Most of these sorts of discussions end very productively.
Dear The Internet,
One of the nice things about having a column is that I get to rant about stuff I think should be ranted about, but sometimes I just want to rant EVEN MORE. And the biggest thing that’s baffling me at the moment is the pointless and downright silly arguments against same-sex marriage being implemented in Australia.
There is a strong, sensible argument against marriage equality, and it goes like this: “I don’t like gay people and I don’t want them being happy.”
It’s intellectually honest, it cuts right to the heart of the matter, and it doesn’t mess around pretending that the speaker cares about civil rights or human happiness. Unfortunately it also makes clear how little someone’s personal ick-feelings should contribute to crafting legislation in a modern democracy.
Thus campaigners prefer to go with elaborate justifications about how they’re actually worried about protecting marriage and and preserving the sanctity of marriage, and respecting the values of tradition, because they’re largely meaningless statements that are therefore hard to argue against, and also because bigots get very sad when people call them bigots.
And then there are more practical arguments which I’m sick of slapping down regularly on Facebook, so here’s my list of responses to the current crop of stupid, stupid arguments against marriage equality. This way I can just send a link and get on with my day.
Stupid Argument The First: This is so very very important a change that we should have a Referendum, like in Ireland! You know, to see what The People think!
No, we shouldn’t. More specifically, not only do we not need to, but it would achieve literally nothing.
In Australia a Referendum can only be called in order to change something in the Constitution, and since the definition of marriage isn’t in the Constitution – it’s in the Marriage Act, a piece of Federal law – it can only be changed through federal legislation. You know, like the Howard Government did in 2004. Remember that referendum about defining marriage as being between “a man and a woman”? No you don’t, because there wasn’t one.
The other option that’s been thrown around is a plebiscite, which is like a Referendum but a) not necessarily a compulsory vote, and b) not about something in the Constitution. That’s what we had about changing the flag, for example.
The problem with that is that the Constitution prevents the Federal Parliament from limiting its own power to create laws, so a plebiscite would have to be non-binding BY DEFINITION in order to work. What’s more, it would leave any change potentially open to a High Court challenge regardless of the result.
So either way, it would require Parliament to change the law independently of any such citizen vote – exactly as it does at the moment without one.
Stupid Argument The Second: B-b-but kids deserve a mother AND a father!
Leaving aside that this is a meaningless statement – kids grow up without one or both parents all the time – this has absolutely nothing to do with the Marriage Act. Parental rights are determined by a suite of laws mainly created by the states, and if you’re worried that kids might be legally raised by same-sex couples if the definition of marriage was changed then you might want to sit down: it’s already legal.
More specifically: same sex couples can adopt in WA, the ACT, Tasmania and NSW, and a same-sex partner of a parent can legally adopt their partner’s child in WA, the ACT and NSW. In the other states a partner can apply for a Parenting Order, which is much the same thing but doesn’t remove an existing parent’s rights as per an adoption.
So if that’s the big concern then a) the Marriage Act is the wrong target and b) that battle’s already been lost.
Stupid Argument The Third: OK, let’s make all partnerships “civil unions” and define “marriage” exclusively as a church-sanctioned thing!
Well, for a start this would require altering the Marriage Act to change the definition of marriage – which is the exact thing that people are so gosh-darn worried about doing, right?
But also, this would require stripping marriage from heterosexual couples who didn’t have a religious ceremony, which is the vast majority of Australians. Removing it from a majority of straight people seems a bit at odds with arguing that it’s a precious special magical thing for man and woman to share.
Then there’s the fact that an increasing number of churches are totally fine with marriage equality, which will kinda dilute this terribly important distinction, surely?
But the main thing is that it would never get public support necessary for it to be passed. People like being married, which is why people want to be married. That’s the entire reason this discussion is happening in the first place.
But what if, on the other hand, churches want to decide that the only marriages that “count” are ones done in their own faith tradition? Well, in a lot of cases, they… um, already do.
Stupid Argument The Fourth: B-b-but the law will make religious me do gay things I don’t like!
A popular side argument to the above is “b-b-but these changes will force me, a religious minister, to marry gay people against my faith! My religious freedom will be curtailed! CURTAILED!”
Except that churches won’t be forced to marry gay people they don’t want to marry. You know why? Because they already don’t marry straight people they don’t want to marry.
Most churches at least require the couple to be part of their faith, and usually also their congregation. There are already arbitrary hoops through which people have to jump to get access to any religion’s clubhouse.
Also, let’s be realistic here: no sane person is going to decide to hold a celebration of partnership and commitment, surrounded by all the people they love most, that’s officiated by someone who openly despises them. Weddings are typically delightfully upbeat affairs, and that would kinda bring down the mood.
Stupid Argument The Fifth: But tradition! TRADITION!
Even assuming that tradition was a strong prima facie reason to not change something (which, as the replacement of the traditional practice of bloodletting with the modern alternative of antibiotics has demonstrated, it is not), which tradition are you talking about, exactly?
The first recorded marriages in history predate the major religions by a few thousand years, were in Egypt (and quite probably in other places that didn’t conveniently have a written language that was preserved in stone) and were designed as a way for families to record lineage of offspring in order to maintain family ownership of property. They were a romantic people, them ancient Egyptians.
And while there are plenty of examples of same-sex, polygamous and weird sibling-heavy arrangements in different epochs and locations, we’re perfectly cool with ignoring those traditions when they don’t suit what we like, or what our society will accept.
That’s because marriage is like so many other things that humans care about, like the unalterable word of God in religious texts, or the Star Wars prequels: people inevitably pick the bits they think are good and quietly ignore those they don’t, whether it’s prohibitions on wearing mixed-fabric clothes or the existence of Jar Jar Binks.
So inevitably it comes down to people being very selective about the traditions they want to follow, which is why we currently have the very modern idea of two people voluntarily entering into a partnership for reasons predominantly connected with love. It’s hard to see why the genitals of these people would make a fundamental difference to that broad concept.
Stupid Argument The Sixth: But changing the definition of marriage will inevitably lead to polygamy/child-marriage/dogs and cats having adorable tiny weddings!
Since those are all entirely different questions, no it won’t.
The argument behind this otherwise-silly statement presumably goes something like this: “if we alter the definition of marriage in the Marriage Act now, what’s to stop us altering the definition of marriage in the Marriage Act again later?”
And the answer is “nothing, beyond having the motivation to actually do it”.
More specifically, we can change any word of any Act at any time, provided that Parliament has the numbers to do so and can be arsed spending the time doing it. That’s literally the entire point of Parliament. They make and change and repeal laws, loads of them, all the time (for an average of 50-ish days per year, at least).
If your fear is that Parliament might alter words in a law sometime now or in the future, then perhaps representative democracy isn’t the right political system for you.
Stupid Argument The Seventh: Oh, why is this still a thing? I mean, who cares? There are more important things to worry about!
Exactly. It’s a pointless and tedious argument, and it’s going to keep going until we finally have marriage equality because more people want it than don’t. If it gets brought up in Parliament and defeated, that’s not going to make it go away (hey, it didn’t last time). It’s going to keep going and going and going and going until it happens.
You want the endless debates to finish? Pressure for same sex marriage to pass so we can all get on with our lives.
Yours ever,
APS
Andrew P Street Is The Internet 
Onya AP!! say….. wasn’t a plebiscite for the the peasants….. the….. uneducated? justa thought…. cocoa and off to bed now…..
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Respectfully I don’t think that these arguments, if properly understood, are completely stupid. Nonetheless they might well be worth rejecting, but they are far more nuanced than portrayed in this article:
1: It is incorrect to suggest that the definition of marriage is not contained within the Constitution. Words within the Constitution (including ‘marriage’ in s 51(xxi)) must carry meaning; it is the role of the High Court to address the extent of the meaning which the words contain (Engineers [1920] HCA 24). Parliament only receives the power to do so because the Constitution confers it. Since a referendum can be held to amend or insert any section of the Constitution, the people who put this argument are merely suggesting that, due to the importance of the issue to society, it would be better for it to be defined by the people as opposed to Parliament. It’s well known that in Cth v ACT [2013] HCA 55 the High Court remarked that it would be open to Parliament to alter the definition to remove the impediment that the two participants be of opposite gender, but it’s not correct to say that this is the only way. The question is whether this is the best way for a society to respond to this issue (to which you haven’t said anything other than that ‘we shouldn’t’!)
2. Do you not think that children deserve a mother and a father? Marriage is one way to across society, increase the likelihood that a child will have a mother and a father. It’s about society recognising an institution which it upholds as ideal (it’s worth mentioning that government regulation of marriage is a fairly recent phenomena). But you are correct: if it is not valued as the ideal that a child have it’s mother and father present during childhood, then the battle is already lost (hence the emergence of ‘parental rights’ legislation).
3. Firstly, civil unions already exist under law (for example in NSW, where a civil relationship can be registered with the Registry of Births, Deaths and Marriages). Moreover the common law acknowledges homosexual de facto relationships as being on equal footing to marriages under the Marriage Act.
Why would this change require the ‘stripping’ of marriage from heterosexuals? Previous amendments to the Marriage Act have been explicitly non-retrospective such that different provisions of the Act would apply depending upon when the marriage took place. Or Parliament could simply abolish the Marriage Act, pass a new act recognizing civil unions, which includes ‘marriages previously solemnised under the Marriage Act 1961’
Why isn’t this the best option in a free society? This way, all relationships are from the laws perspective equal, yet if sections of the community wish to attach further meaning they are free to do so? Everyone is equal in the eyes of the law, and free to co-exist (there is a broader point raised here as to why the government ought to regulate relationships at all – which perhaps ties into argument 2 and as one way to help and assist children).
4. True, but it’s not just about officiating the ceremony. We’ve all read of the lawsuits in the UK and US about florists and bakers who could not in good conscience partake in a homosexual wedding and were successfully prosecuted under anti-discrimination law. Put yourself in their shoes, and consider whether you would like to be compelled by law to partake in a ceremony you thought was immoral. In a pluralistic society which prides itself on individual freedoms, these freedoms ought to be granted to the worst of us, so that we might be assured that they are afforded to the best of us. There are perhaps unintended consequences which just need to be carefully considered; but yes otherwise a silly argument.
5. Agreed – that something is tradition is a silly argument to never change something. But it does mean to ought to respect and consider carefully why it is a tradition. We shouldn’t just assume that new or different is better (that is equally fallacious!).
Those same-sex/polygamous/sibling arrangements in the past ought not to be conflated – they were never recognised by society of their day as being akin to marriage in the present. Perhaps it’s because the government didn’t see a need to interfere in their lives because marriage was about something *other* than mere love. Again, if we don’t care about the parental rights of children, why does the government need to be involved in relationships? Perhaps the reason that marriage has been between a man and a women, is precisely because societies have recognised the need to protect parental rights of children. You cannot import what you consider to be important for marriage upon previous generations.
6. True, nothing is inevitable! However, the point is that many of the arguments for equality, love, etc are equally efficacious for polygamy/child-marriage. Again, what is the purpose behind government intervention in marriage, and why would restricting it merely to homosexual and heterosexual relationships achieve that purpose, and not other types of relationships? I don’t think that society should just do what it feels like doing – I think there should be good, grounded reasons. It is not democracy for Parliament to legislate on whatever it likes; have a look at s 51 of the Constitution, which gives Federal Parliament power to ‘make laws for the *peace*, *order*, and *good government* of the Commonwealth…’ Democracy comes with great power, but it should be used responsibly!
7. Perhaps the reason it is pointless and tedious is because you characterise your opponents arguments as stupid rather than engaging thoughtfully as you should.
Will it finish though? Abortion is still a contentious issue in the US 40 or so years on from Roe v Wade. More of the younger generation (although still a small, yet rising, proportion) are against abortion as compared to their parents.
Anyway, hope this will be helpful. Food for thought.
And I shall respond respectfully in kind:
1. I guess the Referendum could add an entirely new section to the Constitution explicitly about marriage, but since the legislation is covered under existing law putting a Referendum together for it seems time consuming and unnecessary (which I appreciate is the point) – and, as I said, would still require changing the law in any case. Why not just, y’know, change the law?
2. Do I believe children deserve a mother and a father? Well, I think that kids do better when they have loving parents, absolutely. Whether the individuals involved have non-matching genitals doesn’t really change the equation, as best I can see (and the research bears this out: http://www.abc.net.au/news/2014-07-05/children-raised-by-same-sex-couples-healthier-study-finds/5574168).
There’s an implied argument there that kids will somehow be confused if they’re (for example) female and both their parents are male, in that they’ll think they’re different – which would make sense if the three people involved were living on an asteroid, but in a world with aunts/girl cousins/grandmothers/female friends/women in society generally I can’t really see how this would work. Or, indeed, the slightest bit of evidence for it.
3. I may have misinterpreted Morrison’s suggestion regarding making all marriages explicitly religious, but given that almost three-quarters of marriages in Australia are civil ceremonies (specifically, 72.5% in 2013, the most recent data year, according to the ABS: http://www.abs.gov.au/ausstats/abs@.nsf/mf/3310.0) then this seems a much, MUCH more significant redefinition of marriage than making it non-gender-specific. If people are finding it such a burden to have gay people badgering them about marriage equality, do they think that having the majority of straight people angrily demanding the right to marry would be quieter and easer? I’m delighted to be married, myself, and would have been very, very angry had I suddenly be told just before the date that I could either not get married or join a church quick smart.
And you know what would *actually* be a lot easier in a free society, and allow people to be the same under the law? Just removing the “man and woman” bit from the Marriage Act. Boom, done.
4. Florists/bakers: that’s a matter for our already-existing laws around discrimination and absolutely nothing to do with the Marriage Act. Under Australian law, discrimination against someone on the basis of their sexuality is straight up illegal already, ever since the Sex Discrimination Act was updated to reflect this in 2013.
In other words: if people are worried they’ll have to cater gay ceremonies or face discrimination charges, that’s already the case – although let’s be realistic, if you’re a caterer that can’t even make an excuse like “oh, sorry, I’m booked out” and actually makes an explicit point of saying “nope, won’t do it because I don’t like you gay types” then you’re probably not cut out for customer service,
5. The point I made regarding tradition around marriage is that it keeps changing depending on the society and the epoch. This is another change, like the many, many, many, many, many ones that have come before.
6. The ol’ polygamy/children/whatever argument. Sure: if enough of the population thought that polygamy or child marriage or marrying elephants was a great idea, they could start grassroots organisations, get political support from a majority of parties and make a case for it to become law and if successful, it would become law. That’s, um, how laws work. They don’t just turn up: Parliaments make ’em.
I don’t see any evidence those issues are gaining social or political popularity, mind. There’s not nearly enough elephants to go around, for one thing.
The whole “slippery slope” argument ignores that fact that *all* laws can be changed by Parliament as soon as anyone can be bothered changing them, and that doesn’t happen often because it’s generally a long, tedious process.
Parliament could totally make it compulsory for everyone to marry Karl Stefanovic, if they had the numbers and felt that they’d be rewarded in the electorate. That hasn’t happened because there’s not enough support for the idea, and I don’t think child marriage is exactly brimming with public and legislative support either. The idea that one change will suddenly bring about an avalanche of completely unrelated changes is… odd.
Again, if your concern is that Parliament might one day change a law you like, then I have some bad news: they change laws all the time, that being the entire purpose of Parliament and everything. And often it’s terrible changes (like their fresh new laws regarding non-reporting of child abuse in detention, for example), but that’s how the system works.
7. Yes, you’re right: people can disagree. But if their arguments are meaningless, factually inaccurate or just thinly-veiled bigotry, they shouldn’t be used as a basis to deprive part of the citizenry of civil rights. Not least because if there were actual real-life downsides to marriage equality, they’d be manifesting by now. Some countries have had it for over a decade and are yet to descend into a nightmare hellscape of damaged children and marriages on fire.
And I know it’s not exactly your point, but: Roe vs Wade is a US law, not an Australian one. Laws around abortion in Australia are state laws, not federal, and are kind of a mess. I think that’s going to become an unnecessarily huge issue again in NSW, by the way, as the foetal personhood laws Fred Nile’s so gosh-darn keen on bring people’s Special Precious Feelings About The Sanctity Of Potential Babies into direct conflict with The Actual Health Of Existing People, but that’s another rant. Why, there oughta be a law!
Cheers,
APS
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Thanks for the clarity and solid argumentation.