Marriage equality supporters' hope for a free conscience vote

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My preferred position has always been that all members of parliament be given a free conscience vote on any bill amending the Marriage Act to include same sex marriage.

Map of Australia on rainbow flagAt the June 2015 conference, the Labor Party decided to maintain a free conscience vote during the life of the last 44th parliament and during the life of this 45th parliament. But it then decided that in the next 46th parliament, Labor members would be bound to vote in favour of same sex marriage.

This move had two political effects. First, it removed the pressure on Prime Minister Tony Abbott to allow a free conscience vote on his side. Second, it provided opponents of same sex marriage on the government side with the encouragement to design strategies to put in place an alternative to a free conscience vote in the parliament.

Thus was born the idea of a national plebiscite and a formal requirement in the Coalition agreement that a plebiscite be held. Malcolm Turnbull was elected to the leadership of the Liberal Party but on the condition that he honour the commitment to the plebiscite. That's why it was placed in the Coalition agreement at the time of Turnbull's accession to the Liberal Party leadership.

Those who want the government to revise its policy and allow a free conscience vote now need to take this history into account. They also need to consider just how locked in is Turnbull and his government.

The Governor-General Sir Peter Cosgrove in his formal speech for the opening of the 45th parliament announced on 30 August 2016: 'A decision on the same-sex marriage plebiscite will be made by all Australians via that plebiscite as soon as practical. My government will ask Australians to make a decision as a nation and then to respect the outcome.'

Introducing the Plebiscite (Same Sex) Marriage Bill on 14 September, Turnbull told the House: 'I remind the House, the parliament, that Australians expect this issue to be resolved in the manner they endorsed at the election. We took this to the election and we won the election. There was no doubt about our policy. There was no doubt about our platform.

'This was prominently debated every day of the election campaign. Every Australian who took any interest in the election knew that that was our policy. We have a mandate for it, and the opposition should respect it.'

 

"My own hunch, for what little it is worth, is that the hurt and insult would have been no more than what will continue over the next couple of years while the matter remains needlessly unresolved."

 

If the Senate now rejects the Plebiscite Bill, Turnbull could present it a second time for consideration by the Senate. This could be done any time up until 1 December 2016 when the parliament adjourns for the long Christmas break and the country checks out for Christmas and the summer. Parliament does not then resume until the first week of February, just before the government was wanting to schedule the plebiscite. Should the Senate reject the bill twice, the government could store the bill as a double dissolution trigger.

Given the government's fragile hold on a majority in the House of Representatives, Turnbull could not risk abandoning the commitment to the plebiscite during the life of this parliament. Should he be replaced as prime minister, it is just as likely that his replacement would be even more committed to maintaining the election pledge to honour the plebiscite during the life of this parliament. There is absolutely no prospect that he would be replaced by someone with less commitment to a plebiscite.

So the only way to reverse the commitment to a plebiscite would be for the Liberal and National Party rooms separately to abandon it. One political cost of this would be for them to labelled in much the same way as was Julia Gillard over the carbon tax and Mike Baird over the greyhounds. They would need to be approached by a broad cross-section of the community, including those strongly opposed to same sex marriage.

The most same sex marriage advocates can now hope for is that the Coalition goes into the next election with a commitment to a free conscience vote just at the time that Labor will be taking it away. When the dust settles next year, maybe LGBTI advocates will see the wisdom in trying to convince the Labor party to reinstitute a free conscience vote on its side if only to force the Coalition to do the same. That way the parliament a few years down the track might be able to do what the LGBTI advocates want them to do now.

If it were my call, I would have opted for the plebiscite in February with prompt parliamentary legislation to follow. But it's not my call. To those of my fellow citizens who feared they would suffer hurt and insult during a plebiscite campaign over the Australian summer while most of the media were at the beach, I say: I hope your political advocates are right. My own hunch, for what little it is worth, is that the hurt and insult would have been no more than what will continue over the next couple of years while the matter remains needlessly unresolved.

In so far as anything is certain in politics, there are three relative certainties. Until the next election, there will be no free conscience vote in parliament about same sex marriage unless there has first been a plebiscite. After the next election, there will be no free conscience vote in parliament about same sex marriage unless the Labor Party amends its platform. After the next election, there will be no successful vote for same sex marriage without a free conscience vote unless Labor has won the election.

 


Frank BrennanFrank Brennan SJ is professor of law at Australian Catholic University. This article was first published in The Australian on 14 October 2016.

Topic tags: Frank Brennan, plebiscite, same sex marriage, marriage equality


 

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Before 2004, it was accepted by Australians (including homosexuals) that marriage is exclusively for heterosexuals which is why no homosexuals ever tried to get married since…..well, ever. The plebiscite idea (which has been blocked by the ALP/Greens/NXT against the will of the people at the last federal election) was simply determining if indeed there is a majority of people who support same sex marriage in a legal sense and it also would have brought the public along with the whole new marriage concept - I don’t think there is majority support and to put to bed the whole “polls show 70% support" talk, lets have a poll of everyone to actually know what support there is. I genuinely want to know, electorate by electorate and booth by booth, what support there is (or lack thereof) for same sex marriage. I think that another name to describe the same sex union is a good solution, because the same sex marriage push is only a “label” that is recognised by the government (as if that is going to make homosexuality credible and acceptable - which it won’t in the eyes of the public).
Neil Aitchison | 16 October 2016


With respect, it isn't for you or anyone else to dictate the terms on which the majority will condescend to grant conditional equality to LGBTI people. We were offered a bad deal, and we rejected it. The plebiscite was a mechanism to delay, not speed, equality. If you want to be helpful your job now is to work with us to make marriage equality a reality by Christmas. Otherwise, please stay out of what is really none of your business.
Doug Pollard | 17 October 2016


Same-sex marriage (marriage equality); Safe Schools and Respectful Relationships education program: Beautiful titles. But does anyone notice a pattern here? The thing that really concerns me is that the underlying dogma of all three is that we in the West have been under the socially destructive influence of male dominance and the gender stereotyping of hetero-normativity. We have been 'socialised' into thinking these ways. So, what is needed is a new ideology which will replace the historical one/s. But it's the same process; just different people wanting the power to socialise society and its children. These are all from just another ideology and those preaching it are every bit as evangelical as those they oppose. Where is the rationality in all these brave new world social engineering schemes which are beginning to reach fruition after the decades long march into all institutions? True science, both biological and social, requires very vigorous testing of theories to the point as, Carl Popper taught, that one must try to disprove one's theory rather than try to prove it - the later opens the 'theorists' to bias and blinkered thinking. Thing is, anyone who tries to question the new 'enlightments' of gender theory, are labelled (and therefore, dehumanised just that little bit more so as to allow for a sense of justification that people with such 'unenlightened, old-fashioned, homophobic' are stereotypically 'othered', and then the popular media joins in so most of the public then feel they must obey (the media). No science here at all, just feelings and theories based on anger and unresolved trauma, or just feelings, at best.
Ed | 17 October 2016


The initials LGBTI are all the correct word for each category except "G" for gay referring to homosexual males. Why this euphemism while the rest of the LGBTI community use the correct description? It's a fascinating conundrum and interesting to extrapolate. As for marriage equality, no marriage is ever equal, just ask your married friends, it's different and that's ok, in fact probably why a good marriage works.
Jane | 17 October 2016


We’re not talking science here, we are discussing amending a piece of legislation that was amended a decade ago without any need to run a costly, unnecessary and potentially divisive plebiscite. Parliaments enact and amend legislation without plebiscites on a regular basis. It’s why we elect them. Frank may be right in saying the Libs are locked into the plebiscite, although you could argue that Turnbull honoured his election commitment by introducing the legislation into Parliament. If the Senate knocks it back as expected, there is simply not enough support in Parliament for the plebiscite. Fair-minded people in the Government could look for an alternative without waiting three years when the same negative politicians will probably still be there. Marriage is not science, it is a social institution legally recognising the special relationship between two people. Currently it is limited to a man and a woman. All Marriage Equality seeks to do is broaden that definition to two people. Relationships are not scientific; they are based on emotions and feelings and wanting to be with someone. We call it love and it is special. I can’t see how society or anyone gains by not letting it be recognised.
Brett | 17 October 2016


Elections are fought from platforms loaded with competing policies. Turnbull's claim that the Coalition policy for a plebiscite was endorsed by the electorate because the Coalition just squeezed back into power is implies that the plebiscite issue was front and centre during the campaign. It clearly was not.
Mike Foale | 17 October 2016


Doug, I am not trying ‘to dictate the terms on which the majority will condescend’ to do anything. I am simply investigating the political imperatives of the day. If I have made a wrong political analysis, I would be pleased to learn it. I’m one of those citizens who just happens to think that it is time to get this issue done and dusted as quickly as possible. It’s gone on too long. I think the only short, guaranteed route is via a plebiscite held on 11 February with a parliamentary vote held a week or so later. I respect those who think a plebiscite campaign over the Christmas summer period could be hurtful. I just can’t see how it could be assuredly less hurtful than leaving this matter unresolved for another 3 years. But as I say, it’s not my call. I do think telling a fellow citizen that the matter at hand is really none of their business is a bit rich.
Frank Brennan SJ | 17 October 2016


Brett, you haven't heard of social science? Yes, a much messier form of science but one which still requires great rigour and empirical evidence from BOTH sides of the theory agenda. This is all about theory, agendas and definitions which yes, does include human emotions and relationships. Marriage can easily be seen as an historical and evolutionary theory based on the science of procreation. Also, the insinuation that those for same sex marriage are 'fair minded' and those who believe that marriage, as a legal definition should remain between a man and a woman are 'negative' people, just doesn't cut it. Also, legislation cannot be based solely on feelings no matter how precious. As well, there are and have been very bad laws enacted in history - talking legislation just isn't enough on its own. I believe wholeheartedly in a plebescite and cannot understand what the lgbtiq communities are so afraid of. It will clear the air once and for all and sooner rather than later during which there will be even more 'pain' felt by those in such a position. It's not as if they aren't getting the support as well as the prejudice already. Are they simply afraid that the vote may be a 'no'? Most of my gay friends don't believe in same sex marriage and just see it as a way of 'normalising' gay people, an idea they really hate. And Frank, totally agree with your last post. Also, I wanted to commend you on your input in the lat Q&A.
Ed | 17 October 2016


Ed, you try to build a scientific basis for opposing Marriage Equality but it has feet of clay. The “science of procreation” is not vital for marriage, or there would be no marriages for people who could not have or do not want children. This is not about legislation based on feelings or emotions. It is about legislation based on equality that recognises the diversity of personal relationships. You and I don’t get to decide if a heterosexual couple can marry and I’m personally glad people can marry without being condemned by public opinion, as many mixed race couples were in the past. There was no plebiscite to establish the Marriage Act or when John Howard amended it in 2004. Governments got on and did what they were elected to do. The only reason for the plebiscite now is to try to kill off Marriage Equality. That’s where the theories and agendas and being precious and negative really come into it. Talk about “democracy” in this case is just a crock for opposition. If “most of your gay friends” really don’t want Marriage Equality, well the good news is it won’t be compulsory. They and you can continue to live your lives without being touched by Marriage Equality, but there are people who do want it. As I said before, I can’t see how society or anyone gains by not letting it be recognised.
Brett | 17 October 2016


Frank, you have more confidence in those opposed to marriage equality than I. What if the plebiscite does stoke up the homophobic worst, a situation that could lead to both defeat and ongoing divisiveness in the community. I went to a Catholic 'information' evening attended by leading lights from Church and conservative politics, where one questioner expressed concern that marriage equality would lead to bestiality and he was nicely asked not to go there because Corey Bernardi had got into trouble for saying things like that! The nonsense and homophobia of the question was not even raised and there was clearly no understanding of the concept of Christian love for LGBTI. If Malcolm Turnbull is fair dinkum about his support for marriage equality and he can't get up the non-binding unnecessary plebiscite (which the polls show is opposed by a solid majority), it would be reasonable and consistent with the policy he took to the election to simply let the Parliament vote. It is clear that a refusal to let the Parliament vote in these circumstances is pandering to those opposed to this initiative of justice who will continue to pull Turnbull's strings if he doesn't stand up to them.
Peter Johnstone | 17 October 2016


Frank. It is difficult to disagree with your conclusions your that there will be no free conscience vote after the next election unless Labor alters its positionaand /or wins the election. Maybe we should have a plebiscite to determine whether we should have a plebiscite. Further, the actual question that a plebiscite on this question would ask needs to be put out for commentary and public debate soon: it cannot be as simple as "do you support same sex marriage?"
Jim | 17 October 2016


Lucidly argued, Frank! An associated question, worthy, I think, of another article by you, is what might be done to safeguard the 'monition' clause that is pronounced by every celebrant before all couples presenting themselves for marriage. I suspect that while such a clause will not satisfy everybody, safeguarding it would go a long way towards alleviating some of the concerns of many persons, married or otherwise, that any proposed alteration of the Marriage Act will not be used to undermine its current intent, which is that marriage is to be regarded as permanent as well as exclusive. And, yes; as expected and prayed for, your contribution to Q&A was a God-send!
Michael Furtado | 17 October 2016


This plebiscite was never intended to ascertain the views of the electorate: it is, and was from the start, nothing more than an attempt to kick the can along without actually doing anything about it. But even if it was a genuine attempt at 'direct democracy' it presents a dangerous precedent in that it promote the idea that plebiscites should be used more often. Ours is a 'representative democracy' and deliberately so. The only matters reserved for 'direct democracy' are the election of our representatives and the amendment of our Constitution. All other questions should be determined by our elected representatives whose duty it is to craft solutions to complex problems (the budget for example) and to protect the rights of minorities from the tyranny of the majority. Direct democracy can't do that. Imagine subjecting each line of the budget, or questions of religious dress or practices, to a plebiscite. Unworkable confusion in the former case, discrimination and persecution in the latter.
Ginger Meggs | 18 October 2016


Jane, I don't find the term "homosexual" correct either, because my identity and sense of self is greater than simply presumed a sexual activity. Peter Tatchell has argued that the term gay is merely a cultural expression which reflects the current status of homosexuality within a given society, and claiming Queer, gay, homosexual ... in the long view, they are all just temporary identities. One day, we will not need any terms at all when human rights are respected and equality is reached. (and the the equality you seem to be referring to which struck me as rather frivolous given this is a sensitive issue.) And Frank - I'm happy stalemate to drag on for years.... because there's nothing more to debate, no campaigns needed, no need for any more pronouncements from bishops etc. Australians are tired of this debate, and we didn't give the Coalition a mandate to hold this plebiscite at the election.,,,,, because the MPs voters gave seats to (ie Labor/Greens/etc) obviously cancelled that mandate,
AURELIUS | 18 October 2016


Aurelius, you have defined a paralysed polity:'- I'm happy stalemate to drag on for years.... because there's nothing more to debate, no campaigns needed'. Unlike you, I cannot accept or be happy at the prospect of living in such a polity. I will maintain my efforts to have this matter resolved consistent with the laws of politics.
Frank Brennan SJ | 18 October 2016


"My preferred position has always been that all members of parliament be given a free conscience vote on any bill amending the Marriage Act to include same sex marriage." Why? Why should 226 people know any better than the free consciences of a 15 million person-plus electorate as to what a ‘marriage’ should be? Why should a portion of the 226 know any better than the free consciences of a 15 million person-plus electorate that life does not begin at conception? When it comes to working out the implications of what a human being is, what makes a temporary legislature omniscient?
Roy Chen Yee | 19 October 2016


The comments so far speak of LGBTI as if they are a homogenous group all calling for the change in definition of marriage and they are not but those who speak out are threatened such as when Dolce and Gabbana were sanctioned by Elton John. When a bark petition in support of the current definition was taken to parliament in 2015 it wasn’t reported of in the mainstream media. True reckoning of the Irish result – a minority of 39% of all voters despite poll after poll showing majority support is not brought up. If our politicians are called on to make a free conscience vote but are harnessed by efforts to silence those who oppose whether on anthropological, philosophical or scientific grounds the change then what informs their conscience? A media which has largely been running a de facto YES campaign? Or lobby groups presenting ‘poll’ results which we know are flawed depending on sample size, location and question asked or not asked? Further, we are all affected including future generations as changing what marriage is, is a fundamental shift bringing with it a host of other changes but will the question be discussed to sufficient depth in Parliament?
Gordana Martinovich | 19 October 2016


'Why should 226 people know any better than the free consciences of a 15 million person-plus electorate...?' That's an argument for direct democracy which I've already answered, Roy. And if you're waiting for 'omniscience' before making any decision, you'll be waiting a long time. In fact the thought of an 'omniscient legislature' is enough to put the fear of God into me. As to 'what a marriage should be', marriage is a social and cultural construction that reflects and serves the needs of society. It was not handed down from a cloud-covered mountain engraved in stone. It can vary over time and between cultures and it's time our current customs were reflected in our current laws.
Ginger Meggs | 20 October 2016


"The only matters reserved for 'direct democracy' are the election of our representatives and the amendment of our Constitution." Have you heard of the conscription referenda of 1916 and 1917? "All other questions should be determined by our elected representatives whose duty it is to craft solutions to complex problems...." And so the elected reps did, in 2004. "marriage is a social and cultural construction that reflects and serves the needs of society. It was not handed down from a cloud-covered mountain engraved in stone. It can vary over time and between cultures" But what are the matters reserved to 'direct democracy' was handed down in stone from your iPad? " to protect the rights of minorities from the tyranny of the majority" What about protecting the rights of the majority from the tyranny of minorities?
Roy Chen Yee | 20 October 2016


Anyone who attempts to contract a marriage and at the same time has the intention not to have any children does not actually get married. The intention to have no childen makes a marriage invalid. If a couple is infertile but has the general intention to have children, and would have them if some natural impediment to procreation was removed by medicine, then that marriage is valid.
Mike | 21 October 2016


Roy, the so-called 'referenda' of 1916 and 1917 were simply non-binding plebiscites put forward by a PM who wanted to protect his backside should he decide to introduce conscription. He didn't need a referendum to conscript. Conscription has been introduced several times since then without a plebiscite'And so the elected reps did, in 2004' without a plebiscite and so they should do again in 2016 without a plebiscite. If I understand your last two sentences correctly, in our system the rights of the majority are threatened only when a minority (think the coalition's hard right or Labor's trade union faction or Black Jack McEwan's Country Party) takes over the majority party or coalition and enforces its will on the majority of the population. Mike, we're talking about civil marriage, not 'Holy Matrimony'. There is no requirement in the Marriage Act for an intention to procreate, nor should there be. How would you propose to enforce such a condition?
Ginger Meggs | 21 October 2016


Mike, I’m not sure if you are tongue-in-cheek and I’ve simply missed the irony, but I’ll bite anyway. My wife and I, both mature aged adults, were married in a Christian ceremony nearly twelve years ago. Second marriages for both and we each have adult children. Procreation was never an option for us either physically or as a “general intention”; we married because we love each other and want to be together. We are however highly active grandparents with a total of eight grandkids ranging in age from two to 25 and in the next few years we are likely to become great-grandparents. But by your definition we are not actually married. Therefore by your definition we are “living in sin”. Care to comment, because in both civil and Christian terms I would say we really are married and I am greatly relieved that you do not define what a marriage is.
Brett | 21 October 2016


"Roy, the so-called 'referenda' of 1916 and 1917 were simply non-binding plebiscites put forward by a PM who wanted to protect his backside should he decide to introduce conscription. He didn't need a referendum to conscript. Conscription has been introduced several times since then without a plebiscite'" Doesn’t it then become obvious that to say "The only matters reserved for 'direct democracy' are the election of our representatives and the amendment of our Constitution" is incorrect? The Constitution doesn't forbid plebiscites and doesn't tell us what direct democracy is and Billy Hughes wasn’t acting illegally. This is merely a debate over whether an issue is important enough to be considered directly by the people. You obviously don't think packing civilians off to their probable deaths warrants a plebiscite. The LCP coalition in the 1960s didn't. The parliament and people in 1916 and 1917 did. Should conscription come up today, there may well be people who say it should be decided by plebiscite. But since you think the Parliament should take care of all important issues, they did, in 2004, according to your way of thinking. Why, then, raise it again? It's been done and dusted by the Parliament itself.
Roy Chen Yee | 24 October 2016


Helpful analysis. It seems to me that justice will be served only by a free conscience vote in Parliament, if not a plebiscite. Marriage has become so distorted now that Equality of Marriage is a matter of time. Already we are plagued in social media with LGBTIP and schools have little option in the new year.
Mary | 26 October 2016


With Equality of Marriage and LGBTIP we'll all need therapists to talk is into new social issues or be dammed as outsiders.
Mary | 26 October 2016


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