The plebiscite & the impasse on marriage equality

by · September 18, 2016

As the Pet Shop Boys acutely observed, “love is a bourgeois construct,” so same-sex marriage (or “marriage equality”) has always seemed to me to be a bit of a double-edged sword — both the removal of one of the last legal forms of discrimination against LGBTIQ people and the integration of same-sex couples into a historically conservative social institution that is heavily regulated by the state.

Equality before the state has always been the best reason to support same-sex marriage, as the state is these days the only institution that can formalise and legitimise the continued oppression of certain groups on a society-wide basis. Homophobia in civil society is given sanction by separate and unequal treatment of LGBTIQ people by the state. Getting rid of state discrimination won’t by itself end homophobic attitudes and behaviours but it is a necessary step towards their eradication.

But now this long campaign for equality — with its lively public protests, behind-the-scenes lobbying of politicians and alignment with a rapid change in public opinion since the Coalition and Labor combined to ban SSM in 2004 — has taken what I think is a self-defeating turn by making its main focus stopping the proposed plebiscite. And with Bill Shorten’s apparent decision to oppose a popular vote no matter what, that approach may kill not only the plebiscite, but with it any chance of marriage equality being legislated in this term of parliament.

The strategic logic seems to be that stopping a plebiscite will somehow lead Malcolm Turnbull to suddenly impose a conscience vote on his party, thus delivering legislative change. This is despite Turnbull having accepted Tony Abbott’s plebiscite formula as part of taking on the Liberal leadership, despite having gone to the election with that policy widely publicised, and despite having won that election. It’s hard to imagine an act more likely to undercut his authority with Coalition MPs (and thereby commit political suicide) than performing a backflip on this issue.

While I am generally in favour of greater popular involvement in political decision-making, my support for a plebiscite in this case has been based on an assessment of the concrete political situation, which is not of my choosing nor that of the marriage equality campaign. That’s why it’s important to clarify the history that led up to a plebiscite being floated.

Australia same-sex marriage

The Coalition and Labor have played with this issue in such a way that same-sex marriage has been blocked despite polls showing majority public support since around 2007 (see graph). This has frustrated the hell out of many voters, not least LGBTIQ people who want to get married. The plebiscite has been proposed (ironically by an embattled conservative side of politics) as the very first practical path out of that impasse.

I would’ve preferred Julia Gillard to have bound her MPs to support the ALP’s adoption of marriage equality as policy in 2011, because then her government could have sailed legal change through both houses of parliament with the help of the Greens. But she successfully fought to block that option by ensuring that anti-SSM Labor MPs could continue to vote with their factions … er, I mean their “consciences”. Sadly, the focus by most marriage equality advocates on a conscience vote provided her with unjustified breathing room in that moment.

I would’ve preferred for the Coalition and/or Liberal party rooms to agree to a conscience vote (or, better yet, a binding vote) in 2015. But they didn’t by a roughly 2:1 margin, leading Abbott to announce a plebiscite as a way out of his internal troubles in which voters would be responsible for any change. In effect, the plebiscite meant subcontracting a decision to “the people” that anti-SSM politicians didn’t want to be seen making on their own. Contrary to the claims of some anti-plebiscite campaigners, there is little evidence that most Coalition MPs expected a plebiscite could prevent marriage equality being legislated. At best the internally fraught issue could be delayed to the next (i.e. current) term of parliament.

So that’s the concrete reason I’ve been supportive of the plebiscite option — the government has at least offered a way out, mainly because of its own problems. Yet leading pro-SSM campaigners have decided to hold their breaths, stamp their feet and demand the near-impossible; i.e. that their campaign of lobbying for a Liberal conscience vote wins out even though there is no sign it will (and many signs it won’t). And the more they have become set on this course the more convoluted, moralistic and extreme their arguments have become about why a plebiscite must be stopped.

Perhaps more destructively, they have been virtually absent in making demands on what shape any popular vote should have, instead using various unpalatable details (e.g. public funding of the yes and no cases, contradictory messages about how a yes vote would translate in parliamentary terms, etc.) as reasons to reject it in toto. Even Australians For Marriage Equality, which to its credit still plans to engage with a plebiscite if there is one, has been more prominent in arguing against it happening at all.

I believe legal discrimination should be reversed as soon as possible. Such laws are harmful in themselves as well as legitimising homophobia in society. However, many leading SSM advocates seem to have decided that ending discrimination is now a second order issue to such things as defending a particular (narrow) view of representative democracy, avoiding precedents about popular involvement in political decisions, stopping the “waste” of taxpayers’ money, preventing public debates in case some LGBTI people (especially youth) are upset or harmed by hateful rhetoric, preventing suicides that will allegedly follow, etc., etc.

This relegation of the rights agenda is striking, accompanied by the dropping of almost any cogent argument for SSM in favour of a kind of meta-argument about how arguing over SSM is in itself problematic.

To see Shorten — who has still not bound his MPs to party policy (that has to wait until 2019) and who was on the record as supporting a plebiscite as recently as 2013 — lecturing people about homophobia and winning plaudits from some SSM campaigners reflects how this is primarily about politicking and only secondarily about human rights.

Equally perturbing has been how the Irish referendum result, which was rightly celebrated by marriage equality campaigners last year, is now being mined for stories of how activists sometimes found themselves facing distressing homophobic reactions on the campaign trail. It is as if struggles for rights are now expected to be painless, unopposed and therefore best carried out only within elite circles. While it is true that the Irish debate included unpleasant words and incidents, the big positives brought by the campaign are being passed over in order to justify opposition to a plebiscite here. Why is there no mention of good news like the massive increase in young people coming out since the referendum passed? The fact that no-one has linked a single suicide to the Irish referendum (also, there was no significant change in Ireland’s year-on-year suicide rate in 2015; see table) is reflective of the hyperbole of anti-plebiscite rhetoric.

suicides ireland

Another reason a plebiscite makes sense is that SSM is not only an LGBTIQ rights issue. Legalising same-sex marriage is also about the state formally recognising a different definition of marriage (and therefore the family and the position of women) to the so-called “traditional” definition. The definition has already been modified somewhat with developments like no-fault divorce and recognition of de facto relationships. But the removal of the historic nexus between marriage as a male-female union is a pretty momentous change, which automatically affects how non-same-sex marriages are defined. Of course, the widespread public support for SSM indicates that for most people this is a change they have no problem with, and which reflects already-existing alterations in how marriage and families are viewed, in part driven by changes in the social position of women and LGBTIQ people. The majority endorsement of same-sex marriage in a national vote would therefore also put to rest objections to SSM based around such issues — objections that pro-SSM campaigners have tended not to engage with precisely because they have seen it as purely a minority rights issue.

Interestingly, according to the Essential poll that has tracked the question of whether a popular or parliamentary vote is preferred over the longest period, there has been a consistently large preference for the former, with only a small decline in recent months as the most extreme claims about a plebiscite have been given wide coverage. Although much has been made of internet-based surveys of the LGBTI community showing overwhelming opposition to a plebiscite, unfortunately they have not used representative samples or reliable methodology. While media reporting has overwhelmingly favoured the anti-plebiscite viewpoint, there is a debate among LGBTI people over this question, so the position in the majority is not necessarily the correct one.

I also find the dark view of the voting public implicit in much of the discussion (where campaigning for public support is seen as more demeaning and risky than asking recalcitrant right-wing politicians to “do the right thing”) hard to fathom, especially given the public has been ahead of the political class for so long on this issue. Accompanying this is the notion that minority groups’ human rights are somehow “inalienable” and above being voted on. However, in this case rights were legally removed through a vote by politicians in 2004 and will have to be reinstated through a vote by politicians at the very minimum. The problem with all rights is that they don’t take legal form in a liberal democracy without some kind of vote — by the electorate, elected representatives, or a group of senior judges interpreting law (as happened in the US).

The dark view of the electorate fits, however, with growing anxiety about “populism” expressed in cases like the rise of the One Nation vote in Australia, the unexpected popularity of Donald Trump, and the victory of “Leave” in the UK’s EU referendum. In this era of anti-politics it’s not only voters who have a dim view of politicians. The political class is increasingly contemptuous of popular interference in its authority to govern and drive the policy agenda (insofar as politicians have a coherent agenda these days). This was the clear message in Gillard’s change of heart on marriage equality last year, in which she warned that political paralysis over issues like same-sex marriage might give voters a taste for more direct decision-making, perhaps even on parliamentarians’ entitlements!

All this is a long way from the high points of struggles for gay rights, where people put their bodies on the line to force their existence, oppression and demand for rights into the public domain against the most vicious opposition. The bravery of the Stonewall protesters, the Gay Liberation Front, ACT-UP and countless other activists broke the silence that surrounded gay oppression, thereby driving changes in political and social institutions and attitudes. The current demand seems closer to keeping questions of rights away from the public, in case it stuffs them up, and leaving them to the politicians who have stuffed them up repeatedly. A depressing spot to find ourselves in.

Discussion7 Comments

  1. Toby Borgeest says:

    Thank you for this peice Dr Tad. Thoroughly helpful. One first small quibble: “The strategic logic seems to be that stopping a plebiscite will somehow lead Malcolm Turnbull to suddenly impose a conscience vote on his party, thus delivering legislative change.”

    The first and obvious observation is that the opponents of the plebiscite are probably not sufficiently in communication with one another, or sufficiently in communion, for there to be any locus of strategic logic. There will be people whose logic corresponds to that you discern. But the second point is that I suspect, without evidence at hand to point to, that there is probably a different set of people who are resigned to the consequence of stopping a plebiscite as being that Turnbull will be in no position to offer up a free vote, but who think that that the maintenance of the impass offers welcome political opportunity. Three more years in which to pour scorn on Turnbull from the high ground. I am reminded of 2009, during which Rudd passed up every opportunity to close the carbon pricing deal with Turnbull and McFarlane, so as to preserve the option of steadily increasing the pressure on Turnbull within the coalition partyroom, from afar. In other words, my (unproven) thesis is that a component of the attraction for opposing the plebiscite is that the convtroversy will remain alive, and will remain troubling for Turbull. No part of that attraction involves any expectation, or even any desire, that Turnbull will impose a conscience vote on the lib or coalition party rooms.

    • Dr_Tad says:

      I think you’re right that for some people that is the case. You can certainly see it in the way that the ALP is pursuing the issue in a way that is meant to deny Turnbull and the government any credit for resolving this.

  2. Of course, we can avoid the cost of a same sex marriage plebiscite in Australia by simply leaving the Marriage Act as it is – no cost there (ie. we are a fiat currency, so the government issues the money therefore it will not cost anything), plus the $160 million doesn’t just disappear – it goes into the pockets and communities of casual AEC workers…….and Parliament has already voted on the Marriage Act when John Howard was Prime Minister (to reflect the Common Law) and it passed with the support of Labor politicians, so that is what we have today and the matter should be done and dusted. Labor wants a conscience vote in Parliament but they themselves have a binding “yes” policy on all Labor MPs in the coming election, so there is no conscience vote on their side. Plus, there have already been about 18 attempts in Parliament to pass a same sex marriage bill and ALL have failed – so it already has been put to parliament. If there is a concern that a plebiscite is the “majority voting on the rights of the minority” (as we hear the same sex proponents claim), then a parliamentary vote is also a form of majority deciding on the rights of the minority (ie. a majority of MPs need to pass the bill to make it Law). However, the same sex marriage people want the homosexual marriage Law and are facilitating such an intense push that it requires an expensive solution to resolve. They are continually trying to game the political system (and create the allusion of public support) to get the result they want without the public supporting it. If they are so confident of public support, then why reject a plebiscite? They are doing the same tactics with “gender fluidity” to try and create a intermixed, gender-irrelevant society. They cause the problems and then claim to be part of the solutions. They claim that suicides and depression will occur which, by putting such ideas into people’s heads, facilitates a self-fulfilling prophecy. Their suffering that they claim to have is all self-inflicted. Even the so-called “hate speech” that they claim is coming from the anti-SSM side are repeated over and over again by the pro-side (just look at the GLORIA awards) thereby broadcasting all the “hate speech” even more. They say it is “no one else’s business what they do in the bedroom”, and yet they want the government to recognise their “bedroom activity” as legitimate – they are constantly doing/saying the very things that they say shouldn’t be done/said.. For them to claim that it is a “human/civil right” is also a nonsense because marriage is already available to gays – it’s just that they must marry the opposite sex, but they choose not to. Marriage has always been a choice and it always will be. It is not a right. Even the European Union has recently acknowledged this. It is not listed as a right with the United Nations and same sex marriage was never considered necessary or desirable in the history of marriage in Australia until only the past few years after John Howard orchestrated a definition in the Marriage Act – a definition that stated the obvious and reflected the millennia-old institution of marriage (already defined under Common Law). Human Rights? Scientific facts are inherent to the material nature of the universe. but “human rights” are composed by the words of the laws which bestow those rights. There are no “human rights” out there in the universe to discover, there is only what you can get enforced in your favour in a court (a right) and those things you wish you could get enforced in your favour (an aspiration). And those aspirations are culturally and linguistically conditioned. So since when is it a human right for homosexuals to redefine the meaning of marriage to suit their relationships? Never. Every person in Australia today (including a homosexual) has the same equal right to marriage, but just because their choice of partner doesn’t meet the definition doesn’t mean their human rights are being oppressed. Those who choose a person who is already married, under 18, or a close relative also cannot marry. The homosexual’s options are exactly the same as the heterosexual’s – so choose a new partner that meets the definition, or not marry. And for the record, Howard’s rewording of the Marriage Act was done purely to reflect the standard meaning of the word marriage under Common Law, to stop activists twisting things around and using courts to destroy marriage. He didn’t change anything, it is same sex marriage activists who are trying to change things….if people want the right to marry then earn it, convince a majority of the population to vote in favour of it! Simple.

  3. […] claims by Senator Nash, and some others who support a plebiscite, that the suicide rate in Ireland either went down or did not increase […]

  4. […] claims by Senator Nash, and some others who support a plebiscite, that the suicide rate in Ireland either went down or did not increase […]

  5. deriglazov says:

    The idea comes as the attorney general, George Brandis, and pro-marriage equality Liberal MPs have warned Labor must support the plebiscite or marriage equality will be off the agenda for years.

  6. […] that of “representative politics”. It could be seen in the Australian Left’s successful campaign to prevent a plebiscite on same-sex marriage, in part justified by the claim that civil rights should be the exclusive preserve of elected […]

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