized by new practices.
The third type of institutionalized marriage discussed by the court was that of the Fundamentalist Church of Jesus Christ of Latter-Day Saints (the “FLDS”), a patriarchal, polygynous and fundamentalist sect which broke off from the Mormon church many years ago. That community, although a virtual legal outcast from mainstream culture, has a roughly 150 year marriage tradition and it clearly meets the above criteria of institutionalization.
The FLDS marriage is discussed in the holy books that the community reveres. Specific practices sanction the marriage and the marriage is approved by people of authority in the community. The fact of the marriage is well known in the community. There are rules which prohibit sexual contact outside marriage. More rules authorize expelling people from the community for violation of marriage vows. There are rules and practices for the dissolution of the marriage.
Muslim multi-party marriage traditions are similarly rich in institutional detail and long practice.
According to the judge’s decision, the FLDS and Muslim multi-party marriages are institutionalized and hence prohibited by the Criminal Code. To the argument that the prohibition breached the Charter, he replied that the harm caused by institutionalized multi-party marriage prevented Charter protection.
Application of the decision to polyamorists
Now I apply these points with the facts that I believe pertain to the polyamorous community in Canada.
I see no form of polyamorous marriage in Canada that could be called “institutionalized” within the meaning of the decision. Nowhere in the literature about polyamory filed in the court is there any discussion of such an institution in Canada or the U.S.
There are some polyamorous community values regarding relationship: such as that it is consensual, honest, and gender and sex-orientation equal, but this applies to all relationships, not “marriage”.
There are also community values about personal autonomy and the overriding right of the individual to follow their own path in getting in and out of relationship, while respecting the interests and feelings of others, and those values are incompatible with the institutionalization of marriage as discussed above.
I conclude that given the lack of polyamorous history, sanction or support for “polyamorous marriage” that polyamorous people cannot form the type of marriages that the judge found are prohibited.
I go so far as to say that even if polyamorous people wanted to form such relationships, they cannot. The whole structure of institutionalization that the judge emphasized over and over again as key to his decision is simply lacking in our community.
Could this structure be created by a sect of polyamorists who want to create a specific form of polyamory for their members? Yes, but they would have to create rules of membership in the community, an ideology of marriage or rules of marriage, a process of formalizing marriage, punishments for breaking marriage vows, and ways to dissolve the marriage.
Members of the sect who participated in such “marriage” ceremonies would be breaking the law as the judge defined it. However such a sect if charged with an offence would have the opportunity to raise evidence showing that polyamorous marriage causes none of the harms which the court defined in the Reference case, and hence Charter protections might apply and prevent any conviction.
Given the current Canadian polyamorous community, I believe such a sect would have very few members. But if there are people who really want marriage then they can form that sect and take their chances with the law.
How far can we legally go?
Because there is no polyamorous institution of marriage, how far can polyamorous people go in celebrating and formalizing their relationships? In my view: probably as far as they want.
The furthest would be to have a formal celebration, with vows, and rings, and even to expressly call it a marriage. This is probably not a prohibited form of “marriage” because it lacks the institutionalization discussed above. Specifically, it is entirely ad hoc and personal to the parties. There is no community structure defining any aspect of the marriage, no third party dissolving the marriage, no punishment for leaving the marriage.
Given the fact that marriage is so bound up with monogamy I believe very few people in the polyamorous community would want to use the language and trappings of marriage for such ad hoc celebrations. But as I say, they probably can go that far and not offend the law.
Avoiding use of the word “marriage” or even formally disavowing that the celebration is a form of marriage would remove any legal risk that I can see. These steps may not be necessary, however I would include them if I was involved in such a ceremony.
So I think we can have ceremonies where we celebrate our relationships. We can take vows of love and commitment. We can share rings. We can have contracts about finances, and child rearing, and health care. All of those things occur regularly in common law monogamous relationships.
Borrowing institutionalized structure
An interesting issue would arise should a polyamorous couple want to borrow the institutionalized structure of a group that is not formally polyamorous. For example, say there is a ceremony that is overtly defined as a “marriage”, that also follows Wiccan traditions and which is presided over by an accredited Wiccan official. Or say there was a break-away sect of the Catholic Church led by a former priest who has a congregation and who will “marry” anyone or any number of people, using all the trappings of the Catholic Church.
I think the prosecution could make a strong argument that there was sufficient “borrowed institutionalization” applying to these official purported “marriages” to make them offend the law. Hence any explicitly purported “marriage” conducted by any official from a real community would not be advisable in my opinion. If you want to call your ceremony a marriage, getting any “official” involved increases your legal risk.
Having an “official” from a community preside at a ceremony increases the risk of criminalization, but if you are determined to do that, your legal situation will be better but not absolutely secure if you do not call the ceremony a “marriage” and even better, formally disavow that the process is a “marriage”.
Pensions, immigration, community property, child custody issues
Finally, many people want to know how this case affects issues not related to the formalization of marriage, such as its impact on immigration, pension, community property or hospital attendance privileges for people in polyamorous relationships.
Because the court found that polyamorous relationships that are not institutionalized into a form of marriage are lawful, people in such relationships no longer have to face the chilling argument in child custody, immigration or other matters that they are criminals. That is obviously a very positive outcome of this case.
Further, nothing in this case prevents people in cohabiting polyamorous relationships from entering contracts with respect to most key family issues, such as community property and the care of children, and hospital privileges.
However many issues cannot be resolved by agreement of the parties but must be specifically authorized by legislation, such as immigration privileges or automatic community property or pensions. Laws do grant privileges to people who are legally married, and also many common law monogamous marriages.
Many polyamorous people want those same rights.
The problem is that polyamorous cohabitation is so new that society has not yet worked out how to apply the rights that monogamous couples enjoy to a multi-party cohabitation.
These rights are going to have to be worked out on a case by case basis over time. Gay couples won their battles that way. Over a period of a couple of decades they litigated many cases dealing with child custody, pensions, tax issues, etc. It was only after those other rights and obligations were established—allowing gay relationships to become mainstream—did gay couples ultimately gain the privilege to participate in institutionalized monogamous marriage.
We need to remember that the gay marriage issue was the last major legal issue to be resolved about gay equality, not the first. If there are polyamorous people who want exactly what homosexuals got, who want the right to traditional institutionalized poly marriage, then the first step toward that goal is resolving all issues pertaining to pensions, and immigration in a purely co-habitational context and then some time in the future seek the final step of the legal recognition of polyamorous marriages.
John Ince
Lawyer and Spokesperson for the CPAA (polyadvocacy.ca) December 11, 2011
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Actually, substantial work has already been done on the legal theory of polyamorous marriage:
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There is an ongoing discussion among polyamory activists regarding a legal model of polyamorous marriage (i.e., the extension of the legal concept of marriage to include polyamorous families). One debate centers around the relative merits of an all-with-all approach to marriage (whereby three or more persons are all joined together at the same time within a single marriage) and dyadic networks (whereby existing laws against bigamy are revised such that people are perfectly free to be concurrently married to multiple other persons, provided that each such new marriage is preceded by a legal notification regarding the pending new marriage to all those to whom one is already married; failure to provide that legal notification would then constitute the updated crime of bigamy).
Dyadic networks would result in what might be thought of as a “molecular” family structure — one which might be best represented by the molecular diagrams commonly used in chemistry. In this way, marriage would remain a dyadic relationship (i.e., a relationship between two persons), thus minimizing any changes to the existing system of legal marriage, but the introduction of concurrency would provide access to legal marriage for polyamorous families.
Dyadic networks can correctly represent any situation associated with the “all-with-all” paradigm, as well as many situations that the “all-with-all” paradigm cannot deal with. A “complete” dyadic network would take the form of a complete graph, in which every person is (pairwise) married to every other person, thus correctly representing any situation associated with the “all-with-all” paradigm. A dyadic network may also represent situations in which some persons are (pairwise) married to some members of the dyadic network but not to all of them (“V” and “N” geometries, for example) — these are situations that the “all-with-all” marriage paradigm is unable to accurately represent.
The “all-with-all” marriage paradigm assumes that everyone is equally involved with everyone else in the group — one global marriage agreement has to fit every participant at the same time. But dyadic network marriages separately define the terms of each specific 2-person relationship, and these dyadic marriages do not typically happen at the same time (A marries B, B marries C (“V” structure), C marries D (“N” structure), etc. — thus, the shape of the dyadic network dynamically changes over time). Participants in a dyadic network need not even be aware of the specific terms of marriage agreements existing elsewhere within the same dyadic network.
Under the “all-with-all” marriage paradigm, when irreconcilable differences arise there can be no alternative to a complete separation — one person cannot divorce another without ending the entire marriage agreement for everyone involved. But dyadic networks can function in much the same way as watertight compartmentalization functions in naval vessels, i.e., to limit and contain damage. An intense disagreement between two persons takes place within the context of their marriage, and need not greatly involve (or threaten) the relationships between other participants. Within a well-connected dyadic network, a divorce between two persons need not result in a complete separation of the network — for example, a dyadic network with triangle geometry would simply turn into a dyadic network with “V” geometry.
An “all-with-all” marriage can only exist or cease to exist. In contrast, the shape of a dyadic network can dynamically change over time. Divorces subtract connections, and marriages add connections. The dyadic network itself either changes shape, separates into two dyadic networks, or merges into another dyadic network, depending on the precise nature of the newly added or subtracted connection.
The maximum size of an “all-with-all” marriage is limited by the fact that every participant must be aware of the existence of every other participant (otherwise the global marriage contract would be invalid, because it could not satisfy the legal condition known as a “meeting of the minds”). But since a dyadic network relies only upon every participant’s local knowledge of his or her own direct partners, its size is theoretically unlimited. The dyadic network paradigm is so powerful that it is theoretically capable of managing a situation in which every adult on earth is legally joined together in a single enormous dyadic network. Thus, with the dyadic network model, the idea of “many loves” is directly translated into a practical reality, and the “infinity” symbol (representing love without limits) is directly matched by a marriage model capable of handling an infinitely large number of participants.
Implementing Dyadic Networks
Within the United States, 41 states (82%) use the “equitable distribution” financial model, which is highly compatible with dyadic networks. But there are also nine other states (18%) with a financial model that is incompatible with dyadic networks – these are collectively referred to as the “community property” states (Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin).
The implementation method for the “community property” states is that the dyadic networks model will simply coexist with the old “community property” monogamy model. New marriages will automatically default to the dyadic networks model, but if the couple prefers the monogamous “community property” model then they have the option of selecting that model instead.
Consider, for example, the existing marriage laws of Alaska. Alaska is an “equitable distribution” state, hence couples who marry in Alaska will marry under the “equitable distribution” model by default, but these couples can instead elect to marry under the “community property” monogamy model if they wish (they do this by executing either a community property agreement or a community property trust).
Alaska thus constitutes an existence proof that both financial models can peacefully coexist within the same U.S. state’s legal system. Alaska’s example shows that even community property states can easily be modernized to accomodate dyadic networks.
Polyamorous Committment
The Dyadic Networks model of polyamorous marriage raises important questions related to marital commitment. With a single dyad, the situation is simple; each spouse commits to support and protect the other, and the logic of conventional monogamous marriage applies. However, when multiple dyads intersect in a dyadic network, how exactly does the commitment process work?
To understand this, let us consider the parent-child relationship. In the parent-child situation, the support commitment exists only in one direction – from parent to child. When there is a single parent, the child has a single source of commitment, and all protection must come from that source. However, when there are two parents, they are jointly responsible for meeting the child’s needs. The precise arrangement is worked out somehow, and provided that the child’s needs are being met the law has no need to intervene. If the child’s needs are not being met, then debt collection methods such as garnishing wages, seizing assets, etc. can and do occur in order to ensure that child support takes place. These actions are typically proportional to income and/or wealth, so the wealthier parent will pay more. Where a parent has commitments to multiple children, the parent must faithfully carry out his or her responsibilities to each and every child. Although it may sometimes seem that the needs of children are unlimited, this is not actually the case, and once a child’s needs are satisfied (a certain amount of food, shelter, medical care, etc.), all parents of that child may regard their commitments as being satisfied with respect to each need for which adequate provision has been made, regardless of which parent(s) actually did the work of satisfying that need.
Turning now to commitment in the dyadic network model, this can be understood as a bidirectional version of the parent-child model. Each dyad represents a commitment of each spouse to the other. Thus, in a V configuration, the two partners at the ends of the V each rely upon commitments from the single partner at the center of the V (the “pivot”) – each of them has one spouse. The “pivot” partner can rely upon two commitments, one from each of the two partners at the two ends of the V – the pivot partner has two spouses. If the pivot partner is incapacitated, he or she is in a position comparable to that of a child with two parents – two people are committed to assist him or her and must do so up to the point at which the pivot partner’s needs are satisfied. If one of the partners at the end of the V is incapacitated, he or she has only one spouse to rely upon – the pivot partner, who is fully responsible for meeting the incapacitated partner’s needs up to the point at which that partner’s needs are satisfied. If both partners at the end of the V are incapacitated, then the pivot partner is in a position comparable to that of a single parent with two sick children – he or she must meet the needs of both.
Let us now consider whether the commitment relationship is “transitive” – if A is committed to B, and B is committed to C, does this mean that A is committed to C? No, this is not the case. C can legally rely only upon the commitment of B and has no legal basis to expect or receive a commitment from A. Nor can A rely upon the commitment of C – that could happen only when and if A directly married (mutually committed to) C. However, suppose that C’s needs are so large that B is thereby driven into bankruptcy and becomes destitute. Then B can rely upon A’s commitment to provide B with a certain minimal level of support (food, shelter, medical care, etc.). Thus C’s needs can have an effect on B that causes A to provide more support to B than would have been the case had C not needed to draw heavily upon B’s commitment.
Hence, under the dyadic networks model, positive effects arise as a result of multiple commitments. When there is only a single dyad, there is a substantial risk that the size of the commitment will exceed the capacity of the committed. However, when each person is linked to multiple other partners in a dyadic network, this has the effect of bringing in additional capacity to meet any needs that may arise. Three or four spouses may be easily able to carry a commitment load that would have quickly driven a single spouse into bankruptcy.
The analogy to parent-child relationships carries over into other situations as well. Just as it would be improper to discriminate against a parent for having too many children (or too few children), so it would be improper to discriminate against a person for having too many or too few spouses. But with each additional child comes an additional commitment, and the same is true of an additional spouse. Adding another child to one’s health insurance coverage will usually result in an increased monthly charge for the insurance, thus adding another spouse would probably have a comparable effect. But a child, or a spouse, only needs to be covered once, regardless of how many parents, or spouses, are available to provide that coverage. Also, a spouse may be economically self-supporting and thus able to pay for his or her own health insurance, so in this respect the total support cost for an additional spouse would then be zero.
Having drawn lessons from the parent-child relationship and applied them to dyadic networks, let us now draw a lesson from dyadic networks and apply it to the parent-child relationship. Just as there is no inherent reason why a person should not have more than one spouse, so there is no inherent reason why a child should not have more than two parents. When the law of marriage is updated to legally support dyadic networks, the existing adoption mechanism can be used as a means by which additional commitments to children can be created. For example, a single dyad may have already produced two children when each member of the dyad marries a third partner, thus creating a triangle. The newest member of this dyadic network can then execute two adoptions to become the third parent of each of the dyad’s two children. Hence, in this situation, each of the three adults now has two spouses and two children. To the extent that any legal barriers might hinder the use of adoption in this manner, such legal barriers would also need to be direct targets of polyamory’s legal activism (in addition, of course, to updating the law of marriage to support dyadic networks).
This N-parent situation has already been raised in the New York Times (When 3 Really Is A Crowd, July 16 2007, http://www.nytimes.com/2007/07/16/opinion/16marquardt.html): “On April 30, a state Superior Court panel ruled that a child can have three legal parents. […] Arthur S. Leonard, a professor at New York Law School, observed, ‘I’m unaware of any other state appellate court that has found that a child has, simultaneously, three adults who are financially obligated to the child’s support and are also entitled to visitation.’ […] As one advocate of polygamy argued in Newsweek, ‘If Heather can have two mommies, she should also be able to have two mommies and a daddy.’ If more children are granted three legal parents, what is our rationale for denying these families the rights and protections of marriage?” Our firm answer: there cannot be any legitimate rationale for the unconstitutional denial of this legal protection to polyamorous families.
The New York Times op-ed raises a question: “Conflicts will undoubtedly arise when three parents confront the sticky, conflict-ridden reality of child-raising, often leading to a nasty, three-way custody battle. Even if they part amicably, they may still want to live in three different homes. In that case, how many homes should children travel between to satisfy the parenting needs of many adults?” The legal answer has been provided by New York Law School Professor Arthur S. Leonard (Pennsylvania Court Finds Three Adults Can Have Parental Rights, May 01, 2007, http://newyorklawschool.typepad.com/leonardlink/2007/05/pennsylvania_co.html): “[...] the court gave Jennifer primary custody of the one nephew who was living with her, and partial custody (visitation rights) with the other three children; Jodilynn got primary custody of the three children and partial custody (visitation) with the one nephew, and Carl was awarded partial custody (visitation) of one weekend a month with his two children.” In the event of divorce, family law judges will calculate child support obligations and distribute visitation rights in accordance with the best interests of the child(ren).