It all starts with those pesky polygamist women. Not the ones who appear in TV series documenting their escape from patriarchal fundamentalist polygamist cults, but the ones who have defiantly held their ground, asserting their right to choose heterosexual but non-normative family formations that defy both the expectations of good citizenry and normative femininity in Canada. How dare they presume autonomy over their own life? After all, good women know better. Good women do better.
But these aren’t “good” women… well, at least not in the law-abiding, good consumer, “don’t rock the boat” traditional sense. Are they bad women? Are they victims in need of rescue? Respectable women moderate their sexuality to adhere to the confines of serial monogamy, and the “good” woman (normatively White, economically privileged, and heterosexual) is the standard by which all women are judged.Footnote 1 The stubborn agency of (White) polygamous women—the ones who willingly choose non-normative family formations, provoke discomfort, perhaps even hysteria. Inherent within constructs of femininity are prescriptive mandates of sexual expression that control female sexuality. These mandates are revealed only through violations—in other words, “those who lack ‘rightness’ help define what is ‘right.’”Footnote 2 In Bountiful, British Columbia, polygamist women’s resistance to victim status through their active participation in and/or support of non-conforming family formations have frustrated moral crusaders.
Marriage has undergone significant change over the last twenty years in Canada, the most notable of which is the formal recognition of same-sex marriage in 2005. Public debate surrounding same-sex marriage largely focused on whether or not the state should extend the privileges and benefits of marriage to same-sex couples. However, many gay liberationists, radical feminists, and queer critics argue that energy would be better spent ensuring state social security and weakening the boundaries of inclusion/exclusion through the legal recognition of a variety of family and care formations, including unmarried partners (whether or not they are romantically or sexually attached) and polyamorous unions.Footnote 3 Such critics argue that when access to entitlements of citizenship hinge on one’s participation in a conforming romantic dyad, liberal principles of a “just” government are violated, revealing marriage as a violent enforcement of colonial and White-normative citizenship.Footnote 4
Canadian historian Sarah Carter has documented how, as an integral part of an assimilationist agenda, the imposition of monogamous Christian marriage upon Indigenous populations was a tool of colonization in the late nineteenth and early twentieth centuries.Footnote 5 By destabilizing traditional Indigenous family formations, including polygamous unions, community and cultural bonds were critically weakened to facilitate the national agenda of absorbing Indigenous populations into the dominant society, thereby detaching them from their land-based treaty rights. Motivated by concerns that newly established Mormon settlements in close proximity to nearby First Nations reserves in Southern Alberta would further encourage the practice of polygamy amongst Indigenous populations, polygamy (and all forms of multi-party conjugal unions) was first criminalized in Canada in 1890 through legislation that would eventually become s. 293 of the Criminal Code of Canada. Footnote 6
Amidst the public’s growing fascination with Mormon fundamentalists who, in accordance with their religious faith, were practicing polygamy in the community of Bountiful, the Attorney General of British Columbia asked the Supreme Court of British Columbia to consider the question of whether the criminalization of polygamy and all forms of multi-party conjugal unions was consistent with the Canadian Charter of Rights and Freedoms Footnote 7 through a Charter Reference Footnote 8 in 2010–2011.Footnote 9 At the center of the Reference was the question of harm, or more specifically, Parliament’s reasoned apprehension of harm arising out of the practice of multi-party conjugal unions and whether or not these harms were severe enough to restrict religious freedom. At stake in the Reference was the state’s authority to make moral claims justifying enforced monogamous marriage and the continued colonization of women’s bodies. Social science experts who employed various methodologies were charged with the task of identifying, assessing, translating, and interpreting notions of harm. As Sean Matthew Ashley and Brittney Adams revealed, the Reference set up a methodological competition between qualitative and quantitative research in the legal quest to determine a single (rational) universal truth about the harms of polygamy.Footnote 10 The Reference exposes the inherent tension (perhaps incompatibility?) of the interface between post-structural/feminist social science and legal inquiries that demand a single universal truth. Although both scientific reasoning and modern legal jurisprudence arose from the Enlightenment,Footnote 11 ongoing ontological and epistemological debates within the social sciences have challenged the lineage of enlightenment dichotomies such as subject/object, rational/irrational, and reason/emotion.Footnote 12 The social sciences have contested (with varying degrees of success) the hegemony of male modes of thought; yet Canadian law, as demonstrated in the Reference, remains firmly entrenched in a hegemonic patriarchal ordering of knowledge as fact.
Chief Justice Robert Bauman, the presiding judge, ultimately wrote the Opinion in 2011, which concludes that although s. 293 of the Criminal Code offends religious freedoms guaranteed by the Charter, its provision is justified in a free and democratic society due to the inherent harms polygamy poses to women, children, society and the institution of monogamous marriage.Footnote 13 The Opinion relied heavily on quantitative research provided by male “experts” from the academy who produced “evidence” to prove two truth claims: 1) the inferiority of non-Western societies where polygamy is not criminalized; 2) essentialist claims based in evolutionary psychology about the innate biological sex drives of men (and to a lesser extent women) that have presumably been kept in check through institutionalized monogamous marriage. Chief Justice Bauman dismissed as unreliable and biased qualitative research, specifically the ethnographic interviews of polygamous women from Bountiful, that offered a rare accounting of polygamy from the women who embody its practice. As Adams explains, through the marginalization of qualitative research, qualitative scholars of “gender and religious studies became the ‘losers’ in the competition for truth status” in the Reference, and the very women whom Chief Justice Bauman paternalistically sought to “save” from polygamy were excluded from his judicial considerations and thereby disempowered.Footnote 14
The Reference on polygamy demonstrates how law’s quest for truth and its reliance on certain iterations of science as a technology of governance is at odds with the longstanding feminist project of deconstructing assumptions of value-neutrality in all science, particularly positivistic science, and exposing androcentric bias and imperial legacies in the hierarchy of knowledge production. The purpose of this paper is to explore the thorny mingling of law with qualitative social science methodologies that reject dichotomies of subject/object, rational/irrational, and reason/emotion. It is beyond the scope of this paper to pass judgement on whether polygamy is inherently “harmful” to women, children, and society—a question that is, in and of itself, deeply problematic. After all, all forms of marriage “are stained by gender-based violence,”Footnote 15 and assessments of harm cannot be disentangled from larger questions about whether “harm,” irrespective of monogamous or non-monogamous family formation, is a product of the heteropatriarchal, capitalistic, colonial structure of society that is inherently gendered and oppressive. As Nan Hunter has noted, the “family” functions as a giant “cultural screen” for projections of “race, gender, sexuality and a range of other ‘domestic’ issues” recreating a discrete zone of social combat.Footnote 16 In a related and similar fashion, Rebecca Johnson argues that projected onto polygamy are our cultural fears about the dysfunctional dimensions of family, and “the criminalization of polygamy makes it easier to avoid talking about the challenges of familial life, challenges that are not generally the subject of criminal law, though they may well involve harm.”Footnote 17
At the heart of this inquiry are two questions: when social science is invoked in legal settings, whose knowledge is legitimized, and who benefits from this legitimization? The Reference reveals how the marginalization of qualitative research(ers) effectively controlled whose voices were to be heard and whose were to be silenced in the broader project of sovereign intervention into family formation and sexual control. A closer inspection of the tactical deployments used by the Attorneys General of Canada (AG Canada) and British Columbia (AGBC) charged with the task of proving the inherent harmfulness of polygamy opens a broader conversation about how “truth claims from different academic disciplines… [merge] with the truth claimed by law to construct a bounded narrative in which the law is able to pass judgement on the methodological practices of social science itself.”Footnote 18 Qualitative research(ers) may be inherently at odds with what it means to be an “expert” witness—an interpreter of social knowledge, within the legal drama of judicial inquiry.
The Legal Actors
Arguing that the criminalization of polygamy is justified and constitutionally sound due to the inherent harm it poses to women, children, and society are the Attorney General of Canada (AG Canada) and the Attorney General of British Columbia (AGBC).
Arguing that the criminalization of polygamy is an unacceptable intrusion by the State into the most basic rights guaranteed by the Charter is the publicly funded Amicus Curiae (Amicus).
The AG Canada, AGBC, and Amicus are the three “formal” parties of the Reference. However, eleven other “interested persons” were granted status to participate in the evidentiary phase of the reference and make oral and written submissions. Seven of these parties aligned with the AG Canada and AGBC arguing in support of the criminalization of polygamy, and four parties aligned with the Amicus arguing that the criminalization of polygamy is an unjustifiable violation of Charter rights.Footnote 19
Chief Justice Bauman presided over the Reference, having been appointed by Prime Minster Stephen Harper to the Supreme Court of British Columbia one year earlier, in 2009. At the time of the Reference, he had been married to his wife for over thirty-five years and together they had raised two sons. Prior to his appointment on the Supreme Court of British Columbia, he had served thirteen years on the trial and appellate courts of British Columbia, and practiced law in numerous firms within the province of British Columbia.Footnote 20
As a qualitative researcher and “expert” witness for the Amicus, Professor Angela Campbell was asked “to give opinion evidence as a legal scholar and qualitative researcher addressing the interface between the practice of polygamy and the legal prohibition against polygamy with emphasis on the polygamist communities in Bountiful.”Footnote 21 My acquaintance with Professor Campbell is entirely mediated through the court transcripts of the Reference. The two full days of her testimony and cross-examination in the Reference and the Opinion are my data set. In this paper, under these circumstances, her words are mediated through my consciousness, and my words are mediated through your consciousness, dear reader. The three of us form an intellectual ménage à trois of which the most polyamorous amongst us would be proud.Footnote 22
For all intents and purposes, Professor Campbell has been a very diligent scholar in the audit culture of academia. Graduating from McGill University Faculty of Law in 1999, Professor Campbell went on to earn her Master of Law from Harvard in 2000. She clerked for a Chief Justice of the Supreme Court of Canada and became an Assistant Professor at McGill University Faculty of Law in 2003. At the time of the Reference, she was the Director of the Institute of Comparative Law at McGill University, a member of Montreal Children’s Hospital Research Ethics Board and a professor teaching graduate level research methodology. Her curriculum vitae highlights an impressive list of research projects, peer-reviewed publications, book chapters, conference papers, policy reports, and media articles.Footnote 23 Professor Campbell has followed the trajectory of a “coherent scholar” creating a body of work that identifies her as an expert and an accomplished producer of knowledge.Footnote 24
Court proceedings are inherently adversarial, as participants are dichotomized into oppositional stances that battle for truth. Thus, the cross-examination of witnesses, including social scientists acting in the capacity of “experts,” is not only expected, it’s intrinsic to the judicial process.Footnote 25 However, in the case of the Reference, Professor Campbell was the only expert witness to conduct empirical research directly with polygamous women in Bountiful and she was the only witness whose qualifications to provide expert opinion were strenuously challenged, in spite of the fact that expert witnesses on both sides of the argument cited her work.Footnote 26 By contrast, the evolutionary psychologist who provided “expert” testimony on the origins of monogamy and the (supposed) superiority of Western “monogamous” societies had neither conducted nor published research on polygamy prior to being retained by the AGBC office.Footnote 27 Yet his qualification to provide expert opinion went unchallenged, and his evidence was heavily cited in Chief Justice Bauman’s final Opinion.
Very little peer-reviewed research has been conducted with polygamous women in Canada. This may be due to the insular nature of polygamous communities—an entirely understandable response to potential state intervention in their families and lives. The Canadian and United States governments have a long and complicated history of surveillance of so-called “sexual deviants.”Footnote 28 The small amount of peer-reviewed research that existed at the time of the Reference from the perspective of polygamous Canadian women in Bountiful had been conducted almost exclusively by Professor Campbell. Her prior work for the Status of Women Canada resulted in an unusual invitation from women in Bountiful to come to their community to conduct research.Footnote 29 After receiving funding from the Social Sciences and Humanities Research Council of Canada (SSHRC), Professor Campbell employed qualitative interviews to produce data aimed at better understanding how the criminalization of polygamy interfaced with the embodied experience of rural polygamist women. The AG Canada, AGBC, and Stop Polygamy objected to Professor Campbell’s qualification as an expert witness, and a Voir Dire, a trial within the larger trial, was conducted to determine whether Professor Campbell could provide evidentiary “expert” opinion. Professor Campbell was cross-examined about her academic pedigree, her experience as a qualitative researcher, and her research methodology within the community of Bountiful. After an intensive day of cross-examination and submissions, Chief Justice Bauman qualified Professor Campbell as an expert witness; the following day, she provided “expert” testimony that was subject to a second round of intensive cross-examination.
In court, experts provide opinion evidence that must be limited to their area of expertise and adhere to the rules of evidence;Footnote 30 yet as Mariana Valverde explains, “for lawyers social science means positivistic knowledge… [and the very act of swearing] to tell the whole truth and nothing but the truth” is completely contrary to the epistemological principles to which many qualitative researchers subscribe.Footnote 31 In the case of the Reference, the role of expert was to provide guidance and offer conceptualizations of harm that provide the illusion of moving beyond moral reasonings to empirical/scientific reasonings for state intervention into the sexual and familial choices of Canadian citizens. The cross-examination of Professor Campbell in the Reference and the submissions by the AG Canada, the AGBC, and Stop Polygamy articulating their objections to Professor Campbell’s expert status illuminates how “rational [legal] knowledge is a power-sensitive conversation.”Footnote 32 Valverde explains that, “social science, purportedly courted because it can inject useful ‘facts’ into the legal process, is through the legal process reduced to the status of mirror for law’s narcissistic deliberations.”Footnote 33 The AG Canada, AGBC, and Stop Polygamy challenged the validity of Professor Campbell’s qualitative research. In contrast, the presumed infallibility of the quantitative data remained uncontested in the Opinion. Evidently, to undermine an expert witness, particularly one whose evidence contests widely held views and assumptions about sexuality, one only needs to undermine qualitative research itself. Professor Campbell’s interdisciplinary deployment of qualitative methodology in her research on polygamy in Bountiful was artfully weaponized to disqualify and devalue her expert opinion, rendering silent the voices of women who did not see themselves as victims or in need of saving.Footnote 34
The methodology deployed in judicial reviews of legislation such as the Reference, “establishes space for certain actors to perform on the discursive stage, inhibits others from participating, and renders silent the voices of those whose perspectives do not fit.”Footnote 35 As Sara Mills states, “exclusion is, in essence, paradoxically, one of the most important ways in which discourse is produced.”Footnote 36 Undermining qualitative research to exclude unrepentant polygamist women renders those who challenge the public’s imagination of what good women ought to be a mere curiosity. The following three examples of the way in which qualitative methodology was inherently at odds with the legal production of “truth” in the Reference articulate the inherent incompatibility between legal truths and qualitative research(ers).
Example One: Who Can Lay Claim to the Title “Qualitative Researcher”?
A central focus in the effort to disqualify and undermine Professor Campbell’s expert opinion was an insistence that she was not qualified as an expert in qualitative research methodologies; furthermore, the fact that she lacked such qualifications, including the completion of formalized qualitative training, disqualified her as an expert witness on the larger question—namely, the interface between the practice of polygamy and the legal prohibition against polygamy.
Counsel for the AGBC: Now my submission, My Lord, is not simply that Professor Campbell’s evidence is not helpful. My submission goes further than that and suggests there’s a danger to adducing it because its admission would be premised on the possession by Professor Campbell of an expertise she doesn’t have in the area of qualitative research [emphasis added].Footnote 37
The AGBC’s position raises the following interesting question: by what standard can a professor (or any other social scientist) lay claim to the title qualitative researcher? Under cross-examination, Professor Campbell admitted to having no formal training in qualitative research methodologies as an undergraduate in history and a student of law in the 1990s. However, in terms of practical experience, she had participated in several qualitative research projects as a research assistant in both her undergraduate and graduate studies. Recognizing her limitations and the interdisciplinary nature of her research, Professor Campbell’s funding application included a request for funds to hire a graduate student in Sociology to assist in the design of the interview strategies, techniques, and structure. A fourth-year undergraduate student highly recommended by colleagues and with practical fieldwork experience was ultimately hired. This student, in consultation with a professor of Sociology at McMaster University, conducted a literature review and wrote several memos detailing how legal scholars should carry out empirical research with women in religious communities hostile to the outside world.Footnote 38 This research yielded a peer-reviewed publication in the Canadian Journal of Law and Society that drew upon the available scholarship to explore methods for conducting reflexive research from a feminist viewpoint.Footnote 39
In addition to the careful consideration given to methodological concerns prior to the formal commencement of research in Bountiful, Professor Campbell had taught graduate level methodology at McGill University Faculty of Law and served on the Montreal Children’s Hospital Research Ethics Board, a role that included reviewing qualitative research proposals.Footnote 40 This brings us full circle to the question, when does experience in qualitative research become expertise? And how does the legal tactic of conflating an ambiguous threshold of qualitative expertise with expertise in a particular subject area (in this case, the interface between the practice of polygamy and the legal prohibitions of polygamy) reinforce power regimes that insist on silencing “othered” subjects?
Donna Haraway has argued that “the contestability of science as practice and culture galls the guardians of the old orthodoxy” who are “dismayed by the insistence that science is a cultural practice because that account makes ample room for a motley crew of interlopers to take part in shaping and unshaping what will count as scientific knowledge.”Footnote 41 Alluding to a mythological threshold that qualitative researchers must pass in order to be considered experts in their respective disciplines resonates as an exclusionary tactic that demonstrates how certain discourses claim to speak truth, and are consequently afforded power. As Carol Smart observes, law is a discursive field which disqualifies supposedly inferior knowledges:Footnote 42
This is not a simple reductive statement akin to “all law is man-made,” rather it is intended to draw upon an understanding of how the constitution of law and the constitution of masculinity may overlap and share mutual resonances. The notion of phallogocentric discourse makes this overlap clear. […] knowledge is not neutral but produced under conditions of patriarchy.Footnote 43
From legal precedent, Chief Justice Bauman ruled that formal academic credentials are not required for expert status and that those objecting to Professor Campbell’s ability to provide expert opinion had not pointed to any particular exclusionary rule that would serve to exclude her.Footnote 44 Yet the objections to Professor Campbell’s evidence appear to have swayed the Chief Justice when it came to deciding how much weight to assign it.
Example Two: Findings That Cannot Be Generalized Are Not Really Findings
Counsel for Stop Polygamy Q: And I think you would agree with me based on what you have written and what you have said this morning that no qualified researcher, no matter how experienced, would be able to properly generalize from the narratives and quotes of the women you interviewed about what is actually taking place in Bountiful or about the attitudes of women there?Footnote 45
The ability (or lack thereof) of qualitative data to be generalized to a broader population has long been a point of reflection amongst qualitative researchers. The legitimacy of social science—an emerging field of study in the early twentieth century—was predicated on its adherence to positivistic methodology and the quest for universal laws that could explain, predict, and control.Footnote 46 However, conversations within the social sciences have taken a more nuanced approach to thinking about generalizations, discerning more precise and rational representations and the ability to think about what types of generalizations are appropriate for any number of research questions.Footnote 47 In the Reference, the AG Canada, AGBC, and Stop Polygamy made submissions that Professor Campbell should be excluded as an “expert” witness because the qualitative interviews she conducted with twenty-two women from Bountiful could not, they argued, be generalized. As articulated by the counsel for the AGBC, “given that Ms. Campbell herself agrees that as a matter of qualitative method you can’t draw any generalizations beyond the 22, it’s not simply not helpful to have her do so, but it’s dangerous to suggest that you can in the context of an expert affidavit [emphasis added].”Footnote 48
The cross-examination of Professor Campbell and the submissions by counsel reveal a crude understanding of generalization that conflates many types of generalization—internal, external, lower order, higher order, with transferability, universality, and validity.Footnote 49 Questions during cross-examination drew upon positivistic logics of generalization to undermine qualitative findings:Footnote 50
Q: So would you agree you are making a generalization there in the first few words, “it’s possible that the women in Bountiful.” You’re generalizing to the women in Bountiful?
A: Well, I’m saying that it’s possible for them, yes.
Q: But that’s not based upon the qualitative research study you did because you can’t generalize past the 22 women you looked at?
A: Well, it is based on those studies, yes.
Q: Right. So it’s limited to the 22 women that you interviewed?
A: So my direct conclusion, what I can say I was told for sure, is limited to the 22, but in terms of possibilities beyond that, right, I’m not saying that necessarily it happens, but there’s a possibility that what is set out here is occurring.
The usefulness of both qualitative and quantitative data to generalize is primarily indicative of the research question at hand, and certain research questions demand a level of generalization that others do not. Staffan Larsson has sketched out two lines of inquiry that remove the necessity of making generalizations: 1) the ideographic study that contributes to a broader picture by filling a “hole”; and 2) studies meant to undermine universal “truths.”Footnote 51 Professor Campbell’s research with women in Bountiful was specifically designed to pursue a broader understanding of the embodied experiences of polygamist women in Bountiful. Although her intention may not have been to undermine a universal truth on polygamy, its retrospective application by the Amicus in the Reference certainly attempted to do so.
Relying on Larsson’s metaphor of a jigsaw puzzle with missing pieces,Footnote 52 the criminalization of polygamy in Canada was a puzzle missing a piece of important data—namely the actual experiences of polygamist women in Bountiful absent speculation and conjecture. The prohibition on polygamy has historically been justified in Canada by its supposed harms to women and children, yet there was a dearth of academic literature on the actual embodied experiences of polygamous women in Canada. Professor Campbell’s research was an ideographic study designed to gain a broader understanding of polygamy (in relation to its criminal prohibitions) in Canada. Her research question did not articulate the need to develop an “essentialist” understanding of polygamy that could be generalized to Canada’s polygamist population, whatever that might be. Her findings and conclusions did meet the threshold of moderatum generalizations, which “resemble the modest, pragmatic generalizations drawn from personal experience which, by bringing a semblance of order and consistency to social interaction, make everyday life possible.”Footnote 53 It would seem that Professor Campbell herself was unaware of the various types of generalization and how her research is and is not generalizable:Footnote 54
Q: Now, you agreed with Mr. Samuels [Stop Polygamy] that your research was not intended to be representative of a broader sample? This is your research at Bountiful?
A: Yes, not generalizable.
Q: And so not generalizable generally and not even generalizable with respect to the Blackmore side of the community?
A: Yes, I would be careful before making such generalizations even within that faction of the group.
It is difficult to conceive of a methodology capable of creating data on polygamist women that could harvest a universal understanding of their experience. The task is further problematized without qualitative research—how would we even know what to ask? A more productive consideration of Professor Campbell’s research within the Reference would be to ask: in what ways can it contribute to a “dialectical” understanding about polygamy that destabilizes narratives of harm? Melissa Freeman explains that the core assumption of dialectical thinking is to consider the “human consciousness, personal identity, cultural norms and beliefs” in relation to the “historical, structural, and material conditions of which they are an integral part.”Footnote 55 Professor Campbell’s research objective was to understand how the criminalization of polygamy interfaced with the embodied practice of polygamy for women in Bountiful. In this sense, criminalization and embodied experiences were impossible to disentangle and the legal project of acquiring an inherent “truth” of polygamy, through generalization, is largely misplaced and counterproductive.
The second type of study that makes “generalization claims” inappropriate are studies that undermine universal truths. As Larsson explains, “cases that break the rule, which are not in accordance with the available discourses, will do the job of troubling or destabilizing the taken-for-granted.”Footnote 56 The purposive activity at the heart of the Reference was to answer the question of whether or not polygamy was inherently harmful, and the Attorneys General presented their case in the form of a universal truth—that polygamy was inherently exploitative of and harmful to women, children, and society. The Amicus’s use of Professor Campbell as an expert witness was to undermined this universal truth. Qualitative interviews conducted by Professor Campbell with women in Bountiful showed that, notwithstanding certain complications, polygamy is a meaningful and rewarding life choice for some—undermining the universal narrative of victimhood and harm. It matters not that the findings can or cannot be generalized to a larger population because the deviation undermines the universalism. Although the purposive activity of the Reference was to pass judgement on whether the harms of polygamy justified criminal restrictions to religious practice and non-dyadic family formations, the purposive activity of Professor Campbell’s qualitative research was to gain a broader understanding of the embodied practice of (criminalized) polygamy in Bountiful. The idealization of positivistic research in the Reference, exposed through the cross-examination of Professor Campbell and the reasoning in the Opinion, reveals the uncomfortable conflation of (ill-defined) generalizable quantitative findings with universal truths in judicial projects.
Example Three: If You Have an Opinion, Your Science Is Flawed!
Contrary to long-established feminist arguments that all knowledge is situated knowledge, the myth of science, within the legal context, as a neutral arbiter of facts stubbornly persists. Donna Haraway has explained that the “separation of expert knowledge from mere opinion as the legitimating knowledge for ways of life, without appeal to transcendent authority or to abstract certainty of any kind, is a founding gesture of what we call modernity.”Footnote 57 Within the context of the Reference, the Attorneys General sought to disqualify Professor Campbell as an expert witness due to her public advocacy for the decriminalization of polygamy. As counsel for AG Canada argued in the Voir Dire:Footnote 58
Paragraphs 63 to 74 deal with Professor Campbell’s actions as an advocate both for giving voice to the women of Bountiful who are pro-polygamy in particular and also as an advocate for the decriminalization of polygamy. I won’t purport to take you through all of these, but everything and up to [sic] the National Post and Globe and Mail articles as they were entered into evidence, My Lord, calls for the decriminalization of polygamy or supports it—expresses a positive support for it. And her perspective or opinion went so far as to creep into the interviews […] Professor Campbell explicitly went into her position that the decriminalization of polygamy is preferred, or put otherwise, that the criminalization of polygamy is without foundation in the actual interviews with the women from Bountiful that she was talking to about polygamy.
Now, I mean, I’ll leave it for my friends to go into about how much of a breach this is of the qualitative research methodology that is accepted in the field, but from the perspective of the court I think it also just adds to the unnecessary nature of her opinion evidence.
The AG Canada’s submission is premised on the assumption that social research has no place in judicial inquiry if researchers have opinions, are honest with their research subjects about these opinions, and/or participate in public advocacy on social justice issues. This legal line of reasoning sharply contrasts with the feminist project of troubling subject/object dichotomies, dispelling myths of value-neutrality in science, and asserting the responsibility of researchers to move beyond data extraction to advocacy. Research is always a political act, as conscious decisions about “what to include, exclude, emphasize, and strive for” must be made.Footnote 59 In other words, what has become the bedrock of ethical feminist research praxis in the social sciences is inherently at odds with legal projects that invoke the supposed value-neutrality of science. Sandra Harding has argued that, for institutions such as law, which appropriate “science and knowledge for their own purposes, it is extremely valuable to be able to support the idea that ignoring the constitution of science within political desires, values, and interests will somehow increase the reliability of accounts of nature and social life.”Footnote 60 Science can never be disassociated from the social circumstances of its construction, and the discursive tactics used in the legal arena to propagate the mythology of neutrality reveal law’s ability to pass judgement on what is/is not legitimate knowledge and legitimate ways of knowing. Feminist and queer researchers employing qualitative methodology trouble the assemblages of researcher/researched, cultivating intimacies that “tear…apart the machinery of normative ethical regimes that delimit a full range of possibilities.”Footnote 61 Feminist researchers believe they have an obligation not only to “explain human behavior but also to appraise the world about them, to offer criticism when appropriate, and to share their ideals for the future.”Footnote 62 In fact, even C. Wright Mills acknowledged that a lifetime of studying and publishing is a moral and political act.Footnote 63
Taking this line of reasoning one step further, it is necessary to consider not only the positionality and biases of the social scientists but the positionality of the Chief Justice (and legal counsel) as well. I often wonder about Chief Justice Bauman—how his life course intersected with the lives of polygamist women, and how, at the crossroads of this inequitable intersection, his institutionalized power afforded him the judicial role of justifying criminalized restrictions to sexual autonomy and family formation. Didi Herman has argued that judges are nation-builders who actively engage in strategies of estrangement that define the boundaries of belonging.Footnote 64 In Canada, the Reference was part of an ongoing public conversation about family formations and the boundaries of inclusion/exclusion to marriage entitlements. In my mind’s eye, I see Chief Justice Bauman sitting in his office contemplating the Reference and imagining an alternative life in which he is at liberty to have multiple conjugal partners. Did he imagine the possibility of concurrently having the safety and security of his long-term marriage and the added erotic energy of a new, second spouse? Did he imagine the reactions of his wife, children, and friends should he decide that the criminalization of polygamy was an unjust violation of Charter rights? And what about his work colleagues? How might his ruling result in a rethinking of monogamous ethics? Would his character come under attack? Would he become the subject of speculation were he to rule that polygamy might not be so harmful? I don’t suppose he even considered the possibility of his wife choosing to have a second spouse—after all, he was adamant in his Opinion that such a scenario was virtually non-existent.Footnote 65 His ability to consider multi-party unions from any frame of reference that subverts an androcentric Christian bias was non-existent. In the drama of the Reference, the State is, indeed, a man.Footnote 66 Patriarchy, presumed to be virtuous, gets performed in the character of legal authority, revealing how the “constitution of law and the constitution of masculinity overlap and share mutual resonances.”Footnote 67 Zainab Batul Naqvi’s deployment of a post-colonial feminist lens exposed the judicial discourse on polygamy in the United Kingdom as racist, imperialist, and Orientalist—hallmarks that feature prominently throughout the Reference and in Chief Justice Bauman’s final Opinion. Footnote 68 Relations of power are exposed in the Reference, when the positionality of feminist research is problematized without a corresponding investigation into the positionality of the Chief Justice, who was imbued with the institutional power to write an Opinion in support of the curtailment of religious practice, free association, and sexual autonomy.
Benevolent Patriarchy
Artist Titus Kaphar’s painting, entitled Behind the Myth of Benevolence, was inspired by a conversation he had with a history teacher who described Thomas Jefferson’s ownership of slaves as benevolent slavery.Footnote 69 In the painting, behind a peeled-back portrait of Jefferson is a second portrait—an intimate painting of a Black woman (presumably enslaved?) whose gaze locks with the observer, commanding a dismantling of the notion that the ownership of others can in any way be benevolent. Behind the Myth of Benevolence petitions a rethinking of historic narratives that obscure the indignities of oppression through the cloak of benevolence. Although Kaphar’s body of work is largely a commentary on racial injustice in the United States (making the invisible visible), he provides a philosophical point of departure for considering other myths of benevolence. Within this framework, the Reference imposes one flavour of “benevolent” patriarchy—the institutions of law and Christian monogamous marriage—to counter a supposedly more harmful expression of patriarchy: polygamy. The Reference illustrates how social science methodology and the utilization of “expert” witnesses are inextricably entwined in the production of Western judicial “benevolent” patriarchy. The legal imperative to assess the risk of harm functions as a “versatile prop” within the theatrics of the legal drama. That is because, as Valverde notes, it introduces a “plurality of principles, values, and discourses in simultaneous deployment.”Footnote 70 “Risk” allows “judicial discretion into the adjudication of harm. While actual harm requires empirical proof, virtually anything can be considered under the category of risk.”Footnote 71 To negotiate this plurality, social scientists are invited into the legal arena as “expert” mediators of knowledge—“they use the leeway that exists between the production of knowledge and need for advice, between the uncertainty of scientific facts and need to take action.”Footnote 72
Judicial governance shares a common lineage with positivistic science. Both are products of modernity and, as such, are grounded in the faith of reason, rationality, and a process of discovery that culminates in a notion of ahistorical universal truth.Footnote 73 In the Reference, epistemic racism and sexism “buttress modern civilizational logics, which characterized non-Western people as closer to animality, as intellectually inferior, and as incapable of rationality,”Footnote 74 reaffirming “paternalistic regimes that endeavour to ‘protect’ women by limiting their freedom.”Footnote 75 Although polygamy is a gender-neutral classification of all multi-party unions, limited only by one’s imagination, Chief Justice Bauman chose to conflate all polygamy with polygyny (one man with multiple wives), finding that the harms found in polygynous societies are not simply the product of individual misconduct but inevitably arise out of the practice itself.Footnote 76 In the paternalistic construction of harm, the justifications for sovereign control over sexuality and family formation, with specific focus on controls to legitimized female sexuality, was problematized by the voices of the very women whom the government sought to protect. Qualitative data on Bountiful’s polygamist women, specifically the research of Professor Campbell, thwarted the simplistic narrative that polygamist women were victims who could be saved by swapping out one form of patriarchy in favour of a supposedly more benevolent kind. Chief Justice Bauman afforded this qualitative research little weight in his Opinion, demonstrating the court’s naturalization of heteropaternalism and the “presumption that nuclear domestic arrangements should be the building blocks of the nation-state.”Footnote 77 As he stated, “the Attorneys General have certainly demonstrated a reasoned apprehension of harm associated with polygyny. Indeed, they have cleared the higher bar; they have demonstrated ‘concrete evidence’ of harm.”Footnote 78 It is somewhat perplexing how hypothetical harm could harden into “concrete evidence,” based on speculation about the consequences of the decriminalization of multi-party conjugal unions in Canada. Chief Justice Bauman wrote in the Opinion that Professor Campbell’s qualitative research was “sincere, but frankly somewhat naïve.”Footnote 79 He was not willing to accept the claims of the women Professor Campbell interviewed “at face value,”Footnote 80 choosing to rely instead on commissioned quantitative research rooted in a functionalist framework to imagine potential harm to society.Footnote 81
Lisa Duggan has argued that “sex panics, witch-hunts, and red scares are staples of Western history […] taken up by powerful groups in an effort to impose a rigid orthodoxy on the majority.”Footnote 82 Sex is always politicalFootnote 83 and so is methodology, and these politics are magnified in the drama of law. By enabling and disabling particular types of inquiries and methodologies, policy, science, and legal discourse such as the Reference “imply a form of control and colonization of knowledge that sets in motion practices of methodological oversimplification, sacrificing complexity in the name of mechanicality.”Footnote 84 As Gayle Rubin reminds us, the criminalization of multi-party conjugal unions, which share a common historic lineage with other innocuous behaviour, such as homosexuality, prostitution, and obscenity, has been rationalized by portraying them as menaces to “women, children, the national social fabric, the family, and civilization itself.”Footnote 85 Like the equally troublesome Muslim woman who defies western gender norms, resists paternalistic veil-liberating efforts, and rebuffs demands to condemn and abandon her religion, the pesky polygamous (White) woman invokes considerable social anxiety and the deployment of the legal imperative of exclusion.Footnote 86
Qualitative inquiry is “collaborative, multiple, tends to avoid closure, and already acknowledges her/histories, contexts and subjectivities… [and is] open to an always/already examination of changing relations of power.”Footnote 87 Qualitative research, with its ongoing and evolving commitment to disrupting the ethos and ethics of positivistic research—through its itch to decolonize knowledge production, with its acceptance of messy, complicated, vexing, and joyous embodiment, with its irreverence of hierarchy, with its propensity to challenge our conceptions of what is and what is not research and how/if research should be communicated and shared—is not averse to challenging business as usual in the social sciences. However, within the power framework of legal institutions, “underlying law’s incessant talk about adjudicating rights and wrongs lies a more fundamental silent process by which various philosophical claims, particularly epistemological ones, are adjudicated.”Footnote 88
The judicial field is the paradigmatic staging of the symbolic struggle where antagonistic world-views seek self-realization and the power to impose a universally recognized principle of social knowledge.Footnote 89 The Reference on polygamy maps the intersection of three colonial legacies—law as the mechanism of colonial conquest, science as its justification, and sexuality as a central domain of colonial imagination and intervention.Footnote 90 In the Canadian context, the criminalization of polygamy was most assuredly a colonizing gesture aimed at disrupting the marital traditions of Indigenous populations under policies of assimilation that kept Indigenous women under patriarchal control,Footnote 91 and the Reference was one moment within a larger judicial history revealing marriage to be a fluid technology of governance that is gendered, racialized, sexualized, and imbricated in settler colonialism.Footnote 92 Qualitative inquiry holds the possibility of understanding the lived experience of those who are “othered” in society and has the potential to disrupt larger conversations about what constitutes legitimate knowledge and who is a legitimate knower. Many qualitative inquiries are sensitive to ideals of “justice” contingent on an etymology of fairness, rules, and laws, and it seems a natural fit to seek remedial redress through legal apparatus. Yet the mingling of law and social science is troubling and should be approached with caution, as “law has its own method, its own testing ground, its own specialized language,”Footnote 93 exercising a power that easily disqualifies the experiences and knowledge of those who are “othered.” The legal disempowerment of marginalized sexualities (and family formations) “enables the state to entrench its political power, and in doing so, sets up a vicious cycle of legal disenfranchisement.”Footnote 94
Unrepentant (White) polygamist women complicate the argument that rational women would never willingly consent to engage in polygamy; they complicate the racialization of polygamy; they complicate Western narratives of cultural progression that associate non-monogamy as a marker of the barbaric and uncivilized; and they complicate the notion that one type of patriarchy is more benevolent than other forms. Canadian law, as demonstrated in the Reference, remains firmly entrenched in a hegemonic patriarchal ordering of knowledge as fact—an ordering that exposes the inherent incompatibility of feminist knowledge production and the legal quest for universal truths.
