Same-sex marriage: debate religious protections after the survey

Illustration: Eric Lobbecke

While the government is right to be pleased with the response rate so far to its same-sex marriage postal survey, it would be wrong to interpret the encouraging levels of engagement as an endorsement of the process.

Gay Australians, for instance, won’t thank Malcolm Turnbull for putting them through this process. The case mounted against same-sex marriage has included spurious attacks on how unfit homo­sexuals are for parenthood. At best they are accused of being abnormal, but the worst attacks include an undercurrent of pedophilia.

The campaign’s nastiness, including violence and threats of violence, has been on the periphery, of course.

And the Prime Minister has done his best to highlight this, pointing to the overwhelming majority of Australians who are handling themselves with dignity. He says that were the pockets of nastiness to prevent such a survey, that would be akin to giving in to the worst elements of society, which a democracy shouldn’t do.

It’s an excellent argument, but only if participatory democracy such as this survey were the norm. But it’s not: it’s the exception, the rule being our traditions of representative democracy. Hence Turnbull won’t be thanked by the gay community (to the extent it is homogenous) for the gay exceptionalism he has endorsed.

Gays are different, which is why they needed a popular vote to have the right to marry bestowed on them: that’s the message this process has conveyed, intentionally or otherwise.

The tragedy of this debate is that we know Turnbull doesn’t think that way, even if a large segment of his parliamentary team does. He disagreed with holding a postal survey on support for a republic back when he ran that case, because he saw faults in the process. He opposed a plebiscite on same-sex marriage when Tony Abbott put it to a partyroom vote, because Turnbull wanted parliament to decide via a free vote.

But he inherited this mess and had to make the best of it. Had Turnbull dumped the plebiscite altogether, he would have been eaten alive by his right flank, cheered along by commentators so invested in Turnbull’s fall from grace that it’s sad at times to watch their venom being unleashed.

Once parliament rejected the plebiscite that had been taken to the people at the election last year, there was nothing Turnbull’s internal critics would have liked more than for him to declare a free vote on the issue. Instead, his praetorian guard on the right — Peter Dutton and Mathias Cormann — began pushing for a postal survey.

Given the internal politicking Turnbull faced it was the least worst option at his disposal, assuming things went as planned, the response rate was high and a Yes vote ultimately got up.

Dutton and Cormann, among others, were mocked incessantly for advocating a postal survey: it would be a flop, the public wouldn’t embrace it, voter response rates would be low, no clear endorsement would follow, the Yes campaign would boycott the process, such a vote would be unconstitutional, Australia Post wouldn’t be able to handle it, the Australian Bureau of Statistics would stuff it up as it did the census. The list went on. Criticisms were made publicly and internally, including within the cabinet. Dutton and Cormann persisted, and Turnbull backed their judgment.

With four weeks left in the process the response rate has ticked past 60 per cent and keeps heading north. It was almost 60 per cent a week ago when the ABS announced the official figures.

That is an outstanding level of engagement and points to a victory for the Yes case, given how energised its campaign has been and what published polls have consistently predicted. Caution must abound, of course, given the shocks seen overseas in non-compulsory votes: think Brexit and Donald Trump. But in neither of those instances were the polling results as clear-cut as they have been in this campaign so far.

Perhaps that’s why the No side has become more desperate, more absurd and even more offensive in its arguments as the campaign has rolled along.

But the fight won’t be over simply because (or if) the Yes case wins, even if it does so convincingly. Next up, opponents of same-sex marriage will seek to disrupt the legislative push to enact marriage equality by spruiking concerns about so-called “religious freedoms”. Not the right of religious orders to refuse to marry gays, which is a completely uncontested proposition, but what happens in religious schools, hospitals and even with bakers and taxi drivers who may not want to serve a gay couple.

The biggest irony of such concerns, apart from the scant international evidence of problems on this front, is that most of the same people who want enshrined rights on this score have long argued against a bill of rights for Australia. Had they gone down a different track back then, they wouldn’t face concerns on this front today.

To elaborate on the irony, these sudden campaigners for enshrined protections finally know what it feels like to be in a minority. Strange how they didn’t give two hoots about other minorities when those groups sought to make their cases for enshrined rights over the years.

What goes around comes around is the uncharitable thought that comes to mind.

But here is why we should all pay attention to (some) concerns about religious freedoms and ensure they are appropriately protected (without letting polemical campaigners misuse the notion) — because we can all find ourselves in the minority at some point. It’s a lesson that needs to be learned. Protecting minority rights matters in a democracy every bit as much as preserving the will of the majority.

For too many years the minority of people who supported same-sex marriage were vilified, gays were bashed and murdered. The majority that once included large numbers of bigots and homophobes is now a minority, and the bigotry and homophobia within that minority continues to shrink.

We need a serious and detailed debate on religious protections, not as a barrier to same-sex marriage but simply to ensure the emerging majority in favour of it (fingers crossed) does not repeat any of the mistakes the previous anti-same-sex marriage majority made across a long period. But we need this after the survey, and I’m willing to bet Dutton and Cormann will again come to the fore and advise Turnbull on how best to do so. The concept of religious freedoms must not be used as a red herring to prevent legalising marriage equality.

Just because too many opponents of same-sex marriage trampled over gay rights for decades is no reason for the rest of us to do the same to them now: to treat them the way they treated gay Australians. Two wrongs do not make a right.

Peter van Onselen is a professor of politics at the University of Western Australia and a presenter on Sky News.