Same-sex mar­riage win­ners must gov­ern for all

Aus­tralia’s gay mar­riage sup­port­ers need to ex­tend tol­er­ance to peo­ple who voted ‘‘no’’ writes Univer­sity of Syd­ney law pro­fes­sor Pa­trick Parkinson.

The Press - - Operspective -

It is not uncommon after a bit­terly con­tested elec­tion, for the vic­to­ri­ous can­di­date to an­nounce that he will gov­ern in the in­ter­ests of the na­tion as a whole, in­clud­ing those who did not vote for him or her. It is typ­i­cally in­tended as a sooth­ing message to the coun­try.

In the af­ter­math of a bit­terly di­vi­sive cam­paign con­cern­ing same-sex mar­riage, Aus­tralia now needs the kind of lead­er­ship that de­liv­ers on those all­too-of­ten empty prom­ises.

The two cam­paigns have been very dif­fer­ent. Fun­da­men­tally, the task of the ‘‘yes’’ cam­paign was to get out the vote (and ex­plain to young peo­ple what a post­box looks like). The task of the ‘‘no’’ cam­paign was to change a lot of peo­ple’s minds. Some of those ef­forts might be re­garded as disin­gen­u­ous; for ex­am­ple the at­tempt to link same-sex mar­riage with the rad­i­cal ac­tivists pro­mot­ing un­sci­en­tific ideas about gen­der flu­id­ity.

How­ever, other con­cerns are much more sub­stan­tial. In many coun­tries of the world where same-sex mar­riage has been de­bated, there has been dis­crim­i­na­tion against those who have ex­pressed tra­di­tional views – for no other rea­son than that they ex­pressed an opin­ion.

Con­sider, for ex­am­ple, the case of Adrian Smith from Manch­ester in Eng­land. In 2011, he placed on his Face­book page a comment that he did not think that churches should be com­pelled to marry same-sex cou­ples, al­though he did not ob­ject to same-sex mar­riage. His was hardly a rad­i­cal view. It is ac­cepted on all sides in Aus­tralia. Yet he was ac­cused by his em­ployer, a hous­ing as­so­ci­a­tion, of ‘‘gross mis­con­duct’’ and threat­ened with dis­missal. Be­cause of his long ser­vice, he was only de­moted; but he lost 40 per cent of his salary. There have been ex­am­ples in Aus­tralia of sim­i­lar reper­cus­sions against peo­ple for ex­press­ing their views.

What is re­mark­able about this hos­til­ity to­wards those who hold tra­di­tional views is that both sides of pol­i­tics in Aus­tralia held those views as re­cently as seven years ago. Back then, it was the of­fi­cial pol­icy of both La­bor and the Coali­tion to op­pose same-sex mar­riage.

Many peo­ple who hold tra­di­tional be­liefs and values are wor­ried by the ha­tred ex­pressed to­wards those who ex­press opin­ions that a gen­er­a­tion or two ago were al­most uni­ver­sally held. They worry that free­dom of speech and be­lief are so lit­tle pro­tected. In­deed, an­tidis­crim­i­na­tion laws have be­come weapons of ‘‘law­fare’’ against peo­ple who hold re­li­gious be­liefs about mar­riage. When the Arch­bishop of Ho­bart is dragged through a dis­crim­i­na­tion com­plaints process to de­fend a book­let on mar­riage put out by the Aus­tralian Catholic Bish­ops Con­fer­ence, you know that the rights and free­doms for which Australians have fought and died, are now un­der threat from within.

Ex­pe­ri­ence over­seas, in­clud­ing in Canada, Eng­land and New Zealand, does not pro­vide any re­as­sur­ance that fun­da­men­tal hu­man rights to hold dis­sentient views about mar­riage will be pro­tected.

A lot of the con­cerns peo­ple have are not even about same-sex mar­riage it­self. They worry about the rapid sec­u­lar­i­sa­tion of so­ci­ety and the shift away from Ju­daeo-Chris­tian values. The re­def­i­ni­tion of mar­riage is the most vis­i­ble sym­bol of this. Peo­ple worry about agen­das to re­move re­li­gious free­dom pro­vi­sions in an­tidis­crim­i­na­tion statutes that have long pro­vided a bal­ance be­tween com­pet­ing hu­man rights.

So what is to be done after yes­ter­day’s an­nounce­ment of the out­come of the sur­vey? Some­how, the Coali­tion needs to agree on a pri­vate mem­ber’s bill that will give ef­fect to the out­come. That is eas­ier said than done. Dean Smith and some col­leagues in the Lib­eral party have worked out a Bill that seeks to ‘‘al­low equal ac­cess to mar­riage while pro­tect­ing re­li­gious free­dom’’. It was cir­cu­lated to MPs in Au­gust. The ef­fect of it is that cel­e­brants will not be com­pelled to solem­nise mar­riages against their be­liefs. For the most part, re­li­gious bod­ies will not be com­pelled to al­low their build­ings to be used to solem­nise same-sex mar­riages. La­bor sup­ports this bill.

How­ever, it does not go far enough. The postal sur­vey de­bates have thrown up wider con­cerns about free­dom of speech and be­lief in re­la­tion to mar­riage. If equal­ity is to be en­sured, there is a need for pro­tec­tion from dis­crim­i­na­tion for peo­ple who hold tra­di­tional be­liefs. Free­dom of speech about mar­riage needs to be reaf­firmed.

That means, for the lead­ers of the ‘‘yes’’ case, a will­ing­ness to be mag­nan­i­mous in vic­tory and to re­as­sure those who are un­set­tled by the pace of so­cial change, that their fun­da­men­tal rights and free­doms will be re­spected. It also re­quires those on the ‘‘no’’ side to be gra­cious in de­feat and to ac­knowl­edge that a bill en­act­ing same-sex mar­riage should be passed be­fore Christ­mas.

Find­ing the way for­ward will re­quire na­tion-heal­ing lead­er­ship, first from those in the LBGT com­mu­nity who have led the cam­paign for mar­riage equal­ity; se­condly, from mem­bers of Par­lia­ment who will need to find com­mon ground across the po­lit­i­cal di­vide. Both La­bor and the Coali­tion have their vul­ner­a­bil­i­ties in outer-sub­ur­ban and ru­ral con­stituen­cies given the ex­pected size of the ‘‘no’’ vote. All par­ties have po­lit­i­cal in­cen­tives to ne­go­ti­ate so­lu­tions to the is­sues about free­dom of speech, re­li­gion and con­science that have arisen in this de­bate.

The ques­tion is whether they can rise above their dif­fer­ences to gov­ern for all Australians, in­clud­ing those who haven’t voted for same-sex mar­riage, and nav­i­gate through Par­lia­ment leg­is­la­tion that will equally pro­tect the hu­man rights of all.


Fun­da­men­tally, the task of the ‘‘yes’’ cam­paign was to get out the vote (and ex­plain to young peo­ple what a post­box looks like).

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