The marriage plebiscite: No 'time out' on anti-discrimination laws

It can’t be easy being Lyle Shelton. The managing director of the Australian Christian Lobby certainly has a full dance card: holding back the tide against marriage equality, campaigning against anti-discrimination laws, being harried up hill and down dale by Bernard Keane on Twitter, and now, it seems, meeting with the government over the role ACL might play in the forthcoming marriage equality plebiscite

A flawed method

There are any number of reasons why a plebiscite is the wrong way to address this issue. Leaving aside the cost, delay, and potential harm caused by such a plebiscite, basic recognition of full equality should not be in the gift of the majority – hence the ‘liberal’ part of ‘liberal democracy’.

And a non-binding plebiscite followed by a parliamentary vote would force MPs to either vote against their consciences, or to ignore the plebiscite results. On the first, recall Edmund Bourke’s speech to the electors of Bristol:

Certainly, gentlemen, it ought to be the happiness and glory of a representative to live in the strictest union, the closest correspondence, and the most unreserved communication with his constituents. Their wishes ought to have great weight with him; their opinion, high respect; their business, unremitted attention. It is his duty to sacrifice his repose, his pleasures, his satisfactions, to theirs; and above all, ever, and in all cases, to prefer their interest to his own. But his unbiassed opinion, his mature judgment, his enlightened conscience, he ought not to sacrifice to you, to any man, or to any set of men living. These he does not derive from your pleasure; no, nor from the law and the constitution. They are a trust from Providence, for the abuse of which he is deeply answerable. Your representative owes you, not his industry only, but his judgment; and he betrays, instead of serving you, if he sacrifices it to your opinion.

(Funnily enough, Bourke wasn’t elected to a second term…).

On the second, to all those who think Cory Bernardi and Bridget McKenzie are wrong to say they’d vote against same-sex marriage if the plebiscite returns a ‘yes’: do you also think parliamentarians like Penny Wong, Warren Entsch, or Adam Bandt should be forced to vote against marriage equality if the plebiscite says ‘no’?

Time for good argument

But if it is to be done, then it needs to be done properly, and that means both sides need to step up with compelling moral – that is, philosophical – arguments that are in keeping with the secular and pluralist nature of modern democracy.

I’ve written elsewhere that a structural weakness of the pro-marriage equality campaign is its reliance on a thin liberal/libertarian argument, up against a thick conception of the good being offered by its opponents. Instead of framing the discussion purely in terms of liberty, marriage equality proponents would do well to articulate a fuller picture of what marriage is and why same-sex relationships are substantively marriages already and deserve legal recognition as such.

But the ‘yes’ campaign may not have to work quite that hard, simply because so far their opponents haven’t been able to come up with much that’s persuasive. Consider Shelton’s latest riposte to the oft-posed question, ‘how are heterosexuals affected at all by LGBTQI people getting married?’:

If the definition of marriage is changed, it’s no longer assumed … that I’m married to a woman. So that affects me straight away.

At first, this argumentum ad people-might-think-I-married-a-dudeum might seem both genuinely novel and genuinely puzzling. Even on its own terms it’s manifestly weak: having to slip in a pronoun when referring to your spouse just to convey your heterosexuality hardly seems burdensome enough to warrant denying marriage to same-sex couples.

Hidden assumptions

But in fact it’s merely an extension of an anxiety that, as the philosopher Cheshire Calhoun has noted, is fundamental to much anti-marriage equality sentiment. The impact of homosexual marriages on heterosexual married couples is that their marriages stop being special just because they are heterosexual. It takes away the privilege of being in the ‘right’ sort of marriage, a default, ‘normal,’ and implicitly normative form of relationship. “People might think I married a bloke” is only a problem if you think that being married to someone of the same gender gives you a lesser status than being married to someone of the opposite gender.

It’s that assumption, that same-sex relationships are intrinsically lesser than heterosexual ones, that makes anti-vilification laws such a threat to the prosecution of the ‘no’ case. Because this is an assumption that dare not speak its name, which severely restricts the ‘no’ argument right from the outset. No wonder, then, that folks like the ACL want to call time out on laws and social norms that prevent them from sneaking that assumption back into the debate. In particular, they want a temporary suspension of state anti-discrimination laws, on the grounds that these have a ‘low threshold’ inconsistent with properly airing the arguments against marriage equality.

In fairness to the ACL, legal systems can indeed stifle legitimate debate. Consider, for instance, the phenomenon of ‘SLAPP’ (Strategic Litigation Against Public Participation), lawsuits entered into purely to silence someone from speaking publicly. In general, there are good reasons to be deeply wary of any laws that criminalise speech. Anti-vilification laws are also prone to seemingly intractable questions of interpretation that may make their operation difficult and controversial.

Shifting the window

Yet such laws also do something of value and importance: they codify, albeit very imperfectly, which forms of speech act amount to repressive and dehumanising exercises of power against the marginalised, and thereby demarcate the limits of civilised debate. To diminish someone on the basis of their racial, ethnic, religious, or sexual identity is, rightly, off the table.

The enforcement of such norms of demarcation is fraught, and laws are a very imperfect instrument for doing so. But the very existence of such laws at least embodies where the limits lie. And for many in the ‘no’ campaign it seems the limits themselves are the problem.

The ACL’s argument about vilification laws is not so much about protecting its members from legal difficulty as about shifting something analogous to the Overton Window, returning us to a time when the equal value of homosexual and heterosexual relationships was still open for public debate. It’s a covert attempt to reject the limits within which the contest of ideas is now framed.

As things stand, the challenge to the ACL and others opposed to marriage equality is to make the ‘no’ case in a way that doesn’t deny the full validity of LGBTQI relationships, and doesn’t rely on revelation-based premises (i.e. theological claims). You can see why they’d want to throw off those constraints, even if only temporarily.

But we should resist any moves to do so. If you can’t make your case without falling afoul of vilification laws, then either there’s something wrong with those laws, or something wrong with your case. My money’s on the latter.