The war on traditional marriage, predictably, has opened the door to demands for polygamy. After all, if same-sex marriage becomes constitutional, then why wouldn't polygamy be constitutional also? Both are between consenting adults, and both find support among libertarians. Their misguided view that government should "get out of the business of marriage," and allow people to enter into any private relationships of their choosing, might allow polygamy too.

A test case for polygamy arose in Canada, where same-sex marriage has already been legalized as a constitutional right. Once Canadian courts destroyed the definition of marriage with its allowance of same-sex marriage, then bans on other relationships might become questionable. Criminal charges for polygamy had been dropped, in part due to concerns about whether Canada's 121-year law against polygamy was constitutional.

But on November 23, a court in British Columbia, a province of Canada, upheld the ban on polygamy,using reasoning that could cast doubt on a constitutional right to same-sex marriage. In an opinion written by its Chief Justice, Robert J. Bauman, the Court held that "the institution of monogamous marriage [is] a fundamental value in Western society from the earliest of times." Reference re: Section 293 of the Criminal Code of Canada, 2011 BCSC 1588. His 335-page opinion cited numerous ways in which polygamy causes harm to society, from higher rates of abuse to greater emotional problems, and to underachievement by the children in schools. http://www.courts.gov.bc.ca/jdb-txt/SC/11/15/2011BCSC1588.htm

This opinion provides support for defending traditional marriage against increasing assaults. The Court traced the history of monogamous marriage between one man and one woman back to the ancient world, observing that "[t]hroughout the classical period, spanning 1200 years from the sixth century b.c.e. to the sixth century c.e., marriage was understood as a union between a man and a woman presumptively for life" and that "by the ninth century, Byzantine emperors had decreed polygamy a capital offence." (Note that the Canadian court used the anti-Christian abbreviations "b.c.e." rather than "B.C.", and "c.e." rather than "A.D." along with the British spelling of "offense.")

The Court pointed out that in the United States, in the mid-1800s, "Polygamy and slavery were considered to be among the 'twin relics of barbarism,'" and that the American "Congress has 'the right and the duty to prohibit' this 'odious institution.'" (Unfortunately, the Court did not give proper credit for those principles to the Republican Party platform of 1856, which established those values. http://www.ushistory.org/gop/convention_1856republicanplatform.htm ).

In holding for traditional marriage and against polygamy, the Court expanded its use of amicus briefs, which are more accepted in American courts than Canadian ones. The Court's ability to review and rely on American opposition to polygamy was based on the Court's ability to use amicus briefs rather than being confined to the limited evidence presented by the parties themselves in the case.

The Canadian precedent that same-sex marriage is a constitutional right is somewhat at odds with this ruling that polygamy is not, although the Court claimed there was no inconsistency. An appeal of this recent polygamy decision is expected to eventually reach the Supreme Court of Canada, which previously established a constitutional right to same-sex marriage.