If the constitution of our polity cannot be settled by our parliament, so much less the constitution of the family.
By Gary Scarrabelotti
There must be people who just shake their heads and pinch themselves.
Where’s that same-sex marriage thing coming from?
How come advocating it has become a badge of honour throughout the Western world?
How did ssm become the norm of norms?
Why so much certitude about the impossible?
Being “gay” is a human right, allegedly: up there with the right to life, liberty, property, freedom of speech and religion. It’s hard to credit. But there it is.
Things that would make you groan have been said in defence of gaydom. Take Jeremy Corbyn, Britain’s Labor leader. He suggested on Skye (Monday 20 June) that all British rights — including the “right” to be “gay” — hinged upon the European Convention of Human Rights whose protections would be lost in the event of a Brexit.
It’s risible to say to a Briton that his rights depend upon the ECHR when his Common Law, Parliament, and civil freedoms were flourishing long before the EU was born. It’s a veritable hoot, moreover, to claim that the rights of British “gays” would be lost without Britain’s adhesion to the EU! The idea of Britain being absorbed into a “gay” EU empire must have gone down like a lead balloon among working class British voters.
But, then, that’s Jeremy Corbyn. Not the deepest file, it has been said, and facing political execution for his massive blunders on the Remain campaign trail. Australia’s own Malcolm Turnbull and Bill Shorten, however, aren’t that dumb and their stars are rising. Both of them are ssm advocates. Shorten is quite fired up about it.
Where does that place us?
A plebiscite on same-sex marriage became the policy of our liberal-conservative Coalition government under former Prime Minister, Tony Abbott, in August 2015 shortly before he lost the leadership to Malcolm Turnbull.
In his capacity as federal leader of the Australian Labor Party, Bill Shorten has ruled out an ssm plebiscite.
Prime Minister Malcolm Turnbull agrees with Shorten but — sigh! — he’s bending to his party’s will in agreeing to have one.
Think of the principle that both leaders share: when it comes to changing the definition of marriage, Parliament should decide without reference to the people.
While we’re doing that, consider that our leaders agree on this principle for different reasons: Shorten because the plebs might yield to unseemly passions and give vent to hurtful expressions about “gays” in the course of public debate; Turnbull because he believes that parliaments are elected to make such decisions.
Let’s say no more about Shorten’s opinion of ordinary people … though it does remind me of Casca’s speech as he and Cassius work on Brutus to join the conspiracy against Caesar:
“ … the rabblement hooted and clapped their chapped hands and threw up their sweaty night-caps and uttered such a deal of stinking breath … that it had almost choked Caesar — for he swooned and fell down at it. And for mine own part, I durst not laugh for fear of opening my lips and receiving the bad air.” (Julius Ceasar, Act I, Scene 2.)
But, really, this is just a fleeting thought and my readers are not stones. So, let’s move on to the higher, colder, more refined atmosphere of pure principle breathed by our Prime Minister: that Parliament should decide.
Society beats polity
On the face of it, that sounds fine. There are, however, matters that our Parliament cannot decide. There are constitutional issues, for example. If there is a question about the Constitution of our polity, then that is settled by the people in a referendum – and the answer they give is binding.
Now, you cannot have a political order without having first a social order: society comes before polity. Society determines the shape of the polity. So, matters relating to society – which includes defining its form of government – are higher than, and logically precede, those that belong to the polity. A question about the nature of marriage is another such matter. It should, therefore, be referred to society for an answer. If the constitution of our polity cannot be settled by our parliament, so much less the constitution of the family: the foundational element of society.
The next question is whether society should be consulted non-bindingly via a plebiscite or bindingly via a constitutional referendum.
Given the priority of society over polity, one would think that a judgement by society about its own nature should bind a parliament. But is the meaning of marriage strictly constitutional?
Well, “marriage” happens to be a term in our Constitution and its meaning was perfectly clear to one and to all in 1901, when our Constitution came into force, and it remains clear to this day. The definition of “marriage”, I would argue, cannot therefore be changed except by a referendum. To change it without recourse to a referendum would be unconstitutional. More than that, it would be revolutionary.
The revolution, however, is not lying in wait for us at some future ambush site. It has openly advanced upon us all kitted out in the camouflage battle dress of legality.
To change the definition of “marriage” without recourse to a referendum would be revolutionary.
In December 2013 the High Court of Australia handed down a judgement in the case of The Commonwealth of Australia v The Australian Capital Territory.
At issue was an attempt by the ACT to give statutory form to same-sex marriage. The High Court struck down this legislation on the grounds that under our Constitution – section 51(xxii) — only the Commonwealth could legislate on matters relating to marriage.
No problems there. But the High Court went on to find that “marriage” was not an “immutable” term limited in meaning to the common understanding of marriage that prevailed in 1901. Moreover, the Commonwealth could redefine marriage to include unions between same-sex persons.
This is an astonishing decision because of its logical implications. If the meaning of the terms employed in the Constitution do not cleave closely to how they were commonly understood when it came into force, and if the Commonwealth has legislative power to redefine them, then the meaning of every term in the Constitution might be changed to mean whatever the Commonwealth chooses them to mean. That is a formula for tyranny.
So there you have it. The marriage question is no longer constitutional, but political. That’s why a consultative plebiscite is the only offer on the table – and it won’t be there beyond July 2 if Labor wins the federal election. What is more, even in the event of a Coalition victory, neither the government nor the parliament would be bound, whatever the result of the plebiscite. They could ignore it. That, however, would be politically explosive whichever way the vote went. The consequences don’t bear thinking about.
We are about to embark, then, upon dangerous and unchartered waters. How did we get here?
Part of the answer is that we are in the midst of a class struggle. This is a battle between a “knowledge class” and the rest of us who do not share in the certainty of this “knowledge”. Among members of the knowledge class there is little room for scepticism or for finely shaded judgements.
The knowledge class just knows that certain things are true. It just knows, for example, that the globe is facing doom in the form of human-caused climate change. It just knows that cosmopolitanism is superior to national identity: that borders should be open and that monoculturalism should yield to multiculturalism. The knowledge class also just knows that same-sex marriage is right and just and liberating while the traditional form thereof is oppressive. Furthermore — and precisely because it knows — the knowledge class believes that democracy should be managed by a knowledge élite. It’s a curious mix of convictions in which Karl Marx and his most faithful disciple, Leon Trotsky, would find much to approve.
Like Britain with its non-binding Brexit referendum, Australia is about to embark upon a similar path with a non-binding ssm plebiscite. Both exercises engage deep-rooted and irreconcilable divisions within British and Australian societies. Bringing them to a head in this way could prove shattering in both cases.