Everyday Justice in Conversation (4)

Here We Go Again – Confusion Reigns

“Under the Government’s plan, a postal vote asking if the law should be changed to allow same-sex couples to marry will be sent out to everyone on the electoral roll.” (ABC web site 9 August 2017).

This is so naive and so ignorant of the public-legal matter itself, and of the way in which our elected Parliaments have a major player in misshaping public understanding for so long. It is politically embarrassing.

It is wilfully ignorant of the way people are currently using the term “marriage” in their every-day discussions. This is a pragmatic device fraught with deep contradictions. And these contradictions are not going to go away, whatever the outcome of “letting-the-people-have-their-say”. It is a kite-strategy, we recall, initially flown a couple of weeks ago, by the newly installed “multi-department” Minister for Home Affairs.

Nurturing Justice is certainly not commending this latest populist initiative. It is more an attempt to hold a political coalition together than it is about finding just policies in relation to a problem generated by a populist surge that is not going to go away any time soon.

Yesterday, we identified the initial step that is being avoided by “both sides” as they continue to avoid elaborating their political vision for how marriage, family, and household matters, if not also friendship, contribute to our national life.

This unprecedented (voluntary) initiative confirms that the Liberal-National “side” of politics is no longer a coalition of parties, as it bends itself backwards on its public-relations path to shore up electoral support for elected members of its “side” as the next election beckons. Such political self-interest at the expense of the national interest can only confirm the political and legal misunderstanding of the current state of affairs. And meanwhile deep factionalism still tears it apart. Genuine public discussion about marriage, if not of the institution itself, is made hostage to this political mob’s fortune.

We will say it one more time (not for the last time): read what two competent jurists say about the complex legal situation we currently confront in the administration of marriage law across the Commonwealth, Ask yourself whether a citizens free postal vote is going to do anything more than confuse a confused situation. Ask the couple who have moved in next door or your own adult children who have entered into permanent living arrangements how they see their relationship and their entitlements and how their relationship functions in relation to legal requirements).

As it stands the key phrase in the news report – “[whether] the law should be changed to allow same-sex couples to marry” – is so fully ambiguous it may well provoke many to opt out. The wording strongly suggests that the current state of affairs in everyday life is being ignored. The formulation assumes that somehow the current legislation prevents freedom of speech, if not freedom of association. And it does no such thing. When has the definition of lawful marriage ever prevented same-sex couples from saying they are married, from referring to each other as marriage partners as thousands of de facto (“hetero” if not same-sex) couples have done for decades?

Moreover, whichever way this search for a legislative path goes, the presumption of those initiating this ballot is that the nation’s view on this matter can be properly gauged by it. It cannot. The issue presupposes a gross falsehood, namely that the political parties – via their receipt of public funding for elections – have educated the electorate already about the state of affairs governed by the Marriage Act. That is the offensiveness of this initiative, Mr Dutton. To send this out to all registered voters is to assume that the voters are competent to make a judgement in public-legal terms, when in fact they have to a large degree rendered incompetent by the studied self-interested negligence of our major political parties since at least 2004 (we’ll only refer to the mass media en passant here).

The above formulation assumes that the State by law prevents same-sex couples from asserting their belief that they are married.

The above formulation does nothing to challenge the implicit Statism in the populist view that marriage is a creature of Government. It is a confirmation that Parliament does not now know how to politically answer the accusation that the definition of lawful marriage in the Marriage Act, which both sides endorsed in Marriage Act amendments from 2004,  is an implicit violation of the human rights of same-sex couples. Some imply that such a definition of lawful in the Act is implicitly homophobic. Parliament has long since given up the task of defending the bi-partisan changes “both sides” endorsed in 2004 to the Marriage Act. If they are now no longer wanting to support that bi-partisanship, why aren’t they busy explaining themselves? The answer is: they are too busy “running for cover”. Mr Shorten’s current anger at the Government with predictions of an efflorescence of hate speech are merely a political cover-up of his own party’s contribution to public confusion. When has his party ever explained its pragmatic U-Turn on this matter, let alone his “side’s” failure to have the matter properly and publicly debated?

Do you believe that the current definition of lawful marriage as contained in the Marriage Act represents a violation of human rights?

We have suggested that this is the question that needs to be asked of this matter. But Labor as much as the Liberal-National coalition simply do not trust the electorate on this matter to raise it in these terms. For it part the electorate gives many signs that it is paying them back in like manner. These parties in their elevated privilege continue production of “both sides” core and non-core electoral agitprop. And they are so eager, so very eager, to display their post-modern credentials even as the “absolutes” of their respective “sides” dissolve in their rhetoric (ref the definition of post-modernity according to Jean-Francois Lyotard as incredulity to all meta-narratives). Labor’s absolutes are now “civil rights”; for the Liberal Coalition it is their tattered banner of “Vox Populi Vox Dei”.

There’s more to be said. For instance, what role does a Government have in relation to language? Can definitions of terms be legislated? Will some read the ballot question in terms of whether it is Government that can determine the meaning of the words we use? [While the Christian church has no mandate to depart from the teaching of Jesus about marriage, what it is, see here the wise words of N T Wright on the political danger of asking Government to legislate to define the meaning of words.] Further posts on how and why the reform of political parties is necessary for our ongoing state-crafting will follow. It is and will continue to be an important part of our everyday conversation about justice.

BCW 11.8.17

 

 

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