Same sex marriage

Policy analysis by Professor Dianne Otto, Francine V McNiff Chair in Human Rights Law, Melbourne Law School

THE COALITION PROMISES TO:

  • Hold a plebiscite, which is purely advisory and carries no legal force, to determine the level of public support for marriage equality
  • Introduce legislation to recognise marriage equality, if the plebiscite shows more than 50% support for it
  • Allow Coalition MPs a conscience (free) vote on the legislation, so they will not be bound by the outcome of the plebiscite

LABOR PROMISES TO:

  • Introduce legislation within 100 days of the election that will recognise marriage equality
  • Allow MPs a free (conscience) vote on the legislation in the next term of government, and thereafter a binding vote supporting marriage equality

THE GREENS PROMISE TO:

  • Support marriage equality legislation
  • Continue to argue against holding a plebiscite and in favour of MPs being allowed a free (conscience) vote on marriage equality legislation

How did we get here?

The decision to hold a popular plebiscite on same-sex marriage was made by the Coalition in 2015, under the leadership of former Prime Minister Tony Abbott. At that time, the idea of the plebiscite offered some hope to increasingly insistent same-sex marriage advocates, while also satisfying conservative Coalition MPs who staunchly opposed same-sex marriage (including Abbott). 

Not only was the plebiscite a means to delay the introduction of legislation that would give same-sex couples the same right to marry as different-sex couples, many in the Coalition Party Room hoped it would stymie any reform of the Marriage Act, which clearly states that marriage is between a man and a woman, thanks to an amendment adopted in 2004 when John Howard was Prime Minister. 

While Prime Minister Malcolm Turnbull has publicly expressed his personal support for the recognition of same sex marriage, he has taken the view that he is bound by the earlier decision to hold the plebiscite, and if the Coalition is re-elected, has promised to do so before the end of this year. He has made it clear that the results of the plebiscite will not bind Coalition members in their vote on the legislation.

While Labor now clearly supports the introduction of legislation that legalises same-sex marriage, and opposes the holding of a plebiscite, it has only relatively recently arrived at this view. The previous Labor Prime Minister Julia Gillard voted against the adoption of a Bill for marriage equality in 2012 (introduced by the Greens Adam Bandt and Independent Andrew Wilkie), although she has since changed her mind. The ALP National Conference decided in 2015 that Labor would introduce marriage equality legislation, but that Labor MPs would be allowed a conscience vote during the present and next term of Parliament. Only then, if marriage equality has still not been achieved, will Labor MPs be required to vote in favour.

The Greens have strongly supported marriage equality for many years, as a measure to counter discrimination against lesbians, gay men, bisexuals, transgendered and intersex people, their communities and families. They are set to continue their advocacy until this result is achieved.

Why a Plebiscite?

There is no legal reason to hold a plebiscite on the issue of marriage equality. It is clear that the Federal Parliament has the power, under the Australian Constitution, to define marriage in the Marriage Act to include same sex marriage. There is also no reason to hold a plebiscite because the community is evenly divided on the issue. Opinion polls have consistently found that over 70% of the population support marriage equality. Finally, there is no ‘democratic deficit’ that would justify holding a plebiscite as the Constitution provides for representative government, where we vote for parliamentarians to represent us in making laws across a very wide spectrum of issues, including laws about marriage. The Constitution only requires a direct vote of the Australian people in a referendum when constitutional change is proposed, and this is not the case with marriage equality.

So the reasons for holding a plebiscite are, at best, not clear. At worst, it is feared a plebiscite will provide a divisive and hateful platform for those who oppose same-sex marriage to popularise their views.

A great deal of concern has been expressed about the damaging effects of holding a plebiscite. The Australian Psychological Society is opposed to a plebiscite because ‘a public vote is likely to present significant risks to the psychological health and well-being of those most affected’. A group of religious leaders have warned that ‘a volatile, public and politically-charged debate could both distance leaders from lay people, marginalise faith communities from broader society and alienate LGBTI individuals within religious communities’. And just last week, in delivering the annual Lionel Murphy Memorial Lecture, Senator Penny Wong cautioned that a plebiscite would ‘license hate speech’.

From a human rights perspective, the issue of marriage equality should not be determined by majority opinion, although you would hope a majority would support it. It is for Parliament to adopt laws that recognise, protect and promote equality and diversity in our community, including ensuring that the right to marry is available to all consenting adult couples. As Judge Albi Sachs said in the South African same-sex marriage case (Fourie 2006),

The antiquity of the prejudice is no reason for its survival. Slavery lasted for a century and a half in this country, colonialism for twice as long, the prohibition of interracial marriages for even longer, and overt male domination for millennia. All were based on apparently self-evident biological and social facts; all were once sanctioned by religion and imposed by law…

Similarly in Australia, the fact that civil marriage has long been practiced and understood as a heterosexual institution is no justification for its continuation, once its discriminatory and prejudicial effects have become clear. The Australian Parliament has an obligation to rectify this situation, not only because a substantial majority of Australians support the recognition of same-sex marriage, but more importantly because it is a matter of equality and freedom.