Poor old Malcolm in the middle. He’s stuck between his quickly evaporating conscience and the conservative base of the Liberal Party. Too clever by half, he thought sticking with the proposed same sex marriage plebiscite (an official poll of all citizens on the question of same sex marriage) would enable him to successfully walk the tightrope that is contemporary Australian social policy. Yet with Labor set to block the plebiscite with the help of the Greens and the crossbench, his plan appears failed. Most supporters of the plebiscite are opponents of same sex marriage – they see it as their best way to divide the left and block or delay marriage equality. Conversely, the vast majority of the LGBTI community oppose the plebiscite (85 percent in one poll). They rightly worry about a public debate around their rights, and the homophobic hatred that is likely to unleash.
However there are a few that accuse Labor of playing politics on this issue, preparing to vote down the plebiscite simply to watch Turnbull squirm. Others, like the lobby group Australian Marriage Equality and Greens Senator Sarah Hanson-Young are willing to put up with a plebiscite if, as they seem to think, it is the quickest way to achieve marriage equality.
Many of these arguments have been widely discussed in the media; in this post I will argue that there are not only clever political reasons for the Opposition to block the plebiscite, there are sound philosophical ones too.
The main argument in favour of the plebiscite is that, given the issue is highly divisive and one that both sides take very seriously, an official vote in the only way to resolve the dispute. Argue both sides and then accept the will of the majority. Yet Australia is an established liberal democracy and liberal democracies don’t leave basic liberties up to the will of the people. They protect them constitutionally, or at least through common law precedent. Marriage rights should not be put to a plebiscite, this sets an awful precedent. Marriage rights should be be constitutionally protected, as they are now in the US. They should guaranteed regardless of how the majority decides at any given time.
Although there are numerous different models of liberal democracy around the world, there are a few fundamental concepts that underpin the social contract that liberal democracies are founded upon. John Rawls, the greatest political philosopher of the twentieth century, argues that first among these concepts are the liberal principle of legitimacy and the fact of reasonable pluralism. It is often supposed that these concepts lay the groundwork for a democracy that supports everybody’s freedom of speech and freedom to vote according to their beliefs. Everyone has a chance to have their say and then when a majority of voices align, a collective decision can be said to have been made. When put this way, one may see a plebiscite as the democratic thing to do. However with a quick run down (and slight re-interpretation) of Rawls’ philosophy, I will strongly argue that in fact a plebiscite undermines the liberal democratic basis of our society.
The liberal principle of legitimacy holds that legitimate political power is the power of free and equal citizens shared communally. Having a simple majority of the voices does not mean you can legitimately use political power however you wish. Legitimate political power must be used in ways that we can reasonably expect all citizens to endorse, at least when it comes to decisions relating to their basic liberties (issues like their ability to worship the religion of their choice, or indeed like their ability to marry who they want to). It is this liberal principle of legitimacy that prevents the majority from enslaving the minority. Individual rights must be respected by the government, no matter who is elected. If the government doesn’t respect the individual rights of minorities, then there is little reason the minority groups should respect the power of the government. If this occurs, we have a breakdown of legitimacy. The social contract would be broken.
The second concept – the fact of reasonable pluralism tells us that it is a fact that reasonable people can disagree when it comes to their deeply held beliefs regarding how to live a good life. Political liberals (supporters of liberal democracy) must respect this fact. People don’t simply disagree because some are smart and some are dumb, or some are moral and some are immoral. Of course some people are smarter and more moral than others, but even equally highly intelligent, highly moral people can have totally different ideas on how to live their lives.
So this seems like a problem. If all citizens can disagree on fundamental social issues, then it seems like it will be impossible for a government to make a decision regarding basic liberties that they can reasonably expect all citizens to agree to. Democratic minded people might try and overcome such impasses through a simple majority takes all vote. Defenders of the plebiscite say exactly this – let’s just see what most people want and go with that. Yet, as the liberal principle of legitimacy tells us, if the majority deny the minority of their rights then that use of political power is illegitimate and unjustified. In that case, I think the minority (in this case LGBTI people) start to have a pretty good moral case for ignoring the power of the government by, for example, refusing to pay taxes etc.
No, a majority wins vote cannot resolve this impasse around same sex marriage. It is never appropriate to give people a vote over whether minority groups should have access to basic rights. No, there is another, far simpler and more appropriate way to resolve the impasse. That other way becomes far clearer when we investigate that word “reasonable”. Rawls is quite clear that the liberal principle of legitimacy does not require governments to literally gain the approval of all people before making a decision regarding basic liberties. After all, a lot of people are seriously stupid, crazy or nasty. No decisions could ever be made if that were required. What is required is that people can be reasonably expected to go along with the decision. The word ‘reasonable’ can be related to being fair-minded. It is a common sense concept. It is unreasonable to expect a vegetarian to eat meat. That doesn’t mean the meat eater has to like vegetarianism, it’s just that the meat eater wouldn’t (or shouldn’t) argue in a liberal democracy that the vegetarian should be forced to eat meat. Similarly, it is unreasonable for a Christian to expect a Jew to worship Jesus. That doesn’t mean the Christian has to think Judaism is equal to Christianity, it just means the Christian wouldn’t (or shouldn’t) argue in a liberal democracy that the Jew be forced to convert. Believing in freedom of religion (a very reasonable thing to believe in), doesn’t mean you have to take your own religion any less seriously.
With this view of “reasonableness” in mind, it should become clear to political liberals that the same sex marriage debate is an asymmetrical debate. There are not two reasonable positions to choose from, leading us to an insurmountable impasse. Rather, there is only one side of the debate that respects the fact of reasonable pluralism and the liberal principle of legitimacy. That is the side that wishes to legalise same sex marriage. If same sex marriage is legalised then LGBTI people can marry who they choose AND straight conservative people can marry who they choose. Both can live their lives and pursue their own vision of the good life. There is no judgment from the government entailed in this position. To legalise same sex marriage isn’t necessarily saying that conservatives are wrong or that gay marriage is a morally acceptable thing to do. After all, the fact of reasonable pluralism tells us that governments should believe that any intelligent, moral person could either support or disagree with same sex marriage. I am sure that the conservatives are wrong on this issue, but a liberal democratic government who introduces marriage equality is not necessarily telling them they’re wrong. Just like a government who protects freedom of religion is not necessarily enforcing atheism. It is, however, telling them they should be reasonable – as all citizens in a liberal democracy should be. Marriage equality can be interpreted as simply a political position that allows all people to live out their own view of the good life. Since marriage equality doesn’t tell anyone that they’re immoral, nor does it try and interfere with anyone’s personal lives or basic liberties, nor does it enforce any particular specific view of the good life on anyone else, it is the politically liberal way to go. All people can be reasonably expected to endorse this position. It is fair-minded and consistent with the liberal principle of legitimacy and the fact of reasonable pluralism.
Opponents of same-sex marriage presumably do not endorse this position in practice because they don’t get what they want, and what they want is for everyone to follow their moral beliefs. Yet, as I have argued above with the vegetarian/meat eater and Jewish/Christian examples, it is unreasonable to expect everyone to follow your beliefs. Individuals do have a right to pursue their own life goals, but it is absurd to think that individuals have a right to enforce their own life goals on everyone around them. Maybe in a theocracy or dictatorship, but no one should have that right in a liberal democracy.
The other position, the belief that same sex marriage should remain outlawed is clearly not a position that we can reasonably expect all people to endorse. No LGBTI person who wants to get married will endorse that position, and it would be unreasonable to expect them to endorse it. It would go against their deeply held views of how to live a good life. As a result, the anti-same sex marriage position fails the liberal principle of legitimacy test and should be ruled out.
Who should rule it out? Well in the US, the Supreme Court ruled it out. No matter what the majority of people thought, and no matter how the majority of elected representatives voted, same sex marriage was the only position that could be accepted constitutionally in a liberal democracy. Although the US Supreme Court is far from perfect, this is a system that in this case worked perfectly well with how I imagine liberal democracy should operate. Basic liberties, like your ability to marry who you love, should not be at the mercy of the popular will. And Australia should not set the precedent that says that they can be. That would be a very illiberal, undemocratic and frankly dangerous precedent to set.
Elliot Brice is a teacher with an Honours degree in Philosophy from the University of Melbourne.