A brief defence of the same-sex marriage plebiscite (or the next best option)

The late great Harvard Professor John Rawls famously said that a diversity of opinions on issues relating to morality, religion, and the human condition is a permanent feature of any free society. In other words, division, not uniformity, will characterise liberal democracies regarding many issues of morality.

One of Rawls’ other insights was that even though contradictory sides of a debate cannot both be correct in all respects, they can both still be reasonable to varying degrees. In other words, just because a person is wrong about something does not mean that that person’s viewpoint is stupid or wicked.

The same-sex marriage debate serves as a good example of Rawls’ point. After the issue of abortion, same-sex marriage has proven to be the most contentious and divisive issue of our times. Why? Simply because it is an intensely moral issue that is directly about people, rights, feelings, equality, freedoms, longstanding institutions, and religion. In other words, it has all the ingredients of an irresolvable dispute.

I am not suggesting that no side is right or wrong – I am on the side of the marriage traditionalists – but this is one of those issues that is particularly vexing: it is both intensely divisive and pregnant with contentious vague, and ambiguous moral concepts – equality, harm, family, and, of course, marriage.

The simple fact is that a volatile issue like same-sex marriage will never be resolved by dialogue and discussion. It is too complex and morally infused. Thus, neither side will feel entirely satisfied by any constitutional resolution, parliamentary or democratic.

But perhaps one mode of resolution will result in less bitterness on the losing side than the other.

Some argue that it should not be a matter of public debate at all because it is a question of simple rights, and rights should be recognised rather than debated. But this argument begs the very question under consideration: Is there a right for same-sex couples to be included in the legal definition of marriage?

Again, on this question there are reasonable responses on both sides. Same-sex marriage advocates say that they are second-class citizens as long as they are not afforded the same status as ‘married’ that heterosexual couples enjoy. They also say that the heteronormativity of the present Marriage Act is harmful to the well-being of gays. Advocates of traditional marriage like the Australian Christian Lobby and Marriage Alliance point out that ‘marriage’ involves ‘children’, and thus legislating in favour of applying the term ‘marriage’ to same-sex couples means that the government is celebrating an arrangement that permits the denial of a mother or a father to a child and also the denial of any knowledge of one’s maternal or paternal origins. They ask the advocates of same-sex marriage to extend their concern for rights more widely to include children raised in such households.

Maybe the fact is that neither side has a single knock-out argument, and all we are left with are arguments of varying reasonableness and persuasiveness that must be bundled together and then weighed up as a whole. No easy task, especially when emotions are high.

Something needs to cut through the dialogue and make the decision. That’s what constitutional proceduralism is for – not so much for passing laws that reflect a moral unanimity within the nation but to be the expression of a unanimity of opinion over how procedurally to resolve an interminably contentious discussion. We all agree on the prevailing constitutional democracy and its means of resolving national debates. We are all parliamentary democrats. Aren’t we?

At this point critics of a plebiscite will say that they agree and that they think a free vote in the parliament is the best way to resolve this issue. In most instances they would be absolutely right, but this issue is different, it is uniquely vexed and contentious. Recall that since 2004 there have been multiple attempts by MPs to have bills passed that would permit same-sex marriage. They have all failed.

What did advocates of same-sex marriage say in response? Did they accept the decision of their parliamentary representatives? Certainly not! They cried “Elites!” and then called for a referendum to get the right answer, that is, the people’s answer. Advocates of traditional marriage are now doing the same thing. Lesson: neither side is prepared to lose well if they lose as a result of a parliamentary vote.

This is why I think a plebiscite or even a binding referendum is a good idea. At the very least the losing side will not be able to cry foul at the result; or at the very least if they do cry foul they have only their fellow citizens to blame, but not politicians or “elites”. I admit that if the parliament were to pass a same-sex marriage bill then that would settle the issue politically permanently. It would never change. But at the grassroots level the result would be toxic and the decision would be much harder to accept, much like the supporters of same-sex marriage simply refused to accept it every time they lost in parliament.

It is for times like these that taking the path of direct democracy makes sense, when an issue is unusually contentious, divisive, and vexing, and when no side is prepared to lose graciously to a parliamentary vote.

As for the question as to whether the actual debate leading up to the vote will be harmful to children, frankly I don’t recall advocates of same-sex marriage caring two figs about this during the period when they thought the parliament was a hopeless avenue for change. Indeed, the abuse, intimidation, and vitriol has almost exclusively come from advocates of same-sex marriage, to the embarrassment of their more reasonable colleagues. When advocates for same-sex marriage talk about ‘bigoted’ and ‘hateful’ views they are generally referring simply to the case for marriage traditionalism. Now that is unreasonable.

Bring this directly to the people.