The LegCo's Claimed Reasons For Rejecting Same-Sex Marriage

(See also Legislative Council Voting Patterns since the last state election.)

Advance Summary:

1. Analysis of the speeches of the eight Legislative Councillors who recently opposed the Tasmanian Same-Sex Marriage Bill 2012 shows that at most five spoke against the concept of allowing same-sex marriage at this time in general.  These five were Tania Rattray, Dr Vanessa Goodwin, Adriana Taylor, Ivan Dean and Rosemary Armitage.  (Of these, in Rattray's case the evidence is arguable and limited.)

2. The remaining Legislative Councillors to vote against (Paul Harriss, Jim Wilkinson and Greg Hall) did not indicate an explicit view for or against federal marriage equality, but expressed reservations about the concept of state-based legislation and/or its delivery.

3. The defeat of the bill cannot therefore be interpreted as a rejection of the concept of marriage equality by the Upper House, and represents only the rejection of a given state-based proposal.

4. Every MLC arguing against the bill argued that it was a federal issue, and every MLC arguing against the concept generally supported the idea of marriage as being only between a man and a woman.  

5. Other common arguments against the bill included the risks, success chances and costs of a High Court challenge, the bill being a second-rate version of the concept, that the bill would not end discrimination, and that the State Government lacked a mandate.

6. Some MLCs voting against the bill made extremely unsound arguments about public opinion.  This suggests a need for politicians to be better briefed on how to (and especially how not to) understand and measure public opinion.


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(Skip to the bottom if you wish to know my own views on the issue before reading the main part of this article, though they should become obvious soon enough!)

On 27 Sep 2012 the Tasmanian Legislative Council, by a vote of 8-6, rejected legislation passed by the Tasmanian House of Assembly (along party lines with one exception) to create a state-based version of same-sex marriage. 

For those unfamiliar with the Legislative Council, it is the upper house of Tasmanian Parliament, a 15-seat single-member chamber elected on a rotational basis with six-year terms and two or three seats up for re-election every year.  The LegCo is extremely powerful, being able in theory to send the Lower House to an election by blocking supply without facing one itself.  LegCo elections have tight restrictions on spending and tend to be low-profile affairs often dominated by issues more relevant to local councils, and Legislative Councillors are often current or former local government figures.  Parties usually perform poorly in LegCo elections.  While Labor nearly attained control of the chamber during the early 2000s, they now have only a single formal member, as does the Liberal Party.  The remaining 13 MLCs are all "independents", although some have connections or former connections to some political party or other. The chamber has a reputation for tending to be conservative, although less so than in the past.

The Legislative Council debate, which was the most heavily lobbied debate in the Council's recent history, was complicated by the presence of three different issue sets:

* whether same-sex marriage was a good idea at all
* if so, whether it was acceptable to legislate for same-sex marriage on a state basis at all
* if so, whether the bill before the Council was an acceptable way to do so.

Anyone who voted yes to the bill would have answered "yes" to all the above.  But just from the information that someone voted against, it is not possible to tell which of the above three points they said "no" to.  Hence this article.

Debate Stats!

The debate itself took most of two sitting days.  Over 101,000 words were spoken in the process, including almost 1000 in interjections.  The President of the Council, Sue Smith, did not speak except to set directions for debate and impose order.  The most prolific speaker was the mover of the bill, Ruth Forrest, who contributed 20,764 words in two speeches plus 704 in interjections.  (Despite having two bites of the cherry, Forrest was also the only MLC to frequently use interjections to debate issues or challenge speakers.)  Other long speeches came from Mike Gaffney (in favour, 15,536 words), Ivan Dean (opposed, 9712) and Tony Mulder (in favour, 9385).  The shortest comments came from opponents Rosemary Armitage (2271 words), Vanessa Goodwin (2635) and Greg Hall (2821).  The MLCs most likely to use long words were Valentine (in favour, 4.844 letters per word), Rattray (against, 4.837) and Gaffney (4.82).  The MLC using the shortest words was, to my surprise, Jim Wilkinson (4.23) followed by Mulder (4.42).  (By comparison, my most recent articles averaged 4.80 and 5.01.)

Issues Cited By Opponents of the Bill

The following tables break down the issues which I believe each opposing MLC supported as arguments against the Same-Sex Marriage Bill 2012.  Practically all of these arguments were challenged by MLCs supporting the bill, and I have not prepared a breakdown of their arguments since it is the nature of opposition that interests me most.

It is not easy to compile a classification of this type, not only because of the huge volume of material, but also because of the vague language often used in discussing issues, and because some of the MLCs did not stick to a clear position on specific aspects.  Some MLCs also expressed themselves in a way that I read as implying a given position without quite spelling it out, or by approvingly citing an email they received from someone else.  Some others read emails into Hansard while indicating they did not necessarily agree with them.  The most difficult arguments to categorise, by a long way, were those by Paul Harriss.  Harriss often used rather measured and cagey-sounding language to argue in a roundabout way that something was a legitimate concern, the impression being given that he agreed with that concern although it often wasn't explicit.  I have tried to be quite careful with this classification - after hearing most of the speeches and reading them all three times - but there may very well still be errors or omissions, and there will certainly be classifications that are debatable. (If anyone has an issue with the accuracy of my summary they can contact me offline or leave a comment.)

I have given a rating of "No" where an MLC clearly rejected a given argument against the bill (as opposed to just not mentioning it).  For instance, while arguing against the bill in many ways, Adriana Taylor said her own electorate was evenly split and had it come down to just popular support she would have voted in favour.   In the case of Harriss, the "no" for the argument that marriage would be threatened actually comes from this moment in Jim Wilkinson's speech:

WILKINSON: As was stated by the honourable member for Huon, two or three weeks ago we sat down and we discussed a number of things.  We discussed looking at what marriage really is.  Do you believe that if this bill becomes law, it in any way will devalue marriage? That was one of the questions we raised.  Both of us came to the conclusion that no, it won't devalue marriage. It can only add to it.

As far as I know Mr Harriss has not challenged this account.  

In the table I use ME (for "marriage equality") as the abbreviation.

Note that you can always click on these tables for a larger and easier to read version:

(OK, the last one there was a facetious and flippant inclusion of course, though Taylor did mention this claimed incident rather pointedly in her speech.)

A few classifications deserve further comment. 

In the case of Tania Rattray, the only statement in her speech that seems to me to imply opposition to same-sex marriage generally is:

RATTRAY: On behalf of my electorate, I support that history has upheld the concept of  marriage being confined to a union between one man and one woman and to alter that would need majority support from all Australians. 

Considering this together with Rattray's comments on a referendum, I take her to be at least expressing the view that the Federal Parliament was right to vote down federal same-sex marriage in its recent vote, in the absence of proof of majority support (eg via referendum).  I am assuming that she does not accept the consensus of recent reputably conducted opinion polls as sufficient evidence on that score.

In the case of Dean, the last listing in the first category refers to him approvingly citing a document from Dr Christopher Middleton which contained the following massive non sequitur (which it displeases me to deface the internet by quoting at all; I do so for study purposes only) :

Marriage is simply the term that applies for heterosexual couples in a formal legal union - the Oxford Dictionary definition.  Same-sex couples do not qualify for this as they are biologically incapable of reproduction without recourse to outside agencies.

In the case of Wilkinson, I have put "Yes * 1000" in the "Cost of challenge" row in honour of the following astonishing gaffe:
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WILKINSON: What would I do if it was my money that I was paying out?  Would I take that risk?  If everyone in Tasmania was asked to pay $1 000 to fund this case, you could ask yourself what they would do. 

[..]

He told us how long it would take to prepare the case, and how much it would cost and his best estimate was between $400 000 to $500 000, which I think was mine as well.

FORREST:  But it's not $1.2 million.

WILKINSON: I didn't say that.  But it could be $1 000 for every person in Tasmania because we have about 500 000 people here.  
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Mr Wilkinson did later admit that math is not his strong suit, but I suggest it takes something special in that regard to divide half a million by half a million and come up with a thousand as the answer!

It surprised me that the speech by Adriana Taylor, who was never considered especially right-wing or socially conservative in her successful tenure as Mayor of Glenorchy, was the one that most stridently opposed same-sex marriage in general.  Possibly Taylor was saying things some other MLCs also thought but were far too cautious to spell out, but her speech deserves at least two Bernardis out of five for blatant wedge material like the following:
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TAYLOR: In the Sydney suburb of Lakemba is the biggest mosque in Australia.  The Muslims who form the congregation there accept sharia law and under that system of law men can be married to up to four women at a time, and they do.  There are, I am told, many such family groupings of one man with up to four wives and a number of children.  Under the Commonwealth  Marriage Act there is only one legitimate wife and the others, under our law, are recognised as single mothers with children.  They receive commonwealth benefits accordingly.  I am told this is an issue of concern to the relevant government departments, but there is no solution unless our Marriage Act is changed to allow a man to have multiple wives.

It is no coincidence that the Muslim community, which condemns homosexuality, is making no comments on this bill.  If we can change the meaning of marriage once, we can do it again.  In fact, I cannot see any difference in the arguments they give us.  The Muslim community could reasonably argue that such a change is wanted by a significant minority, will not cause any harm to anybody else, and it is a matter of discrimination.
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(I find the first paragraph interesting if correct but I do not endorse the second in any way. - KB)

Both Taylor and Rosemary Armitage also invoked what I take to be the "Julia Gillard argument" on the issue.  (I could, and at some stage may, write a whole article on the curious mystery of the Prime Minister's stated reasons for opposing same-sex marriage and the strange reaction I've received from some on the left when I've tried to explore this.)  Suffice to say that this is the argument that says that we should recognise same-sex relationships through some new institution that is called something other than "marriage", though no-one can find a name for it to replace the hopelessly bureaucratic "civil union".   Apparently, when we get this right all negative stereotypes about same-sex couples resulting from them not being permitted to marry will magically disappear and nobody will think it is anything like apartheid in the slightest. 

In general, it is impossible to determine whether a politician believes every argument they employ, and it is likely that not all politicians in such a debate employ every argument they believe.  None of the eight MLCs who voted against explicitly stated that they voted that way to avoid losing their seat, but those who intend to stick around for a while are likely to have considered the impact on their chances of re-election, and even on their chances of needing to face a competitive opponent.

Comments Made on Public Opinion

There were many comments made about the measurement of public opinion in the course of the debate.  Here is one from Adriana Taylor:

TAYLOR: I also want to address the issue of opinion polls and majority opinions.  What do the opinion polls say?  Both sides of this debate are saying that the majority of Tasmanians and the majority of Australians support their views on same-sex marriage.  They cannot both be right.  There seems to be merit in a referendum on this issue, or canvassing the issue at election time.  

But after stating that she wanted to address the issue of opinion polls, Taylor made no real attempt to do so.  She simply asserted that both sides claimed majority support and then concluded it was all too hard and a referendum was needed.  But it is not too hard: it is possible to examine the opinion polls that have been conducted and, with the assistance of expert guidance on which polls are reliable and which are not, to work out which way the wind is blowing.  All recently conducted published polls that have been collated through proper random sampling methods (and without the use of distorting methods such as biasing preambles) have found that Australian support for same-sex marriage greatly exceeds opposition, and many have put support around 60%. This is true both of polls commissioned by groups like Australians for Marriage Equality, and polls conducted without being commissioned by a pro-SSM client. 

As an example of the kinds of "polls" that can be scraped together to support the other side, I give you the Member for Windermere:

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DEAN: I would like to know where the real evidence is to show that the greater majority of Tasmanians support same-sex marriage.  In fact, Senator Collins and others have said the greater majority of Australians support same-sex marriage. These are normally just throwaway lines, supported sometimes by a survey result and sometimes not.  Some believe that if you say it enough times, it will be accepted - people will accept it after a while.  If you keep pushing it out, people will accept it as fact.

MULDER:  A bit like fox scats.

DEAN:  Exactly the same. Keep pushing it out, and people will believe there are foxes in the state.

On the information I have received, that is not the position.  Neither is it a position that the state should go it alone on same-sex marriage, if the result of the Examiner survey completed in August 2012 is reliable.  People have referred to the EMRS results in relation to whether or not the state should go it alone, but I am referring to the survey the Examiner ran.  The Examiner ran a survey in the paper with the question, 'Do you support the Tasmanian government going it alone on gay marriage legislation?'  The result was 17.6 per cent - 269 people - said they should go it alone, however 82.4 per cent - 1 256 people - said no.  This is interesting because the EMRS poll conducted in August, with 1 000 people polled, had 54 per cent supporting Tasmania's position to go it alone.  How is this significant difference explained?  The Examiner had a greater return than the EMRS poll.  They had 1 525 respondents and the EMRS had 1 000.  I wonder why there is that difference?   Perhaps there is an explanation.  I have spoken to a number of people about it and they could not give me a suitable answer, other than to say they were the responses they received.  The personal feedback I have been getting is more supportive of the Examiner's result.

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Well Mr Dean, you may have spoken to a number of people but you did not speak to the right people.  Had you spoken to me I could have explained it to you faster than you could catch an FEP bureaucrat planting bandicoot hairs in a fox scat! (NB I do not believe this happens.)  The explanation goes like this:

Firstly, while I have not been able to find out how people submitted their votes for this "poll", the use of a newspaper to conduct any poll skews the sample.  The readers of any given newspaper usually have different political beliefs on average to the population in general and most Australian newspapers, with some exceptions such as The Age, have readerships that skew to the right.  Probable reasons include that young voters (who skew left) tend not to be much interested in reading about politics in the paper, and that left-wingers are more likely to prefer state or alternative media.  The Examiner is seen as being strongly supportive of the resource industries and carrying a Liberal legacy from the Rouse/McQuestin days when it was unabashedly pro-Liberal at election time.  It is likely, therefore, that its readership skews right, so a sample of the Examiner's readership is not a fair sample of Tasmanian voters to start with.

Secondly, even if there was not a political leaning in the Examiner's readerbase, it mainly services an area that is likely to poll more conservative responses than the south.  Even if you could survey every person who lives within the area where the Examiner is the most common newspaper, that would not tell you what the state as a whole thinks.

Thirdly, and probably most importantly, opt-in polling of this kind (where a paper puts a poll in its print edition or online and asks people to vote) is prone to what is called "motivated response".  The vast majority of readers do not respond to the survey. Only those who care enough to make the attempt to respond do so.  There are many issues on which majority opinion goes one way but the minority view contains a small core that holds its views extremely strongly and will always mobilise to express them.  Same-sex marriage is a case in point: while the majority supports it at least federally, those who disagree tend more to very strongly disagree.  Some of them are actually genuinely petrified of the prospect of same-sex marriage and its impact on mixed-sex marriage, which is odd, because there is no reason to believe there will be any.

It's also significant that same-sex marriage is an issue most opposed by elderly voters, who are more likely to be retired and hence to have time to respond to an opt-in poll in a newspaper.

Fourthly, wording also makes a difference.  The reported Examiner question is "Do you support the Tasmanian government going it alone on gay marriage legislation?"  This differs from the AME-commissioned EMRS question which was "Do you agree or disagree that Tasmania should go ahead with its own laws allowing same-sex couples to marry if the federal parliament fails to allow same-sex couples to marry nationally?"  The use of the term "gay" rather than "same-sex" encourages the respondent to inaccurately think only about male-male relationships, and not about female-female couples (or other cases where someone's sexuality or gender identity or identification either excludes them from marriage to their desired partner, or else requires them to adopt a legal gender identity they disagree with in order to access it.)  The misleading focus on "gay" is well known to lead to a more negative response in SSM-related polling, and is one reason the marriage equality movement often avoids using the term "gay marriage".  Secondly, "going it alone" has negative connotations, implying Tasmania would do something everyone else had rejected and would continue to reject - when in reality it might well be that Tasmania would not be alone for long.  In contrast, the AME-commissioned wording "go ahead" and "allowing" implies a more positive action, while "the federal government fails" encourages the respondent to think of Tasmania leading the way in correcting an error, rather than isolating itself. The choice of words in both polls could lead to a slanted response, but the poll Dean refers to is the worse offender of the two.

Finally, while I have not been able to find details of the poll's response methods, it is often difficult to stop multiple voting and even deliberate vote-flooding when running opt-in polls.  (This is especially a problem with online polls, where it is also easy to recruit voters from interstate or overseas to flood the sample.)

So, the fact that the poll mentioned by Dean had "a greater return" (in terms of numbers of respondents) is irrelevant, because its sample was unrepresentative, its polling methods were totally invalid and its question was - whatever the intention - loaded to the hilt. 

In weaker form, the age-old "electorate survey" as often referred to in SSM debates has a similar problem.  Politicians send out surveys to all the voters in the electorate, but only a fairly small proportion usually respond, and those who do respond are often either those who feel very strongly about the issue or those who agree with the sitting member.  Voters who are polled by a sitting member who agrees with them on something are going to realise that by responding, they can help their sitting member to make a case, while voters who disagree may assume their response will be ignored and hence not bother.  Voters opposed to the member are also more likely to bin the survey on first sight.

For this reason, Adam Bandt's successful motion asking MPs to consult their electorates about same-sex marriage was a puerile move at best and possibly a tactical disaster.  Some MPs resentfully did their homework assignment using opt-in survey methods of some kind or other, got a return "justifying" their existing scepticism and then used that return to argue that they were obliged by their electorate's views to now oppose same-sex marriage.

The counting of numbers of emails for or against - on which a great amount of staffer time seems to have been expended in this debate - is another largely meaningless exercise.  Only a small minority of people write to politicians about any issue, and what is provided is just a feel for which side has the most people who are strongly motivated on it.  It proves nothing about the attitude of the rest.

It's notable that MLCs conducting this debate heard presentations from a number of sources, most of them biased in one direction or other, about the legal and social issues involved with the bill.  But although the interpretation of public opinion was supposedly quite relevant to the debate, it does not seem they were given adequate guidance on how to make sense of the competing claims and counter-claims about what the public believes.  

It is not necessary to conduct referendums to try to determine public views - and indeed the requirement for a majority of states to support a referendum, together with the problems created when the public have to say "yes" to a specific version of a proposal, can make them very conservative measurements.  Polling can measure opinions on social issues both more cheaply and in some ways more accurately, but politicians need to understand first and foremost that all forms of opt-in polling are misleading and generally useless.   Once that message has sunk in we can get on to finer details like sample error, question design and the importance of having at least some polling that is not interest-group commissioned.

Re-reading the debate even two months later is already like looking into a time capsule.  Ivan Dean quoted a letter from Dr Christopher Middleton, who stated:

In the 31 states of the United States of America where voters have been consulted at the ballot box on this very question, same-sex marriage has been rejected in every one. Same-sex marriage has only been legalised in states where this has been imposed on the population by legislators or the judiciary without reference to the electorate.

Not anymore! With same-sex marriage batting 3 states from 3 in the USA this month, and a proposed ban voted down in a fourth, some parts of the world have already moved on from one argument that Ivan Dean employed to support his position.   My mild-mannered psephological advice to those hoping to use a federal referendum proposal as a bulwark against having SSM imposed by "elitist" politicians (how dare anyone impose equality and freedom, especially when the majority is known to support it!) is this: watch what you wish for.

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Disclosure: It is probably appropriate that I disclose my own views on same-sex marriage with this article, as if they were not obvious enough already.  So here goes ... and I warn/promise I will not hold back ...

I completely support federal marriage equality, and find the mainline "arguments" advanced against it by religious opponents and other social "conservatives" to be irrational, ludicrous and totally without intellectual merit.  I especially reject:

* the flatly false and paranoid claim that marriage, an already very diverse if struggling institution, is threatened by a proposed extension to a new and small group of additional customers.

* the absurdly circular argument that the current definition of marriage as exclusively between a man and a woman justifies discrimination (the fact being that the current definition of marriage is caused by a history of discrimination, and hence that the "man and a woman" argument reduces to that we should discriminate because we already discriminate.)

* the scientifically bogus attempts to define "marriage" as being "about" something in particular in a way that describes all mixed-sex marriages while not describing any same-sex relationships, and that is relevant to justifying a difference in treatment.

When it comes to the proposal for state same-sex marriage, I would have loved to see it pass - partly as a symbolic rejection of the completely embarrassing "arguments" against the idea federally, and partly because I believe anti-gay discrimination should be dismantled at pretty much any opportunity, even if through partial and problematic steps.  I also found it dismal that some Legislative Councillors were willing to quibble over a mere five or six figure sum on a possible High Court case about basic human equality given that their House has in the past waved through far greater expenses of government money on things that were much more dubious.

All the same I don't see the case for same-sex marriage at state level to be on quite the same level of complete no-brainer status as the federal equivalent.  A minority of the objections raised specifically to state-based SSM were at least reasonable (whether I ultimately agree with them or not) in a way that the main objections to federal SSM are not.

I am not personally or directly affected by either same-sex issues or marriage, but I do have the advantage that the childhood family background of at least one member of my family (back in the times when same-sex parenting Officially Didn't Happen) gives me extra reason to find fearmongering about these issues silly.

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