Senate debates

Wednesday, 26 November 2014

Bills

Freedom to Marry Bill 2014; Second Reading

5:41 pm

Photo of David LeyonhjelmDavid Leyonhjelm (NSW, Liberal Democratic Party) Share this | | Hansard source

I move:

That this bill be now read a second time.

I seek leave to have the second reading speech incorporated in Hansard.

Leave granted.

The speech read as follows—

FREEDOM TO MARRY BILL 2014

As most of you are aware, there have been several attempts to pass marriage equality into law in this place, and all of them have failed. Of course, as did the sponsors of those bills, I hope the Bill I commend to the Senate today succeeds, but I do so for different reasons.

I feel it is important to outline my reasons, if only so those among you who doubt the value of marriage equality may see that there are other arguments in its favour, arguments with which you may not be familiar. Those arguments fall under three heads: liberty, conscience, and state power.

I turn first to liberty.

I support marriage equality not because I think people can somehow be rendered identical in their beliefs and attributes: already, many heterosexual people choose not to marry. No doubt many LGBTI people will choose likewise if this Bill becomes law. Rather, I support marriage equality because I think that people ought to have the freedom to choose their own life path. That is, they have liberty: as John Stuart Mill said, 'over his own body and mind, the individual is sovereign'.

When the law says that gay, lesbian, bisexual, trans, and intersex people cannot marry, in an important sense it is diminishing their liberty and their ability to make life plans: a major choice is closed off. The state is interfering, intervening, telling certain people that they can do what they want, except when they can't (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. I am aware that the common law has historically had a weak division between those two realms. It had to borrow the distinction from Roman legal systems. Therefore, I argue that while marriage may be part of the public sphere at common law, it is a private choice.

Many will be aware of classical liberals only when we talk about economics. It is not well known, for example, that Milton Friedman—probably the 20th century's most influential economist—supported marriage equality. However, a great libertarian economist's support for marriage equality should come as no surprise. It was economists like Friedman, Hayek, and Mises who published ground-breaking research showing that private individuals generally 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?

I turn next to conscience.

One of the most difficult public conversations across the developed world over the last 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 this Bill protection for claims of conscience. As does the existing law, this Bill ensures 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 view of many religions, that there is not only something wrong with marriage equality but also with LGBTI people, to be an error. I also maintain it is fair to say that religions have become used, over many years, to making and then manoeuvring the levers of power. When a secular state rules that a given lever no longer matters (such as with blasphemy), 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 this 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.

However, because laws should not discount the future, 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 negligible. Nonetheless, a prudent lawyer drafts prospectively, in this case with awareness that there may come a time when the non-religious make moral claims that ought to be taken as seriously as the moral claims made by the religious.

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 licenced. 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 get.

However, that there are officers of the state in all this is a truism, so 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, and that quality of representativeness means that if it undertakes to provide a service, it must do so in a facially neutral fashion. The state cannot discriminate, and 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 of the courts. Their functions—of whatever sort—are therefore linked to the core liberal principle of equality before the law. This Bill ensures that all those who come before such celebrants can be married.

The Freedom to Marry Bill 2014 enhances liberty, protects conscience, and restrains state power. I commend the Bill to the Senate.

I seek leave to continue my remarks later.

Leave granted; debate adjourned.