Prenuptial and post-nuptial agreements in the High Court

By Legal Eagle

So, y’all would have noticed that I don’t post much on this blog any more, but I still occasionally blog over at Opinions on High, the Melbourne Law School blog covering the decisions of the High Court of Australia, where I am one of the editors (along with Professor Jeremy Gans).

I’ve just written a post on the High Court’s recent decision in Thorne v Kennedy [2017] HCA 49, in which the High Court set aside pre- and post-nuptial agreements made by an immigrant bride in deeply disadvantageous circumstances. Skepticlawyer (@_HelenDale) has described it on Twitter as combining “family law, behavioural economics, & ‘libertarian paternalism’ in just the right doses”. Here’s a taster:

There is a difficulty with the notion that parties to a marriage will effectively plan for division of property at the outset of the marriage (whether in a pre- or postnuptial agreement). The problem is that when people marry, most parties don’t expect to divorce. In Richard Thaler and Cass Sunstein’s book Nudge (2005), it is observed that, although people are very good at anticipating the divorce rate of other couples, almost all couples are certain or almost certain that they personally will not divorce. We all like to think that our relationship are stable, and so we are bad judges of our own chances of relationship success, although we are good at judging the success of others. If we enter into a pre- or postnuptial agreement, our decisions may not be wise.

But it is also difficult to sort out entitlements after a relationship has broken down, because of what Thaler and Sunstein call the ‘self-serving bias’ problem. When a relationship breaks down, people tend to see things differently, and think that they were entirely in the right, and the other party is entirely in the wrong. A will say, ‘I never intended B to have an interest in my house!’ and B will say, ‘But A told me he’d share the house with me!’ We all suffer from this. As Thaler and Sunstein point out, after a World Cup match between Brazil and Italy, ask the fans from each country in whose favour the referees were biased, and the answers will be quite different. This is why family law cases are messy, protracted and expensive.

Go read the whole post! You know you want to!

It’s all happening

By skepticlawyer

I’m not usually given to quoting Bill Lawry around these parts, but the last week has been somewhat…busy. For good reason, though.

First, the Cato Institute published the entirety of my ‘Author’s Note’ from Kingdom of the Wicked, where – in an attempt to avoid having my writing horribly misinterpreted – I set out how I’d gone about writing my second novel, and why. The piece represents a fairly considerable piece of craft, and I’d like to pay tribute here to both Legal Eagle and Lorenzo, who read and edited multiple early revisions with a view to helping me hone it to the greatest extent possible. Cato’s introduction runs as follows:

Regular readers of may recognize Helen Dale as a recurring contributor to the site—but long before she started writing here, she was an award-winning author of fiction.

Writing fiction that feels “real” can be a tricky thing. For a fictional world and the characters in it to seem true to life, they have to behave like the real world behaves and as real people do. Authors, for that reason, have to have a theory of how the real world works, about how real people behave—even if that theory is implicit—that they can draw on to answer questions about how their fictional world works and how their fictional characters behave in it.

Humans famously disagree about how the world works—about their theories of sociology and economics, for example—and those disagreements are by nature political disagreements. This means that at least to some degree, fiction is political.

I don’t mean to sound naïve about the issue of authorial intent. Perhaps it’s better to say that a text has an implicit politics, rather than asserting that the text’s author shares those politics. But in the piece that follows—the “Author’s Note” from Helen Dale’s new book Kingdom of the Wicked—we have an author giving us a peek behind the curtain into her thinking. She tells us she deliberately constructed her story’s world while relying on a set of beliefs—about history, the law, and economics—that she describes as belonging to the classical liberal tradition. I feel confident in saying, then, despite not yet having read the book myself, that the implicitpolitics of Kingdom of the Wicked, the text, are probably quite similar to the explicit classical liberalism of Helen Dale, the author. It’s perhaps fitting, in light of that, that she wrote the book while in receipt of a three-year scholarship from the Institute for Humane Studies at Oxford University in the UK.

That’s what a piece about the process of creating a work of fiction is doing on a site dedicated to libertarianism.

Now read what I wrote.

Next, Hoover Institution at Stanford University economist Dr Mark Koyama decided to take an interest, writing what is probably the most thoughtful, erudite, and probing review of anything I’ve ever published in my 20+ year career in writing. This review proceeded to go utterly, utterly viral – first drawing the attention of Tyler Cowen at famed economics blog Marginal Revolution, and thence propagating all over the internet. Professor Cowan later linked to my Cato Institute piece (which gave Cato’s servers a bit of a workout) and also – indirectly – enriched me and my publisher via Amazon/Book Depository sales. Dr Koyama’s review is a thing of wonder, and I strongly recommend it, even if you’ve already bought and read Kingdom of the Wicked.

This question – could Rome have had an industrial revolution? – is prompted by Kingdom of the Wickeda new book by Helen Dale. Dale forces us to consider Jesus as a religious extremist in a Roman world not unlike our own. The novel throws new light on our own attitudes to terrorism, globalization, torture, and the clash of cultures. It is highly recommended.

Indirectly, however, Dale also addresses the possibility of sustained economic growth in the ancient world. The novel is set in a 1st century Roman empire during the governorship of Pontus Pilate and the reign of Tiberius. But in this alternative history, the Mediterranean world has experienced a series of technical innovations following the survival of Archimedes at the siege of Syracuse, which have led to rapid economic growth. As Dale explains in the book’s excellent afterword (published separately here), if Rome had experienced an industrial revolution, it would likely have differed from the actual one; and she briefly plots a path to Roman industrialization. All of this is highly stimulating and has prompted me to speculate further about whether Rome could have experienced modern economic growth and if Dale’s proposed path towards a Roman Industrial Revolution is plausible.

Finally – and closer to home – I wrote a piece for The Spectator on my recent Australian author tour, with all its attendant strangenesses. In it, I’ve tried to put in one place just how it is to be a writer who doesn’t fit on the accepted political spectrum, and who doesn’t adopt fashionable causes:

Author tours are funny things, especially when unexpected. 12 months ago, I’d given up on getting Kingdom of the Wicked published. I’d run through three publishers. All had acquired cold feet for a range of reasons, some silly (‘you’re too controversial’) and some genuine (‘other authors will leave our list if we publish you’). I was living in the UK – having left both Senator Leyonhjelm’s employ and Australia after the 2016 election – consulting, copywriting, and writing columns for the Speccie. If I were known at all, it was as Speccie house classical liberal, not as a Miles Franklin Award winner. Enter, stage left, Matt Rubinstein and Michael Wilkinson with an offer of publication. It’s all been a bit sudden. Walking past bookshops and seeing both my novels in display windows is frankly discombobulating.

The overseas acclaim and sales are gratifying, and the sense that economists appreciate their discipline being taken seriously and treated with generosity in fiction notable. I didn’t set out to write a ‘economics and literature’ novel, but I did set out to write a ‘law and literature’ novel. That said, I do pair legal and economic thinking a great deal, and if I belong to a jurisprudential ‘tradition’ as such, it is law and economics, coupled with a strong side-serving of legal positivism.

Photo is a Roman sculptor’s take on the Egyptian deity Anubis from the Vatican Museum. To this day I suspect he was pissed or high on the tools – Romans tended to like their faces sculpted accurately, even if the artist got to sculpt or paint something weird for the sitter’s body.

Sex and gender

By Lorenzo

This is based on a comment I made here.

If you think the bodies are sexed (clearly true) and psyches are sexed (a bit murkier, but broadly true) then it is easy to get more than two genders.

Male (male in body and psyche)

Female (female in body and psyche)

Third (body and psyche don’t match).

Plenty of human societies have worked on that basis.

You can even work on a simple matrix and get four genders (male-male, female-female, male-female, female-male). But third gender classification (really “other”) is more common.

And some societies, without going all the way to third gender, have operated on sub-genders (e.g. males held to belong to a separate category because, hey, not sexually interested in girls). Western notions of sexuality are a way of modifying gender identity.

Sexuality or gender?

Back in the C19th, with the intersection between growing anthropological awareness of other societies’ takes on gender with a critical mass of urbanisation, secularisation and communication making gender/sexual minorities more able to begin to organise, there was an argument in Western circles about whether queer folk should be treated as third gender. The notion of “homosexual” (and its derivatives, heterosexual and bisexual) won out, as it seemed more scientific and less of a shift of basic presumptions.

What we are seeing is a revisiting of that debate. Unfortunately, it is turning up on the wrong side of postmodernism, so rather than being grounded in ethnography and empiricism, it is all about feelz and discourses. Hence the ludicrous explosion of “genders”.


What has not helped is that feminism has tended to talk so much about the penis & vagina, which actually do not mark the differences between males and females nearly as much as people think, as they both perform the same functions (bring gametes together, provide sexual pleasure). One’s an innie (so receives) and the other’s an outie (so penetrates), but they otherwise perform the same functions. If you take that as the key distinguishing feature between male and female, then, if one surgically turns one into the other, you have changed sex.

Except, of course, you haven’t. People have just been surgically adjusted to better support a change of gender identity. Which, if we had a three gender system, would be fine–it would then get rid of those tedious and fruitless debates about who is a “real woman”.

What really distinguishes male from female are testes, ovaries and mammaries. And no trans surgery actually provides those, just the external form of them. Hence trans surgery does not actually change one’s sex, just physical form to support a change of gender identity. Something that there is a long history of via castration, such as eunuch priests and hijras.

All about the mammaries

Rather than the penis and vagina, the key for understanding the statistical patterns of cognitive differences between men and women is, in fact, the mammaries. (Mammaries are on the sex that gives birth, so that they are right there when the baby emerges.)

We are the cultural species, that is the secret of our success. To be the cultural species, we need big brains. So big, that they have to keep developing outside the womb.

Which requires extended childhoods, which leads to the oddness of the human mammaries–they are unusually large and prominent, they don’t change shape all that much when lactating, and they can keep operating for years at a time to support those long childhoods. Hence female homo sapiens are the childminding sex. But we are the cultural species, which means we are the public space species. If one sex is the [what is compatible with] childminding sex, then the other will be the “everything you can’t do while minding kids” sex, which makes it (the males) disproportionately the public space [i.e. outside household and immediate surrounds] sex.

In subsistence societies, producing the next generation requires a lot of available resources and attention. So, until the dramatic changes in production and reproduction technology over the last two centuries, the allocations of roles by sex in human societies has radiated out from [what was compatible with] childminding.

We have been the cultural species for many, many generations. Thousands of generations. Easily enough time to select for variated cognitive patterns. And even more than our long pregnancies, our long childhoods has driven that (hence mammaries being the most biologically important driver of cognitive differences).

So, irony of ironies, the biology required to be a species which can socially construct so much means that cognitive differences between men and women cannot be entirely socially constructed. Even more ironically, in societies of mass prosperity, the statistical cognitive patterns of men and women are becoming more divergent (pdf), not less, just as the notion of presumptive sex roles is being abandoned.

But these are very complex mechanisms, with a lot of overlap, and nature is always “throwing” the “genetic dice”. Moreover, genes are not molds, they are recipes. So the “epigenetic dice” is also being “thrown”. And all before we get into social and environmental influences. Hence psyches not lining up with biological sex in neatly differentiated ways. Nor, for that matter, does physical sex always line up in neatly differentiated ways.

Hence needing some language to talk of the people who do not fit. Having a third gender category does solve a lot of problems, which is why so many societies developed it. But that does not excuse the multiplying genders nonsense.


[Cross-posted from Thinking Out Aloud.]

Well, she’s back…

By Legal Eagle

Hello there, Legal Eagle here. Skepticlawyer wrote the post below but wasn’t able to post it on the blog because technology. I’m putting it up in her stead.

As many of you know, I’m currently on an author tour to Australia to promote Kingdom of the Wicked Book I – Rules.

First of all, I wrote a piece in today’s Weekend Australian answering the following questions:

  1. Where did you get the idea?
  2. How long did it take you to write?
  3. Why is it in two parts?
  4. Why is it 22 years since your last book?
  5. What do you want to achieve?

“In response, my friend suggested wryly, while Pilate was locking up the ringleader, perhaps the disciples each copped an anti-social behaviour order. I laughed, but I also wondered: how would we react to Jesus if he turned up now?

My answer was not one I much liked: I thought we’d mistake him for a terrorist. There was a period in the 1960s and 70s when Jesus was conceived of as a bit of a hippie, certainly a pacifist. But the figure belabouring the ancient world’s equivalent of bank tellers with a whip does not look like a pacifist to me.

Then there were his politics: socially conservative (he railed against divorce), redistributive, even socialist (he railed against the rich), egalitarian (he railed against the treatment of the poor). He wasn’t too impressed by the Great Satan of his day, the Roman empire, either. His Judaean contemporaries referred to the Roman Empire as ‘‘the kingdom of the wicked’’, whence the title of this book.

For a while, I thought of transplanting Jesus to Britain or the US and watching the story unravel as I told it, but every version that played out in my head turned into Waco or Jim Jones’s People’s Temple. Those stories are terrifying and confronting — as well as fascinating — but they are not the stories I wanted to tell.

Finally, instead of bringing Jesus forward in time and placing him in modernity, I thought to leave him where he was and instead put modernity into the past.

What, I wondered, would have happened had Jesus emerged in a Roman Empire that had gone through an industrial revolution? Other things being equal, what would modern science and technology do to a society with different values from our own?”

Read the whole thing, as they say.

Since then, my publicist (Max Markson) has been deluged with appearance requests (for me) and abuse (including the accusation that he’s a Nazi, which is interesting because he’s Jewish, so we now have ‘Max the Jewish Nazi’ which is, ahem, a bit of a mind fuck really).

Here are some events that have already been programmed for people in Sydney, Brisbane, and Melbourne. If you want to hear me speak, get signed copies of my books, and all that jazz, then please hit the link to RSVP for one of them. I should note that the Gleebooks event is filling up quickly because the newspaper featured it in their article today, so quick sticks, Sydneysiders!

  1. Sydney, Gleebooks, October 9, 6 for 6:30, featuring wine, nibbles, Helen Dale & Senator David Leyonhjelm.
  2. Brisbane, LibertyWorks @ Park Royal on Alice St, October 14, 12:00-1:45 pm, featuring wine, nibbles, Helen Dale & Senator David Leyonhjelm
  3. Melbourne, Embiggen, October 16, 6 for 6:30, featuring wine, nibbles, Warren Bonett & Helen Dale
  4. Melbourne, Leaf Bookshop, October 17, 6:30-8:30, featuring wine, nibbles, Katy Downey & Helen Dale

Black Lives Matter and the destruction of social capital

By Lorenzo

Recently read the following comment:

A second example i’ll give is Black Lives Matter. One is labeled racist/white supremacist/white nationalist/nazi if you say “no, All Lives Matter.” But the problem isn’t a devaluation or disrespect to the grievance (at least in all instances as it is implied) — it’s the selection of the name. … In the BLM case, the name is overly narrow and the counter argument is equally disparaged. I’ve gotten into some heated discussions with Black/All/Blue lives matters all in a group and I posed a simple question: If the movement had started as “Police Accountability Matters” with the exact same issue to be resolved, would they react different — and all 3 opposing views suddenly agreed, everyone suddenly stopped the name calling and “arguing” and started discussing the pros & cons of ideas on how to solve the problem. They were all getting too hung up on the word selection and arguing about the rationality of each other based upon different interpretation of what the label meant.

Which fitted what had struck me about BLM, which is the destruction of social capital involved: that is, of positive social connections, of networked reciprocity.

Social capital can reasonably be called capital, because it is a form of the produced factor of production (distinct from land, which is the acquired-from-nature factor of production, and labour, which is the reproduced factor of production). Other things being equal, the higher the level of social capital, the better functioning a society and the better prospects for a social group.

When the mainstream gay and lesbian community was seeking to achieve decriminalisation of their erotic lives, relationships with the police were crucial, for good and ill. The police were used to persecute the queer community, leading famously to the Stonewall riots.

As the process of legal and social normalisation of homosexuality became increasingly successful, relationships with the police were still crucial, as gays and lesbians were particularly vulnerable to, and specifically targets of, violence. So the gay and lesbian communities worked to build better relations with the police. This was largely, and surprisingly quickly (as social change go) highly successful, leading to, for example, police contingents marching in Pride marches. In my own city of Melbourne, there has recurrently been a police show on the local gay and lesbian radio station, Joy FM, either as part of the regular program grid or as podcasts.

Along comes Black Lives Matter, who began to stridently object to police marching in uniform in Pride marches, which was an attack on, and seen as such, the connections built up between queer communities and police forces. In other words, an attack on built-up social capital.

Black Lives Matter was founded by three women, two of whom identify as queer. It was founded and spread largely through social media, which means via a communication mechanism with the most limited level possible of social connection and still communicate. Black Lives Matter has also been a disaster for the African-American community and relations with the police. The attack on queer-police social capital was a relatively minor part of a wider social capital disaster, a disaster which can be measured in hundreds of lost African-American lives from the post-BLM surge in homicides in various cities with high African-American populations such as Baltimore and Chicago. The increased death toll in dead African-Americans (1,800) for two years (2015, 2016) is more than half the estimated African-American deaths (3,446) from lynching in the decades 1882-1968.

The disaster came from (1) a gross mischaracterisation of a (highly variable by region and jurisdiction) problem with police use of deadly force; (2) a ludicrously simple diagnosis of the cause (racism); and (3) a misplaced approach (demonising police and actively seeking to reduce police interactions with African-Americans at which it has been all too successful). If one wanted a test case of what is wrong with intersectionality in a time of social media outrage, this is it. Attempting to operationalise intersectionality, notably via social media, in the form of BLM, has a much higher body count since 2014 than any form of white racism.

BLM manifests intersectionality’s indifference to problems of social order, the presumption of malice in “explaining” social outcomes and the attendant sacred victims without social or moral agency (particularly not negative agency). Despite the burblings of such as Ta-Nehisi Coates, the biggest danger to “black bodies” comes from other African-Americans, not the police. The main line of defence against that danger is not Twitter outrage, but the police themselves. The BLM reduction of social “analysis” to Manichean duality (evil, racist police v oppressed “blacks”) is a disastrously false simplification that directs attention and effort away from approaches which have some chance of being effective and towards a wildly simplistic and divisive outrage disastrous in its effects.

As psychologist Jonathan Haidt points out (pdf), the point of sacredness is to remove from trade-offs (or strongly resisting any trade-offs) and a functional social order is all about managing trade-offs.

One of the ongoing problems in African-American communities is their low levels of social capital. It is hardly surprising that a political campaign based on attacking existing social capital turns out to be disastrously counter-productive. On the contrary, it seems a sad irony that communities suffering from low levels of social capital spawned a political movement destructive of social capital.

More accountable police forces better connected to their local communities can have considerable success in reducing crime. But that requires building broad coalitions focused on creating connections, not parading moralised differences. Presuming malice, undermining connections, poisoning interactions may be be congenial to the playbook of TwitterIntersectionality; to a time of cry-bulliespoint-and-shriek, the oppression Olympics and moralised identity hierarchies. But it is not remotely a path to better social outcomes.


[Cross-posted from Thinking Out Aloud.]

‘Kingdom of the Wicked’ Launch – October 9, Gleebooks, Sydney

By skepticlawyer

Get in!

RSVP here; early bird purchase here.

The persistence of (belief in) socialism

By Lorenzo

I find the persistence of belief in socialism surprising (an example here), particularly given that Venezuela and North Korea both, in their different ways, display, yet again, the disastrous results in poverty, human misery and tyranny of “actually existing socialism”: that is, state domination of the economy. The lesson of Venezuela is, if anything, even stronger, as it is an example of the “democratic path to socialism”.

Now, it is possible that by socialism such folk mean something other than a state-run and dominated economy, but if they do, they need to pick a different term because that is what, socialism, in practice, means. Trying to get it to mean something else this late in its history is not practical. And using socialism as a placeholder term for some unspecified system of “common” ownership is empty moral self-indulgence parading as political commitment.

Recently, I had drinks with a very well-read friend who grew up in the Soviet Union and so has some lived insights into this. He made two very cogent points:

(1) What other language of justice-inspired of major social change is there? There remain all sorts of reasons to be morally repelled by aspects of contemporary society: what is the alternative political vision for a post-capitalist society? If there isn’t any, then “socialism” wins by default, as it has no effective competitor in the moral marketplace.

(2) For the Left, history is not the past, it’s the future. For folk like my friend and I, history is what happened in the past, from which we can learn and draw lessons. For the Left, history is what is going to happen, it is what has an arc that bends towards justice while the past is something to be judged, censored and transcended.

(As an aside, it is a nice illustration of a wider tendency for secular appropriation of religious ideas that Barack Obama liked quoting Martin Luther King who was quoting Theodore Parker on the arc of history bending towards justice, but turned what was a “kingdom of God” religious point into a very different secular claim.)

This second point coincides with something I had noticed about modern progressivism–what I had come to think of as the history is their bitch phenomenon: the recurring confidence that, if their policies are adopted, the legacies of the past can be swiftly surmounted. But [alas for such hopes] history happened, lives on, and provides a rich source of lessons: history informs and constrains.

If, conversely, history is the future and the past is a record of sin and failure, of Haan history, to be judged, censored and transcended, then elevated hopes for what their policies can achieve, including the persistence of belief in socialism, is much less surprising.

But no more justified. Wishing does not make it so, and a lack of an alternative articulated vision of a post-capitalist society does not make socialism a worthy project. The unending record of failure of actually existing socialism is not some weird happenstance, it reveals key features of the entire project of socialism, as things show their nature in their history.

Four strikes

The first error is the implicit notion that public (which functionally means state) ownership of the means of production will somehow abolish selfishness, sociopathy and psychopathy. On the contrary, it creates a single, all-encompassing hierarchy for the self-servingly ambitious to climb. Socialism does not lock out selfishness, it gives it the keys to the entire kingdom. Socialist states always end up creating corrupt and exploitive hierarchies in particularly pathological manifestations of the late Jerry Pournelle‘s Iron Law of Bureaucracy or sociologist Robert Michels‘ Iron Law of Oligarchy.

The second error is that state ownership destroys key information for the functioning of an economy. This is the Mises-Hayek socialist calculation point. As is common for these sort of predictions, Mises and Hayek underestimated the ability of people to make adjustments, to get around the inherent dysfunction of the system they are stuck in, but Mises and Hayek correctly identified an inherent and deeply dysfunctional flaw in the entire project.

The third error is to wildly overestimate the capacity of the state apparatus to efficiently use the information that is available to it. Anyone who deals with government bureaucracies (or any large bureaucracy) will be familiar with this phenomenon. But the effects get much worse when government bureaucracies are the only significant users of information in the society and have coercive power backing them. Historical anthropologist James C. Scott‘s Seeing Like a State is a classic analysis of the problems involved, which extend beyond his revealing analysis and are compounded when the state is the (formal) economy.

The final point is the emptiness of the notion of democratic socialism. Socialism is inherently tyrannical, Hayek‘s Road to Serfdom point. The point is often somewhat obscured by the tendency to see democracy as some teleological endpoint of the arc of political history, whose apotheosis is finding the “correct” system for counting votes to elect officials.

Moving from theory to history, democracy is a system for entrenching and operationalising the broadest level of social bargaining and there can be no effective social bargaining with or within a state that runs everything. In a state-dominated society, due to having a state-run economy, there is no independent basis of social information and action outside the all-encompassing state, so no basis for genuine social bargaining of any breadth. Democracy will never tame socialism, socialism will always eat democracy.

The state was born in coercion and expropriation. Democracy is not some magic talisman that can somehow eliminate those features from a state in charge of everything. On the contrary, democracy becomes a casualty of the all-encompassing state becoming more intensely a system of coercion and expropriation.

These features explain socialism’s history of tyranny and massive human misery. A record of human experience that any serious analysis must grapple with rather than airily dismiss.

Returning to archetype

Socialism is not a modern invention. The first states dominated their economies so thoroughly that they can reasonably be called socialist. That the remaining command economy, North Korea, has ended up with a god-king dynasty running everything is not some weird aberration, it is a return to the origins of the state once the state has become the society.

The reality is that history is not progressivists’s (or anyone’s) bitch: as the entire socialist project demonstrates. So, while socialism currently may be the only game around for aspirations for a post-capitalist society, it is not a game anyone should seek to play. The real work is not in trying to find a way to make socialism “work”: that is a project doomed to failure and which leads only to human misery. The real work is to come up with an alternative vision of the post-capitalist future. That the state is the easiest substitute for private firms based on ownership of capital may make socialism the default alternative to capitalism; it does not make it a worthy one.


ADDENDA: Reacting against the human suffering and moral failures which are part of the rise and practice of capitalism is fine, but if one then discounts (on whatever grounds) the mass murders and starvations, human misery and tyranny which are so saliently and deeply part of the history of socialism, one’s politics clearly are not based on human suffering and concern for human flourishing, but something else.

FURTHER ADDENDA: Much of the trumpeted sins of “capitalism” are either things that have no intrinsic connection to capitalism (such as slavery and imperialism: both which have proved eminently compatible with socialism) or which came from capitalism supporting more effective and capable states (such as imperialism) or have their (often worse) counterparts in other social systems, all of which further points to the doomed nature of basing or anchoring one’s search for social structures more conducive to human flourishing in reaction to capitalism.

NOTE ON USAGE: Nothing above should be taken as an endorsement of the term capitalism which I dislike as it is typically ill-defined and often used to conflate phenomena together: in particular commerce and government action. Commerce cannot be relied upon to exclude people by social category, so governments have to intervene to get such results–for example, the economic side of Jim Crow or adjustment of the New Deal to disadvantage African-Americans.  Calling the results “capitalism” obscures rather than revealing.

E.O. Wilson quotewonderful theory, wrong species.

[Cross-posted from Thinking Out Aloud.]

Why I am voting Yes in the SSM postal survey (but won’t be telling anyone else how to vote)

By Legal Eagle

It probably won’t surprise anyone who knows me well that I’ll be voting “Yes” in the Same Sex Marriage postal survey. After all, I’m a small-l liberal, non-religious legal academic with many friends in same-sex relationships. I’m the stereotypical “Yes” voter. But I have become increasingly concerned that the “Yes” vote will not win, despite the fact that the majority of my friends on Facebook have rainbow profile pictures. It seems my instinct is correct, according to an article earlier this week in the Canberra Times:

Support for same-sex marriage has crashed ahead of the Turnbull government’s postal survey, and only two-thirds of voters are inclined to take part, according to the latest polling from same-sex marriage advocates.

At the start of a two-month campaign, the confidential research provided to Fairfax Media shows support for a “no” vote has risen, as has the number of people who say they don’t know how they will vote.

And alarmingly for “yes” campaigners, turnout could be very low, with just 65 per cent of voters rating themselves as very likely to participate – falling to 58 per cent among those aged 18 to 34.

On the other hand, my pessimism may be unwarranted, according to a later poll:

The “yes” side on same-sex marriage is headed for a resounding victory with seven out of 10 definite voters backing a change to the law, a Fairfax/Ipsos poll has found.

Some 65 per cent of respondents rated themselves “certain” to take part in the voluntary postal survey, and of those 70 per cent said they would vote “yes”.

If you’re not Australian, you may be wondering why we have a postal survey on same-sex marriage at all: the short answer is that it was an election promise by the Coalition, and after they couldn’t get a Bill for a compulsory plebiscite vote past the Senate, they opted for a survey by the Australian Bureau of Statistics. I think it’s been, from start to finish, a derogation of Parliamentary authority – the whole point of representative democracy is that our representatives vote for us. As my two older kids said, “If we can vote on this issue, why can’t we vote on other issues? Why do they need our opinion on this?” Good question, kids.

In this post, I’ll outline why I am voting Yes. However, I don’t intend to tell others how they should vote – that’s a matter for them.

Why I will be voting Yes

Fundamentally, as noted, I’m a small-l liberal who doesn’t believe the government should have much of a say in what goes on in people’s bedrooms as long as there is consent. It’s really none of my business what other people get up to. In terms of moral foundations theory, I am a liberal who is primarily driven by concern about care and fairness, but also with a libertarian streak (driven by freedom). Jonathan Haidt and others have proposed that there are five (largely heritable) moral foundations that drive people:

  • Care: cherishing and protecting others (opposite: harm).
  • Fairness or proportionality: rendering justice according to shared rules (opposite: cheating).
  • Loyalty or ingroup relations: standing with your group, family, nation (opposite: betrayal).
  • Authority or respect: submitting to tradition and legitimate authority (opposite: subversion).
  • Sanctity or purity: abhorrence for disgusting things, foods, actions (opposite: degradation).

Haidt has also proposed a sixth foundation, liberty: dislike of controlling and dominating behaviour (opposite: oppression) in his book The Righteous Mind.

For me, if two consenting adults of opposing genders are allowed to enter into binding relationships recognised by the state, there is no reason why two consenting adults of the same gender cannot also enter into the same binding relationship and have that relationship recognised by the state. I know of many decent and loving same-sex partnerships, and would like my friends and others to be able to choose whether they can marry or not. I would guess that care, fairness and liberty drive a great many of the people who will vote “Yes” in the plebiscite. They want to protect same-sex attracted people as people who have suffered from significant discrimination, and give them an opportunity to flourish. They also want same sex couples to be given equal treatment. Finally, they want same-sex couples to have the same opportunities and freedoms that heterosexual couples have. This is my position. I should note that I have grown up with family friends who are in same-sex partnerships, and I have many dear friends and colleagues who are in same-sex partnerships. I’m sure that this has influenced my views.

Unfortunately, the debate around same-sex marriage has become passionately polarised. I haven’t seen much sensible dialogue between Yes and No voters. Each regards its own side as victimised, and under fire from the other side. I am going to try and look at the other side, and understand why some people might want to vote No. Of course, as a Yes voter, this is supposition on my part.

Why some people have probably always intended to vote No

There are a number of reasons why some people have probably always intended to vote no, and the moral concerns that drive the decisions of other people are not necessarily the same as those which drive me. I should note that more than one driver may be operating at once.

Authority or respect – agree to disagree

As I noted above, I am not religious. However, some people may wish to vote No for same sex-marriage because of authority and respect for religious tradition. For example, I have Christian friends who refer to Biblical notions of marriage, and note that the Christian Bible does not contemplate marriages between the people of the same gender, and will be voting No accordingly. I have never seen these friends treat a homosexual person badly, but they have a particular view of marriage based on a longstanding tradition. I also know Muslims and Jews with similar views. And quite a few immigrant communities have quite conservative views on marriage and what is appropriate, regardless of their religion (see the poster written in Arabic and Mandarin, which was seen at the last Federal election, and has resurfaced in response to the survey).

I recognise that it is very difficult for people of certain religions or ethnic backgrounds to come out as same-sex attracted. If you want to support people in minority communities who wish to campaign for a Yes vote, here is a charity to which you can donate. Nonetheless, there was something rather unsavoury about the campaign to force the AMA to investigate Pansy Lai, the GP who participated in the “Vote No” ad. While I may not agree with her views, as long as she treats patients equally regardless of their sexual orientation, the campaign to get her registration as a GP taken away was misconceived. Threatening her job and registration is not a way to convince her to change her mind. (For the record, I would have the same view if the Australian Christian Lobby tried to get the AMA to investigate Dr Kerryn Phelps for her pro-same-sex marriage views.) I should note it’s usually the lunatic fringe who pull stunts like this, but they are the squeaky wheels generating the most noise and getting the most attention. Note to activist groups: your craziest members will be taken to represent you, so be careful how they behave.

Now, my own view of marriage is that the ‘Biblical’ notion of marriage has changed even during the period that the Bible was recorded. After all, the Old Testament features polygyny, concubinage, and levirate marriage, none of which are now tolerated in Christian countries. (If you want to read more about the history of marriage, Stephanie Coontz’s Marriage, a History: How Love Conquered Marriage is an excellent start). And Western marriage has changed even in the last century, with the advent of no-fault divorce, the contraceptive pill, and other changes in social mores. In other words, there is no stable definition of marriage, and it changes from time to time depending upon cultural and religious changes. I’m also not particularly convinced by Leviticus as a justification for banning homosexuality, as it also says that a field cannot be sown with two types of seed and that garments may not be made with two types of material (Leviticus 19:19), that a person should not round of the hair on their temples or mar the edges of his beard (Leviticus 19:27), and that adulterers should be executed (Leviticus 20:10-12). Most of us in Western society ignore those precepts (with the exception of Orthodox Jewish men who wear beards and payot so as to ensure they don’t contravene Leviticus 19:27). I don’t see why the prohibitions against men lying with men should not be ignored likewise.

Nonetheless, it is true to say that the Biblical notion of marriage has been very influential in Western society, as the Churches controlled marriage in Europe after the decline of the Roman empire. But it has not been the sole influence. Graeco-Roman traditions have also been pivotal, particularly for the notion of monogamous marriage. As the reference to Old Testament polygyny shows, monogamy was not a Biblical tradition, but Scheidel notes that it was subsequently adopted by Christianity:

Meanwhile, what is arguably the single most striking feature of Greco-Roman marriage has failed to raise any curiosity at all – the fact that Greeks (after Homer’s heroes) and Romans were strictly (serially) monogamous regardless of their socio-economic status, just like modern westerners but unlike most other early civilizations. While our own experience might tempt us to take this for granted, we must ask how this principle came to be so firmly established even among (customarily polygynous) elites – the egalitarian ethos of the city-state is a plausible candidate – how it co-existed with de facto polygyny facilitated by sexual congress with chattel slaves…and how it became entrenched in Christian doctrine that survived the fall of the Roman state and ensured its survival and spread in later European (and subsequently world) history. In this strangely neglected area, ancient history has a vital contribution to make to our understanding of the global evolution of marriage.

Roman law did allow for concubinage, but a concubine was not of equal status with a wife, and a man was only allowed one. Even then, only the very rich could afford a concubine, and to have both a concubine and a wife was considered a bit racy. Ordinarily, concubinage was used as a basis instead for a monogamous de facto relationship. The Christian adoption of Greco-Roman monogamy turned out to be very important; polygyny generally disadvantages women and low status males, and is one reason I think the state will not (and should not) recognise polygamy as legal.

In any case, churches continued to regulate marriages for many centuries, and thus it is correct to say that the Christian definition of marriage has historically been very much part of our law. In England, for example, marriages were governed by Anglican canon law until the Marriage Act 1753 (c. 76) (also known as Lord Hardwicke’s Act), which was designed to prevent clandestine marriages without parental consent, and covered Anglican, Jewish and Quaker marriages. This was later supplemented by the Marriage Act 1836 (6 & 7 WmIV, c. 85), which allowed civil marriages for Roman Catholics and others from other religions. In other words, marriages were then legal if they took place in registered buildings, and a Registrar and two witnesses were present. From that point onwards, the involvement of churches with marriage has lessened, although of course for the religious, it has not stopped entirely.

Until 2004, the Australian legal definition of marriage was determined by the common law, as set out in Hyde v Hyde (1886) LR 1 P & D 130, in which Lord Penzance said, “Marriage as understood in Christendom is the voluntary union for life of one man and one woman, to the exclusion of all others.” That case dealt with a case of whether a marriage within a Mormon polygamous community was legal (notwithstanding that the original marriage had not been polygamous). There was no statutory definition of ‘marriage’ in the Australian Marriage Act 1961 (Cth) until the Howard government inserted amendments in 2004. These amendments provided a definition of marriage in s 5 as “the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.” The intention of the section was apparently to preclude the recognition of civil same-sex partnerships under the Civil Partnership Act 2004 (UK). Consequently, the amended s 88EA to the Marriage Act stated:

A union solemnised in a foreign country between:

                     (a)  a man and another man; or

                     (b)  a woman and another woman;

must not be recognised as a marriage in Australia.

From this, we can see that tradition has changed, and that the law has changed. I think that the Howard government was wrong to make the amendment to the Marriage Act in 2004, and that this has produced a lot of the problems we face today. It may appear that same-sex marriage campaigners are challenging the status quo, but the status quo is less stable than one would think.

Nonetheless, a significant proportion of society regards religious notions of marriage as pivotal, and that must be recognised as an accurate historical description of how marriage has evolved in this country. I don’t believe that it’s my place to make people to change their religious beliefs in a pluralistic tolerant society. That is a matter for people who belong to that religion. There may be exceptions if adherents to a particular religion believe in child marriage or human sacrifice or other practices which are against basic Australian law, but otherwise I believe that I must tolerate different religious beliefs, and allow people to speak of their views, even when I find those views offensive or upsetting.

It’s true to say (as some of my Yes vote advocate friends have said) that religious freedom and freedom of speech are different questions from the question that is being asked in the survey. Part of the problem stems from the fact that we don’t even know what we’re voting on – they won’t prepare a Bill until we vote on whether we want the law or not. But I think that any provision for same-sex marriage should make it clear that it will not force religious groups to conduct same-sex wedding ceremonies. Some of my religious friends are worried about what the position may become if a Yes vote stands, and cite the example of the Tasmanian pastor and preacher who have been the subject of complaints to the Anti-Discrimination Commissioner. They fear this is the beginning of a greater trend. They are concerned that the acceptance of same-sex marriage will mean anti-discrimination legislation can be used to make religious people suppress their views, and to have to conduct same-sex marriages against their will. And then, of course, there’s the services cases (involving flowers or cakes for same-sex marriages).

As an aside, I have never understood why a person would wish to force a reluctant florist or baker to provide for a same-sex wedding. If I were in that position, I would rather not give the service provider money, nor have them anywhere near my wedding. But this may be something to do with my private law background – as a general principle of law, courts are usually unwilling to specifically enforce contracts for services because of the coercive nature of such relief (see eg, JC Williamson Ltd v Lukey (1931) 45 CLR 282, 293 (Starke J), 297–98 (Dixon J); Byrne v Australian Airlines Ltd (1995) 185 CLR 410, 428 (Brennan CJ, Dawson and Toohey JJ)). The rationale for the rule with regard to contracts for services is that it’s inappropriate to force parties who don’t get along any more to work together. And I guess that’s a greater point. As my co-blogger Skepticlawyer has pointed out, you can’t use the law to force people to like you or accept you.

Sanctity and purity – notions of disgust are not acceptable

The second reason why some people may object to same-sex marriage is disgust – that, somehow, same-sex attracted people are dirty, impure or abhorrent. Rick Morton in The Australian theorised that this was part of motivation behind Tony Abbott’s objection to same-sex marriage. I have no idea whether that truly is Abbott’s motivation, and as I don’t know the man, I won’t speculate. Nonetheless, the reaction in the online comments to Morton’s article certainly indicates that some people in the community are disgusted by homosexuality and intend to vote accordingly. [Abbott’s sister Christine Forster is both gay and a prominent Yes vote campaigner, and she has said that she believes political opponents of same-sex marriage (including her brother) do not really object to it strongly, but that they are using it in a Machiavellian way to divide and conquer and distract us from other issues.]

I can’t stop people from having a visceral disgust reaction, and it’s obviously something that’s at play in the viewpoints expressed. However, I think that any objection to same-sex marriage on the basis that it’s “disgusting” or “dirty” are not material contributions to the debate. Different things disgust different people. Just look at the complex rules we set up around eating. A Muslim or Jewish person may be disgusted by pork, a vegan may be disgusted by animal products, a Hindu may be disgusted by beef, and some people may be disgusted by eating dog, or guinea pig, or snake (thinking of cuisines in other cultures which might be challenging). Nonetheless, we all must coexist, despite our different standards of disgust. The same goes for consensual sexual practices between adults – you may not agree with same-sex relationships, and you may even find physical practices associated with homosexual sex disgusting, but people in same-sex relationships should never be abused, or discriminated against in the workplace. Just as tolerance should be extended to religious groups, so a similar tolerance should be extended to same-sex couples.

Care – a rebuttable concern

Thirdly, some have expressed the view that same-sex marriage may be harmful to children born into same-sex relationships. Friends who are gay and lesbian parents are devastated by this allegation, for entirely understandable reasons; no one likes to be told that they are harming their child just because of who they are. Ironically, the evidence shows that the main difficulty faced by children reared in same-sex relationships is discrimination from others because of who their parents are. Of course, there will always be some homosexual parents who are less than ideal, just as there are heterosexual parents who are less than ideal. The rebuttal to that point is that same-sex marriage is not going to make a difference to homosexual parenthood. Gay and lesbian parents already exist, whether same-sex marriage exists or not. And surely it will provide greater stability for children in these households if their parents can marry?

Others have expressed concern about the fact that children may be reared by a partner who is not genetically related to them. On that point, I note this already happens with heterosexual couples when it comes to adoption, fostering, blended and divorced families, and egg and sperm donors. Therefore this is not an issue exclusive to same-sex parenting, and we do not prevent heterosexual couples in those situations from having children. Moreover, not all same-sex partners who wish to marry also wish to have children, and not all heterosexual couples have children either. Marriage is not solely about children and childbearing.

Matthew Canavan, a Nationals Senator, expressed the wish that same-sex people who had been upset by the debate so far should “grow a spine” and stop being “delicate little flowers”. However, Canavan may not realise that some same-sex attracted people discern something altogether more sinister behind (at least some of) the stated concerns about children. Shortly, there is a stereotype that same-sex attracted people (and perhaps homosexual men in particular) are more likely to be paedophiles than heterosexual people, and thus are not fit to be parents or teachers. It should be evident to everyone of any political persuasion that to call someone a paedophile is to slur their character in such a way it may never recover (even if the accusation is without basis). If I were accused of being a paedophile, I would find it very hard not to be deeply upset. Also, this links back to the concept of disgust above. Even a liberal person such as myself has a disgust reaction to paedophilia, because I see consent as the sine qua non of acceptable sexual interactions.

This post has a very useful explanation as to why equating homosexuality and paedophilia is not accurate:

Child molestation and child sexual abuse refer to actions, and don’t imply a particular psychological makeup or motive on the part of the perpetrator. Not all incidents of child sexual abuse are perpetrated by pedophiles or hebephiles [people who are attracted to early adolescent children]; in some cases, the perpetrator has other motives for his or her actions and does not manifest an ongoing pattern of sexual attraction to children.

Thus, not all child sexual abuse is perpetrated by pedophiles (or hebephiles) and not all pedophiles and hebephiles actually commit abuse. Consequently, it is important to use terminology carefully.

Another problem related to terminology arises because sexual abuse of male children by adult men is often referred to as “homosexual molestation.” The adjective “homosexual” (or “heterosexual” when a man abuses a female child) refers to the victim’s gender in relation to that of the perpetrator. Unfortunately, people sometimes mistakenly interpret it as referring to the perpetrator’s sexual orientation.

As an expert panel of researchers convened by the National Academy of Sciences noted in a 1993 report: “The distinction between homosexual and heterosexual child molesters relies on the premise that male molesters of male victims are homosexual in orientation. Most molesters of boys do not report sexual interest in adult men, however” (National Research Council, 1993, p. 143, citation omitted).

To avoid this confusion, it is preferable to refer to men’s sexual abuse of boys with the more accurate label of male-male molestation. Similarly, it is preferable to refer to men’s abuse of girls as male-female molestation. These labels are more accurate because they describe the sex of the individuals involved but don’t implicitly convey unwarranted assumptions about the perpetrator’s sexual orientation.

The distinction between a victim’s gender and a perpetrator’s sexual orientation is important because many child molesters don’t really have an adult sexual orientation. They have never developed the capacity for mature sexual relationships with other adults, either men or women. Instead, their sexual attractions focus on children – boys, girls, or children of both sexes.

So it is wrong to equate homosexuality and paedophilia. It may be pointed out that some homosexual parents are paedophiles. But sadly, this kind of thing can equally well happen with heterosexual fathers or heterosexual mothers.

I do think that this slur needs to be faced directly rather than saying “that’s offensive, people who say that should be stopped”. It certainly is offensive, but I continue to believe that the best response is for people like me who are not directly implicated in the slur to respond rationally and explain why the view is mistaken.

Sadly, I think the Safe Schools programme has linked children, sexual practices and same-sex attraction in people’s minds, and that this has been able to be used by No campaigners. To be honest, I am not the biggest fan of the Safe Schools programme. I have no problem with my children knowing about homosexuality or transgender people, and I fully support measures to ensure that lesbian, gay, bisexual and transgender kids are not bullied at school. In fact, we have friends who are lesbian, gay, bisexual and transgender, and we have had candid discussions with our children on these issues. When she was in Prep, my daughter had a fight with another kid who said that someone couldn’t have two Daddies. She went on the rampage, telling this other kid about her friend with two Daddies, and how awesome those Daddies are (I second her judgment, these Daddies are wonderful). However, I’d prefer to have control over what people are telling my kids about sex, and to be able to monitor it. I don’t think negotiating very difficult and personal problems about sexuality in a classroom setting in front of teenage peers is the solution. I’d prefer to provide extra counselling for LGBTIQ+ students who need help.

People who changed their minds from Yes to No

So, why would people who had previously been open to the idea of same-sex marriage change their minds? My hypothesis is that Haidt’s liberty moral driver is in operation here.

Liberty – dislike of controlling behaviour and fear of diminishing freedoms

I have witnessed a certain phenomenon as the debate on same-sex marriage goes on. Namely, I have met people who are generally socially liberal, but have said that they will vote No on principle because they feel that they cannot speak out or express any doubt without having their character called into question. They perceive that certain views are held up as the only views that a decent, educated right-thinking person can have, and that anyone who veers from this view in any way is called immoral, stupid and ignorant. In other words, they’ve been put off by the moral grandstanding by some in the Yes lobby (for example, I think that Tim Minchin’s song, I still call Australia homophobic was an own goal). Of course, the No lobby engages in moral grandstanding too, but the kind of No voters about whom I’m speaking are not influenced by the moral beliefs of the Australian Christian Lobby (although some of the collateral fears stoked by the No campaign with regard to Safe Schools and the like may have an influence). Instead, they care about controlling behaviour in society and believe that that ‘political correctness’ has gone too far. (These were the people to whom Abbott was appealing when he said that a No vote was a vote against political correctness).

Here, I think the psychological concept of reactance is relevant. Sometimes, when I have not yet fully made up my mind, and someone tries to push me into adopting a view, presenting it as the only rational view, I begin to question it far more strongly than I would have otherwise. I don’t like being told what to think, and I like to make up my mind in my own time on my own terms. I become suspicious when someone tries to push me into agreeing with them. (This started at a very young age, and explains why I am not religious – I react to religious preaching in this way too.) Apparently reactance occurs in response to perceived behavioural threats, particularly threats that freedoms important to the person will be curtailed.

There is a perception that presently, political correctness is curtailing freedom, and that only certain views are acceptable in polite educated society. Some people will react against that and go in the opposite direction to the “acceptable” view simply because they have been told it is the only view they can have, and they are afraid that their freedom is being curtailed. This applies not just to same-sex marriage, but also to other issues such as Brexit and Trump. If you want to understand why people voted for Trump in the US (despite the fact that I have seldom seen anyone more eminently unqualified to be President) you need to recognise that he wasn’t cowed by politically correct moral grandstanding, and voters liked that. Voting for him was an act of reactance for some people.

I think there is a fear of increasingly diminishing freedoms. Some of my Yes campaigner friends have been dismissive of “slippery slope” arguments, but I think that is pivotal to understanding what is going on here. As Jim Belshaw has said in his typically sensible post:

However, listening to the yes campaigners on some of the no arguments, I fear they miss a simple point. Many of the people on the no side are actually drawing a line in the sand against further change. They say, simply, that their beliefs and values have been progressively challenged and overturned. If we agree to this one, what comes next?

I don’t believe Yes campaigners should dismiss those fears. People are afraid. And if you are arguing for change and challenging the status quo, you are going to have a more difficult time of it.

How can the Yes supporters win?

Australians are unused to non-compulsory votes, as has become evident during the campaign. No one has to vote in this survey. Statistics show that the majority of people support same-sex marriage, but getting people to take action is more difficult. Some people won’t care about the issue that much (they may not have gay friends or family). Some may feel sick of the debate already.

I have some suggestions for the Yes campaigners:

  • Stop preaching to the converted. A lot of the campaigning I’ve seen is about signalling one’s virtues to other people on your team, rather than about engaging with undecided or unmotivated voters (eg, Tim Minchin’s song). That’s not going to win anyone over or make any lukewarm voters post their vote.
  • Try to stay nice (although I recognise that this is hard when others are saying that they hate you or that you should not be trusted with children or that you are immoral). It is very difficult to be challenged about something which is intrinsic to your personality and which you can’t change (particularly if, when you were younger, you found your sexuality very difficult to accept). But…Benjamin Law’s tweet about “hate-f**king” homophobes in Parliament was not nice (imagine if a prominent right-figure had said that gay and lesbian MPs “needed the homosexuality f**ked out of them”). Recall the point above about your craziest advocates being taken as representative.
  • The slogan “love is love” makes me wince (although it’s probably too late already). It suggests that if you love someone, it should be recognised regardless, but it raises other issues in people’s minds – should love be recognised with regard to polygamy, bestiality, paedophilia…? [NB: It may be that I’m freaked out by the phrase because almost 20 years ago, I was clerking in a case involving a notorious pedophile, and he said “love is love” in a document he provided to the court (setting out in detail exactly why he should be able to do what he wanted with children).] One of the reasons we want to recognise same-sex marriage is so that loving same-sex partnerships can be legally recognised on the same basis as heterosexual partnerships, but consent between adults is what makes a sexual practice allowable in our society, not love, and it is why we should allow same-sex marriage. (I suppose “Consensual and mutual love between two adults is love” doesn’t have the same ring to it…I’d never be a good advertising guru…)
  • Ditch the celebrities telling people to vote Yes. I hate being told what to do by celebrities, because they are rich and not subject to the same concerns and worries as the rest of us. (Actually I can’t stand celebrity politicians of any stripe.) It seems like an elite is speaking from on high to the masses. Also I do not think it is the place of professional organisations to have a position on this. If my Law School said it supported the Yes position, I would be annoyed, despite being a Yes voter and supportive of the Yes cause. You have to leave room for individuals to have differing views. And if you don’t give people room to think about it, remember reactance – people will go the other way out of sheer pigheadedness.
  • Related to the above, I do not think that any religious or ethnic group should be forced to conduct same-sex marriages if they don’t want to do so. There are other ways of supporting same-sex attracted individuals in those groups, and we should explore those options (see the link above to the charity I mentioned).

I know that this whole postal survey thing is (and has been) divisive, and it’s pathetic that Parliament can’t take the lead, one way or the other. But…given that we’re stuck with it, how should the debate continue, then? Skepticlawyer shared this delightful story with me, and I think it gives us a clue. “Chris” was handing out letters in the suburbs (see photo). He simply shared his own personal story in a humble and loving way. He wants to be able to marry, and to be given a “fair go”. I particularly love the part where he politely respect differences, implores the undecided to think about his situation, and asks those inclined to vote Yes to do so. It’s just beautiful. He’s not signalling his virtue, he’s not being clever or abusive; he’s simply making an appeal to fairness and equality, and pointing out that he will be deeply affected by the decision. And that’s what it’s all about really.

I think these are the kind of actions which will make a difference. Another thing I’ve seen a friend do over the last couple of days is to share personal stories involving same-sex couples, and I think that’s also a great way of getting people to realise that the people who are asking for a Yes vote are just normal, decent people like anyone else. I have obviously been worrying about this issue a lot lately, as I had a dream the other night that I was a bridesmaid (matron of honour?) at the wedding of a dear friend who has been in a committed relationship with her female partner for many years. I was most disappointed when I woke up and discovered that it was only a dream.

So, I hope that Yes wins, for the sake of my friends whom I love very much (and for Chris’s sake too). If you’re not sure, think about the decent gay and lesbian people whom you know, and imagine yourselves at their wedding. However, if you believe differently from me, I’m not going to tell you how to vote, because it is a deeply personal choice, and I respect that, as long as you respect me.

Peace to all, and I hope the debate continues in a less polarising and frenetic way.

In accordance with s 6(5) of the Marriage Law Survey (Additional Safeguards) Act 2017, this communication was authorised by Katy Barnett of Melbourne, Australia and expresses her own opinion solely.

You cannot make people love & accept you: so stop trying

By skepticlawyer

British people often react with incomprehension at how compulsory voting changes the way Australians approach elections. The ABS postal survey on same-sex marriage is a reminder of just how different Australia’s usual voting procedure is from that in most other developed democracies: people are running the campaign as though it were compulsory, you see, and they’re screwing it up royally on all sides.

I wrote about this (and other, related) issues in this week’s Spectator, which you should absolutely go & buy from your local newsagent.

When I was a girl, my mother used to say she didn’t like standing on the moral high ground because she didn’t have a head for heights.

News that a significant percentage of those who support same-sex marriage plan to boycott the postal plebiscite (or survey, or opinion poll, or ‘plebishite’ as my partner calls it) has even reached Blighty. It represents a concerted attempt to climb a particular moral hill and then die on it. I have no desire to die on this particular hill and am becoming rather tired of campaigners purporting to represent my interests making the perfect the enemy of the good.

Yes, it’s true that a popular vote of any sort is not how we make legal change in Westminster systems – a point LNP Senator Dean Smith makes eloquently. I get that. Yes, voting on other people’s rights in any sort of liberal democracy – even when constitutional arrangements permit it – is improper. There is a reason women were not enfranchised in otherwise liberal Switzerland until 1971. Yes, responding to the Senate’s intransigence in blocking a compulsory plebiscite by disrespecting the institution itself is pretty pitiful. To borrow an Americanism, there should be no end runs around the Constitution. They do no-one any credit. And the campaign – even at this early stage – is already showing all the bits of Australia not for export.

Read the whole thing, as they say.

Sicilian Diary

By skepticlawyer

From time-to-time, I indulge in a bit of travel writing, although I haven’t done it for a while. This week’s Speccie features yours truly travel writing on Sicily, one of my favourite places in the world and a place where I once worked on an archeological dig.

‘Muslims will not blow anyone up here,’ the proprietor of my Siracusa local assures me, ‘we have our own people who do that’. Opting to take one’s annual leave in Sicily is to be confronted by a reminder of southern Italy’s once terrible poverty and local corruption – unused and fantastically expensive elevated roadways and tunnels leading nowhere, often sprouting vegetation, litter the landscape. The Mafia appears in the form of children selling cigarettes sans health warnings, pervasive fly-tipping, and not otherwise. Sicily is remarkably safe. The winding, twisting detours Sicily’s roads take are remarkable in their own way, vaulting over Luigi’s Lemons, Giuseppe’s Goats, Pietra’s Pears and Everyone’s Olives. One suspects there have been many conversations of the I-don’t-like-that-highway-there/Would-you-like-me-to-move-it? sort.

Read the whole thing.