Penguins and Polyamory: Using Law and Film to Explore the Essence of Marriage in Canadian Family Law

Abstract

With attention to the way in which legal understandings of the family are perpetuated through popular culture, this article engages with recent debates in Canada both on the legalization of same-sex marriage and the criminalization of polygamy. By examining the popularity of the Academy Award-winning documentary March of the Penguins, the article interrogates how images of family and marriage in this documentary film have been appropriated by opposing advocates. This article explores how these challenges to a “traditional” notion of “the family” in Canada have cemented, in the process, a more rigid boundary around a monogamous, conjugal understanding of the family form. The author unearths what remains central to the protection of marriage as a core value in the Canadian context.

A contextualised historical account of changing judicial attitudes to polygamous marriage in the English courts

“…In her exploration of the 2010-2011 Reference regarding section 293 of the Canadian Criminal Code, which considers the constitutionality of Canada's prohibition of polygamy, Sweet (2013) also finds that the Reference does not 'delve into the extent to which patriarchal monogamous marriage creates gender inequality' (p. 18). She concludes that it is the manifestation of patriarchy that is harmful, thereby aligning her critique with Calder's (2009) and Brake's (2012) assertion that patriarchy is the real concern.…”

“…Monogamy is not guaranteed, as infidelity provides grounds for divorce and so, even if two parties have contracted the marriage, further parties can be involved. Gillian Calder (2009) takes this forward to note that the only element of the definition that ‘remains firm’ is that parties marry ‘to the exclusion of all others’ (Calder, 2009, p. 74). Thus, marriages that unite more than two parties are still excluded from understandings of marriage.…”

“…At first glance, the assertion that inequality and patriarchy underlie polygamy does not seem especially controversial until it becomes evident that monogamy is inherently positioned as the ideal non-patriarchal and egalitarian model of marriage (Beaman, 2014). Gillian Calder (2009) questions the reality of this ideal, arguing that patriarchy transcends familial structure and to assume otherwise is naive. This critique exposes the unfair treatment suffered by women in polygamous marriages based on the flawed assumption that patriarchy is exclusive to their form of marriage.…”

“…Gillian Calder (2009) questions the reality of this ideal arguing that patriarchy transcends familial structure and to assume otherwise is naïve. This critique exposes the unfair treatment suffered by women in polygamous marriages based on the flawed assumption that patriarchy is exclusive to their form of marriage.…”

The Headscarf Controversy: A Response to Jill Marshall

“…A same-sex couple in Canada who decide to get married are clearly reinterpreting this ancient patriarchal, heteronormative institution for their own ends. 5 However, this does not completely undermine the historical elements of marriage that continue to trouble critical activists and scholars; despite the advent of gay marriage, (Judeo-Christian Western) society still privileges a notion of marriage that centres on monogamy, conjugality, a dual (rather than multiple) system of partnership, and is founded on the assumption that these kinds of partnerships provide the only responsible spaces in which to form families and nurture children (see e.g., Auchmuty (2007);Calder (2009); Barker (2006); Kaufman (2005)). Therefore, the choice to participate in same-sex marriage, while in a sense refashioning the historically exclusive institution, cannot be read as a fundamental challenge to the key concepts of marriage, and cannot be completely abstracted from the social context in which our legal and political institutions continue to place a very restrictive notion of the 'proper' partnership unit at the centre of our lives.…”