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The Conversation

  • Written by Graeme Orr, Professor of Law, The University of Queensland
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Australians should say “Yes” to the plebiscite on whether same-sex marriage should be legalised, in both senses. “Yes” to the simple question:

Should the law be changed to allow same-sex couples to marry?

And “Yes” to whether that question should be resolved by a direct vote of the electorate.

I’m surprised how many progressive folk are running a mile from the idea of a plebiscite. We don’t have to love a process or think it ideal to make the most of it.

This doesn’t mean we should embrace plebiscites or citizens’ referendums as a form of government into the future. Systemically, that would be flawed. But sometimes, when life gives you lemons, you make lemonade – sweet and sour though it will be.

Why ‘Yes’ to same-sex marriage?

For some years I wasn’t inclined to reforming the male-female basis of marriage. I held both conservative – and radical – ideas about it.

Conservative, in a concern the issue would spill over into claims that marriage then meant a “right” to children. Radical in that, following cues from queer friends, I saw the valorising of marriage as problematic.

But like millions around the world, years of deliberation have reminded me it’s pointless to question the valorising of marriage. It’s deeply socially embedded, and it’s a voluntary union. Nor is it the be-all-and-end-all of “family”. People marry post-child-bearing; people live in de-facto households.

Contrary to Liberal senator Cory Bernardi’s past claims there are no legal floodgates about to break. The marriage question is just the marriage question. The longer we put off resolving it, the longer we are stuck on a symbolic roundabout – a ride homophobes enjoy.

The process of this plebiscite

Now we have the ground rules for the plebiscite, we have all we need to know.

This isn’t like the UK’s “Brexit” vote. The “for” and “against” cases are well-known and long mulled over. And the pathway is now clear.

In times past, progressives would have leapt at the chance to take an issue like same-sex marriage to the people. To sway and affirm public opinion, but also to mobilise and recruit activists. Arguments against this plebiscite seem to come down to money and mistrust.

Money? Yes, it’s a big expenditure (estimated at A$170 million) on a giant albeit definitive opinion poll. But democracy isn’t about efficiency. Yes, public campaign funding isn’t needed, given how long-canvassed – and relatively well-defined – are the issues. But you can still make good lemonade from expensive lemons.

Mistrust? Will we be dragged into an ugly mire? That fear is overblown.

Pessimism is superficially understandable, given the tone of recent political campaigns. But that is party-politics. Pessimism assumes hate cannot be countered, a rather self-defeating position. Why aren’t progressives optimistic about the nous and decency of the bulk of our fellow citizens?

True, the Coalition government plumped for a plebiscite for internal reasons. But to Attorney-General George Brandis and Prime Minister Malcolm Turnbull’s credit, their bill is fair. The question is scrupulous. The bill requires compulsory voting, yet makes it clear informal voting is allowed and won’t affect the definition of “majority” approval.

‘Political constitutionalism’

After years of deliberation, and with opinion polls showing clear and stable majorities in favour of same-sex marriage, why can’t we rely on old-fashioned representative government to resolve this issue?

After all, that’s our tradition. Australia’s “political constitution” was designed to give parliaments as much leeway as possible. Processes where hot-button issues are likely to be decided via quiet reflection by nine old lawyers in robes, or via noisy, state-by-state “citizen-initiated” referendums, are not for Australians either.

Australia has no bill of rights to restrict parliament’s power and send contentious issues to the High Court. And it has no means for citizens (or lobby groups) to draft laws, collect signatures, and force referendums. Both of these approaches were known to Australia’s constitutional founders – and both were consciously rejected.

Representative government is meant to balance democratic instincts with informed, rational debate in cabinet and parliament. Yet paradoxically, it sometimes fails the “democratic” test.

Politicians don’t always follow majority opinion because electoral incentives make them fear vocal minorities likely to change their vote on an issue. That is why same-sex marriage, or for that matter decriminalising abortion, lags decades behind majority opinion.

This is not to argue we should embrace plebiscites willy-nilly. In 2009 I visited UCLA. Helicopters were patrolling student demonstrations against big fee rises, and academics were on four days' pay for a full working week. The best public education system in the world had become imperilled, in large part because citizens had helped bankrupt government by pushing referendums for lower taxes and better services.

Representative government, at its best, is holistic. But occasionally there is an issue that it fails to resolve, and which is simple and discreet enough that a plebiscite is a second-best way through the impasse. Same-sex marriage fits that bill.

Yesterday my local bike vendor quipped:

I’m not voting in a plebiscite, I’m not a pleb!

Latin lives, it seems. The Romans knew a bit about republican government. We are all plebs. However imperfect, let’s embrace this plebiscite.

Authors: Graeme Orr, Professor of Law, The University of Queensland

Read more http://theconversation.com/why-australians-should-say-yes-to-the-same-sex-marriage-plebiscite-65461

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