Tuesday 27 Sep 2016

Pushing Envelopes
Sjef Frenken

I was still munching away at my last mouthful, as Jack picked a rolled-up newspaper from his shopping bag, dramatically jabbed an index finger at a headline and announced: "There's your next constitutional challenge."

I said "Jack, I don't have my reading glasses on, I can't tell what you're pointing at."

"Polygamy," said Jack. "This article says there's a Muslim religious -- an imam, I guess -- who has performed polygamous marriages right here in Canada, contrary to civil law, of course, but perfectly in accordance with Muslim law -- Sharia. Also the topic is hot in the US. The authorities in Texas have decided to do something about it, and I gather there is at least one polygamous community in Canada that is raising a few eyebrows."

I said "So?"

Jack said: "Do I have to spell it out for you? Somewhere down the line Canadian law has to come to grips with polygamy. Under current law it's illegal. But you can be sure that if anyone is convicted, there will be appeals all the way up to the Supreme Court. And, frankly, there may be a surprise in the works."

I said "Why? As far as I know marriage is between one man and one woman."

"Where have you been?" asked Jack. "Marriage is no longer exclusively between one man and one woman. Same-sex marriage ripped that door off the barn a while back; that horse is gone. The Supreme Court has spoken, and all the Parliamentarians who voted against same-sex marriage before, dutifully fell in line when the Court's decision came out. They could have used the "Notwithstanding Clause", but they chose not to. They could easily have done so, and gone on to define marriage as being exclusively between one man and one woman."

I said "I've often wondered about that 'Notwithstanding Clause'. There would have been no Constitution without that clause; the provincial premiers made sure of that. But what exactly did the drafters of the Constitution have in mind when they put that clause in? To what situations did they think it would apply, when would it be necessary to use it? It seems to me that this indeed would have been such an occasion: the majority of Canadians was against same-sex marriage, same as the legislators. It was a big issue. After all, you can't get more fundamental in your social structure than the traditional family unit."

"Exactly," said Jack. "This is one of the problems when you have a Constitution, one of balance. On the one hand you have more than a hundred elected law-makers; on the other you have a dozen non-elected judges. There is no doubt some elected governments have made bad laws and superior courts have overruled them. But by the same token, a mere handful of appointed judges is now the arbiter whether a law is constitutional, and then you need one hell of a lot more political will to correct the situation. A tricky business."

I said "So where were you going before I sidetracked you."

Jack said: I was going to say that once we get out of the one-man-one-woman definition of marriage, all options are open. Why not have polygamy -- especially if it's to be defended on religious grounds -- Islam and Mormonism, for instance. And if you open it up for religion, why not open it up for other reasons?"

I said "Well, in a way we've had serial polygamy and polyandry for centuries, men and women trading old spouses legally for new ones, and what with adultery being a popular though frowned-upon pastime, simultaneous poly-fooling-around has been around for a long time too, especially since we gave up public stoning as a deterrent."

Jack interrupted "A public stoning isn't nearly as entertaining as TV or a blockbuster movie or a strip show... Mind you, if they put it on TV..." Jack mused.

"Frankly, Jack," I over-rode him, "I've never understood polygamy except in terms of getting a religion to grow as fast as possible. Some of those Old Testament fathers knew what they were doing. Solomon is supposed to have had upward of 700 wives and concubines!"

"That's not fair," said Jack.

I said "How do you mean?"

Jack said "Think of the 699 men who had to do without a wife or concubine."

I said "I never heard anyone sympathizing with their plight. Nice of you to do so. But think of the women too -- they had access, so to speak, to Solomon on average only once every two years. I guess they deserve some sympathy too!"

Jack said, with a wink, "I guess they all had to take matters into their own hands!"

"Anyhow," I said, "I seems to me that polyandry makes more sense than polygamy."

Jack said "How do you mean?"

I said "Think about it: one woman can satisfy lots of men: I read somewhere that there is a record of one woman having had sex in the traditional fashion with more than 700 men in one day. I bet there are few men alive today who could tackle even one-hundredth of that number of women. On the other hand, one man can impregnate 700 women in the traditional manner, even if it takes him 100 days."

"True," Jack admitted, and I could see that he was doing some calculating, "When I was younger...," he continued ...

I cut him off. "I don't need to know. The point I was trying to make is that polyandry makes a lot more sense than polygamy, especially these days when women are not dependent on men for their living."

Jack said: "So, what argument is there not to allow polygamy and polyandry?"

I said "For one thing, polygamy puts things off balance. If one man can have two wives, then some man somewhere will have to do without one, and that, as you just finished pointing out, doesn't seem fair."

Jack said "Yes, but if we allow polyandry also, chances are things will balance out in the end. In fact, I can't see any reason why we can't have even plural marriages, with several men and several women having one marriage."

I said "How would you handle a divorce settlement?"

Jack said "If it's a total break-up, the common property is divided evenly among all the participants; if it's just one person leaving the arrangement, he or she gets whatever portion is equitable. No problem, except for the accounting -- but that's a sore point even under our current marriage laws."

I said, "Jack, since you are on a roll here, where does the social envelope get pushed after we have poly-marriages.?"

Jack said "Only one taboo left: incest."

I said "Oh, come on...!"

Jack said "In our society we've come to believe that what we call love is the only ingredient necessary for a marriage. In fact until a few centuries ago in Western Europe, love was not even a consideration. You married for property, for convenience, for alliances, for all kinds of reasons, but love was not a prerequisite. Love was something that grew AFTER you got married. For us love is a hormone-induced impulse -- a nice feeling, but hardly cerebral. We rightly say we "fall in love", it's an accident. And we "fall out of love" when the hormones quit on us. Our idea of hormonal love raises unattainable expectations; no wonder that divorce is the order of the day. If the hormones stop coming, the marriage is over. What nonsense!"

I said "I hope you don't mind my saying so, but aren't you a hormonal-love junkie yourself?"

"Yes," said Jack, "that's how I know! Anyhow, if "love" is the reason we give for dual-sex and same-sex marriage, and eventually poly-marriage, why not allow it for marriage between members of the same family: father and daughter; mother and son; brother and sister."

I said "Jack, incestuous relationships have been forbidden for two reasons. The first one is that it may, and often does, result in genetically damaged progeny."

"Hey," said Jack, "let's move along with the times! If the in-utero offspring is determined to have a defect, trundle it off to the nearest abortoir. Problem solved! So what stands in the way of incestuous marriages?"

I said, "At this point in your argument, nothing as far as sister-and-brother, brother-and-brother and sister-and-sister marriages are concerned. But the second argument against parent-offspring alliances was that it would undermine the structure of the nuclear family: mother would be jealous of daughter, for instance. And discipline would be a problem: how could the mother discipline a son if she were also sleeping with him?"

Jack said "NOW? you're expressing a concern about the break-up of the nuclear family? After the entire herd has broken out of the barn? In fact has taken the barn with it?!"

I said "Jack, enough with the sarcasm. What do you really think about non-traditional marriage. Are you for it or against it?

"Frankly," said Jack, "I'm against marriage. Period."

Sjef Frenken is a renaissance man: thinker, writer, translator and composer of much music. A main interest, he has many, is setting to music the poetry, written for children, during the Victorian and Edwardian eras. Nimble of mind, Sjef is a youthful retiree and a great-grandfather. Mostly he's a content man, which facilitates his relentless multi-media creativity.

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