Should basic human rights be decided by an opinion poll?

Plebiscite image_FEATURE

With a plebiscite on marriage equality likely to be defeated in the Senate, Professor Nicole Anderson, Head of the Department of Media, Music, Communication and Cultural Studies, asks whether a public vote should ever be used to determine laws around human rights.

Nicole Anderson_FEATUREImagine if that instead of issuing the Emancipation Proclamation in 1863 that abolished slavery, Abraham Lincoln decided to put the question of whether slavery was a good idea to a national vote.

America was in its third year of a brutal civil war, after all, which was partly a result of the battle between abolitionists and those who supported enslaving African-Americans.

How do you think that poll would have worked out? And what if he’d decided to give the advocates of slavery the money to fund a public campaign?

And therein lies the problem with leadership on core human rights issues. There will always be those who find reasons to defend the status quo despite compelling ethical arguments and do so in the face of majority support for change.

That’s where true political leadership comes in. Change will always be resisted by some elements in society.

We don’t just elect leaders to manage our economy. We elect them to put us on the right side of history and to uphold the values of liberal democracy. Those values, however flawed, are ones that espouse equality for everyone.

When it comes to marriage equality the ethical argument is compelling. Why, in a liberal democracy that separates church and state, would we deny people who love each other the right to be married?

Religious groups will still have the right to speak freely about their views – it’s enshrined in our Constitution in Section 116 – and we don’t believe in restricting religious freedom.

That doesn’t mean that everyone has to get married in a church. But there are now plenty of churches and other places of worship that will marry same sex couples.

One of the major problems with a plebiscite is that it is highly unlikely to result in Australians getting a more complete picture about why endorsing same sex marriage is important.

We live in a world where the public sphere is increasingly dominated by a series of polemic echo chambers. This debate, particularly if it was funded by the Federal Government, would quickly devolve into a shouting match. Worse, it would result in ugly homophobic attacks on LGBTI people.

Ethics, at its heart, is about respecting and embracing difference. That’s the best of what we do in a liberal democracy.

At our worst, we devolve into manning the gates and worrying about people who are different intruding into our status quo.

So talking of what it’s like to be different, let’s conjure with this scenario. You’re a five-year old girl who just started kindergarten. Most of the other kids have a mum and a dad. But you have two mums. Or two dads.

My colleague Catharine Lumby once wrote about an episode of Playschool which inflamed conservatives. It showed a little girl called Brenna who was featured in one of the short films young children watch through the Playschool windows.

The voiceover went this way: “I’m Brenna, that’s me in the blue. My mums are taking me and my friend Merin to an amusement park.” The ABC decided to include this segment after they were contacted by a same sex couple who said their daughter felt left out when it came to the way families were represented on television.

So here’s the real ethical dilemma. Do we want to watch our political leaders play politics with human rights – such as the right for someone like Brenna to feel accepted in the playground? Or, do we want them to acknowledge that same sex marriage is a human rights issue?

In the future, to put the most pressing question clearly: Do we want real leadership or more opinion polls?

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  1. There is no discrimination against gay couples in the law. Over 80 pieces of legislation were amended in 2008 to remove legislative discrimination in areas such as superannuation and social welfare for couples.

    Marriage is the union of a man and a woman. That’s the definition of marriage. You don’t go around arbitrarily changing definitions. Calling a table a “car” doesn’t turn a table into a car. Calling a same-sex partnership a “marriage” doesn’t make it a marriage.

    Furthermore, if you want to celebrate difference, it makes no sense to make no distinction between opposite sex partnerships and same-sex partnerships.

    Finally, tolerance is about respecting those with different views. To simply lambast people for not holding the same views as you regarding marriage is the epitome of intolerance. The hypocrisy of some “progressive” activists is ironic…

    1. Marriage is the union between two mutually consenting adults.
      Religion then re-defined this to “man and woman”.
      If you don’t want the definition changed then let’s leave it how it was before religion.

    2. @Religion is usually wrong

      It’s interesting that you make that reference to religion when I never did. It’s as though your religion of having no religion is biasing you towards a certain view of marriage, and that your world view by default trumps everyone else’s, just because you say so 🙂

      In any case, marriage throughout history has always been between a man and a woman. Even when it comes to polygamy, marriage wasn’t between one man and all the women (which would imply lesbianism between the wives of the man), but an individual union between the man and each woman.

      Another example of this would be the Ancient Roman and Greek civilisations. Married men would often take on a young male lover, but those liaisons were never defined as marriages. By the way, aren’t you glad that we modernized, and no longer celebrate those pedophilic practices which only a person stuck in the with dinosaur/stone age would celebrate and accept.

      The gendered nature of marriage isn’t something foisted on human society by religion. It’s defined by our human biology. It’s not about discrimination, but about recognising the unique bond a man and a woman can have.

    3. Hey Michael,

      Remember when interracial marriage was illegal? That was changed for a positive reason, and the world hasn’t collapsed after that decision. In fact, I would say it has flourished because of it. Following your logic, should we perhaps have a different kind of marriage for a white man and a black woman?

    4. You can’t compare this to interracial marriages. That ban was unjustified as race has nothing to do with marriage. However, gender has everything to do with marriage.

      The demand for changing the definition of marriage to include same-sex couples totally changes marriage from a gendered union to one that isn’t.

  2. This is a typical to the modern media machiavellian type of presenting a problem: mixed several issues with one sided arguments supporting your preference.
    Yes, whenever necessary the ‘basic human’ rights have to be approved in a referendum or a reliable national opinion poll. I put ‘basic’ in quotation marks because the notion of basic changes over time. At present the notion of ‘human’ is not clear as well: it should be ‘from the conception’. The elected political leaders cannot and should not have total power over all of us. We are not unconscious robots to be controlled or manipulated by an elected super-technician, in particular in the fundamental ‘basic human rights’ problems. Please do not erode democracy via media manipulative power.

  3. Where does it end?
    I would like a 7 wife’s one for each day of the week.(only because I get bored)
    Can we have a plebiscite????

    One thing I don’t understand is that a gay couple staying together are recognised as a couple and can reap all the financial rewards that goes with that so they are being recognised by law why is the next step so hard.Why does the Government need the peoples approval or the churches approval its totally hypercritical.
    It’s like the new medical co-levy scandal-I work hard and pay $1500 medicare levy every year why should I pay more because of irresponsible politicians wasting our taxes.
    I’m 50 and have three jobs 1 full time and two part time so why should my taxes pay to support 50% of illegal disabled pensioners and the unemployed lazy youth.

  4. I can assure you gay people don’t want straight marriage, they want equal marriage. Governments perform marriages, religions perform wedding ceremonies. Religion is not inherent to marriage. Neil, you provide compelling examples of why religion should be untangled from marriage.

    The myth that “gay people don’t have kids” is amusing. A persons’ preference for a partner has nothing to do with the primal drive to have children. 1/4 to 1/3 of gay couples have kids.

    If you think “a gay man’s relationship with another man is already equal” then you are very wrong. In Australia today gay couples are still discriminated against with marriage, adoption, donating blood, military pensions, immigration and visas, property rights, visiting partners in hospital, rental applications, inheritance, surrogacy, being refused retail service, and leave entitlements. Even here at Macquarie the Australian Red Cross is warmly welcomed despite actively and openly discriminating against gay people.

    As interesting as this debate is, every response so far missed the point of the article – the weak leadership of Malcolm Turnbull.

    1. There is no discrimination against gay couples in the law. Over 80 pieces of legislation were amended in 2008 to remove legislative discrimination in areas such as superannuation and social welfare for couples.

      Furthermore, the Red Cross does not accept blood donations from gay people, due to the increased risk of HIV transmission. This is a practical decision, and is not based on arbitrary discrimination. It’s done to protect those receiving blood transfusions.

    2. “There is no discrimination against gay couples in the law”. Some legislation was changed, not all of it. Gays are still discriminated against in law AND practice. You’re definitely wrong on this one.

      Blood donations are tested for HIV so your “practical decision” argument holds no weight. It’s just discriminatory.

    3. @Aussie Bloke

      I’d love to know which discriminatory laws you are referring to (apart from the Marriage Act, of course…we obviously disagree on what a marriage is…). Don’t just state that I’m “definitely wrong”, provide the facts to back up your claim.

      With regards to blood donations, homosexual men do have a much higher incidence of HIV. Therefore, the Red Cross may be doing this for the sake of efficiencies (e.g. it is an inefficient use of time and resources to accept donations and conducting testing, if a much larger percentage of the donated blood will be unusable compared to the rest of the population).

      In any case, Red Cross blood donations has nothing to do with legislative reform, and changing marriage from a union of opposite sexes, to a union of any two people.

  5. When did gay marriage equality become a human right? Checking the UN Declaration of Human Rights, the only statement is on marriage is Article 16.

    (1) Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.
    (2) Marriage shall be entered into only with the free and full consent of the intending spouses.
    (3) The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

    http://www.un.org/en/universal-declaration-human-rights/

    You confuse social engineering with human rights.

    1. Hey Mike

      Article 26 of the ICCPR (It’s part of the core International Human Rights treaties we all are protected by …) is the one you’ve forgotten.

      It has an important provision:
      All people ‘are equal before the law and are entitled without any discrimination to the equal protection of the law’.

      Additionally, Article 2 of the ICCPR requires governments to ensure all individuals are to enjoy the rights set out in the ICCPR without discrimination.

      So I guess equality became an internationally recognised human right in 1966. It was, of course, a principle widely espoused by liberal democracies and minds much earlier than that.

    2. Perfectly quoted, Mike.

      The thing is, as it stands right now, all “men and women of full age” do NOT have the right to marry – only heterosexual ones do. Legalising gay marriage would fix this embarrassing oversight and ensure Australia is compliant with Article 16.

    3. Hi MIke,

      Thanks for referring to the UN Declaration of Human Rights?

      I’m not a law student but just by reading this section, it does not appear that the UN Human Rights Declaration states that marriage should only be between a man and a woman?

      I’m a man of full age and I’m Chinese. My partner also happens to be a man and he is Italian Australian. And by UN Declaration of Human Rights, which you rightly points out above, I think we do get to marry and build a family.

      Putting the Human Rights Declaration aside, there is always unjust within the laws itself. 40 years ago, homosexual act can get you 30 years of imprisonment. That’s why we need to find the unjust and make them just.

      Cheers,

      Timothy Zhang

      GLBTIQ+ Student Representative

      Macquarie University Student Representative Committee

  6. The plebiscite would have been important, not just because it was an election promise to uphold the will of the people, but also because it would have addressed the legal definition of marriage which is about law and families – these are much plainer and much more boring than the emotive propaganda slogans of “equality”, “love” and “rights” (which are not relevant to changing the Marriage Act). Legal Marriage is solely a unique legal institution that joins law and biology. The rights, both written and assumed or extrapolated, exist to join a man and a woman and any children they may have. A gay man’s relationship with another man is already equal in love, in status & in respect but it is not identical: they cannot have a baby without a woman. Building the assumption into law that men have babies is insisting that law reject objective reality simply because that reality offends homosexuals. That is the nub of this and why same sex marriage cannot be “equal” with heterosexual marriage. Giving straight marriage to gay people sounds like generosity, feels like doing good but it fundamentally redefines a legal institution and then leaves that institution perfectly in place with an incompatible definition. That is a grenade going off in family law and while we know where some of the shrapnel goes, some of the effects won’t be seen until courts are asked to rule. Jurisprudence has a terrible habit of making lovely intentions into legal nightmares. Religious marriages are legally recognised as part of a religious service (including references to God). The current religious marriage certificate has the seal/signature of the church leader along with the official seal of the Commonwealth of Australia. No secular registry required. Religious marriages are under the very Act that the same sex marriage advocates seek to amend – so the re-definition of marriage affects all religious marriages that currently exist because it removes the inherent religious component. One of the rights found to accrue to married couples is the right to have children. Since same sex people can only vindicate this right to procreate using a surrogate, a woman, the ability of the government to do anything to regulate surrogacy must be severely curtailed by this legal change. The rights that accrue to same sex couples create a right for opposite sex couples too. Marriage is therefore fundamentally changed more and more as these legal ripples flow through into Law.

    1. Neil – and what about heterosexual couples who are too old to have children, or infertile, or simply choose not to have children? Having children (or not) has nothing to do with the current legal definition of marriage.

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