A Constitutional Referendum: a Hail Mary for those opposed to Marriage Equality

On Tuesday 11 August, prospects for marriage equality legislation in Australia in the near future were quashed when the governing coalition party room voted against a conscience vote in favour of maintaining opposition to same sex marriage. However, senior members of the government have surprised us by suddenly expressing support for a plebiscite on the matter after the next election. Some on the government benches, such as Social Services Minister Scott Morrison and conservative Senator Cory Bernardi, have expressed support for the matter to be “resolved” by the people in a constitutional referendum, again after the next election.

The prospect of a constitutional referendum seems unlikely, especially after the prospect was dismissed by George Brandis, the Attorney General. However, it is not impossible, especially when someone of Morrison’s influence supports the idea. Make no mistake however: it is a terrible idea. Here’s why.

Constitutional referenda generally fail

Australians are extraordinarily conservative, compared to other countries, when it comes to changing our Constitution. Under s 128 of the Constitution, constitutional amendments must be approved by a majority of voters in a majority of States. Only 8 of 44 referenda have succeeded since the Constitution came into force in 1901. Rejected amendments include proposals which were initially very popular, such as the 1951 proposal to give the federal Parliament power over Communism, which would have paved the way for the banning of the Communist party. According to a contemporaneous Gallup poll, that proposal had 80% support initially, and yet it was (thankfully) ultimately voted down.

Poll after poll has confirmed that a comfortable majority of Australians favour marriage equality. However the Communism referendum experience suggests we should be cautious that that majority (in a majority of States) would approve a relevant constitutional proposal. The question would be different. Standard poll questions such as “are you in favour of marriage equality” are simply not the same as a question such as “should marriage equality be enshrined in the Constitution”.

The stakes are raised enormously with constitutional change. Unlike an ordinary statute (such as the Marriage Act 1961 (Cth)), the Constitution cannot be easily changed back – hence those in favour of the constitutional status quo on any issue find it easy to run scare campaigns. Note how the “no” campaign against a Republic latched onto the idea that one should vote “no” if one didn’t completely understand the republican model on offer in the 1999 referendum. Ignorance is bliss for those opposed to change.

Campaigns opposed to constitutional confirmation of marriage equality could, and probably would, focus on the danger of a marriage equality provision being “abused” by “activist judges” to have a far greater impact than originally thought. Probably not a bad thing, from the point of view of those of us in favour of LGBTI rights. However, Australians have been very reluctant to approve new constitutional rights. It is already, for example, assumed in many quarters that Australians would not approve a constitutional guarantee against racial discrimination, one of the sticking points which has arisen over a proposed referendum on the recognition of Australia’s First Peoples.

The question would likely be framed by a Prime Minister who was opposed to same sex marriage. After all, it is unlikely that a referendum would be held under a PM who was in favour – that PM would probably be able to usher a marriage reform bill through Parliament by for example allowing a bipartisan conscience vote. Given the question would likely be framed by a PM who was opposed to reform, the words chosen would likely be chosen to give the “no” campaign the greatest chance.

No constitutional referendum has passed in Australia without bipartisan support, which would likely be lacking. As just noted, a referendum is unlikely to happen if the Prime Minister actually supports marriage equality.

A failed referendum would be a disaster for the cause of marriage equality, and could stave off reform for many years. This is probably one reason why prominent proponents of the status quo, such as Morrison and Bernardi, are in favour: it is their Hail Mary play against the apparent inevitability of marriage equality legislation in the near future.

There is no relevant constitutional issue

The federal Parliament may only enact laws in areas where it has been given power under the Commonwealth Constitution. That is, federal legislative power must be specifically authorised under a “head of power” in the Constitution. The Federal Parliament has power under s.51(xxi) over the topic of “marriage”. Morrison has suggested that a referendum might clarify the scope of the federal marriage power, s 51(xxi) of the Constitution.

But that is not necessary. Once upon a time (ie two years ago), it may have been arguable that the term “marriage” in s 51(xxi) only encompassed marriage between men and women. However, in Commonwealth v Australian Capital Territory (2013), the case which struck down the ACT marriage equality law, the High Court unanimously confirmed that “marriage” for the purposes of s51(xxi) could include same sex marriage. Hence, it confirmed that the Commonwealth has power, if it wishes to exercise it, to legislate to allow marriage between adults of the same sex. There is no need for a referendum to clarify this issue.

We have never had a constitutional referendum where a “change” is not actually proposed. In any case, there is something inherently oppressive in asking the majority to approve of equal rights for a minority – this betrays an impoverished and utilitarian approach to human rights.

A referendum should only be held when there is an actual constitutional issue at stake. This was, for example, the case in Ireland. Its Constitution prohibited marriage equality, so a referendum was needed in order to enact marriage reform legislation in that country.

What would or could a referendum achieve?

Morrison has indicated that we would be asked to clarify the scope of the marriage power. As noted above, its scope with regard to same sex marriage has already been clarified by the High Court. So what could a referendum achieve?

Suppose we were asked whether to include clarifying words in s 51(xxi), so that it read something like: “marriage including opposite and same sex marriage”: this is Morrison’s suggestion. Suppose that change of wording was approved. All that would be achieved is that the people would be approving a pre-existing interpretation of s 51(xxi) by the High Court. The change itself would not actually introduce marriage equality. We would be back to Square 1 again, with the Australian people relying on the Commonwealth Parliament to act. All such a referendum would prove is that the Australian people are happy for the federal Parliament to have the power; it arguably would not prove that we want them to exercise that power. So a “yes” vote could easily have no real consequence.

Even more intriguing would be the consequences of the change being rejected. The one-word section 51(xxi) would remain the same. But what would that one word mean? The High Court has already decided that it incorporates opposite and same sex marriage. Would the referendum mean that the High Court has to change its mind? It would not. The High Court has already rejected the relevance of failed referenda in the famous Workchoices case. So a “no” vote may have no real consequence.

Finally, let us assume that a “no” vote led the High Court to alter its interpretation, such that “opposite sex” marriage was excluded from s 51(xxi). This would not prohibit same sex marriage in Australia. In fact, it would transfer power from the Commonwealth to the State/Territories over the matter. In the High Court case on the ACT marriage equality legislation, it was held that federal marriage legislation “covers the field” of all opposite and same sex marriage. That circumstance currently quashes opportunities for marriage equality legislation in the States or Territories. If Commonwealth power over same sex marriage disappears, that part of the field would be vacated and the States and Territories would be free to legislate as they wish.

That would lead us back to square 1 again, but dealing with 8 jurisdictions instead of one. And many of those 8 jurisdictions, such as the ACT and Victoria, would likely take up a new opportunity to legislate for same sex marriage. So, it does not seem that Morrison and Bernardi have thought this through.

Conclusion: expensive pointless obfuscation

A constitutional referendum on marriage equality could be a disaster for those in favour of reform. More likely however, it could achieve nothing at all. Or it could lead to a confusing legal mess, with total uncertainly over the true constitutional locus of legislative power over same sex marriage. The Hail Mary move of those wedded to the status quo would be divisive, expensive and likely pointless, to the satisfaction of nobody.