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

• Author: Dana Phillips
• Position: Is an articled student at the National Judicial Institute in Ottawa
• Pages: 151-158

APPEAL VOLUME 19

n

151

CASE COMMENTARY

THE PRUDE IN THE LAW: WHY THE

POLYGAMY REFERENCE IS ALL ABOUT SEX

Dana Phillips*

CITED: (2014) 19 Appeal 151–158

INTRODUCTION

On October 22, 2009, as renewed public controvers y over Canada’s longstanding

criminal prohibition of polyga my culminated in a c onstitutional reference to the

Supreme Court of British Columbia (BCSC), Mormons and sel f-identied sluts1 found

themselves in bed toget her. Although united in t heir desire for a common result—the

striking dow n of the prohibition codied in sect ion 293 of the Criminal Code2—they

diered radica lly in their underlying perspective s and interests. Mormons aliated with

the Fundamental Churc h of Jesus Christ of Latter D ay Saints (FLDS) sought to defend

patriarchal p olygynous pract ices as part of t heir right to freedom of religion under

section 2(a) of the Canadian Charter of Rights and Freedoms (“Charter” ).3 Al legations of

sexual abuse a nd exploitation within the polyg ynous FLDS commun ity of Bountifu l,

British Columbia had trig gered the reference and stood directly in t he judicial spotlight.4

e sluts, many of whom identied with a movement known a s ‘polyamory,’ also sought

to defend a non-normative approach to conjugal relationships; one that re sted not on

the religious entrenchment of patria rchal values but rat her on principles of personal

autonomy, equality, and sex-positivity. eir practices of ethical non-monogamy5 were

rooted, not in religious conviction but in a principled reject ion of socially imposed

monogamy and its associate d culture of dishonesty, secrecy, and sexual shame. Fa r from

the spotlight of the const itutional reference, thi s group found themselves in da nger of

becoming its collatera l damage.6

* Dana Phillips is an articled s tudent at the National Judicial Institu te in Ottawa. She received

her Juris Doctor from t he University of Victoria Facult y of Law in the spring of 2013. This article

was originally submitte d in fulllment of the course requirem ents for Professor Gillian Calder ’s

Family Law course at the Universit y of Victoria. Dana would like to thank Prof essor Calder for

her detailed and thoug htful feedback on the arti cle, and her encouragement to publish it . She

would also like to thank Cody Reed man for his invaluable editorial assist ance.

1 While not all ethical non-monogamis ts would call themselves sluts, I us e the term here in

reference to Dossie Easton & Ja net W Hardy’s The Ethical Slut: A Practical Guide to Polyamor y, Open

Relationships & Other Adventures 2d ed (Berkeley: Celestial Arts, 2009) [Ethical Slut].

2 Criminal Code, RSC 1985, c C-46, s 293 [Criminal Code].

3 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to

the Canada Act 1982 (UK), 1982, c 11, s 2(a) [Charter].

4 For a detailed account of the events leading up to the re ference, see Sheila M Tucker, Process and

the Polygamy Reference: The Trip to Bountiful (2011) 69:4 Advocate 515.

5 In Ethical Slut, supra note 1 at 274, Easton & Hardy note th at they prefer the term ‘polyamor y’ to

‘non-monogamy,’ since the latter imp licitly centers monogamy as the social n orm. However,

I have chosen to use this term in order to inc lude individuals who may identif y as ‘non-

monogamous’ but not ‘polyamorous.’

6 Both the FLDS and the Canadian Polyamory Advoc acy Association partici pated in the reference

as interested persons.