Tuesday, 25 November 2014
I rise to speak about the issue of same-sex marriage, on which I will introduce a bill in this place tomorrow. There have been several attempts to pass marriage equality into law and all of them have failed. I hope, as did the sponsors of those bills, that my bill succeeds, but I do so for different reasons. I feel it is important to outline my reasons, if only so those who doubt the value of marriage equality may see that there are a number of arguments in its favour, many of which they may not have previously heard. Those arguments fall under three heads: liberty, conscience and state power.
I turn first to liberty. To most people, marriage equality means the right to get married irrespective of gender or sexual preference. But it is much more than that; it is the right to live your life as you choose and not have the government impose a particular view on you. Many heterosexual people choose not to marry. My wife of 30 years and I are among them. Fairly obviously, we do not believe we need a marriage certificate issued by the government to confirm that we are married. It is our choice.
No doubt many gay, lesbian, bisexual, trans and intersex people—known as LGBTI for short—will choose likewise. However, when the law says that LGBTI people cannot marry, in an important sense it is diminishing their liberty; a major choice is closed off. The state is interfering, intervening, telling certain people that they can do what they want, except when they cannot, while everyone else, of course, can. Indeed, it is worth noting that under current Australian law, intersex people cannot marry anyone at all.
My political tradition, classical liberalism, has always drawn a strong distinction between the public and the private spheres. Indeed, that distinction can be traced back to the Ancient Greeks. Unfortunately, many people are aware of classical liberals only when they talk about economics. It is not well known, for example, that Milton Friedman—probably the 20th century's most influential economist—supported marriage equality. But a great libertarian economist's support for marriage equality should come as no surprise. It was economists like Friedman, Hayek and Mises who produced groundbreaking research showing that private individuals tend to make better choices for themselves than do experts engaged to decide on their behalf. Why then do we confine marriage choice to some people and deny it to others?
Support for marriage equality does not require or, indeed, imply approval of any particular marriage or marriage outcome. Nor does it open the door to bigamy, polyamory or any of the other dire consequences that some people predict will be the eventual outcome. It is not as if they will sneak up on us, either. For these to be legal, further changes in the law would be required, which would involve widespread public debate.
I support marriage equality because I think people ought to have the freedom to choose their own life path—that is, to have liberty. As John Stuart Mill said: 'Over his own body and mind, the individual is sovereign.' All my bill does is prevent the government from stopping two people from getting married on the grounds that they are not a man and a woman. It does nothing more, and requires nothing more than tolerance.
To my libertarian constituency, it barely qualifies as progress. To them, a better option would be to remove the government from marriage entirely by repealing the Marriage Act and leaving it to the law of contract—as in civilian countries. I do not disagree, and my own situation reflects that. But that is not as simple to achieve as it sounds. The fact is: the community places a certain significance on the institution of marriage. It accepts that individuals can live together in all kinds of relationships, irrespective of gender and numbers, but marriage is different. We need to respect that. I turn next to conscience.
One of the most difficult public conversations across the developed world over the past 250 years has concerned the role of religion in both law and public life. This arose at the same time as the Enlightenment idea that laws ought to be secular. To that end, I have built into my bill protection for claims of conscience. As does the existing law, the bill ensures that ministers of religion do not have to solemnise marriages of which they disapprove. For the avoidance of doubt, I should make it clear that I consider the views of many religions that there is something wrong not only with marriage equality but also with LGBTI people to be in error.
I also maintain , it is fair to say , that religions have bec ome accustomed over many years to creating and then manoeuvring the levers of power. When a secular state rules that a given lever no longer matters, as occurred with blasphemy , for example, the anguish for many sincere religious people is real. So it is , also , when the power to grasp a lever — in this case , that of marriage definition— is lost. That is why my bill protects conscience. I believe that those who seek rights — in this case, LGBTI folk— must not remake the world so that error has no rights. Think where that has led in the past.To that end, I have also ensured that the bill protects claims of conscience for civil celebrants in the private sector. I realise that the number of private sector authorised celebrants opposed to marriage equality is likely to be small. Nonetheless, a prudent lawyer drafts prospectively—in this case, with awareness that there may come a time when non-religious people make moral claims that ought to be taken as seriously as the moral claims made by religious people.
I should note that , during the drafting of this bill, constituents tried to persuade me that authorised celebrants in the private sector are state actors by virtue of being licens ed. If that were true, then , by the same logic , any professional or tradesman who needs a licence to practise from the state is in the state's employ—lawyers, builders, dentists. Present this argument to your solicitor or orthodontist and see how far you g et. However, that there are officers of the state in all of this is a truism . S o I turn , at last , to state power.
As I pointed out in my first speech in this place, the state is a wonderful servant but a terrible master. In an important sense, the state stands for all of us. A nd that quality of representativeness means that , if it undertakes to provide a service, it must do so in a neutral fashion. T he state must not discriminate; if it does so, that is an abuse of power. This is brought home when one realises that some authorised celebrants are not only officers of a state or territory but also employees o f the courts. Their functions, of whatever sort, are therefore linked to the core liberal principle of equality before the law. My approach is to ensure that all those who come before such celebrants can be married. Indeed, my approach to the question of marriage equality enhanc es liberty, protects conscience and restrains state power. I hope it succeeds, because there are also many other important issues that warrant the same approach.