Marriage Equality has been a policy topic that has been in the news for a while now and I’ve been reluctant to cover it due to the divisiveness of the issue with proponents on both sides of the debate taking stances that cross the line of civil debate. However with the move of several Liberal backbenchers moving to support a private members bill and before that a suspension of standing orders to bring on discussion on the issue I think it’s worth discussing the political manoeuvrings behind this issue.
In 2004 John Howard changed the marriage act to ensure that the definition of marriage was between 1 man and 1 woman. This was moved through Parliament in order to ensure that if a debate was to be had in the future on whether Gay marriage should be allowed then it would have to involve a law change. Now in a way that fact has been used by many to advocate Parliament being the vehicle to bring in marriage equality. Indeed that is the view of John Howard (1) who believes it should be the Parliament and not the public who changes a law like this. Now I will elaborate below the political issues with that but (2) shows that since the 2004 marriage definition change there have been 22 bills introduced into Parliament debating changes to the marriage act and none of them have even passed through the lower house let alone reach the upper house. This then acts as a big reasoning for a Plebiscite, if the Parliament can’t reach an agreement on the issue but the public want action on the issue then a Plebiscite can be used to vote on the issue and assuming it passes it would be a brave Parliament that rejects the voice of the public especially with the cost involved in running a Plebiscite.
I think the first point to make is where the major parties stand on the issue. The Greens and the Democrats Party when they were in Parliament are known supporters of Gay marriage and indeed a lot of earlier post 2004 moves for marriage equality have come from these members. The Labor Party are an interesting case for marriage equality because they have flown the Political stances on the issue. Before 2010 the Labor Parties stance on marriage equality was to oppose any bill that came into Parliament which ensured that any bill by the cross bench had no chance of passing. As of 2010 Julia Gillard announced that she would allow a conscious vote in Parliament on the matter despite personally being against the issue. Now she has changed her mind on the issue of Gay marriage since then but the number one argument I hear on Gay marriage is that only Christians and people of religion disagree with marriage equality and that clearly isn’t the case. (3) I think Julia Gillard and other people’s argument on marriage is that the act of two people getting married has a symbolic meaning to it that doesn’t blend with modern society as much, indeed there are a lot of Atheists who are moving away from being married and are instead opting for civil services outside of the church setting. It is with these positions and in attacking the Coalition’s policy on a forced vote that I found their conference position (4) reached in their 2015 Labor conference perplexing. Until the end of the current term of Parliament the Labor Party advocate a conscious vote on the issue but from next term onwards any MP or Senator must vote in favour of Marriage Equality, a rather hypocritical position if they continue to attack the Liberal Party on not having a free vote. Indeed this change in policy has already seen a Western Australian Labor Senator resign due to the policy position change (5).
The Liberal Party until 2015 had a straight binding vote on Marriage Equality that said they had to vote down any attempts to introduce legislation on Marriage Equality. Now in the Liberal Party there are supposed leniencies to voting against party policy so there has been the odd senator who has crossed the floor on marriage equality but not enough to influence any results. Now I’ll come back to the specifics on crossing the floor for Liberal Parties members on any upcoming policy but 2015 saw an important policy shift on marriage equality. In 2015 to placate more moderate Liberal MPS Tony Abbott suggested a Plebiscite(6). The idea behind a plebiscite was for the Liberal Party to hold their policy line on marriage equality until the 2016 election and then push for a public vote on Marriage Equality post election. If as many polls suggested the plebiscite passed then MPS would vote in the lower house and senate to pass a marriage equality act into law and as I commented above a free vote for both parties would ensure that marriage equality passed into law as I don’t believe enough members would want to vote against public opinion. When Malcolm Turnbull took the role of PM from Tony Abbott in 2015 this remained the policy much to the disappointment of some in the community who had hoped Malcolm Turnbull’s personal view of support would see a change in policy. This simple narrative that gets parroted a lot by supporters of marriage equality ignores two basic realities that I will touch on now and elaborate further later on. If Malcolm Turnbull changed policy then conservative would pull support from Turnbull and seek Peter Dutton out as leader in a leadership spill. Alternatively if as is widely reported Turnbull made a pledge to keep a plebiscite as party policy in part of the deal with the National Party to maintain their support post leadership change then them pulling their support would also see the Liberal Party lose the balance of power on the floor of the house which would lead them open to a vote of No Confidence.
So with the policy positions now established I will return to the issues of the last week. Gay Liberal MPs and Senators as well as Warren Entsch have looked to resolve the issue of marriage equality before the next election (7). In their views the Plebiscite is a failed policy that will not pass the Parliament and so isn’t a viable solution to resolve the matter, with that in mind a free vote where members can vote on their conscious is the only way to get marriage equality through. In their minds and it’s a sound argument marriage equality is clearly going to eventually pass into law and while it’s not the most important issue to most people it’s an issue that generates a lot of public debate and so it distracts from other issues being discussed. A clear example of this came this week when Tim Wilson was questioned on the marriage equality debate and when he tried to sidestep to another issue the interview was promptly ended. As a result of this renewed push Conservative MPs have tried to seek another vote in Parliament on the issue of a Plebiscite and in the case of that failing again they would then seek to have a postal vote on the issue (8). There are many issues with a postal vote and indeed the strongest argument against postal plebiscites came from Malcolm Turnbull when he was leading the case for the country to become a Republic. A postal plebiscite can be held with Parliamentary approval because it can use money set aside for Government assigned surveying, however it is not binding so MPS can vote against the result and it is not compulsory which I believe would mean it would be voted down as the largest demographic in favour of marriage equality tend to be the most disengaged in voting in elections. It would also be up for legal challenges about appropriate use of Government money akin to what occurred when a parent challenged the Government funding of chaplains in public schools. So that leaves the prospects of either staying put or having a vote on marriage equality in the Parliament however that has it’s own wrinkles. Firstly the Leader of the House is in control of what legislation goes before the house and so they can effectively push any marriage equality to the bottom of Government Business where it would then expire at the end of the current term of Parliament. The way around that is to suspend standing orders which then allows government business to be suspended in order to debate a motion that is not currently next on the notice paper. For instance parliament is flowing with it’s usual robustness and then at 2:45 AEST Bill Shorten gets up and goes I seek to suspend the standing orders to censure the PM for being a Toffee Nosed Tory (not far off an actual suspension order :P). The problem with this passing the Parliament is an unknown constitutional section. (9) suggests that a lost vote on the floor of Parliament could be considered as a vote in loss of confidence in the Parliament. This would then lead to the government potentially resigning and if Labor then couldn’t elect a speaker an election to resolve the impasse. Now the wording suggests that it has to be considered an important issue and the Government could spin that it isn’t, indeed both the Labor Party in minority and the Liberal Party already in this term have lost votes on the floor of the house and that hasn’t led to a change of Government, it does however mark a significant dent on the standing of the Liberal Parties grasp of Parliament and that could lead to recriminations against those who crossed the floor. Now that last part might cause confusion because didn’t you say that the Liberal Party allowed members to cross the floor. Well the truth appears to be mixed, certainly (10) suggests that because this issue is so divisive crossing the floor on this issue seems to be no go with threats of challenges to the preselections of said members at the next election. The other issue is would a vote on marriage equality then pass the lower house and senate? The analysis on the impact of a passing of the policy on Turnbull’s leadership has already been largely commented on and there appears to be an assumption the policy would pass both houses with a passing of the suspension orders. However even if no Labor MP in the lower house voted against marriage equality the Senate appears to be a different can of worms. Indeed (11) shows that both in the Lower and Upper House there are members of the Labor Party opposed to marriage equality and when combined with Jacquie Lambie, Pauline Hanson and One Nation and Bob Katter in the lower house it cannot be assumed that marriage equality would just seemingly pass if the rest of the Liberal Party vote against marriage equality.
I have gotten to the end of this post and my final thought is that marriage equality is still a way off because as I have mentioned above there are still a lot of hurdles to climb. To those who want to use this as a stick to smack the Liberal Party sure go ahead however as I’ve elaborated above it ignores a lot of grey areas on this political issue and also ignores that other parties are also divided on this issue. In my mind that’s normal with social issues, I think we need to be more ok with disagreeing on some issues and not be so quick to bash those who don’t agree with them on everything.