Skip to main content Accessibility help
×
Home
  • Print publication year: 2012
  • Online publication date: June 2012

24 - Polygamy and Feminist Constitutionalism

Summary

Feminist Constitutionalism's Dilemma

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 just been referred to the courts. However, feminists and constitutionalists will differ over the appropriate outcome for this case. Because most feminists believe polygamy is harmful to women, they will support continued criminalization. By definition, on the other hand, constitutionalists advocate limiting the powers of liberal states, meaning they will seek decriminalization. In sum, the issue of de/criminalizing polygamy polarizes feminists and constitutionalists, creating a dilemma for those who choose to subscribe to feminist constitutionalism.

Fortunately, feminist constitutionalism is a sufficiently novel concept that it is still under construction. In Canada, the relationship between feminism and constitutionalism has gone through several stages over the past quarter century. Constitutional scholar and feminist Donna Greschner typified the preliminary stage when she posed this provocative question: “Can constitutions be for women too?” The second stage consisted of many feminist and constitutional scholars – indeed, too many to mention individually by name – applying feminist analysis to various issues of constitutional law. Thus scholarly research progressed from women to feminism and from constitutions to constitutionalism during these first two stages. For the current state, what remains is to elaborate the relationship between these “isms.”

Greschner, DonnaCan Constitutions Be for Women Too? 20 1986
1900
Javed, NoorGTA's Secret World of Polygamy 2008 10
Stueck, WendyLegal Experts Split over Constitutionality of Oppal's Move against Polygamy 9 2009
Keller, JamesPolygamy Court Case Will Proceed without Bountiful Leader, Says LawyerThe Canadian Press 2010
Keller, JamesBlackmore Says Polygamy Lawyer Should Step Down over Political DonationsThe Canadian Press 2010
2009
McLaren, JohnProtecting Confessions of Faith and Securing Equality of Treatment for Religious Minorities in EducationCanada 2006 153
Hogg, Peter W. 2007 35
Campbell, AngelaHow Have Policy Approaches to Polygamy Responded to Women's Experiences and Rights? An International, Comparative AnalysisPolygamy in Canada:Legal and Social Implications for Women and Children 2005
Cook, Rebecca J.Kelly, Lisa M. 2006
Kelly, Lisa M.Bringing International Human Rights Law Home: An Evaluation of Canada's Family Law Treatment of PolygamyUniversity of Toronto Faculty of Law Review 2007
Somerville, MargaretIf Same-Sex Marriage, Why Not Polygamy?Globe and Mail 2007
Weinrib, Lorraine E.Shooting Down Polygamy Law not Necessarily a Slam DunkUniversity of Toronto 2009
Weinrib, LorrainePermissibility of Polygamy Put in New LightLaw Times 2007
Campbell, AngelaBountiful Voices 47 183 2009
Campbell, AngelaWives’ Tales: Reflecting on Research in Bountiful 23 2008
Beaman, Lori G.Doit-on criminaliser la polygamie au nom de la protection des droits des femmes?, inRepenser Le Droit 2008 149
Beaman, Lori G.Who Decides? Harm, Polygamy and Limits on Freedom 10 43 2006
Beaman, Lori G.Church, State, and the Legal Interpretation of Polygamy in Canada 8 20 2004
Beaman, Lori G. 2007 393
Drummond, SusanPolygamy's Inscrutable Criminal Mischief 47 317 2009
Campbell, AngelaIn the Name of the Mothers 10 2009 17
Hayes, Jeffrey MichaelPolygamy Comes Out of the Closet: The New Strategy of Polygamy Activists 3 109 2007
Kim, NancyToward a Feminist Theory of Human Rights: Straddling the Fence Between Western Imperialism and Uncritical Absolutism 25 1993
Dougherty, KevinPolygamy ‘Contrary to the Equality of the Sexes’: Retired Justice 26 2009
Stabile, Susan J. 2009
Wilson, BerthaWill Women Judges Really Make a Difference? 28 521 1990