On the Morality of Polygamy Law: Freedom vs Harm
Jan 12, 2011

On the Morality of Polygamy Law: Freedom vs Harm

Should polygamy be legal? This question is at the core of the landmark polygamy case slowly working its way up the Canadian justice system. To answer this, we look at the balance between harm and freedom. The balance in this case is contrasted to the case of gay marriage.

That restricting the ability to legally engage in polygamy is restricting freedom is obvious. That it is often a religious freedom doesn't specifically matter to me - although as a practical matter this will be argued in court as explicitly religious freedom being infringed on - for I think that whatever the justification, if people have a desire to do something then restricting that desire is a restriction of freedom.

On the other hand, there is the potential that polygamy leads to harm. As Craig Jones, a lawyer for the BC government puts it, "all forms of polygamy contribute to the discrimination of women and the sexualization of young girls". Now polygamy has been heavily stigmatized as well as poorly represented by the occasional - but much publicized - genuinely predatory people or in very different cultures and so it gets a perhaps poorer representation as harmful than is justified. However, for the purpose of discussion let us just accept at face value all of this alleged harm.

The result is we now have to balance these two sides. On the one side, we are restricting freedoms and on the other we are preventing harm. It should be noted that the burden of proof is firmly in the latter camp to establish harm. That polygamy is sufficiently rare in Canada that this case is just now coming up is not a sufficient reason to objectively restrict freedoms; indeed, we should attempt to never do this unless clearly justified. The harm must be clearly proven to exist otherwise we default to the position that freedom must be allowed.

However, this still isn't sufficient. One must further demonstrate that simply restricting the alleged predatory components is not sufficient to eliminating the harm. This is important because a lot of the harm gets conflated in this way. Is the problem consulting adults engaging in polygamy or sex with young girls, because the latter is illegal and polygamy laws don't change that.

My view is that it should be legal. Polygamy has a very large cultural stigma that is impeding the legal freedom of people to marry how they choose. The alleged harm it does I think is both overstated and not at all obvious that restricting polygamy is fixing the specific problems we wish to address.

All of this has an interesting consideration with respect to gay marriage which has the same background of a cultural stigma and then an argument of freedom versus harm. With gay marriage however the alleged harm was very tenuous at best. People have argued things like that it breaks down the family unit, is bad for kids etc etc yet these statements have been proven wrong in study after study. Even if one falsely believes in a net harm, the freedom trumps the harm almost regardless; I don't care how much harm gay couples might do it is still the right thing to do for them to have the right to marry. Even if the studies were wrong and one could demonstrate a small difference between, say, gay and straight parents as aggregates, the enormous diversity within either populations would utterly dominate this difference and allowing gay marriage is still unequivocally the right thing to do.

Returning to polygamy, we can learn something from the gay rights struggle. We can learn how this tactic of claiming harm to restrict freedom has been used before and proven false. We can learn how activities that are stigmatized as socially deviant get attacked on the basis of unjustified harm. We can deduce that thus is more than likely the case here as well and hence that we should support polygamy. I accept the framing of harm vs freedom for this is the framing by which we should consider all government impositions on freedom (such as locking up murderers, say) but what I don't accept is that the balance in this case is on the 'harm' side.

Thoughts on this post? Comment below!

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1 comment:

Renn Oldsbuster said...

Good points. Thanks.

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