Why not a plebiscite on the redefinition of marriage? A response to Kirby

In Parliament is the proper place for enacting laws, Michael Kirby provides ten reasons to oppose a plebiscite on the redefinition of marriage, in particular, and plebiscites in general. Let’s attend to them directly:

The Constitution provides for a parliamentary system of representative government. A plebiscite, as a precondition to legislation, is a totally exceptional procedure with no foothold in the Constitution.

The argument is not that a plebiscite is a precondition to legislation, but that on particularly contentious subjects, the government might employ the use of a plebiscite in order to ascertain the judgment of the people and act or decide accordingly given the result.

The only relevant precedents, in 1916-17 on overseas compulsory military service, were defeated in plebiscites. The proposed plebiscite on marriage is the first such attempt in nearly a century. Our record on constitutional referendums is abysmal. Only eight have succeeded in 115 years despite 44 attempts. There is no reason to think a plebiscite on same-sex marriage will be different, particularly with several political parties opposing a yes vote.

Leaving aside that there are relevant precedents that undermine his first point, his opposition to a plebiscite appears to be that both they, and referendums, have generally been defeated owing to the reluctance of the general public to make substantive changes to current arrangements unless they are overwhelmingly supported.

Complex, sensitive, issues are better decided after debate in parliament, not in the heat of public division and emotional campaigns in the community. If a plebiscite is held, it could become a bad precedent to be copied when other controversial questions come before parliament. This would further weaken our governmental institutions at a time when they need strengthening, not weakening.

Why are such issues better decided by the Parliament and not by the people? The fact that it has taken a hundred years since the last plebiscite suggests that there will be no rush for more plebiscites on other issues. Moreover, what would actually erode confidence in our public institutions would be such a reversal given that a plebiscite on this issue was part of the political platform of the government at the last election.

A plebiscite campaign unfortunately would be likely to bring out hatreds and animosities in our country that are bad for minorities generally and for the lesbian, gay, bisexual and transgender minority in particular.

The opposite, in fact, is the case. Sidelining the public is much more likely to have such an effect.

It is exceptional and wrong in principle to commit decisions on the basic human rights of minorities to a majority popular vote, especially in a country such as Australia which, exceptionally, has no entrenched constitutional guarantees for equality or fundamental human rights to protect minorities. For protection, minorities look to parliament to protect them. It should not shirk from that duty.

Firstly, this begs the question. The ‘No’ side denies that relationships between persons of the same-sex are able to constitute marriage so its not clear how we could be denying a human right without already conceding what is in fact at issue. Secondly, even if it were conceded that same-sex relationships can constitute marriage, it’s not clear why such a matter can only in principle be properly decided by the Parliament and not the people in a representative democracy.

Statements the plebiscite on marriage equality is “sure to be carried” are doubtful in light of Brexit and Australia’s record on national constitutional referendums when these are required. A plebiscite in Slovenia last year reversed the marriage equality law that had been enacted earlier by parliament. In any case, no plebiscite could bind subsequent parliamentary votes and several mem­bers of federal parliament have made it plain they will vote against change in the law whatever the outcome of a plebiscite. So what is the point? The point is to defeat or delay our normal way of making laws by a vote in parliament. When there are suggested matters of conscience involved, our procedure has sometimes involved a conscience vote. It has not been to call on a plebiscite.

We are now getting to the heart of the matter. A plebiscite is being opposed because it stands a better chance of defeating the proposal compared with a Parliamentary vote at this time, even though multiple bills supporting a redefinition of marriage brought before the Parliament over the last ten years have themselves been defeated. And, no, the point is not to defeat our ‘normal way of making laws’ because there is no adjoining proposal to do any such thing.

Ireland is often quoted. But Ireland was obliged to have a referendum for constitutional reasons. There were also special circumstances in play involving the position of the Catholic Church in Ireland. The High Court of Australia in 2013 unanimously made it clear that the entire power to enact same-sex marriage in Australia rested with the federal parliament. There is no constitutional doubt. We do not need a referendum, still less an extra constitutional plebiscite, to resolve any issue that parliament cannot decide.

Sure, and?

Those who have proposed a plebiscite have done so believing it will defeat the measure for marriage equality, already achieved in 23 countries whose legal systems approximate that of Australia. Defeat in a plebiscite on same-sex marriage would kill the reform, probably for decades, and do further damage to our international reputation on human rights. A defeat in parliament alone would do no more than delay the inevitable for a short time.

Again, this seems to be a another reason supporters of the proposal should oppose a plebiscite and thus entirely partisan. Of course, mention of our ‘international reputation’ and ‘human rights’ engages in emotive appeals, to fear or ridicule, as well as to, again, beg the question.

The substantial costs of the plebiscite (estimates of $160 million to $525m have been quoted) could be better spent on supporting, rather than attempting to frustrate, the attainment of the basic human rights of citizens.

I’m happy to avoid the cost if you drop the proposal in toto.

The proposed plebiscite must be seen in the context of the global moves away from the former Washington Consensus concerning government in liberal democracies. It would constitute a move towards populism and anti-liberal international and national agendas. These moves are not to be encouraged in Australia. They should be rebuffed.

As I said above, quite the opposite. Ignoring public sentiment and interests, properly speaking, is the principal cause of these movements.

 

Having dealt with the ten reasons Kirby provides against a plebiscite on this or any other issue for that matter, I’d like finally to look at his concluding remarks:

I believe I can approach this matter with dispassion. Although my relationship with my partner Johan van Vloten has lasted 47 years (still going strong) we are not decided on whether we would marry, if marriage became available under Australian law. We see this as possibly suggesting doubts about the legitimacy of our long relationship, which has never required, or received, a governmental or legal endorsement. After so much time, our relationship is not doubtful for us. However, we certainly consider that marriage in Australia should be available to LGBT citizens, the same as for other personal relationships, to help sustain the couple, families and good health in a country whose Constitution provides for a secular society.

This is a puzzling paragraph. We are told of a long-standing relationship that appears to neither require governmental or legal endorsement, and yet are made to believe that failing to do either, when it is actively sought by persons in such a relationship, would be a violation of their human rights. Does Kirby mean to imply that marriage is not so much a type of relationship, say distinguished from friendship or kinship, but a type of political-legal endorsement/ recognition? If it never required such endorsement, does he mean to say that the relationship is private? If so, what public good is there in sustaining such relationships? The government, for instance, plays no active role in sustaining friendships between persons. What distinguishes same-sex relationships from friendships such as to justify a public interest in them?  What limits are their to any such redefinition of marriage? What other personal relationships might the term be made to sustain?

It has never been possible in Australia for the federal parliament to enact a law for undertaking a specifically religious or sacramental marriage. That is certainly not the character of “marriage” under the Marriage Act 1961 or under the Constitution. Marriage in Australia is not a religious sacrament so far as our law is concerned. It is a secular legal arrangement between two adults. So it should be available to all eligible people without discrimination, least of all religious. It is significant that most marriages in Australia today take place in parks and vineyards, not churches. The attempt of a misguided minority to stamp on marriage a particular religious character is inadmissable. It is also thoroughly inadvisable and constitutionally unattainable.

Oh no, he ends with a red herring and a straw man. The red herring being that the argument against relationships between the same-sex being able to constitute marriage is largely founded on a conflation of a distinction between secular marriage and religious/ sacramental marriage. No, it isn’t. The only relevant difference between the two being who presides at the wedding; not a difference in the constitution of marriage itself. The straw man is the implication that arguments against same-sex ‘marriage’ are specifically religious. Again, they are not, for the reason just spelled out.

 

Of course, Kirby is likely to find this and much more out if only we get around to having a public debate of the issue in the lead up to the plebiscite, which might be a reason he wants to avoid it.

7 comments for “Why not a plebiscite on the redefinition of marriage? A response to Kirby

  1. August 8, 2016 at 5:15 pm

    well done.

  2. August 8, 2016 at 5:16 pm

    make that well written and my name is now correct

  3. Baldrick
    August 8, 2016 at 5:17 pm

    Well said Dover

  4. Mark from Melbourne
    August 8, 2016 at 9:46 pm

    I think you give him a bit of a fee pass on some things, Dover, but as you say that will all come out in the event there is a plebiscite.

    Specifically, I felt that this was particularly egregious…

    “A defeat in parliament alone would do no more than delay the inevitable for a short time.”

    Why bother to pen the article at all if SSM is so darned inevitable?

    And this…

    ” It is a secular legal arrangement between two adults. So it should be available to all eligible people without discrimination…”

    Well, it is certainly true that marriage as it has been known for quite some lengthy period of time is “between two adults”, but to characterise it in that fashion is simply foolish. It is between two adults, a man and a woman. When one understands that, one understands that there is no source of discrimination. All adults in our society are equally able into marriage, which is the union of a man and a woman.

    As Kirby is nobody’s fool, I can only assume that he is deliberately, as you say, setting up a straw man. I think the lesser of him for it.

    • dover_beach
      August 8, 2016 at 9:53 pm

      Indeed, I let some things go through as I didn’t want to rehash arguments I’ve already made elsewhere. I would like to see him, or someone else, when and if the debate begins, provide some in principle grounds that limit marriage to two people given the redefinition that they promote, in a way that is defensible given their claims to equality, etc.

      • Mark from Melbourne
        August 9, 2016 at 2:24 am

        Good luck with that! Squaring the circle was never a task for the fainthearted.

        What is sickening is that they won’t even try. Because, after all, it is (by assertion) “inevitable”… and thus requires no argument on logical grounds as the central point is assumed in their eyes to be incontrovertible.

  5. August 26, 2016 at 1:08 am

    Senator Wong’s third claim is that the Australian parliament would be better than the Australian people at debating such matters rationally and without rancour. My own view is that we could all benefit from the kind of national conversation a plebiscite should occasion. Public discourse is enriched, not degraded, when people learn the reasons why others hold contrary views on any given matter and learn how to express those differing reasons within the context of civic friendship and reasonable disagreement. In any case, we hold referenda before making major changes to our legal constitution; a plebiscite seems not inappropriate before making an unprecedented change to our social constitution. The family based on the marriage of man and woman has been the fundamental cell of Australian society since its inception. Those who propose to change this radically are asked by the plebiscite to give reasons sufficient to persuade not just politicians but the whole Australian community. I am confident we can conduct such a conversation charitably and wisely.

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