Political Science and Government Student, Dartmouth College
On Wednesday, 15th November, we found out the results of a postal survey in which Australians had their say on whether or not the law should be altered to allow same-sex couples to marry. Australians voted in favour of the change, and a bill to amend the Marriage Act of 1961, a draft of which was released by Attorney-General George Brandis earlier this year, will be introduced to Parliament before Christmas (though the survey result is not binding on MPs).
Same-sex marriage (SSM) has become a totemic issue in Western liberal democracies of late, but the language surrounding the debate has, I believe, focused too much on equality, and not enough on liberty, another fundamental value of any liberal society.
The official “Yes” campaign in Australia, for instance, is called the The Equality Campaign. For Instance, the official “Yes” Australian campaign is called The Equality Campaign. On its website, it states its aim to be “to make equality and fairness a reality for all” in “a country based on equal citizenship”. The Guardian, meanwhile, appears to have made it a policy to refer to the postal survey as “the marriage equality poll” in its headlines. This approach, in my view, belies the real true nature of the question Australians are being asked to consider. Equality to a liberal is, simply put, the idea that differences amongst individual human beings should be irrelevant to the treatment afforded to them under the law. As a foundational building-block of society it can be traced back to the 17th century and the writings of both Thomas Hobbes and John Locke. Translated into practical terms, a commitment to equality requires that no man be exempt from a law that coerces another man. At first glance, it seems suitable to view the question of SSM through this lens, but, if we look closer, we find that it is not. This is because the illegality of SSM in a society does not of itself imply inequality: at present, all people who wish to get married are required by law to choose a spouse of the opposite gender, regardless of their sexual orientation. All are prohibited from taking as a spouse a person of the same gender, a homosexual man cannot take a man to be his spouse; nor, however, can a heterosexual man. The former has no less, and no more, flexibility in his choice of marriage partner than the latter; there is no inequality in this regard between homosexual and heterosexual citizens.
The injustice, then, if it exists, must be uncovered by other means. I argue that we should analyse the question of SSM through the lens of liberty to properly to so. The relevance of liberty to this issue, from a liberal perspective, may be summarised as follows. A free man is a man whose actions are not restricted by the coercive power of another, including of the agents of the state. The only reason for which the state in a liberal society may justifiably restrict the actions of one of its citizens is to prevent them violating the rights of other citizens. This most basic principle of liberal government was most succinctly expressed by the 19th century theorist John Stuart Mill, who writes in On Liberty that “the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.” Our commitment to liberty demands that we ask, when considering any action, whether the prohibition of that action for a person would be necessary to protect the rights of other persons. Applied to the SSM question, we are to ask ourselves: can the application of the coercive power of the state to prevent a man marrying another man, or a woman marrying another woman, be justified on the grounds that the non-application of that power would imply the violation of someone’s rights? In my opinion, the SSM, does not threaten anyone’s rights, and therefore its prohibition cannot be justified.
To this end, I shall consider the major objections to the legalisation of SSM advanced by the “No” campaign over the past several months and determine whether or not they point to a potential violation of rights, resulting from its legalisation. Former Liberal Prime Minister Tony Abbott, one of the leading conservative voices in modern Australia and a prominent No campaigner, penned an article in the Sydney Morning Herald in September outlining his concerns, which will serve as a framework for my analysis.
First of all, one of his most urgent concerns is that the legalisation of SSM would open the door to increased restrictions on speech, and a situation in which those critical of SSM, religious and non-religious, would be sanctioned for expressing their opinions on the matter. If Mr. Abbott’s concerns about free speech were justified, this would indeed be a serious argument in favour of keeping SSM illegal. In his article, he refers to a case from last year in which a complaint was made against Julian Porteous, the Catholic Archbishop of Hobart, in Tasmania, under that state’s Anti-Discrimination Act of 1998. The complaint in question related to a pastoral booklet, entitled “Don’t Mess with Marriage”, released in Catholic schools in Tasmania and which laid out the Church’s teachings on marriage and relied on the aforementioned act, which makes it an offence to offend, humiliate or insult a person on the grounds of his sexual orientation. There are strong reasons to believe that Tasmania’s Anti-Discrimination Act is indeed an unjustifiable restriction on speech, if it allows for individuals and bodies to be prosecuted merely for expressing an opinion. The flaw in Mr Abbott’s argument, however, is that that piece of legislation has been in existence for nearly two decades, independently of SSM. There is therefore no apparent reason to believe that the legalisation of SSM would infringe on Australians’ freedom of expression.
The second concern voiced by Mr Abbott is that religious organisations would have their freedom restricted in that they would be forced to offer their services to homosexual as well as heterosexual couples. He brings up the example of Catholic adoption agencies in the United Kingdom that have been forced either to close down or to sever their ties with the Church in order to stay afloat, following the introduction of regulations requiring them to consider gay and lesbian couples, as well as straight couples, as prospective parents. Whatever one may think of the role of the state in how such charitable organisations operate, the fact remains that the legislation involved in such cases came into being in 2007, well before the UK legalised SSM in 2014. There is no apparent causal relationship between one and the other in the cases to which Mr Abbott refers. Furthermore, the draft of the Marriage Amendment (Same-Sex Marriage) Bill, which will be introduced to Parliament as the result of a Yes victory in the postal survey, explicitly provides religious exemptions in what most people would consider to be the most important cases: it allows a religious minister to “refuse to solemnise a marriage” if the couple does not fulfil the minister’s religion’s requirements and it allows religious bodies, such as churches, to refuse to make their facilities available for the ceremonies associated with SSM. Since there is no indication that legalising SSM would impinge on the rights of individual ministers or religious organisations to exercise their religion, this line of argument must be rejected.
Mr Abbott also draws a link between SSM and the infiltration of a radical, Marxist-inspired strain of gender theory under the guise of the Safe Schools programme into Australian schools. This programme, which began in Victoria and was then expanded nation-wide, was originally designed to prevent the bullying of LGBT pupils, has generated enormous controversy for introducing concepts such as same-sex attraction, gender fluidity and transgenderism to young children, including pupils in years 7 and 8. One teaching manual, for example, suggests that pupils be taught that a person’s gender identity is independent of biological sex, and that the former can be chosen and then changed over time. The many critics of Safe Schools, claim that such topics are not age-appropriate and go well beyond the programme’s original remit. ‘How can parents,’ writes Mr Abbott, ‘keep gender fluidity out of schools here in Australia when gender fluidity has entered the Marriage Act?’ And yet, this argument against SSM from the former PM appears to be, if anything, weaker than the previous two. Broadening the definition of marriage to mean two people, regardless of sex, is an entirely separate issue from things like gender fluidity, and Safe Schools has always been, and will remain, no matter the outcome of the postal survey, voluntary for schools and entirely dependent on parental consent. Therefore, the argument against SSM on the grounds that it will violate parents’ rights to shape their children’s education cannot be maintained.
There are two other concerns expressed by No campaigners that regard the composition of families and the rights of children. One oft-made argument in this field is that the traditional nuclear family, with two parents of opposite genders, is the ideal environment for a child because of the mutually complementary influences on the child of the father and the mother, and that a child should not be deprived of that nurturing environment. As Glenn Davies, Anglican Archbishop of Sydney, put it on a special episode of ABC’s panel discussion programme Q&A last month, the importance of the traditional definition of marriage lies in ‘the complementarity of the nurture that a father brings and the nurture that a mother brings… It’s a different kind of nurture.’ He pointed to the results of the Grant Study, in the United States, in which researchers found that some indicators of well-being in later life, such as effectiveness at work, were linked to a good relationship to one’s mother in childhood, while others, such as reduced stress, were linked to a good relationship with one’s mother. It should be noted, however, that consensus on this question remains somewhat elusive, and that, even if one were found, that would still not justify the intervention of the state: the quality of children’s upbringing varies hugely among straight couples, too, without calls for the state to police the values those couples transmit to their children, or the diet they choose to feed them. Even if we accept, for the sake of argument, that the state should interfere in family life to ensure the ideal environment for children’s upbringing, this interference would not take the form of a blanket ban on SSM, but of an evaluation of how fit each couple is to raise children, and would result in many opposite-sex, as well as same-sex couples, being barred from starting a family. There is no way to justify the prohibition of SSM on the grounds of children’s rights to a nurturing family environment.
Another argument was raised by Karina Okotel, No campaigner and Vice President of the federal Liberal Party, on the same episode of Q&A. The legalisation of SSM, she claimed, would, by allowing same-sex couples to use assistive reproductive technologies (ARTs), produce a generation of children unaware of who their biological parents are. There are, however, two obvious problems with this line of argument: the first is that opposite-sex couples in Australia also frequently use ARTs such as IVF for various reasons; the second is that there are already thousands of homosexual couples raising children – according to the results of the 2011 Census as reported by the Australian Institute of Family Studies, 12% of the nearly 34,000 same-sex couples then in Australia had children living with them. The institute also notes that the use of ARTs by same-sex couples is already legal in every state in the nation except Western Australia. So, even if one is opposed to the use of ARTs by couples on the grounds of its amounting to the violation of children’s rights, as Ms Okotel is, there is no logical reason for that opposition to translate into opposition to SSM.
I hope that the above framework may serve as a basis for a consensus among liberals, of both the progressive and the conservative stripes, around the issue of SSM. I hope also to have explained why that consensus should come down on the side of abolishing the current prohibition on SSM providing certain conditions are met. Those conditions are: that conscientious objection to SSM not be censored as a result of its legalisation; and that religious bodies be allowed to refuse to offer their services to same-sex couples. In Australia, those conditions will be met.
 In the words of Hobbes, a man who ‘in those things which by his strength and wit he is able to do is not hindered to do what he has a will to.’ Thomas Hobbes, “Of the Liberty of Subjects,” in Leviathan, ed. Edwin Curley (Indianapolis: Hackett, 1994), 136.
 John Stuart Mill, On Liberty, ed. Elizabeth Rapaport (Indianapolis: Hackett, 1978), 9.
 George E. Vaillant, Triumphs of Experience: The Men of the Harvard Grant Study (Cambridge: Harvard University Press, 2012), 133-135.