The great gay plebiscite and referendum confusion of 2015

Wedding cakeIt has been a crazy few days in our nation’s capital. In case you missed it, the nation was under the imminent threat of marriage equality being extended to LGBTI citizens.

But never fear! Our fearless leader, Tony Abbott, sprung into action with the battle cry of ‘No equality under my watch!’ He even stacked his own party room with his National Party coalition partners to ensure a Coalition conscience vote couldn’t get up on the issue.

On Wednesday I chose not to mince my words in an article titled ‘The growing fire inside me‘, in which I addressed the quality of the recent ‘debate’ around marriage equality. I note at the outset the quality of that recent ‘debate’ does not bode well for what would happen during a plebiscite or referendum on the subject, would Australia choose to go down that path.

Today I return to give you a brief introduction to plebiscites and referendums.

To make a long story short, with the conscience vote for Coalition members sabotaged and out of the question, marriage equality has little to no chance passing through Parliament in the current term. Not even with the assistance of the few brave members of the Liberal Party announcing their intention to defy their party and cross the floor on the issue.

After the close to six-hour marathon meeting of the Coalition party room on Tuesday night the Prime Minister emerged to give a press conference announcing the result, filled with so much glee he could barely control his smirk. During that announcement he made a reference to the consideration of a plebiscite on the issue … at some undefined later time.

Curiously, only about a month ago the Prime Minister was of the view the matter should be decided by Parliament – but a conscience vote would have been necessary to do so. I suspect he realised a Coalition conscience vote would have meant the passing of marriage equality through Parliament.

The utter confusion and contradictions that characterised the Coalition’s approach to marriage equality up to the Coalition party room meeting, had continued over the past 48 hours unabated. After the Prime Minister suggested the possibility of a plebiscite, others within the Coalition announced their opposition to a plebiscite, while another expressed a preference for a referendum, only to be slapped down by his own Attorney-General.

Even I am confused and I have tried to keep up with it. Sometimes it does feel like we are being governed by a troop of monkeys. And that brings us back to plebiscites, referendums and marriage equality in Australia.

Is marriage equality a constitutional question in Australia?

In short, marriage equality is not a constitutional issue in Australia. Now, for the longer version …

Ireland had to have a referendum to enable its Parliament to legislate marriage equality because the Catholic vision of family was deeply embedded in their archaic Constitution.

The situation in the United States was also quite different, because the United States has a Bill of Rights in its Constitution, which Australia does not have. After a long legal fight, their Supreme Court held marriage equality an American constitutional right.

Generally a referendum is only held to amend the Constitution.

The last referendum took place in 1999, when people rejected an Australian republic, an otherwise winning proposition right up until the date of the vote. To date Australia held 44 referendums, only 8 had ever passed. An added difficulty with a referendum is that it requires a majority of votes in a majority of States. Consequently, if the vote is lost say in the four least populous States, representing only about a third of Australia’s population, the referendum is lost … not exactly a national popular vote, as on that basis just over 1/6th of Australia’s population can effectively sink a referendum which may otherwise has majority support across Australia.

However, in Australia, like in the United Kingdom, New Zealand, France, etc. before us, legislating marriage equality is already within the powers and the scope of our (Federal) Parliament. Ironically, marriage equality was championed by, and passed, in the United Kingdom and New Zealand under conservative governments.

Another irony is that we can thank the current Coalition government, at least for the clarity about Parliament’s power to legislate for marriage equality. This is because they chose to challenge in the High Court of Australia the Australian Capital Territory’s 2013 same-sex marriage legislation in Commonwealth v Australian Capital Territory [2013] HCA 55.

In its judgment the High Court struck down the ACT’s legislation as unconstitutional, but in the process it made it clear that:

• ‘s51(xxi) [of the Australian Constitution] gives the federal Parliament power to pass a law providing for same sex marriage’ [at paragraph 10]; and

• ‘[w]hen used in s 51(xxi) [of the Australian Constitution], “marriage” is a term which includes a marriage between persons of the same sex’ [at paragraph 38]).

In fact the judgment of the High Court means that if it wasn’t for the previous Howard Coalition government, supported by the Labor Party, enacting expressly anti-LGBTI amendments into the Marriage Act 1961 (Cth) in 2004, to prevent the occurrence, and even recognition, of same-sex marriages in Australia, a court challenge may have been a practical method of achieving marriage equality under our Constitution and the old wording of the Marriage Act. I understand that was the gist of legal advice the Howard government received at the time, which sparked their panicked 2004 amendment to the Marriage Act.

George Christensen
Click on image for larger view

This means, all Parliament would need to do to achieve marriage equality in Australia, is to amend the Marriage Act again, just as it has done in 2004.

In conclusion, unless the proposition is to enshrine some specific rights for LGBTI citizens in some new provisions to be added to the Constitution, a referendum is not required, and it would be an inappropriate method in the circumstances to affect the desired outcome.

I understand there are some within the Coalition who see this as an opportunity to offer a referendum option to Australians that would in fact enshrine marriage as the union of one man and one woman directly in our Constitution. Would that be true, it would put the referendum push in a very different light.

How about a plebiscite?

A plebiscite is essentially a large national opinion poll, with no legally binding consequences for politicians. Obviously, in a liberal democracy such a poll would carry significant ethical weight, but that’s all.

Australia only ever held three plebiscites, the last one in 1977 over our choice of national song.

A plebiscite on marriage equality could show:

  • majority support for marriage equality, however politicians would not be obliged to respond in any way; or
  • a lack of majority support for marriage equality, but would that be sufficient ethical foundation to deny equality to the LGBTI community in this day of age?

I would argue that public support for marriage equality is great, but largely irrelevant.

Equality before the law, especially in a liberal, secular democracy, is a question of discrimination, ethics, equality, human rights, and social justice. Such matters should never be the subject of the vagaries of public opinion, but rather of informed, impartial and thoughtful public policy unaffected by intolerance and uninformed human fears.

It’s worth remembering that a liberal democracy is ‘liberal’ because it does not subject the protection of basic human rights to a collective deliberation process; rather such rights are recognised constant, inherent, universal and unalienable and are not up for debate or a popularity contest. Add secularity to the mix, and the religious position becomes flagrantly untenable, wrong and downright contrary, in fact hostile to, and utterly incompatible with, the underlying fundamental principles of a secular, liberal democracy.

Capitulating to minority Christian extremists out of touch with modern society, holding the nation to ransom, especially at a time when as a society we agreed to the undesirability of being dictated to by religious extremism is unacceptable.

To be clear, I’m not calling all Christians extremists, simply because some are not in ‘support’ of marriage equality. I am calling those Christians extremists who express their opposition using very specific manners and methods, such as those based on barefaced lies, misleading (often malicious) information and the selective and literal interpretation of religious texts, which I would argue to be utterly irrelevant to the issue of marriage equality in a modern societal context.

And of course there are plenty of Christians worldwide, from Ireland to the United States and here in Australia, who managed to reconcile their Christian faith with acceptance of the LGBTI community and marriage equality.

Plebiscite questionThe LGBTI community is wary of a plebiscite (or referendum), and for good reasons. Especially a plebiscite that has only been vaguely suggested to take place sometime after the next election, is shrouded in confusion, and would be conducted by a government under the leadership of a Prime Minister who’s openly hostile to the concept of marriage equality, and antagonistic towards the LGBTI community. A man, who earlier this week used every dirty trick from the political playbook to prevent a Parliamentary vote which may have legalised marriage equality. Why on earth would the LGBTI community trust such a man with its freedoms and rights?!

On the other hand, many conservative and religious groups are itching for a plebiscite or referendum.

Again, a plebiscite is also unnecessary given Parliament has the power and means to amend existing legislation to enable marriage equality today. We have seen how quickly legislation can move through Parliament when politicians want something done. Of course these are usually laws taking away rights, not recognising or granting them, but I digress.

Wonder why some groups are so keen to have a plebiscite or referendum, especially when opinion polls have consistently shown popular support for same-sex marriage in Australia?

Well, let’s not forget that churches and religious organisations are well-organised grassroots institutions with a wealth of resources at their disposal, including considerable financial wealth, even if their numbers and overall influence are dwindling.

They would be able to gear up swiftly to run a well-funded scare campaign against marriage equality, and history tells us that they are not afraid to fight dirty, using half-truths, lies and deception (as amply illustrated during the 2013 Tasmanian Upper House election campaign, the 2013 Federal election and by the recent Marriage Alliance television campaign).

Have no doubt, these organisations will be prepared to demonise the LGBTI community nationwide, without any moral apprehension, potentially causing untold collateral damage to our society in the process. I have no illusions about how this process would play out.

Referendums and plebiscites on the issue of marriage equality have been a favourite tool of right-wing conservatives in the United States to stymie social progress and equality. Practical experience from the US shows that such polls have failed to resolve the issue and have rather inflamed and polarised the ‘debate’.

The French and New Zealand experiences, despite their success for marriage equality, illustrate that well-funded, no holds barred anti-LGBTI hate campaigns can in fact reduce popular support for marriage equality.

A plebiscite (or referendum) would give our bigoted homophobes an unparalleled opportunity to unleash their hate and would likely cause a significant rip in Australian society. In this respect a public vote on the issue could be a terrible idea.

This is no being afraid of a debate. A debate we can win. But no one can ‘win’ against uninformed bigotry, bile, hate, homophobia and lies.

Would I like to see a public vote on marriage equality? Instinctively I would say yes, because I’m confident that in an ideal world a true majority of Australians would approve. However, I must qualify that statement and oppose this option because:

  • based on previous history and international experience, religious and other conservative groups would be unlikely to observe the appropriate boundaries of civility and respect and I have no doubt we would see an anti-LGBTI hate campaign; and
  • LGBTI rights groups would be unlikely to be able to match the financial means of the opposition, including organised religion.

Finally, there are some other questions that arise from the plebiscite (and referendum) suggestions:

  • The legislatures of United Kingdom, France, New Zealand, Uruguay, Spain, Portugal, Canada, and many more, were perfectly capable of passing the legislation needed for marriage equality – what makes Australia so uniquely different that prevents us from doing the same?!
  • We didn’t hold in the past, or plan to hold, a plebiscite (or referendum) on a lot of very significant ethical issues, on which there were, and in some cases still are, significantly varying ethical positions in the public arena, such as women’s right to vote, anti-discrimination laws, the Iraq war and overseas troop deployments generally, uranium sales to India, the carbon tax, the renewable energy target, penalty rates, euthanasia, and the list goes on, so what makes this issue so different?!

In any event, if the now utterly poisoned politics of marriage equality do make a plebiscite inevitable, the question to be put to the people should be simple and straightforward, determined by a genuinely independent committee, and the matter should be resolved at the next election in 2016.

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