From Marriage Equality to Polygamy? The Homonormative Family and Canadian Law

The groundbreaking news of the Supreme Court’s ruling in favor of marriage equality in 2015 was accompanied by a flurry of media analyses concerning whether the decision portends a slippery slope to polygamy, a question three of the Supreme Court conservative justices broached in their separate dissents. Conservatives have used this argument to support the idea that “redefining” marriage to include same-sex couples will lead down a slippery slope where any number and combination of consenting adults could join together in marriage. Conversely, numerous supporters of marriage equality have argued against the idea of a slippery slope. Jonathan Rauch, for example, contends that governments have a compelling interest in banning polygamy as harmful to individuals and to society, a justification that cannot be made in the case of same-sex marriage (Rauch 2015). One underlying question that motivates this debate concerns the changing nature of family or what scholars have called “detraditionalization,” a marked shift in the way marriage is constructed in Western societies to focus on individual satisfaction and mutually fulfilling partnerships as the foundation of contemporary marriage (Cherlin 2004; Giddens 1992; Gross 2005). If marriage is predicated only on love in contemporary society, what argument can be made to justify limiting marriage to two people if three or more are in a committed relationship? How has this idea of detraditionalization shaped the debate over marriage equality?

This paper examines the case of Canada, which became the fourth country in the world to legalize same-sex marriage in 2005, to examine how the issue of polygamy was treated in a provincial Supreme Court case in 2011 that occurred within the context of legalized same-sex marriage. The central questions that motivated the case focused on whether a family that consists of multiple, conjugal partners is so inherently harmful to individuals and society that it must be criminalized. The 2012 ruling found that the section of the criminal code criminalizing polygamy violates the religious freedom of fundamentalist Mormons. However, the justice determined that the harm polygamy brings to women, to children, to society and to the institution of monogamous marriage outweighs the practitioner’s basic right to religious freedom. Thus, the current law is justified in criminalizing the practice for anyone eighteen years of age or older, even while recognizing that it impinges on individual religious belief. Drawing on textual analysis and in-depth interviews with lawyers and interested parties in the case, I examine how the Polygamy Reference case drew on the ideas of detraditionalization and the construction of the homonormative family to justify the need to criminalize multiple-person conjugal unions.

Contemporary North American societies include a smorgasbord of familial and sexual structures (common-law relationships, open relationships and marriages, same-sex marriage, covenant marriage, blended families). The Polygamy Reference viewed polygamy to be outside this smorgasbord and specifically to be a threat to the institution of monogamous marriage. Actors in the case argued that decriminalizing polygamy would represent another assault on an already weakened institution, and an especially lethal one given the harms associated with its practice. This paper argues that a homonormative understanding of marriage, inclusive of same-sex couples, provided the basis for this characterization.


Part of panel Forms of Exclusion in Marriage Law
October 2, 2016, 11:00–12:45