LAW 201 Lecture Notes - Lecture 7: Domestic Violence, Rosalie Abella, Mormon Fundamentalism
26 Jun 2018
School
Department
Course
Professor
Family Law pt 1
Polygamy in Canada: Responding to Cultural & Religious Diversity in Regulating Adult
Relationships
Themes
Family law both reflects values & beliefs of society and reinforces family ideology
Enormous changes in family behaviours, values and law in Canada and elsewhere
o“marriage” and “family” are evolving institutions
Canadian law and society now accept unmarried cohabitation (or “common law
marriage”) and same sex marriage, but not polygamy
Should Canada now recognize polygamy?
Comparative: Canada in the World
Canada has one of the most liberal, functional and pluralistic definitions of “family”
oOpposite-sex common law
oSame-sex relationships
oSocial parents (step parents) and multiple parents
Except for polygamy
And Canadian law is “unitary” not “personal”
oUnitary- the law applies to all equally and to all religious groups
oPersonal- if you’re one faith, certain laws apply to you
oSome countries (India, Israel) have different family law based on faith
(“personal” law)
Regulating Adult Relationships in an Increasingly Diverse Society
Cultural and social context
oLots of immigration, should this change how we approach certain issues etc.
Challenges for lawmakers
oCourts
oParliament/legislatures
Socio-legal research issues
Historical Approach to Marriage
Since the beginning of Common Law, marriage was monogamous heterosexual union
o“Marriage…defined as voluntary union of one man and one woman to the
exclusion of all others” Hyde v Hyde 1866
In 2005, after Charter of Rights challenges, Canada changed the definition of marriage to
allow two persons of the same sex to “marry”
A few definitions
Polygamy: having more than one spouse
Polygyny: 1 man and more than 1 wife
find more resources at oneclass.com
find more resources at oneclass.com
oBy far the most common type of polygamy and the only type with strong
religious roots
Polyandry: 1 woman and more than 1 husband
oVery rare
Polyamory: More than two spouses, involving “gender equality” and often group sex
etc.
oGroup sex isn’t illegal, but polygamy is
Socio-legal Context (Canada)
Increasing diverse society, due in part to immigration
oIslam is fastest growing religion in Canada
oMany immigrant cultures are patriarchal
Constitutionalization of rights (Charter 1982)
oGender equality
oFreedom of religion
oHow to balance?
Rise of multiculturalism
oCharter s. 27 recognition of “multicultural heritage of Canadians”
oHow far should this go?
Linked but Distinct Issues
Religious Freedom Issues
oShould the law prohibit practices of religious minorities that are different from
mainstream if associated with negative effects for women and/or children?
Multicultural Issues
oShould a Western state prohibit familial behaviours of immigrant populations
that are inconsistent with “traditional Canadian values” and potentially have
negative effects for women and children?
oSikh Kirpans in schools?
Not allowed weapons, but court ruled that yes kirpans allowed
oArranged marriages?
Yes allowed, but not forced marriages
oPolygamy?
No
oSharia arbitrations?
oFemale genital cutting?
Now criminalized, but how do we enforce it? What if they send their child
back to their home country to get it done?
Enforcement issues
oHow to enforce laws which are intended to help women and children whose
lives are negatively affected by a practice that is contrary to “Canadian values”,
but one which is “voluntary”?
find more resources at oneclass.com
find more resources at oneclass.com
Liberty Issues
oShould the state restrict access to relationships between consenting adults? On
what basis?
Polygamy: Muslim
Islam accepted polygamy, up to four wives
o“and if you fear that you will not be able to deal justly with the orphans and
widows, then marry from among them two or three or four…but if you fear you
won’t be just then marry just one” [Koran 4:3]
Polygamy has value in society where survival of widow and children depends upon living
in household with male protector (ex. Agrarian society- farming)
Also, economic value in non-mechanized agrarian
Some modern Islamic scholars argue that Koran does not allow polygamy in present
conditions (Sheikh Abdou)
Polygamy still widely practiced in some countries
Many countries in Asia and Africa allow polygamy, but slowly being made illegal or
restricted in a few predominantly Muslim countries (Tunisia and Turkey)
Some countries (ex. Nigeria; Israel) have “personal jurisdiction” family law systems
oAllow Muslims but not Christians to practice polygamy
Some immigrant (mainly Muslim) polygamous marriages in Canada
oNot accepted as regular immigrants IF identified, but some here
oSome (non-legal) ceremonies performed in Canada
oRelatively few in Canada, but significant issue in UK and Western Europe
(especially France)
Polygamy: Jewish and Christian
Polygamy accepted in Old Testament
Early Christians accepted, but clearly rejected by Middle Ages
Now Christian faiths have largely rejected polygamy
oBut some Christians look to Old Testament are polygamous
Modern law of Israel makes polygamy illegal
oPractice of polygamy among Bedouins in Israel is common
oSome fundamentalist Jews practice polygamy
Polygamy: Fundamentalist Mormon-History
Joseph Smith, founder of Church of Latter Day Saints (Mormons) practiced and
advocated polygamy (1830s)
Mormons settled Utah and practiced polygamy, but persecuted by federal government
Prosecution of Mormons in 1880s
Rejection of polygamy was condition of Utah statehood;
oMormon church threatened with confiscation of all property
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Polygamy in canada: responding to cultural & religious diversity in regulating adult. Family law both reflects values & beliefs of society and reinforces family ideology. Enormous changes in family behaviours, values and law in canada and elsewhere: marriage and family are evolving institutions. Canadian law and society now accept unmarried cohabitation (or common law marriage ) and same sex marriage, but not polygamy. Canada has one of the most liberal, functional and pluralistic definitions of family : opposite-sex common law, same-sex relationships, social parents (step parents) and multiple parents. Regulating adult relationships in an increasingly diverse society. Cultural and social context: lots of immigration, should this change how we approach certain issues etc. Since the beginning of common law, marriage was monogamous heterosexual union: marriage defined as voluntary union of one man and one woman to the exclusion of all others hyde v hyde 1866.
