Polygamy and Feminist Constitutionalism

Abstract

Polygamy poses a dilemma for feminist constitutionalism. Canada offers the perfect crucible for understanding this dilemma. Not only is polygamy a crime but also Canada justifies criminalization on the grounds of protecting women and children, thereby attracting the attention and concern of feminists. For their part, constitutionalists will address polygamy because the constitutionality of criminalizing it has been referred to court. However de/criminalization divides most feminists and constitutionalists, providing a test case for the inclusivity of the concept of feminist constitutionalism. In this chapter, I propose to assess three legal strategies that might promote the requisite inclusivity. The feminist equality strategy invites constitutionalists to incorporate the constitutional norm of sex equality into their argument. For their part, constitutionalists adopt the women’s proportionality strategy, asking feminists to subscribe to the reshaped proportionality test that surfaced recently in the opinions of the four women Justices currently on the Supreme Court of Canada. The third, or polygamous wives’ strategy, requires constitutionalists and feminists, as well as courts, to listen to the voices of the women who live in polygamous relationships. The first two strategies are doomed to failure because they yield competing rights contests with winner-take-all outcomes; they divide feminists and constitutionalists rather than to bridging the gap between them. In contrast, the third strategy has the potential to obviate the competing rights approach. Accordingly, my objective is to adapt Donna Greschner’s question to ask: can feminist constitutionalism be for women living in polygamy too? Polygamous wives may be, in short, a paradigm for feminist constitutionalism.

Keywords: Polygamy, Canada, feminism