Wednesday, 28 January 2009

Marry This

The Mormon polygamists of Canada are set to argue to court that if, as has been found, the human rights legislation there creates a right to same-sex “marriage”, then it also creates a right to their own activities, which is, after all, far more ancient, and far more widely practised around the world to this day.

You either define marriage as only ever the union of one man and one woman, or you end up with this.
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18 comments:

  1. Anonymous28 January 2009 at 16:02

    The Slippery Slope is a fallacy in which a person asserts that some event must inevitably follow from another without any argument for the inevitability of the event in question.

    This sort of "reasoning" is fallacious because there is no reason to believe that one event must inevitably follow from another without an argument for such a claim. This is especially clear in cases in which there is a significant number of steps or gradations between one event and another.

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  2. David Lindsay28 January 2009 at 16:04

    Well, the Canadian courts will soon decide what is, or is not, a fallacy here.

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  3. Anonymous28 January 2009 at 16:18

    I don't know much about Canadian human rights law, and I bet you don't either. However, in every legal system that employs lawyers, there is no necessary equivalence between "x is set to be argued in court by a lawyer" and "the law says x".

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  4. David Lindsay28 January 2009 at 16:21

    Well, we shall see soon enough.

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  5. Anonymous28 January 2009 at 16:27

    If this argument is successful (and it may not be) then the slippery slope would arise from the Canadian approach of basing a right to same-sex marriage on human rights legislation. In the UK, same-sex marriage (strictly speaking, civil partnerships) arises from specific independent legislation legalising it - so it would be impossible to use British/European human rights law to argue from same-sex unions to a right to polygamy.

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  6. David Lindsay28 January 2009 at 16:40

    Alas, Canada uncharacteristically decided some years ago to go down an American rather than an English route on how these things work. All the inevitable litigiousness and judicial activism have followed, and are following.

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  7. Anonymous28 January 2009 at 16:41

    Isha, that's absolutely right, but you could potentially base an argument for a right to polygamy in the UK on Article 8 of the ECHR (right to respect for private and family life). If I recall correctly, though, this has already been attempted without success.

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  8. David Lindsay28 January 2009 at 16:45

    Still, it's been attempted. Could you have imagined that even a very few years ago?

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  9. Anonymous28 January 2009 at 16:48

    Lawyers attempt things all the time - in itself, attempting something isn't very interesting or revealing. If you pay a lawyer enough, he'll argue anything. It's when they succeed that you have to take notice.

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  10. David Lindsay28 January 2009 at 16:51

    I still can't imagine any lawyer putting reputation on the line with this one a dozen years ago (or even more recently than that), no matter how much the fees.

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  11. Anonymous28 January 2009 at 16:55

    No, that's not really how it works - it wouldn't damage a lawyer's reputation to employ an argument like this. I've heard much less plausible arguments over many decades in straightforward criminal cases which have nothing to do with human rights. You just have to argue your client's case as best you can.

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  12. David Lindsay28 January 2009 at 16:58

    It wouldn't now, I suppose. But that's rather my point.

    I was once told that even perfectly legal polygamous marriages abroad had no standing here. But that was before the HRA.

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  13. Anonymous28 January 2009 at 17:06

    "I was once told that even perfectly legal polygamous marriages abroad had no standing here."

    That's still true, even with the HRA, but we don't deport people or cut their benefits on the basis that they have polygamous marriages from abroad. That has nothing to do with the HRA either.

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  14. David Lindsay28 January 2009 at 17:07

    Not cutting benefits is one thing. But (as is the case) paying them specifically for and in right of "polygamous partners" is quite another.

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  15. Anonymous28 January 2009 at 17:11

    Again, nothing to do with the HRA.

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  16. David Lindsay28 January 2009 at 17:21

    Never said it was.

    But no ruling under the HRA or the ECHR should have effect unless confirmed by resolution of the House of Commons. This is a parliamentary democracy. Or, at least, it used to be.

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  17. Merseymike2 February 2009 at 17:04

    Nonsense.

    Marriage is defined according to quality of relationship: it is blatantly obvious to all those but the terminally stupid that it is easy to find equivalence between two people, less so more than two.

    I don't think you understand that we no longer live purely under English common law, David - thankfully, for it had so many problems and inbuilt disadvantages.

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  18. David Lindsay2 February 2009 at 17:10

    "Marriage is defined according to quality of relationship"

    Nonsense indeed, Mike.

    Nonsense, indeed...

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