The Prude in the Law: Why the Polygamy Reference Is All About Sex

Abstract

On October 22, 2009, as renewed public controversy over Canada’s longstanding criminal prohibition of polygamy culminated in a constitutional reference to the Supreme Court of British Columbia (BCSC), Mormons and self-identified sluts found themselves in bed together. Although united in their desire for a common result — the striking down of the prohibition codified in section 293 of the Criminal Code — they differed radically in their underlying perspectives and interests. Mormons affiliated with the Fundamental Church of Jesus Christ of Latter Day Saints (FLDS) sought to defend patriarchal polygynous practices as part of their right to freedom of religion under section 2(a) of the Canadian Charter of Rights and Freedoms (“Charter”). Allegations of sexual abuse and exploitation within the polygynous FLDS community of Bountiful, British Columbia had triggered the reference and stood directly in the judicial spotlight. The sluts, many of whom identified with a movement known as ‘polyamory,’ also sought to defend a non-normative approach to conjugal relationships; one that rested not on the religious entrenchment of patriarchal values but rather on principles of personal autonomy, equality, and sex-positivity. Their practices of ethical non-monogamy were rooted, not in religious conviction but in a principled rejection of socially imposed monogamy and its associated culture of dishonesty, secrecy, and sexual shame. Far from the spotlight of the constitutional reference, this group found themselves in danger of becoming its collateral damage.

Keywords: polygamy reference, polyamory, law and sexuality