A Same-Sex Marriage Plebiscite Is An Even Worse Idea Now

Last year I wrote a piece called A Same-Sex Marriage Plebiscite Is A Terrible Idea.  At the time I wrote it, Tony Abbott was still Prime Minister, albeit not for long, and the proposed plebiscite (or "non-binding referendum" if you prefer) was just a silly rumour being fanned by foolish Liberal-aligned op-eds.

I made the following basic points:

* The plebiscite would not generate new knowledge since it is already clear that Australian voters support same-sex marriage.
* The majority voice is irrelevant because the right of two consenting adults to marry each other should be recognised, since there is no reason to allow the majority to impugn it in a liberal democracy.
* Australia has resolved far more difficult issues without recourse to a referendum, and to subject same-sex marriage to such a vote opens the door for constant demands for unnecessary national votes on other subjects.
* The plebiscite would not be binding.
* A plebiscite, even if passed, stigmatises people in (or seeking) same-sex relationships by implying that their relationships were problematic enough to require the consent of society.
* At a time when Australia is in debt, a plebiscite is an unconscionable waste of public money unless a need for it can be demonstrated.



Unfortunately even though the case against it was crushing and even though conservative governments overseas have passed marriage reform without suffering any loss of voter support, the plebiscite soon became government policy.  Disquiet about the messy party-room meeting that led to it being preferred (without actually being voted on) to a conscience vote in the just-concluded parliament was one of many factors contributing to the downfall of Tony Abbott.

As I have noted here often before, same-sex marriage is not an issue that appears to swing votes in a two-party sense.  Probably since the Coalition moved to supporting a plebiscite it has even less impact on voting intention than it did before.  However its presence in the issue mix is proving a distraction for the Coalition in the final week of the campaign, at a time when they would prefer to spend the whole week talking about economic management.

It's become clear there are a wide range of potential responses to a plebiscite in Coalition ranks - from those who would vote against same-sex marriage no matter what, to those who would vote against if their electorate voted against, those who would abstain if the nation voted against their own views, and so on.  Even Deputy Liberal Leader Julie Bishop has been reported as equivocating on the issue, and while there is little doubt that a comfortable passage of a non-binding referendum would be followed by a successful free vote, there remains room for doubt about what would happen if the popular vote were passed very narrowly, contentiously, or without a double majority.

A couple of recent world events have in my view strengthened the already overwhelming case against this proposed plebiscite.

The dim/dark side of referenda

The first is the Brexit referendum.  At the time of my previous article, Ireland had passed a same-sex marriage vote and we suddenly heard all kinds of idealistic guff from Peter Reith and so on about how the whole exercise showed how greater public involvement in decision-making was a good thing.

I would hope that after the post-Brexit commentary in the UK this week, no-one would be taking that line again for quite a while.  For sure, many of those who voted to Leave did so out of genuine disquiet with the EU's level of control over the domestic affairs of member states, its "democratic deficits" and the cost of membership.

However it is becoming clear also that the Brexit referendum was a shambles that showed poor decision-making by a large number of voters,  Many voters voted Leave for reasons other than actually wanting to leave the EU.  Some voted Leave as a protest over unrelated issues, or because they disliked things said by the Remain campaign.  Some voted Leave in the belief that Remain would win, just wishing to narrow the margin, and are now experiencing regret.    It is all too easy for referendum processes to become about something else than itself, and same-sex marriage (being an issue that does not directly affect the great majority) carries an elevated risk of getting abused as a proxy for goodness knows what.

Even if a plebiscite had strong support from nearly all of Labor and most of the Coalition, suppose that at the time of it being put there was public disquiet about Malcolm Turnbull's handling of an unrelated or tangentially related issue.  Voters might be tempted to game the plebiscite to show dissatisfaction with Turnbull because he was prominently pushing the Yes case, and hence a poor result for Yes would damage him.  Even though this would be unlikely to cause the vote to fail, even the vote passing with an underwhelming majority would be an unsatisfying outcome, "showing" that a near-majority of voters had supported an illiberal and ridiculous view against same-sex marriage and allowing opponents to bleat on for decades about how some imaginary defect of the vote had robbed them of victory.

The second is, of course, Orlando.  The terrible Orlando mass shooting crosses a number of different issues - homophobia, the USA's pathologically lax gun controls and self-radicalising "homegrown terrorism".  Australia does not have the USA's gun control problem, but it does have self-radicalising terrorists, whose actions have caused the deaths of three Australians (besides themselves) in Australia in recent years.   This number would probably have been much higher without security interceptions of various apparent would-be terrorists.  Orlando does not really say anything about the potential for hateful behaviour by so-called Christians, because "Christian" homophobes do not generally engage in such acts of lethal terrorism on behalf of their cause, although they are far more numerous in the West than "Islamist" homophobes.

It is all very well for Malcolm Turnbull to argue that he has faith in the Australian people to avoid divisive and hateful rhetoric at a referendum and the violence that it might incite.  I personally consider that faith to be irrational given that homophobic, transphobic and even interphobic material was used in attempts to sway election outcomes at at least four different elections in my home state in the last ten years, in two cases with covert assistance from the "Liberal" Party.  But let's just suppose that the major opponents of same-sex marriage do indeed play it nice and do their best to avoid inciting hatred on the campaign trail. The problem is that Islamist homophobes are outside the influence of even groups like the Australian Christian Lobby and the various fronts for the Christian anti-same-sex marriage campaign.  And major public rallies in supports of gay rights are obvious potential targets for terror attacks by any deranged self-radicalised Islamist homophobes who may be living here.

Can the Coalition MPs supporting a plebiscite, or those whose actions are causing a plebiscite because they will not support a successful parliamentary free vote, personally guarantee the safety of all Australians who will attend mass public rallies in the leadup to the vote?  Will such Coalition MPs personally guarantee in advance of a plebiscite that should such attacks occur and claim lives, then they will all resign from parliament in contrition?  If not, then I don't believe they are taking the safety of supporters of same-sex marriage seriously.  Most likely, nothing of the sort will happen, but a referendum involving mass rallies nonetheless increases the chances of a terrorist attack (or at least the security costs of preventing one).  The Coalition are supposed to be hard on terror and should not be promoting unnecessary opportunities for it to occur just because a minority of people on the religious right are illiberal and silly.

The other point about Orlando is that such attacks increase "minority stress", especially when they occur in what is normally thought of as a safe space.  Even though the Orlando attack has no real connection to everyday Australian Christian homophobia, it has still increased apprehension about the possible nastiness of a plebiscite campaign.  Whether that apprehension is founded or not, it is grossly reckless for a party that claims to be serious about mental health to be supporting a plebiscite that is contributing to minority stress.  The Coalition's obligation based on its claimed support for mental health issues is to simply pass same-sex marriage by parliamentary vote and stop kicking the can along the road.

But It's What The People Want

Polling has persistently shown that when asked an unqualified question about support for the plebiscite versus support for the politicians deciding the issue, voters support the plebiscite.  This is understandable because voters feel that if politicians decide the issue, they cannot be trusted to vote for same-sex marriage and will just keep voting against.

However, there are many problems with these kinds of polls.  The first is that the voter is probably expecting that the vote would be binding.  None of the polls have asked the voter to choose between politicians making a decision after a non-binding plebiscite and the matter being decided by parliamentary voting without a non-binding plebiscite.  It may be that in such polling, voters would agree that politicians would follow the majority verdict, but it may be they would be mistrustful of this.

The second is that these polls are premised on an artificial scenario in which a parliamentary vote just happens once.  Assuming there is never a plebiscite, then most likely there would be repeated parliamentary votes, sooner or later resulting in the parliament passing same-sex marriage.  Indeed, in the absence of the Coalition's ability to use a plebiscite to muddy the waters, and given Labor's increasing support for same-sex marriage, pressure on wavering Coalition MPs could well lead to a conscience vote being passed in the next term of a re-elected Turnbull government.

A third problem is that few polls have not also polled support for plebiscites on other issues, with voluntary euthanasia being an obvious example, but there are doubtless many others.  If such polls were conducted, it's quite possible they would find that the public actually said yes to popular plebiscites on a very great range of measures, but it is obviously impractical (and in my view dangerous to good government) to keep having public votes on everything.  Thanks to David Barry for reminding me of one such poll by Essential, which also found voters supporting plebiscites on euthanasia, abortion and (weakly) the retirement age - three out of just six issues canvassed!

The cherry-picking of poll results is also amusing.  The Prime Minister is happy to take polls showing support for a plebiscite as demonstrating that the public supports a plebiscite.  But by the same token, there is a far stronger body of polling showing that the public supports same-sex marriage.  On this basis, the parliament could give the public what they want by simply voting for same-sex marriage in a parliamentary vote.  Voters only say they support a plebiscite because the Parliament keeps getting the matter wrong.  If the Parliament listened to what the people are saying on the primary issue then the support for a plebiscite shown in polls would not exist.  So when the PM says that polls show the public support a plebiscite, what that really means is that polls show the public realise that his party ignores the polls when it suits it, and support a plebiscite only as a backstop solution.  We have not seen any poll that asks which the voters would prefer out of politicians passing same-sex marriage and the issue being put to a plebiscite before they vote.

In closing, I will restate one of the points from my previous article.  In a liberal democracy - which Australia is meant to be - there are some issues that are matters of personal freedom; people can do what they want no matter what the majority thinks.  This general principle, embodied in countless aspects of our law despite a Constitution that does not have a Bill of Rights, is necessary to prevent majority tyranny and state-sanctioned discrimination.  The role of democratic decision making is to resolve matters not resolved by such liberal principles.  Allowing same-sex marriage is, however, a no-brainer from a liberal and equal rights perspective.

It is simply wrong for the parliament to consider same-sex marriage as a matter that it has any legitimate right to obstruct, or as a matter that is a legitimate subject of a public vote or "conscience-based" (read "religion-based") opposition on the floor of parliament.  To give millions of Australians the right to say "no" at the ballot box to something they have no right to prohibit no matter what their numbers, simply shows a misunderstanding of the sort of political society Australia is meant to be.

I have generally been sceptical of the need for a Bill of Rights in Australia, mainly because the specific content of Bill of Rights proposals very often goes too far, with risks of governments being adversely hamstrung or unreasonable impacts on free speech.  But if governments will not realise that opposition to same-sex marriage is just plainly illiberal and discriminatory, then maybe we really do need an instruction manual to tell them how to do their jobs.

I doubt the emergence of same-sex marriage as an issue in the final days of the campaign will cause the Coalition any harm at the ballot box to speak of, and suspect Bill Shorten's pushing of the issue will have little impact beyond shoring up Labor votes in Melbourne Ports and Batman and causing mainstream voters to question his priorities.  But if there is damage it will be richly deserved.