Quick Post: @Drag0nista on Rudd’s #marriageequality pitch #auspol

Over on her blog, @Drag0nista (I’m still not sure of the etiquette in naming people on blogs) discusses Rudd’s rhetoric on marriage equality:

It was the first time my attention had been drawn to the careful positioning of Rudd’s support for same sex marriage. It was the first time I realised his support was not unequivocal. He gives the churches a free pass. […] It’s quite clever really. This positioning allows Rudd to present a modern, progressive face to some voters and a traditional, conservative face to another. [Source: Matthewson, P. ‘Rudd’s doublespeak on marriage equality’ Drag0nista’s Blog, 22 August 2013]

Although Drag0nista acknowledges the separation of Church and State issue — ‘I’m not suggesting that Rudd, his government, or any other government should impose same sex marriage on churches. I support the separation of Church and State.’ — she still finds the position duplicitous.

Which is odd.

First up, we should abandon the separation of Church and State.  If a church decided not to allow people of different ethnic backgrounds to marry, there would be some very furrowed brows.  The Church should be subordinate to the State, not given a special position as ‘separate’.

Second — and more relevantly to Drag0nista’s blog — we seem to have reached a meta-stage of the conversation where we don’t merely discuss what the various policies are, but we discuss the significance of how they’re presented.  To communications people, this is a big deal.  I get that.  But to the rest of us interested in the bread and butter of policy qua policy, it seems strange to describe somebody as duplicitous simply because they don’t express a policy in precisely the way we might like.

Drag0nista’s point is that Rudd hasn’t taken the Jimmy Carter approach of trying to encourage churches to be less homophobic.  There is some truth to this point: we should look to our leaders to be leaders both politically and socially.  Rudd is walking the easy path by taking the lowest common denominator position: getting marriage equality into legislation without spooking the religious nutcase horses.

But that is an altogether separate issue beyond the question of his policy for what he’s going to do about marriage equality.  In this sense, he is being clear: homosexuals will be able to marry in the same way that Catholics can’t get married in synagogues.  If you can find somebody to marry you, you can get married.  The won’t be a legislative hurdle.

What should offend us a whole lot more is that Rudd is once again offering a conscience vote.  If parties will not agree to let every matter be a conscience vote, parties should not let marriage equality slide into the uncertain waters of conscience votes.  If it’s party policy that marriage equality be supported, party members should vote accordingly.  Simple.

 

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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.

 

Quick Post: On being pro #marriageequality but also hoping that the court action fails…

The marriage equality debate is a bramble bush of conflicting ideas and thoughts.  Sure, there are the extremes of the debate: the homophobic resentment on the one end, and the bellyfeel of juveniles on the other.

But despite those distractions, the bramble bush has managed to keep a lot of the more interesting ideas in play.  What is the role of marriage in society?  Is it something worth preserving?  Does the role of marriage in society open up the opportunity for religious influence in ‘secular’ society?  What about gender and marriage?  Does marriage preserve a tradition of oppressing women?  And so on and so forth.

As a conservative, I think marriage is important but I think it’s a means to an end.  People in happy marriages is the symptom of a healthy society; you don’t force people into ‘happy’ marriages in order to create a healthy society.  This puts me at odds with a number of other conservatives who want to protect marriage first and then hope it results in a good society.

So, just to set the background, I am in favour of marriage equality.

That said, I do not hope that the Supreme Court action succeeds in effecting marriage equality.  A few of my friends have expressed the view that this should be a contradictory position, so I thought I’d sketch it out quickly.

The organ for social change in democratic countries is the parliament.  We elect to parliament people who hold our values and who represent those values in creating laws and (in Australia, at least) executing the will of parliament.  If we want social change, we elect people who will represent that desire for social change.

Courts are not representatives of the people.  As such, courts should not be the organ of state which causes changes to social values.

While this is often bemoaned by conservatives as ‘judicial activism’, I’m not nearly so shrill.  Being sane, I think that courts do have an important role in being a source of law.  Where I’m agreeing with the shrill folk is that I don’t think courts should have a place in being a source of social change.  The view is called ‘parliamentary sovereignty’ and it is essential for rational democratic states.

If the activists were to win the court case, it would be a breach of this view that parliament is the place where social change should be managed.

We can consider an alternative case.  Imagine that parliament passed a law that legalised marriage equality and a group of evangelical churches became sufficiently distressed as to mount a legal case against the new law.  Although there’s nothing strictly agreeing with the churches that marriage equality is (somehow) unconstitutional, the courts find some unusual interpretation of the constitution (perhaps through an implied right) to satisfy their personal views that marriage equality is icky.  We would be outraged.  We would be right to be outraged.

So if we can understand that we would be outraged in the latter instance, we should also be outraged in the instance before us as it is functionally identical (just with the opposite social value being protected).  But the activists aren’t.  For them, it’s social change at all costs and that is deeply worrying.

They could appear to themselves every day… the rest of us wouldn’t have to watch

It’s a lonely political life being a sane and intelligent conservative. For most people, the last sentence was akin to ‘It’s a lonely geometric life being a square circle’. Conservatives (like me) have only ourselves to blame.

The gay marriage debate has erupted again in Australia.  It seems to be the case that all homophobes are conservative but, fortunately, not all conservatives are homophobic.

I can sort of understand why marriage is on the statutes but I certainly don’t think it should be there.  While that’s a great one-liner, there needs to be an alternative: I can’t think of one.  Do we turn all marriages into civil unions?  Isn’t that just importing the old (religious? cultural?) system into the secular future?  In the short term, at least, we’re stuck with marriage being a legal construction.

For conservatives — like me — the question ought to be: ‘Which values are we trying to protect?’

It’s only been since 2004 that marriage has been a union between a man and a woman to the exclusion of everybody else.  Before that, the homophobes had just assumed the position. Continue reading