A Same-Sex Marriage Plebiscite Is A Terrible Idea

At its National Conference on the weekend, the Australian Labor Party appears to have resolved its internal differences over whether to have a conscience vote on same sex marriage.  The solution pleased nobody, but from a purely political standpoint it makes some sense.  The few reactionary MPs remaining in the ALP have a few years left to either get used to the party's decision or leave, and this should avert the disruption that might have been caused by a very small number of MPs crossing the floor had a binding vote been held now.

In my view that disruption was an overstated risk anyway (the number willing to be kicked out of the party for it would have been quite small) but Labor now has a position members should be able to unite behind and which promises that regressive opposition to a no-brainer reform will be phased out of the party.  It's craven that the party is putting up with the attitudes of Joe de Bruyn and co for four minutes let alone four years, but the unhappiness he demonstrated when the measure was passed said it all.  Time will soon be up for the ALP's dwindling anti-SSM brigade.

The Labor resolution also means that Labor can continue for a few years to tell the Coalition that it has a conscience vote and the Coalition should allow one too.  That aspect of the weekend's outcome has ramped up pressure on the Coalition to resolve the issue.  Unfortunately, it's been widely reported that there is pressure within the Coalition to "resolve" it by agreeing to hold a plebiscite within the next parliamentary term, and on this basis to avoid a vote in the Parliament.



It is not clear how reliable these reports are, or how far the plebiscite proposal might get.  This article however will explain why a plebiscite on this issue (a proposal hitherto made mainly by clueless populist letters-to-the-editor writers in newspapers, or in torturedly illogical op-eds by ex-MPs) is a really bad idea.  Even the lengths I go to below may not even scratch the surface of the proposed plebiscite's gutless awfulness.

At various points here I will refer to same-sex marriage as a freedom.  Some may say that what is really at stake here is not freedom but just recognition of marriage by government.  Two people can after all have a marriage ceremony that is not recognised by the state.  However, currently it is illegal for such marriages to be celebrated as marriages and advertised as such by celebrants.  On that basis there is a breach of the freedom to be "married" in a certain way - and also a senseless restriction on the business rights of the celebrant.  It is about recognition by government too, and the messages recognition or lack thereof sends out - not only about those not recognised, but also about whether the government might lack both a brain and a heart.

Some may also argue that same-sex marriage is a contradiction in terms because marriage is defined as the union of a man and a woman.  To the waning extent that the latter claim is even true (given the widespread use of the term to describe other kinds of marriage legal in other countries), it is only true because that is the only sort of marriage currently allowed in this country.  Since the proposed change to what the state calls marriage would also affect the definition, the argument that the current definition precludes change is circular and totally illogical.

Spending Money To Tell Us What We Already Know

A common argument made for a plebiscite is that it would find out what the people want, instead of leaving it to the politicians.  However, we already know this: all properly designed opinion polls* taken in the last six years, by practically every Australian pollster and polling method available, have shown a lot more people now support same-sex marriage than oppose it.  This applies whether the polls were commissioned by lobby groups or not, with not a lot of difference by commissioning source, and indeed even applies to the baseline question in polling commissioned by a Christian group opposed to SSM (scroll down to Ambrose Centre 2011 poll section).  Furthermore, the gap is probably widening, although different responses to different polling methods, and slightly better results in commissioned polls than neutral ones, make it difficult to say for sure.

We know from overseas experience that the gap between yes and no is smaller in ballot measures than in polling, but only modestly (about eight points is typical, a fraction of the 30+ point gaps seen in most Australian polling) and we have no evidence that support for same-sex marriage weakens significantly after it is passed, or indeed for any lasting reason.

We do not need plebiscites or dodgy political office "elector surveys" to tell us what we already know: reform has substantial majority support, support is growing and support appears to be here to stay as part of a global change in "first-world western" nations.  This change is a natural long-term consequence of greater social visibility of gay and lesbian couples and families, in turn a result of decreasing persecution of sexual minorities.  (This by the way is what is wrong with the argument about society having always had marriage between a man and a woman.  Two men would hardly want to be publicly married at times when drawing attention to their sexuality would have landed them in jail.)

While I can't entirely rule out that some combination of poor question design, scare campaigning and tactical blunders or ruses might somehow lead to a ballot measure not passing, it's highly unlikely (especially based on experience from more socially conservative Ireland).  And if it didn't pass, that would not tell us that the majority opposed reform anyway.  It would tell us more about the failures of the heated plebiscite environment to measure the usual state of public opinion, as opposed to artificially distorting it.

(* Definition: Poll taken by random sampling methods either from the general population or from a large panel with appropriate weighting, and not employing any biasing preamble or obviously loaded wording.)

The Majority Voice Should Not Be Relevant Anyway

The pretext of a plebiscite push is that the will of the majority should determine the issue, as some kind of ultimate arbiter of political right and wrong.  However, that is based on a simplistic understanding of the sort of political country Australia is.  I would go so far as to say that if everyone in the country opposed same-sex marriage except for two people of the same sex who wanted to marry each other, then it would be totally wrong for that majority to impose its will on the minority.  It's quite simply none of the majority's business.

This is in the nature of life in a liberal democracy (which Australia is meant to be) as opposed to an illiberal one.  In a liberal democracy, citizens enjoy rights and freedoms that the majority cannot impugn.  These rights and freedoms may be protected by constitutional process, by law or by convention, but the important principle is that the majority does not determine everything.

The role for (mostly indirect) democracy is that a liberal framework concerning rights and freedoms doesn't tell you everything you need to know.  It doesn't tell you what rights a person has in a situation in which their exercise of a right important to them inconveniences someone else (a noisy rock gig for example).  It ultimately doesn't say anything about a social welfare net, the environment, taxation regimes and so on.  There are principles that are no-brainers, such as if someone wants to do something that harms nobody and nothing else, why not let them, and there are principles that are tricky.  The role of an elected government is to resolve the tricky cases, and this is done through democratic processes not because democracy has any positive merit, but because it is the least worst solution.

Same-sex marriage is simply not a tricky case, because the solution for those who do not like same-sex marriage is as simple as the common line has it: just don't marry someone of the same sex.  Opponents attempt to claim the issue is about children, but it is not: same sex parenting is already permitted, and while allowing same-sex marriage might slightly increase the same-sex parenting rate, there are all kinds of parenting practices that can affect far more children in a far more clearly negative way and that we do not now even try to regulate.  Anyone who supports banning same-sex marriage for the supposed sake of children but doesn't also support, say, banning divorce or banning feeding children junk food is just a charlatan.  In fact, there is no convincing evidence at this stage (the Regnerus "study" and so on being fatally flawed) that same-sex parenting adversely affects children overall at all.  

What people like or dislike or morally do and don't approve of is not where the law of the land should be at.  Let's say that I have an intense dislike of Dannii Minogue songs, which would be just a mild exaggeration of the truth.  If it turns out that many fellow Australians share my dislike, should we have a plebiscite on banning all Dannii Minogue songs?  I see no reason why such a plebiscite would be any more ridiculous than one on whether or not we ban same-sex marriage.

It's Not A Hard Enough Issue

Australia has had only three national plebiscites ever - two on conscription and one on a national song.  Without needing a national plebiscite we extended the franchise, adopted no-fault divorce, legalised abortion, massively reformed the tax system many times, sent soldiers to die in numerous wars, formed national alliances, abolished the death penalty, allowed military bases and nuclear tests, regulated gun control, brought in far-reaching environmental protections and restrictions (and so on).  Generally, far more wide-ranging and (in some cases) philosophically difficult issues have come before the parliament and been dealt with by the parliament, and parties and candidates that took wise or foolish stances on them have risen and fallen as a result.

Same-sex marriage is an issue that directly affects very few people, and affects those people positively.  If that is so difficult that we need a national vote on it, then we will have decades of every lobby group in the country expecting an expensive, distracting national vote on their political fetish.  Where will it stop?  The parliament should have the courage to deal with this itself and face the consequences of its decisions, instead of wimping out by sending it to the people because for some politicians, letting people be free and have equal rights (which should be the very first line of their job description) was All Too Hard.

In the national song case, allowing public participation was an obvious benefit in itself because of the special need for public ownership of the result (a shame we couldn't do better there, but never mind).  The other two plebiscites were held around a hundred years ago on one of the gravest and most consequential issues in any nation's history: whether it can force people to die in a war against their will for the supposed good of the nation.

To put same-sex marriage alongside conscription as an issue warranting such a vote would trivialise the issue of conscription.  This should be viewed as a serious insult to the memories of those who bravely fought against the conscription votes in World War One (winning by very slim margins) and to those and the memories of those who didn't even get to fight that fight for World War Two or Vietnam.  Let's leave conscription in its historic place as the only divisive issue contentious enough to be put to this sort of vote when it didn't have to be.

It Isn't Binding Anyway

Even if a national plebiscite on same-sex marriage passes, that doesn't necessarily force the parliament to obey it (an especially relevant point when the crossbench is likely to remain dominated by unpredictable and unaccountable Senators elected in the 2013-4 Senate farce).  Some pretext might be found in the case of a reasonably close result to string the matter out.

Even if that did not happen, commitments given in the course of the plebiscite campaign - which might influence the outcome - could be dishonoured, making the vote a loaded contest.  We have a good example of this from one of the previous plebiscites actually.  Before the 1917 conscription vote, Billy Hughes had indicated his government would not continue if such a vote was attempted again and lost.  When the vote was in fact lost, he responded by resigning in a way that left the Governor-General with no viable choice but to reappoint him and his Cabinet.

It Sends The Wrong Message

A part of the case for same-sex marriage concerns the stigma felt by some same-sex attracted people who feel that their relationships (whether they seek marriage or not) are judged by society as not as good as mixed-sex relationships.  While there's no doubt the approval of a ballot measure results in at least a temporary wave of euphoria about social attitudes, in the meantime there's a subtler stigma available: the message that same-sex relationships are not as good as others because they're iffy enough that we need to have a national vote on them.

Indeed it's actually quite humiliating to use somebody's taxes to fund a referendum that allows people to vote against that person's freedom and equality.  If I were same-sex attracted I'd be completely ropable about the proposal that my taxes help fund a massive national platform to dignify bigots* who wanted to deny me my rights - whether I intended to use those rights or not.

(* This is not to say that all "conservative" opponents of allowing same-sex marriage are bigots.  Some are just confused.)

What About The Budget Emergency?

There used to be a thing called the "budget emergency".  Remember that?  A government that prides itself on being an alternative to waste cannot consistently spend public money on a giant and flawed opinion-poll on a no-brainer issue just because it might feel too weak to deal with it.  After all, far from damaging electoral prospects by passing an obvious reform that has done other conservative governments that have let it go (New Zealand and UK) no harm at all.

The correct response to anyone who suggests there is some kind of right to have a national vote on same-sex marriage comes from the hard-libertarian economic right - it's the old Ayn Rand line "At whose expense?"  There has so far been no offer from those opposed to reform and considering a plebiscite to pay for it exclusively themselves, so it seems that those who do not think the vote is necessary will be forced by the State to fund it.  Given the extreme simplicity of the issue, this kind of sheer waste of taxes should be considered as nothing better than a proposed theft by the government from the people at the behest of religious moralists, homophobes and nervous politicians.

The message sent by handballing the issue to the people would be that the government stood for nothing but a weak attempt to avoid criticism.  It would not come across as socially conservative, since staunch social conservatives would not have even allowed a public vote.  It would not come across as serious about enabling social change, since it could have just allowed it to pass.  It would mainly come across as dithering, weak and afraid.

Indeed I'd expect an attack ad could be made showing the Abbott government banging on about the budget then stealing cups of coffee, beers, lunches, medicines, petrol and so on from each and every Australian to pay for such a gigantic piece of pointless moralistic indulgence.  "Save yourself money.  Vote Labor."

Public Participation?

In a desperate clutching at straws, we have now seen ex-pollies who never showed any great interest in expanding democracy when in office suddenly argue that the Irish vote showed the great importance of greater public involvement in decision-making.

Oh, please! Firstly, precisely how is this less silly than the Gillard Government's proposed "citizen's assembly" on climate change?  If a plebiscite is really to be embraced because it gives the public a chance to show they are better than politicians, then does that mean politicians should deliberately and knowingly keep themselves inferior just as a way of making the public feel good about themselves as prospective MHAs?

I would have thought anyone with a real eye to the long-term future of conservative public life would have seen exactly where that precedent leads. Give the public one such vote in which it is obvious that the public are being dragged to the ballot box just because our politicians are too weak and hopeless to get it right, and who knows how many more such they'll demand. Such a principle would represent the system of indirect representation signing its own death warrant by being such a hopeless parasitic waste of money that it takes taxes to spend more taxes to force the public to do its job for it.  There is no greater way that a government could show itself to be a parasite on its own people than by calling for a popular vote on something as easy as this.

We know what would really happen.  Having used a plebiscite to appease the religious right by delaying reform and then giving it a voice on an unprecedented scale, a conservative government still in office at that time would then completely lose interest in any concept of democratic expansion beyond referendums that were necessary.  Indeed it would be subtly maintained that since the public were given a chance and got it "wrong", they shouldn't be given too many more.

We are also, amazingly, seeing claims from plebiscite-supporters on the Liberal side that a plebiscite is good because marriage is above politics.  If you believe marriage is above politics then you should support the view that politicians should act as trustees of the public interest (this is supposed to be their job), put politics aside, get out of the way and liberate it.  That then puts marriage decisions outside politics where they belong: with the people who make them.

There's bound to be more on this, but I think that's a good place to end it for now.