A vote on marriage equality is not an exercise in democracy – it is an abrogation of it

Manager of Policy Edward Cavanough for The Sydney Morning Herald. 

With the likely return of the Coalition government on July 2 has come the shift of attention to Australia’s next national poll: the plebiscite on marriage equality.
With Malcolm Turnbull repelling Labor’s attacks against the plebiscite with his impassioned defense of its merits, it is worth pivoting attention to the vote and how it will affect Australia.
I am strongly against a plebiscite. There are many reasons why.
Its expense aside, it is polarising by design. It will cleaver a schism in the community soon after a national election – a time the winning party should spend unifying the country, not exposing more fissures.
And it has no binding legal authority. It has been well-publicised that many Coalition members will exercise their conscience and vote against any marriage equality bill, plebiscite or no plebiscite. The vote will, therefore, be a conscience vote anyway – one that could be held the day Parliament resumes, and one that would likely bare a similar result.
But besides the waste of time and money, and the inevitable divisiveness the vote will bring, a vote on marriage equality is disturbing for a larger reason. Because a vote on marriage equality – a vote on the rights of an Australian minority – is not an exercise in democracy but an abrogation of it.
The Australian Christian Lobby has spent this election pleading with Bill Shorten to ‘have their say‘ on marriage equality if he is elected. However, voting on the rights of a minority is fundamentally anathema to the democratic experiment: simply, it is not the ACL’s right, nor anyone else’s right, to prohibit the rights or another – even if they have the support of the rest of the community.
While a vote for all is, of course, a fundamental right in any democracy, it is not the only right. Nor it is a tool to be used to make every important decision.
Political equality, too, is as central to legitimate concepts of democracy as voting is. And political equality means that all citizens of a country are entitled to the same rights as each other, and that these cannot be arbitrarily rejected because of the tide of public sentiment of the day.
To subject equality before the law to an opinion poll is to outsource the government’s core responsibility in providing a buffer between potentially crude majoritarian community sentiment and the rights of more vulnerable minorities.
Further, the proposed plebiscite on marriage equality legitimises the notion that the rights of a minority are subject to the approval of the majority. Irrespective of whether it passes or not, this sets a dangerous precedent.
Princeton University Professor Stephen Macedo succinctly describes the important differences between a simple majoritarian interpretation of democracy and the model that Western nations like Australia have actually adopted.
Many inaccurately believe, he argues, that democracy simply means the ‘rights of the majority to rule’. But this is inadequate, and we as a society have deliberately expanded upon our understanding of what democracy means to ensure that protecting minority rights is at the very core of the democratic experience.
Macedo elaborates: “[democracy] allows opportunities for majority rule voting and direct popular participation to play important roles in working democracies, but it also asserts that legitimate democracies are those that respect minority rights”.
History is littered with moments in which leaders have actually led; when the rights of a minority have been lifted to the forefront of the national agenda by the government of the day without first testing the waters at a national poll.
In 1962 – five years before the 1967 referendum on recognising the legal status of indigenous Australians – the federal government granted the indigenous community a full right to vote, with Queensland being the last state to enact this change in 1965. With no plebiscite.
In 1964 in the US, only 14 per cent of the population described giving African-Americans the right to vote as their primary political concern. It was on the national agenda, certainly, and most when polled further did support the notion. But it took precedence on the national agenda because the Congress and the President Lyndon Johnson put it there, and was passed into law in 1965. Without a plebiscite.
There will be be those who reject the comparisons between today’s marriage equality struggle and the suffrage rights of Indigenous Australians and African-Americans in the 1960s. But of course they can be compared.
Rights are not hierarchical – they are all of equal value in a free society. Today’s restriction of one minority’s right to be equal before the law is yesterday’s restriction of one minority’s right to vote. These comparisons are legitimate, and should be articulated.
It is also important to remember this is not a referendum. Previous changes to Australia’s constitution, like the recognition of Indigenous Australians as citizens in 1967, legally required a winning referendum to right an historic wrong. But all that is needed to enable marriage equality is an amendment of the Marriage Act, last changed in 2004 under John Howard.
As Congressman Barney Frank accurately noted, Malcolm Turnbull is simply “ducking” the issue of marriage equality. But Australians deserve a leader who will lead, not run for cover.

Edward Cavanough is the manager of policy at The McKell Institute.