Quick Post: #marriageequality referendum and why it’s not dumb (bonus: rights rhetoric) #auspol

Are rifts and bickering ever not interesting?

A lot of people have hit social media over the last week about holding a referendum in Australia in order to introduce marriage equality into law.  As with social media, it’s been difficult to work out precisely what the arguments are, but there sure is a lot of vitriol from the usual noisemakers.

An article posted by the activist group Australian Marriage Equality seems to hint at what the arguments might be.

Until now the two wings – the moderate, sedate and respectable Australian Marriage Equality (AME), and the more raucous direct action-oriented Equal Love – have pretty much marched in lockstep. But no longer. [Source: AME, ‘Equal Love & Marriage Equality Split over Referendum‘]

Clearly, it’s going to be a balanced and reasonable contribution from AME…

The split is an odd one.  Equal Love are in favour of a referendum.  AME is not:

Rodney Croome, the gay rights veteran and AME leader, countered, “Marriage equality supporters are understandably frustrated that Australia is falling behind other countries, but a referendum is not the quick and easy fix some assume it will be.”

“A plebiscite on the Marriage Act would not be binding and a referendum would simply clarify the constitutional provision dealing with marriage, not change the Marriage Act itself, so in both cases the nation would end up exactly where it is now, with the issue in the hands of parliament.”

And he feared the social consequences of a lengthy referendum campaign. ”With one major party still against marriage equality and with extremist groups keen to use a referendum to propagate fear, a referendum campaign will inevitably polarise the nation and inflame prejudice.” [Source: Ibid.]

Croome is not entirely correct.  Or, rather, he is sort of correct but does not provide a full account.

Section 51 of the Constitution outlines the legislative powers of the Commonwealth Government.  The ability to legislate with regard to marriage is conferred under (xxi).  The exact wording is:

marriage

A referendum could change this to read:

marriage, other than to restrict marriage rights based on race or sexual preference

The effect of this is interesting.  It would mean that the Commonwealth Parliament could not pass laws to restrict access to marriage based on race or sexual preference, but it would not stop State Parliaments doing the same.  To stop that, you’d need a very atypical amendment to section 52 restricting their ability to pass laws with regard to marriage (or another section in Chapter V).

If the referendum passed, it would immediately mean that section 5 of the Marriage Act which defines marriage as ‘the union of a man and a woman to the exclusion of all others, voluntarily entered into for life’ would need to be read down to permit same-sex marriage.

As a matter of rationality, Parliament would pass a law to resolve the inconsistency between the Constitution and the Marriage Act.  Else, they’d need to wait for a court challenge to bring the application of the Act in line with the Constitution.  So, yes, the referendum would not be altering the Marriage Act in terms of the words but it would be altering the Marriage Act in terms of its force.

As for Croome’s other position: it seems flatly strange to say, ‘We don’t want to have a referendum because people might debate the issue and we might lose.’  The Left is notorious for this kind of ‘rights by stealth’ operation where the mainstream is left out of the discussion while they scheme and plot.  If you think that you’re correct, stand by your convictions.  Don’t sulk and whimper about it.

AME provides a handy macro for ease of circulation on social media.

20130401-Rachel-Maddow

It’s nice to see a return of the ‘fairies and goblins’ understanding of rights return to the political debate.

Let’s see if Maddow’s assertion holds up in another prominent rights issue at the moment: the right to arms as conferred under the Second Amendment.  If there were a referendum in the United States to strike off the Second Amendment, it would be flatly weird for the NRA to come out saying: ‘Here’s the thing about rights.  They’re not supposed to be voted on.  That’s why we call them rights.’

Maddow’s assertion supposes that there’s some sort of right which exists prior to society conferring the right upon the individual.  This sort of right is somehow innate to the individual and inalienable.  How is it innate and inalienable?  Magic, perhaps?  God, maybe?

But let’s be extremely charitable and concede the lunatic idea that there are rights which exist prior to society’s conferral (rights to life, perhaps?), is the right to get married a right which exists in this way?

Marriage does not exist except within a social framework.  So Maddow’s argument would be that the right to marriage exists prior to the social establishment of marriage… which is clearly false.  It would be like saying that there’s a natural right to Internet access.  The Internet was created within a social framework, so any right to access it would have to be posterior to its invention.  The right to marriage cannot be prior to the social development of marriage.

Rights in the sense that we are debating when we talk about the right to marriage are creations of the State.  In a democratic society, those rights are conferred by voting (either directly or indirectly).  Therefore, there is no construction of her statement which is correct or helpful.

But it does make for snappy propaganda.

 

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Author: Mark Fletcher

Mark Fletcher is a Canberra-based blogger and policy wonk who writes about conservatism, atheism, and popular culture. Read his blog at OnlyTheSangfroid. He tweets at @ClothedVillainy

One thought on “Quick Post: #marriageequality referendum and why it’s not dumb (bonus: rights rhetoric) #auspol”

  1. Couldn’t you say that the right to marry is a subset of a natural right to dignity and/oror justice, and thus fair treatment, then concede that marriage is a social construct, but argue that since everyone has a right to fair treatment, marriage must be equally accessible to everyone? So if you have marriage laws, based on the right to fair treatment, everyone must have equal access thereto. So either everyone gets access to it, or no-one does.

    I don’t necessarily endorse this view, but it doesn’t seem flatly unreasonable, and it seems to avoid your concern re: the 2nd Amendment.

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