A plebiscite on same-sex marriage would be a failure of parliament’s responsibility

Australian Coat of ArmsIf Australia holds a fairly conducted plebiscite on legalising same-sex marriage after the next election, the result will almost certainly reflect what we already know from an unbroken line of reputable opinion polls.

Success for the “yes” case will come, in time, to be seen as extraordinarily empowering for same-sex-attracted Australians. This is not a case, however, where the ends will justify the means. The debate will be divisive. Some on the “no” side are apparently bent on using the cover of a plebiscite to advance specious arguments connecting same-sex marriage with the abuse of children, sexually transmitted diseases and drug abuse.

Decriminalising homosexuality holds lessons
In November 1980, the attorney-general, Haddon Storey, rose in the Victorian parliament to outline the Liberal government’s rationale for abolishing the offences of buggery and gross indecency between males. He said:

It does not represent any approval or condonation of these activities. The government does not accept sexual relationships between persons of the same sex as an acceptable alternative lifestyle.

Another Liberal, Murray Hamilton, spoke against decriminalisation, on the ground that it was no more than the obsession of a small number of homosexuals. The National Party opposed decriminalisation as a bloc. It argued that homosexual activity was repugnant, completely unnatural and not carried out in the animal world.

The Victorian legislation ultimately passed and came into effect in March 1981. Legislation removing provisions of the criminal law that penalised homosexual sexual activity was passed progressively throughout Australia between 1975 (South Australia) and 1997 (Tasmania).

Today, the anxiety of past parliaments to condemn homosexuality, even as they passed legislation to decriminalise it, appears laughingly begrudging. The arguments harnessed against the reform would be just laughable but for the harm they no doubt did to generations of gay people. Yet clear echoes of that mentality resound today.

In October 1986, Joseph Ratzinger – the future Pope Benedict XVI, in his then-capacity as Prefect for the Congregation for the Doctrine of the Faith – said homosexuality was:

… a more or less strong tendency ordered toward an intrinsic moral evil; and thus the inclination must be seen as an objective disorder.

Ratzinger returned to the theme in July 2003:

There are absolutely no grounds for considering homosexual unions to be in any way similar or even remotely analogous to God’s plan for marriage and family. Marriage is holy, while homosexual acts go against the natural moral law.

In March 2010, then-opposition leader Tony Abbott said he felt “a bit threatened” by gay people. He elaborated:

There is no doubt that it challenges, if you like, orthodox notions of the right order of things.

Throughout his tenure as prime minister, Abbott was consistent in his opposition to the legalisation of same-sex marriage. However, he argued from tradition, rather than from scripture or religious obligation.

In March 2011, then-prime minister Julia Gillard opposed legalising same-sex marriage:

… because of the way our society is and how we got here.

In September 2014, after leaving parliament, Gillard suggested that her opposition to marriage equality was born not of respect for marriage’s special status, but of “an old-fashioned, feminist view” that there should be some way, other than marriage, of “solemnising relationships and recognising them as of worth and status”. In August 2015, Gillard said she had changed her view – she would now vote in favour of legalising same-sex marriage.

Opponents of same-sex marriage have now taken to accusing proponents of being intolerant or bigoted. A spokesperson for the Australian Christian Lobby told a Senate committee in September 2015 that “many” on his side of the debate felt fear and intimidation.

Having regard to the long history of religious and political leaders branding gay people as intrinsically morally evil, objectively disordered and a challenge to the orthodox notion of the right order of things, there is a breathtaking hypocrisy in that charge. In any event, it is neither intolerant nor bigoted to call out hollow arguments.

Why a plebiscite?
Since becoming prime minister, Malcolm Turnbull has adhered to the policy of his predecessor. He is promising a national plebiscite on same-sex marriage after the next election.

Because no change to the Constitution is required, there is no legal reason for a plebiscite. The parliament could resolve the matter by a simple vote. There have been only three national plebiscites in Australia’s history. Not one provides a useful precedent.

Plebiscites were held in October 1916 and December 1917 to test the public’s attitude towards Billy Hughes’ plan to introduce conscription during the first world war. Both failed.

The third plebiscite occurred in 1977, when voters were asked whether they wished to replace God Save the Queen as Australia’s national anthem. Important though it may have been, the change to Advance Australia Fair involved no question of civil rights or conscience.

Australian parliaments routinely legislate in respect of socially contentious issues without resorting to plebiscites or referenda. Conscription was introduced in 1942 for the remainder of the second world war. Compulsory national service operated during the Korean and Vietnam wars. None of these matters were expressly put to the people.

Women were given the vote, the death penalty abolished, homosexuality decriminalised, no-fault divorce introduced, the White Australia Policy reversed and detention centres for asylum seekers set up in the Pacific Islands – all without the mandate of a plebiscite or referendum. No case has been made as to why or how legalising same-sex marriage is qualitatively different.

It seems that some opponents of same-sex marriage were confident that, under Abbott, any popular vote could have been constructed in a manner calculated to maximise its prospects of failure.

Now, the arguments of some opponents bear a chilling similarity to those that were trotted out at the time of the decriminalisation of homosexuality more than two generations ago. What’s more, some conservative politicians say that if the plebiscite succeeds, they will not respect the people’s verdict on the floor of the parliament.

The proposal for a plebiscite was always an unnecessary and costly abrogation of parliament’s responsibility. Now that the damage the debate will do has been exposed, and the deal by which it came to be government policy repudiated, it should be revisited.

A plebiscite on same-sex marriage would be a failure of parliament’s responsibility
Matt Collins, Senior Fellow, Faculty of Law, University of Melbourne

This article was originally published on The Conversation. Read the original article.

Image: Australian Coat of Arms