A plebiscite on marriage? Robert Menzies didn’t need it

Reports of the recent Coalition partyroom meeting on same-sex marriage suggested that Liberal MP Josh Frydenberg invoked Robert Menzies’ endorsement of a free vote on the contentious issue of divorce reform as a precedent worth following.

But, while studiously avoiding any mention of the debate over marriage law, political commentator Gerard Henderson poured scorn on the idea that anybody could know what Menzies thought about such matters.

Henderson’s point may be well taken. Since the question of the moment did not occur in the 1950s, speculation about Menzies’ position on such matters is irrelevant – at best anachronistic. But what is certainly relevant to the current debate is not what Menzies might have said but what he did when faced with an equally contentious social policy issue – divorce.

The battle for uniform divorce laws

What Frydenberg cited was the position Menzies adopted in dealing with the need for the federal government to establish a uniform marriage and divorce law for Australia, including a small step towards no-fault divorce.

Although such a uniform law was contemplated in the 1890s as an essential feature of the constitutional compact underlying the Federation, for the most part the Australian parliament ignored the Federation Fathers for more than half a century.

During the 1940s, the Labor government ineffectually contemplated the possibility of legislating for a uniform divorce law. It fell to the succeeding Coalition government under Menzies to enact such a law.

The matter did not proceed easily. Liberal MP Percy Joske – also the Australian specialist in divorce law – was keen for the government to legislate for a uniform Commonwealth divorce law that would replace the various, often conflicting, state statutes. It was precisely such variety of laws relating to marriage and divorce that the Federation founders had abhorred, citing the chaos of American marriage law as an example to be avoided.

While Menzies was content to see Joske flag the issue through a private member’s bill, he did not leave it there. Menzies’ most decisive action in support of this major amendment to Australian social policy was to appoint Garfield Barwick as attorney-general following Barwick’s election to parliament in 1958.

Barwick’s first task was to draft a uniform divorce bill, working with legal and judicial experts and the states. When the moment came in 1959 to introduce the Matrimonial Causes Bill, he did so in the face of open opposition from the churches, initially muted but increasingly shrill.

In many ways, the adoption of a uniform law of divorce in Australia was the 1950s equivalent of today’s debates about same-sex marriage. The major churches in Australia opposed Barwick’s divorce bill, especially its embrace of a “no-fault” provision. “In condoning divorce,” said the Catholic Church spokesman for Victoria, “the state is simply sabotaging itself.”

He continued:

No true Christian would obtain divorce with a view to remarriage and no true Christian would keep company with a divorcee or marry one.

Marriage was a “sacred thing in the natural order” and so mere civil courts had no real power to dissolve it.

In spite of such opposition, the bill passed into law late in 1959 after the Labor Party decided to allow members to exercise their own judgement. A number of Labor MPs strongly opposed the reform, heeding an episcopal direction that Roman Catholic MPs should vote against the bill. They joined the handful of Liberal and Country Party members who also voted against the government measure.

Today’s leaders deny responsibility

Ever since the modern state got involved in the marriage business, any policy to amend marriage law has faced significant opposition and been accompanied by widespread and very often intemperate debate. In a so-called “secular age”, the debate over marriage and divorce is one area where the persistence of theological commitments and adherence to ideas of natural law have expressed themselves.

Robert Menzies helped pass Australia’s first uniform divorce law.AAP

State regulation of marriage is not for the purpose of endorsing particular religious views or theological preferences. It exists for the limited purposes of regulating what the High Court has described as “a social institution” that “differs from country to country”. It does so in respect of the government’s interest in the welfare of its citizens, including – but not only and not necessarily – the welfare of children who may be the products of marital unions.

Australian public policy has long had to live with a gap between what satisfies the purposes of state regulation and what particular religious communities prefer.

Public policy is concerned with what matters to the welfare of citizens. In all the talk of a plebiscite, attractive as that may appear as a way of achieving the change demanded, what should not be forgotten is that federal MPs have failed to accept responsibility for determining what should be the public policy for the nation. They are passing the buck back to “the people”, who elected them to do this work.

In doing so, MPs have shown their lack of wisdom in being able to recognise the difference between the limited purposes of state regulation of marriage and the great variety of beliefs – religious or otherwise – about its purpose and conduct.

When Menzies appointed Barwick to lead his government’s enactment of a single Australian marriage law he accomplished something that had been the ambition of the Federation’s founders 60 years before. When he stared down clerical opposition and theological objection he acted to defend public policy as the business of the Australian parliament and not the affirmation of a particular set of religious beliefs.

And Menzies did so without plebiscites, confident in his own sense of what public policy demanded.

Mark Finnane receives funding from the Australian Research Council.