Is Abetz right about the same-sex marriage plebiscite?

Senator Eric Abetz’s statement to the Guardian last week that he would not consider the results of a plebiscite on same-sex marriage binding – that is, he might vote against a same-sex marriage bill even if a majority of the population had voted for it – is revealing.

Yes, it has an obvious political explanation. There’s been a lot of “clever” politicking over same-sex marriage. The plebiscite was an attempt to kick the issue into the long grass – an expensive delaying tactic. Nominally conservative politicians have even called for pointless constitutional change to hold back a policy that has a clear majority of support.

But Abetz’s statement is more interesting in that it exposes deep confusion, uncertainty and ambiguity about the relationship between politicians and voters. Aren’t politicians supposed to be our representatives? And if so, what does that mean?

Abetz made two arguments. First, he reserved judgment as to whether the plebiscite would be a fair reflection of the public’s views. If he felt it was stacked against traditional marriage (say, through an unbalanced distribution of funding) he would not consider it binding.

But Abetz also left it open to reject the plebiscite’s results regardless. As he said: “People elect us so that we exercise our own best judgments on all the issues that come before us.” Politicians must “take into account the views of the electorate, the views of the nation and their own personal views.”

But why should the “personal views” of politicians have any weight in political decision making? What is so special about political consciences?

I can think of few professions that I would trust less to follow their consciences than politics – surely the only industry where megalomania, narcissism and confrontation is not just tolerated but is actually a positive. And the idea that political consciences need to be protected is precious beyond belief, given that the practice of politics involves trading off personal beliefs for electoral gain.

There are workarounds to Abetz’s objections. The enabling legislation for the plebiscite could be written so that same-sex marriage is legal automatically after a positive popular vote. Concerns about unfair funding balance should be resolved by not funding any side at all.

But the real question raised by both the plebiscite (which suggests same-sex marriage is too important to be resolved by Parliament) and Abetz’s insistence on a conscience vote (which suggests same-sex marriage is too important to force parliamentarians to go against their beliefs) is why we elect politicians in the first place.

Are they there to represent the views of the voters in Parliament – effectively employees whose job is to do the bidding of their electorate as faithfully as is practicable? Or are they there as sort of an elected aristocracy – placed into power as a popular endorsement of their inner selves?

It is in the interests of the political class to believe the latter, with all the quasi-mystical implications about power and political authority it brings. The most famous expression of this worldview was offered by thegreat conservative Edmund Burke in a speech immediately after he was elected for the first time as the member for Bristol in 1774. Burke argued he was first and foremost a member of parliament with a responsibility to deliberate on behalf of the whole nation, and was not there to reflect “local purposes” or “local prejudices”.

The speech to the electors of Bristol is one of the basic texts of Western democratic politics. But rarely are the views of the electors of Bristol reported. Burke was not a popular local member. When the next election came around – six years later – he had so clearly dissatisfied Bristol voters that he deliberately ran dead, ultimately coming fifth in a ballot of five candidates. Burke did not represent the electors of Bristol again.

The voters seem to have believed Burke had been elected to represent them, and had no hesitation dumping the great conservative thinker when they learned he did not share that view.

In this light, the decision to hold a plebiscite on same-sex marriage rather than a parliamentary vote was a rather devastating indictment of the Australian political class. First it suggests that our so-called representatives are unable to adequately represent our views – whether those views be for or against marriage reform. Second, for those who hold to a more Burkean vision of democracy, it makes politicians look less like confident, deliberative aristocrats and more like cowards, unable to come to decisions on policy questions they find uncomfortable.

Don’t get me wrong. If the goal of democratic choice is to discern what most people want, then direct democracy is much more effective than delegated representation. But then we should be subjecting more government policy to a plebiscite. Things like tax increases, spending programs, military engagements, regulatory interventions, law and order schemes – they could all go to a popular vote.

I know, I know. This is fantasy stuff. Imagine the political class admitting it was not competent to rule on the big issues.

Same-Sex Marriage: When Did Dissent Become Discrimination?

The politics of gay marriage have shifted radically in a very short space of time. Until 2011, the Labor Party was firmly opposed to gay marriage. The Coalition was firmly opposed just four months ago.

So it’s remarkable that a Catholic archbishop in Tasmania is being dragged to a government anti-discrimination authority for opposing same-sex marriage – the position that was until very recently, shared by both parties.

Last September, Martine Delaney, the Greens candidate for the federal seat of Franklin, took a complaint to the Tasmanian Anti-Discrimination Commissioner that the Catholic Church had produced and distributed a booklet which “does immeasurable harm to the wellbeing of same-sex couples and their families across Tasmania”.

This Tasmanian case has Australia-wide significance. We’ve just had a sustained national debate about free speech, and are about to go into a national debate about gay marriage.

Polls show that about 70 per cent of Australians support gay marriage, so you might think the plebiscite is an assured success. Indeed, Tasmania’s Liberal-led lower house last week became the third state to agree to a motion supporting legislation of same-sex marriage. But that success is not at all certain if gay marriage is perceived as the thin end of the wedge for a more general attack on the liberties of religious communities and freedom of conscience.

The booklet in question, Don’t Mess With Marriage, offers the basic Christian case against gay marriage: families are the founding blocks of society and children need a mother and father.

It’s hard to overstate how moderate this booklet is. It offers no fire or brimstone. It’s gentle and Christian, of the suburban pastoral variety. There’s much expression of sympathy for same-sex attracted people who also want to follow religious teachings that preclude their sexuality. It is a calm explanation of a major position on a prominent political policy issue.

To be offended by the booklet is to be offended by what was, until very recently, the mainstream view on gay marriage, and one still shared by a large minority of the population.

For this reason if nothing else, the complaint ought to have been dismissed as laughably frivolous. But this month the commission decided that the Catholic Church has a case to answer under Tasmania’s Anti-Discrimination Act.

The Tasmanian law almost exactly parallels the controversial section 18C of the Racial Discrimination Act that the conservative commentator Andrew Bolt was found to have breached in 2011, and which Tony Abbott (in opposition) promised to repeal.

There are, however, two revealing differences between the Tasmanian and the federal legislation.

The first is that the Tasmanian law prohibits offensive and insulting speech not only on race and ethnicity, but on 20 different areas from sexuality to religious belief to political affiliation.

In this sense the Tasmanian act resembles the Human Rights and Anti-Discrimination Bill which the Gillard government failed to push through parliament in 2012, which would have made it unlawful to offend someone on virtually everything (including their political opinion!) in the workplace.

It is symptomatic of the spread of no-go areas in Australian public discourse. Governments increasingly believe that protecting us from being offended – on whatever spurious grounds – is more important than allowing us to speak our mind.

The second difference is that there is no caveat in the Tasmanian act that even purports to protect free expression. Defenders of the federal Racial Discrimination Act often point out that section 18C is followed by section 18D which provides protection for speech made in good faith on matters of public interest. This protection is weak. The court decided in the Bolt case that something could not be considered in good faith if, in the view of a judge, it was too sarcastic and had errors.

However, the Tasmanian legislation doesn’t even offer that token concession to basic liberties. In a parliamentary debate in 2013, the Attorney-General dismissed concerns by insisting the bill “does not impinge on free speech; it provides protection from bullying”. All words are cheap. The words of politicians – even when they’re interpreting their own legislation – are junk.

Both supporters and opponents of gay marriage should be very unhappy with the Tasmanian case. Even if the Catholic Church successfully defends against the anti-discrimination complaint, damage has been done. Free-speech theorists talk about the “chilling effect” when the cost of defending oneself against baseless claims hampers the open expression of views.

And in the event that the plebiscite fails, it will be because voters feel that expanding marriage freedom to one group means limiting the freedom of another. The date of the vote hasn’t even been set, but the debate about gay marriage has already moved from the realm of public discourse to legal sanction.

The Tasmanian legislation also tells us something about the ongoing political contest over free speech in Australia.

All those human rights bodies – such as the government’s Australian Human Rights Commission – that flaunt the vital protections of section 18D did not lift a finger to protest the lack of such protections in the Tasmanian legislation. Just as they fully supported the Gillard government’s 2012 bill until its absurdities became politically controversial.

When the Abbott government broke its promise to repeal section 18C in August 2014, many commentators believed a line had been drawn under the arguments over free speech and offensive speech. Not at all. Watch Tasmania. This is the debate we are all about to have.

There’s Nothing Conservative About Using The Constitution As A Political Trick

The Australian constitution has one great feature. It is incredibly hard to change.

This, obviously, is what Scott Morrison was thinking about when he proposed last week that Australia hold a constitutional referendum to deal with same-sex marriage.

A plebiscite would simply determine the public’s view on changing the Marriage Act via Parliament, but a constitutional referendum would propose adding the words “opposite and same-sex” before the word “marriage” in section 51(xxi) of the Constitution.

A plebiscite would have to simply receive a national majority to be considered decisive. But a constitutional referendum would have a much higher bar: both a national majority and majorities in at least four states.

Australia’s constitutional amendment system is often described as “notoriously difficult”. We are a “frozen continent”, constitutionally speaking.

Only eight out of 44 referendums have succeeded. This often cited figure understates the failure rate. Other possible referendums have been abandoned before coming to a vote. Kevin Rudd dropped Julia Gillard’s local government referendum when it became clear the Coalition’s enthusiasm for change was waning.

The Australian founders may not have intended it to be this hard to change the constitution. But there are good reasons for constitutional change to be difficult.

Constitutions exist in order to provide fixed rules about what governments can and cannot do. The strength of a constitution derives from the certainty it provides. A constitution that can be easily changed is not a constitution at all, in that it does not offer the stability necessary for long term economic and political management. In the pre-constitutional era, governments did not feel bound by rules. Now they do. That’s a very good thing.

This does not mean constitutions should be impossible to alter. But the danger to the constitution comes from reckless change, not stubborn adherence to the status quo. As Geoffrey Brennan and Hartmut Kliemt have written:

The slowness of the procedure will give us pause and help us steer a steadier constitutional and political course than we would do otherwise.

It’s important to note that the desirability of constitutional rigidity holds true even if we think the constitution is weak, or flawed, or could be amended in an obvious way.

Yes, we all have our own ideas of how statutes and constitution might be rewritten that would make this country more perfect. But just have a brief scan of the previous 44 referendums (Wikipedia has a nice list, with links to the questions themselves). It is pretty clear that Australia is better off, on balance, for having rejected most of them. Almost all were outright and explicit power grabs by the Commonwealth.

With all this in mind, the requirement that a constitutional referendum achieve a double majority – majority of the population and majority in the majority of states – is in fact a relatively low bar for a change to the rules that govern the structure of the government.

After all, what is the alternative? Simple majority voting? Majority voting is not inherently more democratic.

We are more likely to make democratic decisions – that is, decisions that more represent the will of the people – with a higher threshold. When 51 per cent of the population impose their views on 49 per cent of the population, it’s hard to say that imposition has much moral authority.

This is the basic case for constitutional conservatism (couched admittedly in economic terms rather than the usual legal ones). Continuity should be preferred. Change should be resisted.

The Liberal Party used to be the party of constitutional conservatism. Labor has always wanted constitutional reform. The Coalition’s historical role is to hold the line, to espouse modesty and stability; the sort of virtues represented by the Samuel Griffith Society and a long line of conservative judges and political leaders.

Yet under Tony Abbott, the Coalition appears to have abandoned that storied and entirely necessary tradition.

In opposition, Abbott had signed up to Gillard’s local government referendum. He had to be pulled back into line by state Liberal party divisions.

Abbott wants to amend the constitution to recognise Indigenous Australians. You only need observe how the recognition debate has spiralled out of the Government’s control to see how antithetical it is to the conservative mindset.

Now senior ministers of the government are seriously proposing a constitutional amendment for no other reason than to stack the deck against a policy they oppose. And that policy is, we are repeatedly told, a second-order issue.

There’s no reason for a constitutional referendum on same-sex marriage. The High Court has said the Commonwealth Parliament has the power to legislate in this area. The constitutional approach is only being floated because Morrison and others want the measure to fail.

Constitutional conservatism was once a matter of deep Liberal identity. Now it’s just another political trick for short-term gain.

Conservatives Have Got Gay Marriage All Wrong

There was a weird moment in one episode of the ABC’s Kitchen Cabinet last year.

The host, Annabel Crabb, was being treated to a barbecue by shadow treasurer Joe Hockey. The conversation turned to Hockey’s view on gay marriage. He restated that he was opposed. Okay, fine. But then he admitted that it was probably inevitable: Australia will allow two people of the same gender to marry eventually, regardless of what he thought about it.

This is not how conservatism is supposed to work. William F Buckley famously (and sympathetically) described a conservative as someone who stood athwart history yelling “Stop!”

On gay marriage, the conservative mainstream is now just standing to the side, watching the world rush by, with a sort of hapless resignation.

It must be strange to know you are on the wrong side of history. And Hockey’s position seems to be a common one. It’s not a position that says gay marriage is inevitable yet subsequent events will prove it to be a mistake. No, it seems to be more that gay marriage is both inevitable and inconsequential.

Perhaps, as the great conservative philosopher Michael Oakeshott once wrote, change simply has to be suffered.

On gay marriage at least, social conservatism has suddenly shifted from being a political asset to a liability. This was most illustratively shown during the Senate confirmation of Chuck Hagel as Barack Obama’s secretary of defence in January.

In 1998, Hagel was a senator for Nebraska and on the other side the confirmation process. He criticised one Clinton ambassadorial candidate for being “openly, aggressively gay”. This little episode was dug up during Hagel’s confirmation this year as evidence that he was a secret bigot.

That’s fair enough. But Hagel’s contemporary critics have tried to pretend that such showy political homophobia was rare, when it was distressingly common until very recently. Clearly, elected politicians of the time believed making anti-gay statements was of political benefit. This is no longer the case.

The gay-marriage-is-inevitable line has swept through American conservative circles. Even Rush Limbaugh – possibly the world’s most famous shock jock – says conservatives will have to get used to the fact they have lost the debate. Many conservatives have gone further and actively embraced marriage reform.

The Australian right has been slower than its American counterparts. But it’s happening. Malcolm Turnbull now backs gay marriage. You’d probably expect that. Turnbull is a small l-liberal who enjoys swimming slightly out of the pack. But he had been coy about the whole thing for a very long time.

More interesting was the declaration of support earlier this month by Kelly O’Dwyer – Liberal member for Higgins, former Peter Costello staffer, and one of those recent parliamentary entrants who everybody says is leadership material.

It is hard to imagine there being any serious political cost to O’Dwyer’s position. Over half of self-identified Coalition voters support gay marriage. The South Australian Liberal Senator Simon Birmingham, who announced his support all the way back in November 2010, looks less like an outlier and more like a forerunner.

In a famous speech in 2011, David Cameron said he supported gay marriage not despite the fact that he is a conservative but because he is a conservative. That wasn’t just the cheap rhetoric of a politician. The conservative argument for marriage is compelling and convincing. A happy couple in marriage is an absolute good, individually and socially and financially.

The evidence suggests marriage offers specific, concrete benefits to those who pursue it. Extending it to same-sex couples should be a no-brainer.

And we shouldn’t pretend that traditional marriage is some unchanging, unbroken institution now under existential threat. Rush Limbaugh is wrong to say that conservatives have lost the argument because they have allowed the word marriage to be “bastardized and redefined”. Marriage has always been bastardised and redefined.

This important paper by the Australian writer Helen Dale for the American free market think tank Reason Foundation shows that human history has had many different ideas about the purpose of marriage.

One particular point is well made. Modern opponents of gay marriage claim that marriage has historically been about procreation. This sounds plausible, at least until you recall the extreme levels of infant mortality in past eras. As Dale writes, “children were by no means guaranteed”.

Most attempts to divine a universal core in the idea of marriage are unhistorical. So allowing same-sex couples to enjoy the benefits of this institution is less radical than it first seems.

Proper conservatism understands that tradition reflects deeper truths; that the social institutions we have inherited have proved their merits by their own survival. Monogamous marriage is one of those institutions. Age is a virtue, not a flaw.

This makes conservatives reluctant to embrace radical change. But in the rush to defend marriage strictly as it is, conservatives have forgotten what makes marriage so beneficial. Those benefits have nothing to do with gender. To actively support gay marriage – not to powerlessly regret it – is unambiguously the most conservative approach.

Conservatives Court The Same-Sex Marriage Lobby

New York now joins Massachusetts, New Hampshire, Iowa, Connecticut, Vermont and Washington DC in having legalised gay marriage. Internationally, the club also includes Argentina, Belgium, Canada, Iceland, the Netherlands, Norway, Portugal, South Africa, Spain, and Sweden.
So we should not pretend the decision of the New York legislature is ground-breaking. Once implemented in a jurisdiction, gay marriage fades into the background. While its introduction is controversial, its existence is mundane.
Yet there’s still a lot to learn from the New York decision for supporters of same-sex marriage reform.
One reason the New York decision is interesting has been the muted reaction of the conservative movement – varying from resigned acceptance to warm support. Nowhere was this clearer than on the website of the National Review.
The National Review is the rock on which the American intellectual conservative movement was built. Unambiguously conservative, its founder, William F Buckley, nevertheless described himself as a libertarian – his magazine can take large credit for melding the post-war conservative fusion between anti-communists, libertarians, and social conservatives.
The first thing the National Review published after the New York decision was an article which can only be described as warm and congratulatory. The columnist Michael Potemra wrote about the “sweetness of a symbolic victory”.
Certainly, Potemra’s wasn’t the only piece published on National Review Online immediately after the decision. A moderately hostile one – although focusing more on process than policy – was written by William C Duncan, chief of the Marriage Law Foundation, an anti-gay marriage lobby group.
Yet the comments on those articles are running about 50/50 for and against. That is itself a pretty big deal, considering the National Review’s position in the conservative world. It’s a sign the intellectual case against gay marriage is looking flimsier by the year.
If gay marriage is destined to undermine traditional marriage, there’s no evidence it has done so yet. In none of the jurisdictions which have made this change have key social indicators slid backwards.
As the conservative David Frum wrote on on Monday: “The case against same-sex marriage has been tested against reality. The case has not passed its test.”
Frum was a prominent opponent of gay marriage in the 1990s. The energy has gone from the anti-gay marriage movement.
Of course, one can still have an objection to gay marriage on the grounds of religious faith. But without evidence that such a reform could harm society, there’s no reason for the non-religious (or those whose religious beliefs do not preclude same-sex marriage) to share that objection.
Well, except for one thing.
The critical issue for New York Republicans was ensuring those who have religious objections to gay marriage would not be penalised for refusing to marry a same-sex couple. After all, it would hardly be a step forward if an expansion of freedom for gay people required a reduction in religious freedom.
The final bill protected religious organisations from lawsuits or the withdrawal of state funding if they declined to participate in same-sex marriage ceremonies.
It proved to be a surmountable barrier in New York, but this religious freedom proviso should remind us that our wealth of anti-discrimination law could hold back liberal and progressive reform.
Supporters of gay marriage who do not sufficiently account for religious freedom do their cause a disservice. It’s likely anti-discrimination laws will be – deserve to be – a major sticking point when an Australian parliament inevitably deals with gay marriage legislation.
American states have the power to decide whether to extend marriage. Australian states do not. The New York decision has shown how vital this difference is. Reform-minded states can do things a federal government can not.
Federalism has allowed American states to test and observe the effects of gay marriage, and roll it out in stages across the country. And federalism has prevented this reform being foisted on more conservative states against their wishes.
It’s indicative that Barack Obama has rejected gay marriage, because he held the opposite view while campaigning for State Senator back in 1995. Now on a national stage, politically Obama feels he cannot proclaim the views he held when his stage was smaller.
In Australia, marriage is a Commonwealth responsibility. This is a bad thing if you want marriage equality. Those on the left hostile to federalism and devolution of power might want to rethink their position because, as in the United States, Australian conservative opposition to this policy is less determined than it has been in the past.
In 2011, you’re more likely to hear a conservative or right-leaning commentator support same-sex marriage than oppose it. If only they had the power, now would be a great opportunity for an enterprising state or territory to introduce same-sex marriage.
Of course, a libertarian would insist the government get out of the marriage business altogether. But conservatives and libertarians should welcome the further expansion of legally-recognised same-sex marriage. For as long as the government has the power over marriage it is obligated to adjust that power to changing social circumstances.
And, clearly, gay marriage is a reform whose time has come.

If Marriage Is So Good, Why Not Invite Everyone In?

It didn’t take much for a wave of pro-gay marriage sentiment to echo through the socially liberal wing of the Labor Party.

A Greens motion that politicians should “gauge their constituents’ views” on gay marriage (which you’d have thought was their job anyway) has led a growing list of Labor MPs to declare their support. And Julia Gillard has brought Labor’s national conference forward six months so her party can debate the issue next year.

That’s Labor. What about the Liberals?

You’d think conservative opposition to same-sex marriage would be a no-brainer. Resistance to major social reform is seen as part of the DNA of Australian conservatism. Certainly, no Liberal politicians have stuck their necks out. Malcolm Turnbull, who you’d think would be the best bet, has made it clear he believes marriage is between a man and a woman.

Yet there is a strong conservative argument for legalising gay marriage. Conservatives who decry the decline of marriage as an institution are right. Straight people have been undermining the sanctity of marriage for decades. This is a bad thing.

Marriage is a private form of social welfare. Spouses insure each other against sudden loss of income. Married couples are less vulnerable to financial stress than single people.

The benefits of marriage on mental health and wellbeing, income and happiness are widely acknowledged. Married people tend to lead more stable lives. Their relationships are more durable.

There’s justified concern Australia is losing “social capital”; that the bonds of the community are weakening. And the evidence suggests married people integrate better in communities and the workplace.

So extending the marital franchise to gay and lesbian couples would multiply the number of Australians who can join this crucial social institution, spreading the positive impact of marriage on society.

The most common conservative case against gay marriage is that the very idea is an oxymoron; marriage, by definition, is between a man and a woman. But this seems less about protecting the sanctity of marriage and more about protecting the sanctity of the dictionary.

Conservatism isn’t opposed to change. It simply seeks to make change manageable. And if the symbolic value of the word “marriage” is important, then the social benefits accrued by that symbolism should be available to same-sex couples. On the other hand, if the word is merely shorthand for a utilitarian contractual relationship between two rational, calculating individuals, then barring gay individuals from signing such a contract is obviously discriminatory.

Conservatives have one more question to be answered. Doesn’t gay marriage hurt straight marriage? That’s an empirical question we can measure.

In their book Gay Marriage: For Better or For Worse? What We’ve Learned From the Evidence, William Eskridge and Darren Spedale look at the effect that recognition of same-sex relationships – marriage and civil unions – has had on Scandinavia since Denmark introduced registered partnerships in 1989. The authors found that after nearly two decades of registered partnerships in Scandinavia, social indicators, if anything, were getting better. Total divorce rates were lower. There were higher rates of straight marriage, fewer out-of-wedlock births.

Caution is worthwhile. These changes aren’t due to same-sex unions – just because two women get married doesn’t mean you’re more likely to stay with your opposite-sex spouse. But it does suggest gay relationships do not undermine straight relationships.

In the past few years, a number of countries have adopted gender-neutral definitions of marriage. Opponents of gay marriage should reveal how they predict straight marriage will be harmed? Early indications suggest it has not been harmed.

The conservative case for gay marriage is one that respects and venerates the institution of government-approved marriage.

A more radical answer to the gay marriage question would eliminate government’s role. There are, after all, two distinct aspects to marriage in Australia. There’s the religious and cultural aspect: marriage is a sacrament, sanctified by religions, families and friends. Then there is the legal aspect: marriages are stamped and approved by the government.

Why do we need the latter? Marriage could be privatised. There’s really no need to have any central authority deciding who is married and who isn’t.

This is, of course, not an approach the Greens or the ALP are likely to adopt. Nor is it the most conservative approach.

If marriage is so socially beneficial, why not encourage as many to join it as possible? The choice is between excluding gay people from the foundation of strong families or inviting them in.