The SSM Plebiscite is upsetting my Constitution.

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.

observance
noun
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.

About Dan Rowden

Dan Rowden is a freelance writer and philosopher who has been active in philosophical and political discourse since Malcolm Turnbull invented the Internet in Australia. For the last 15 years he has contributed to and administered Internet philosophy forums. Politics is a secondary interest, but he recognises moments of significance in Australia's political history.
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2 Responses to The SSM Plebiscite is upsetting my Constitution.

  1. Bobo says:

    A plebiscite is not the way to go generally, I checked the wiki and I think the problem lies with the Australian Constitution not having a bill of rights, there is a clear case of gender discrimination in the marriage definition. I don’t think freedom of religion would properly address gender and racial issues.

  2. randalstella says:

    So much legislation touches on issues of social mores, it would be an improbable reading to interpret any of the wording of Section 116 wider than very limited reference, involving institutional religion and formally allied practices.

    Yet your approach raises the whole dismal complexity of registered opinion. For example, there are active, ‘networked’ people out there who have no knowledge of the NBN. You might wonder how that is possible, but it is one fact among many about the grossly incompetent voter. They don’t even know what they are voting for, yet have some loose idea of what they vote against. Obviously this is why the LIbs have forced Turnbull to a plebiscite, as the reactionary outcome is made more likely.
    However, at least some Parliamentary reps seem not much better. It is hard to know because the default mode of their representation of their thoughts is clannish, evasive, accusatory of others, deceitful and downright untrustworthy. They could not even trust themselves, if they have the wit to reflect at all. It is hard to know whether they lack a faculty of consistency or are being opportunist and slippery. Moreover they may not know themselves, even most of the time. (Take Greens-basher Dastyari… please.)
    The same question applies to too many MPs as applies to the wondrous public: is it lack of intelligence or is it the iron law of habitual deceitfulness? Whatever, the devil owns the catchy tunes. Some of the politically active are diabolically clever; obviously not an encouragement of moral intelligence.

    The mess of Opinion, Parliamentary and otherwise, makes challenging it very difficult, particularly if it hoists the Morality flag. It is dicey politics indeed to challenge that flag’s credibility. Such challenge might run somewhere into some reef of what has to be fairly called sincerity, no matter how much invidious muck might wash over it. Fools have it all over the logical. They do not have to be consistent; and they even do not have to be reflective. Nasty, clever fools are even more perilous challenges.

    On the same dismal reality, you can’t be interrogating people, voters or MPs, about whether their opposition to SSM is religious, moral, practical, Freudian … or whatever.
    The opinions might be intolerant and even stupid, but they may not be uniformly ‘religious observance’, even at different times by the same person; even sometimes in the same sentence by some. The most malevolent bigotry might be only slightly ‘religious’.
    Like elections, plebiscites are not tests of moral intelligence by the morally intelligent, but of rough categories of opinion geared by roughhouse operators. The ‘religious observance’ objection would require a sifting between them which is not possible – and would be politically maladroit even if it were possible. Some might even raise moral objections.

    The religious bigot is likely to be a hypocrite, and claim that he holds an independent moral view, even if he admits that he came to it originally by religious faith. The Faithful run secular arguments when it suits them, as it is hard to go on exclusively about God’s Law these days and be taken seriously. And thus it could be said that the religious case put forward is often more fundamentally a secular bigotry anyway.
    The moral view of the Faithful is, for the sake of debate, not categorically distinguishable from moral views on this issue held by others who do not share the belief in religion.
    The religious bigots might depict themselves discriminated against for holding views that others hold and are not attacked for any source to their views.
    They might call that an infringement on their religious liberty. They might invoke Sect.116. They don’t have to be consistent on this, and there is no requirement that they not be hypocrites. So, it could be duelling banjos over Sect.116. A bit of a backwoods feud.

    Then there are all the opponents of SSM, including in Parliament, who do not even know – do they care? – whether their opinions are religiously based. It is not unconstitutional to be confused or not too profound a thinker.
    Similarly as woeful a moral runt as Howard is, his change to the Marriage Act could be considered moral social concern or even practical legality, not religious.
    The answer to the point that his change itself showed no concern for counting the public’s views, is that he thought he was just reflecting current traditional views, not overthrowing that tradition; clarifying a legal reality, not imposing any new or directly ‘religious observance’. That would be an argument with some debatable cogency, about that amendment then.

    It would be a weaker argument for a plebiscite now and not then, but it is an argument.
    Weak arguments often win, particularly backed by deceptions and downright lies – as we can expect as an inevitability in the campaign on a plebiscite. For example, Brexit.
    The best hope is that there be no plebiscite, and the social radical Bill Shorten gets into power and passes the legislation.

    Please note for the record that the SDA, (Shop Distributive & Allied Employees Association), strong players on factional deals within the Labor Party, like pushing reactionary social views, in package negotiations, as if proper use of their members’ funds. Fortunately, on this issue, Bill seems to have the numbers. But not on everything.

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