NOT BY LEGISLATION ALONE

Isn’t it interesting how, within the Federal Parliament today, among those now taking their seats to consider legislation designed to enhance the governance of this country, we do not hear any coherent and organised political voice in support of Marriage, let alone of the Marriage Act in its current form? Debate has now moved on to a scrap between political players all seeking to get some kudos from the anticipated “Marriage Equality” legislation when it is finally passed.

Given the real-world complexity of this issue, and given the fact that both the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights do not redefine marriage to make it compatible with the libertarian theory that a same-sex union should be granted marriage status, and given that Australia is a signatory to both of these international agreements, it would seem wise for Federal parliamentarians to cease and desist from trying to eke some political advantage from this proposed “reform” (which in our view is no reform at all).

         Instead they should be thinking about how to generate more political debate among citizens young and old, about the way marriage and family (and household) life should be considered in law and how these basic social institutions should be discussed openly and fearlessly in political debate.

         We need more principled debate about marriage and family in relation to public governance, not less. We need a way of doing politics that gives us, and each other, time and room to develop our own thinking about the ways in which legislation should ascribe public justice to marriages and families as well as to households, and other long-term relationships of many kinds. As a deeply confused polity – with many changes taking place before our eyes, of citizens from differing backgrounds, foregrounds and heart-beliefs –  we need to start thinking in terms of a much longer, ongoing time-frame in which the entire citizenry, young and old, are encouraged to participate with their political views at whatever stage of sophistication they may be.

         And our parliamentary representatives should be taking on this task, seeking to foment that kind of ongoing (yes inclusive!) national discussion. Given our national civic confusion the best advice may be this: festina lente – hasten slowly.

         The issue about marriage cannot be resolved by legislation alone and it is not going to be made any easier by legislating “Marriage Equality”, trying to use the law to make that which isn’t marriage into marriage. There is not only significant confusion, but also profound disquiet, about the way this issue has been manufactured and the discussion malformed across the entire community – and we know that the problem about this is not only here at home but also overseas. We should not be goaded by apocalyptic accusations that we are somehow being “left behind”.

         And as I have suggested, there are grounds for suspecting that we are being coralled as a polity to become part of an attempt to rewrite the Universal Declaration of Human Rights, at least of Article 16.

         Nurturing Justice has given its view that the pervasive disquiet and confusion has been generated to a significant degree by the educative failure of the two major political sides (the Liberal-National Coalition and Labor) which in this instance means a failure to reckon with, and explain, their political view of the public legal dimensions of marriage and family and household in our polity. And we have pointed out how the recent election and its complex aftermath is a demonstration of an ongoing historical failure of both “sides” to engage in effective ongoing political education. Both “sides” resile from such education because, for one thing, it would mean that their own performance, qua parties, is put in the spotlight, their transformation into public relations firms for the political elite, which contrasts markedly with their presumed task of enhancing just representation in our national life.

       Take for example how, back in 2004, in response to efforts to legislate “same-sex marriage”, they voted overwhelmingly to reform the Marriage Act. Now, without any clear legal or political explanation as to why they are no longer doing so, they are advocating something quite different. But whatever that may be, they still refer to themselves in a gratuitous way suggesting that they, in their party affiliations, are indispensable to our system of public governance.

         And so the changes to the Marriage Act in 2004, which effectively legislated an equality of public entitlements between “civil unions” and married couples, are no longer part of the debate, at least where the debate gets prime media attention. “Same-sex marriage” agitation has since morphed into “marriage equality”. I have often wondered why and how this came about and it seems that we are now, apparently, dealing with the implications of a 2013 judgement from the High Court that can be read here. The crucial statement of that judgement reads:

   “Marriage” in s 51(xxi) includes a marriage between persons of the same sex.

         Though this High Court statement of 2013 is of significant constitutional weight, when have we ever heard the PM, the Leader of the Opposition, the leader of the Greens, or other parliamentarians advocating “Marriage Equality”, discussing the implications of this sentence – made by jurists in this High Court judgement – for our lives in this country? (Or have I been asleep?) This is something of such profound importance that it simply cannot be contained in Twitter tweats or the dogmatic manipulations of the 24 hour (or less) “news cycle”.

         It is disturbing enough to read that High Court’s 2013 judgment. And then we should read the serious criticism raised against its presumption by two constitutional jurists. Though this High Court opinion has such an important part in the way we should understand the current political debate, we have heard little if anything about it in all the huffing and puffing about “Marriage Equality” and the proposed plebiscite.

         So, are we to receive coherent political leadership on this matter?

        Is the statement as noted above of significance to how our constitution is understood and how we should now view proposals to change the Marriage Act? How are we to view the relationship between civil governance and marriage? And are we to simply flag through this statist view of what should derive from parliamentary supremacy in our political lives? Where has there been open political discussion initiated by our political elite as to whether the Constitution envisions anything like what is implied in this sentence of the High Court’s judgment about Parliament’s role in our life?

         Are our politicians afraid perhaps of criticizing the Court’s ambiguous and provocative judgment? Or is this indicative of a bi-partisan boycott by “the union of legal professionals in politics” so that such a discussion that might call them to account qua profession is suppressed ? Might such a discussion cast doubt upon their bona fide standing in our polity? Might it somehow undermine their own understanding of what they are doing as representatives of electors in Parliament?

         And so what we seem to have is a genuine farce, a mere “lolly scramble” over which side of politics has cleared the way to “Marriage Equality”, when in fact it was the High Court’s 2013 judgement that provides the open of the door for the political competition that is now being played out.

         Let’s ask it again: was the Federal Constitution in giving the Federal Parliament jurisdiction over marriage ((Part V – Powers of the Parliament) thereby implying a Federal Parliamentary power that could, via legislation, make that which is not marriage into marriage? The unjustifed and indeed unjustifiable statement of the High Court certainly seems to say so.

         It seems that some weird and not so wonderful political doctrines are being passed for self-evident reality in that (juristic) judgment but also the same view has been alive and well in the presumption that marriage is a creature of parliamentary legislation. This view certainly requires open political debate (as well as the kind of challenge from jurists we have linked) and that debate is not going to go away when politicians presumptively try to close the books (at least, if they can, for the next little while) on marriage by legislating “Marriage Equality”.

      Moreover, those Parliamentarians who are so worried about young people’s fragile sexual identity, should set themselves to examining the full social emotional consequences of their policies across all groups. Without doing that the “use” of professional advice about the possibilities of youth suicide simply sounds suspiciously like a covert way of telling people who actually believe that same-sex relationships are not marriages to stop referring to their belief in public life because it is “violent”, and will have to do so when legislation is finally passed. It sounds more like a threat, and also a political warning to any jurists who might want to challenge the egregious error made in the above quoted statement of the High Court.

         Such echoes of moral dictatorship are indeed alarming and no doubt there are young people on the verge of adulthood who, upon hearing these comments, become deeply troubled by them.

         The aspiring dictators of public moral discourse, so firmly committed to the salvific power of their “side” of politics, ought first to examine the failings of their own party, and explore their own inability to openly develop and stand by a coherent marriage policy seeking a better understanding about how we all are accountable for how we give shape to our political culture.

         If there is a profound and deep level of personal uncertainty abroad it does no good to simply blame your political opponents for the words that you presume to put in their mouths because they disagree with your own tentative views. Such wiseacres ought also to be asking what such presumptive legislation will mean for generations of young people, future citizens, yet unborn. We would do better as a polity if the political parties inside and outside of parliament set themselves to further develop their comprehensive political views on marriage over an extended period.

         How has the Marriage Act hitherto functioned in our political life and how should legislation be formed so that marriages and human relationships of all kinds are to be given due respect in all the legislation and legislative agendas that come before the Parliaments of this country at Federal, State and Local levels? We also need to give careful attention to how our laws and policies have ongoing influence and decisive impacts upon our contribution to our neighbours in the region and beyond and thus also upon their lives and how they then have an impact us as well.

         In other words, we should be giving thought to how we, in our contribution yo global politics can, via our own policies and the dissemination of our political outlook, begin to meet the very real challenges that face marriage people around the world in their everyday lives.

BCW 29.8.2016 (amended 9.9.2016)

 

 

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