Updated September 4
It seems the general consensus in leftist social media and political circles is that blocking the Marriage Equality plebiscite by Greens and Labor is a good thing. I agree, but for a key reason that isn’t getting much political oxygen.
The “financial cost” argument is not legitimate to me and I’m disappointed that the Greens and Labor are actually indulging in it. I’m not sure how you put a price on social justice and decency, especially in the face of the rubbish [by comparison] we spend money on. The social cost of a protracted and zealous debate is a rather more compelling argument and despite certain reservations I have I’m prepared to take my cues on that from the LGBT community.
For me the pivotal argument, the key point in this is that the issue ought not be subject to a public vote at all. It’s ridiculous at its very core. One group of people who benefit from a social right deciding if another group ought likewise benefit? What is that?
Aside from that fundamental ethical point, which I’ll return to, I think there are a few observations we can make, or at least speculate about, regarding the Constitutionality of this whole mess.
SECT 116 of the Australian Constitution states [emphasis added]:
The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.
It’s my understanding that the term “religious observance” has never really been judicially tested and delineated, although things like the school chaplains program have been challenged under the “establishing any religion” item. Constitutions are highly interpretive documents. We can surely make some reasonable assumptions regarding the spirit, if not actual, technical meaning of the term ‘observance’ in a religious context.
1. the practice of observing the requirements of law, morality, or ritual.
“strict observance of the rules” “religious observances”
Moral codes, principles and meanings are explicit elements of religious observance and ought be part of any consideration of the meaning, as employed Constitutionally, of the term “religious observance” in the absence of any sense to the contrary. Such a contrary sense does not appear to exist in Sect 116. We just have the words “religious observance”.
Given this, and given that a large proportion of the objection(s) to Marriage Equality comes from a basis of religious conviction (i.e. observance), no arguments from that basis, whether expressed by individuals, churches or particular members of Parliament, ought be considered by that Parliament.
But how does our statutory definition of marriage, which appears in the Marriage Amendment Act 2004: ‘Marriage means the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.’ escape its historically religious origins? The very same people who defend this definition openly and vaingloriously claim its origins to be that of Christian theology and observance.
If we can reasonably argue, given Sect 116, that no Commonwealth Parliament may make laws on the basis of religious observance, then we must surely be able to assert a corollary to that argument – that no Commonwealth Parliament ought be able, on the basis of religious observance and Sect 116 of the Constitution, to prejudice or prohibit the making of laws and legislative amendments.
In other words, no member of Parliament may make an argument – or vote – on the basis of religious observance that any such law or amendment not be enacted, or in order to defeat any such law or amendment.
That corollary seems to me to be an entirely reasonable interpretation of the intent and meaning of Sect 116 in the context of ‘religious observance’.
Prior to 2004, when Howard pushed through, at lightning speed, his Marriage Act Amendment, the Marriage Act had been chugging along happily since 1961 without a specific definition of marriage (it relied on the common law definition).
Is there an argument that the 2004 amendment was actually unconstitutional? Although the Greens and a few Democrats opposed the amendment, no High Court challenge seems to have been mounted against it. I think that’s a pity because I feel it may have been contestable. It’s pretty much impossible to avoid the point that the definition utilised has its basis in religious observance. The cultural convention of it has that very basis.
Now, you and I who know something about the Industrial Revolution might argue the validity of the view that marriage has its basis in religious observance, but that doesn’t matter. The framers of the Act, the Amendment and the definition, did have that view when framing it. They still have it. The whole amendment edifice is built on that view. Likewise the argument for its retention.
Returning to where I began, regardless of the possibility of constitutional issues with the original Marriage Act Amendment and whether current parliamentarians can make or consider arguments that have their basis in religious observance, I think we can nevertheless break this whole thing down to a more personal mode:
You, Joe Bloggs, who lives with his two unregistered pit bull cross mongrels, his three unregistered vehicles and his Australian Flag in his window, don’t get to decide if a member of my family can have the right – that you freely enjoy – to marry their beloved. Nor do you, Jane Roe, who attends the local Pentecostal megachurch and who believes her resolve to regulate the rights of others is some sort of divinely granted function of the faithful. Neither of you, nor any person like you, can make any claim to such power.
It’s nothing short of diabolical for an Australian Government to allow a circumstance where one Australian demographic gets to determine the rights that will be allowed to another. Just stop and think about that for a moment. Can you imagine what it may have been like had the ‘Commonwealth Franchise Act 1902‘ been put to a public vote?
Even in a parliamentary context there should be no debate whatsoever (other than, perhaps how to best define ‘marriage’ if a definition be deemed necessary). How can there ever be any valid debate about one set of human beings being afforded a right while that right is actively denied to another set? I can think of little that is more frightening, in a political sense, than elected officials who believe they retain the right, like some bogan Bloggs, to even entertain the idea of denying to some a social right enjoyed by others.
It is inconceivable. And yes I know what that word means.
As always, your thoughts are welcome.