Turnbull is on the winning side on marriage equality, but his troubles are far from over

At last this interminable, expensive, unnecessary, discriminatory, divisive and demeaning postal “vote” survey on marriage equality is over, with 61.6% voting in favour.

Unnecessary because, unlike in the case of the Irish referendum, there was no constitutional need for a popular vote on the issue.

Furthermore, it has merely confirmed what ten years of opinion polls have already told us – that the majority of Australians support same-sex marriage.

Discriminatory, because why were same-sex couples singled out for a political decision-making process that no other equivalent group in this country has had to endure?

Divisive because the public passions it aroused caused some bad behaviour on both sides and split families, friends, religious congregations and workplaces.

Demeaning because the whole country was given a say on whether gays and lesbians could ask their partners the most intimate and intensely personal question of all: “Will you marry me”?

Above all, it was a deeply hurtful process. Respectful “no” voters were hurt by accusations of bigotry that were sometimes made too indiscriminately. Nonetheless, gays and lesbians, who have long been discriminated against in Australian society, were subjected to particularly nasty homophobic abuse.

Vulnerable children in same-sex families encountered “no” campaign messages suggesting there was something inherently wrong with their own families; while transgender children were implicitly constructed as the bogeys that all parents should be worried their kids would turn into if same-sex marriage laws passed.

Read more: Grattan on Friday: Same-sex marriage ballot captures attention of a public alienated from politicians

Predictably, this was not the respectful debate that Malcolm Turnbull promised. So, Labor, the Greens and crossbench opponents will be able to claim vindication for their opposition to the original plebiscite proposal.

They will continue to depict Turnbull as a weak leader who originally opposed an unnecessary popular vote himself then buckled to the social conservatives in the Coalition.

Furthermore, the postal vote hasn’t really resolved the issue for Turnbull. It has merely allowed him to proceed to a conscience vote that Liberal Party members would once have expected automatically on issues such as marriage and gay law reform, albeit with even greater reason for voting “yes”.

Indeed, moderate Liberals, exercising their conscience votes, played a proud role historically in supporting issues such as the decriminalisation of homosexuality.

So why didn’t that happen automatically in this case? A conscience vote was ruled out when the Howard government decided to use the same-sex marriage issue to try to wedge off socially conservative voters from Labor. The wedge didn’t really work because a fearful Labor initially voted with Howard to ban same-sex marriage.

Nonetheless, in the process, opposing same-sex marriage became a major Liberal policy and was used symbolically to signal support for a range of other socially conservative positions, including more traditional gender roles.

Subsequently, then-prime minister Tony Abbott hoped that proposing a plebiscite on same-sex marriage would electorally wedge Labor and that same-sex marriage could be either defeated, in a 1999 republic-like turnaround or at least substantially delayed.

Only the delay has been achieved, with Australia lagging far behind other equivalent countries. However, the postal vote has allowed social conservatives to mount a highly contentious “religious freedom” case for allowing forms of discrimination against same-sex couples who marry.

Polls suggest their message may have cut through to many voters, even though other polls still show a majority disagreeing.

So what now? Moderate Liberals such as Simon Birmingham have suggested that the obvious starting point for same-sex marriage legislation would be the Dean Smith bill.

That bill, like previous bills put forward by “yes” supporters, supports civil same-sex marriage but protects the right of religious organisations to decide whom they will marry.

However, it goes further in terms of protections for existing marriage celebrants and armed forces clerics. It also reaffirms the existing right of religious organisations and schools to teach their religious beliefs regarding marriage.

Labor has said it will support the Smith bill as a feasible cross-party compromise (though dissenting Labor members will still have a conscience vote).

While the Greens are concerned that the religious exemptions the Smith private member’s bill gives may go too far, they have also said that, if it came to the crunch they would support it rather than see same-sex marriage defeated.

By contrast, many social conservatives in the Coalition will be supporting the type of measures in James Paterson’s proposed bill – though leading conservative Mathias Cormann has reportedly helped facilitate the Smith bill.

Read more: Grattan on Friday: Marriage on the rocks in divided Liberal Party

Paterson’s bill extends far beyond protection of religious organisations. It not only provides protections for private businesses to refuse services to same-sex weddings, but also undermines existing anti-discrimination laws in other ways. For example, it protects broader positions about issues such as gender which Paterson says is necessary in order for opponents to be able to make their case against same-sex marriage.

Even if Paterson’s bill is not put to the vote, supporters could still move amendments to the Smith bill based on Paterson’s principles.

However, Turnbull, George Brandis and Birmingham have all argued strongly against undermining existing anti-discrimination laws and giving businesses the right to deny services to same-sex couples getting married. This will be a major relief to same-sex couples as well as to Labor, which potentially risked being wedged on the issue.

Whether Liberal supporters of the “yes” case make further concessions on issues of protecting religious organisations remains to be seen. However, many social conservatives will be far from happy that Turnbull has opposed them on anti-discrimination exemptions for business services.

Some Liberal supporters may even threaten to defect to Cory Bernardi’s party. Turnbull hopes to have the matter settled by Christmas but his troubles on this issue are far from over.

Consequently, the cause that was intended to wedge Labor has now ended up turning back upon the Liberals themselves. A socially conservative symbol that was meant to mobilise support from voters has instead mobilised warring factions within the government itself.