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.


  1. kvd
    Posted September 14, 2017 at 3:56 am | Permalink

    Thanks LE for setting out your personal views on this matter. I have a couple of questions, but express no views on the subject of your post – therefore am assuming I am under no obligation to provide either my name or town:

    1) Is my above assumption correct?
    2) Does this recently enacted legislation contain any provision for the national parliament to a) introduce and vote upon any legislation enacting the majority view expressed in this ‘survey’, and b) so act in any timeframe?
    3) The ‘Simplified Outline of this Act’ contains a couple of paragraphs noting: “The maximum penalty for a person who vilifies, intimidates or threatens to cause harm to another because of the other’s view in relation to the marriage law survey question or religious conviction, sexual orientation, gender identity or intersex status is 60 penalty units ($12 600). ”

    The above bolding is mine, and the question is: what is this quite specific extension of the actual subject matter (the ‘survey’) doing in this act?

    Thanks LE

  2. Iain Hall
    Posted September 14, 2017 at 8:14 am | Permalink

    Hi Katy
    and thanks for a thoughtful piece on this topic.
    I have long been arguing against changing the definition of marriage because I am concerned about its effect on children. My concerns do not revolve around any notion that a same sex couple can not be entirely adequate parents.
    In the first instance I am concerned about the alienation of any children from a biological parent when they are created for a same sex couple involving a third party. There have been many instances of children created by anonymous sperm donations having a life long feeling of being incomplete because they can not know who they truly are. In the same vein Children created for male couples must be gestated somewhere and that usually meant exploiting poor women in third word countries and or lobbying to change laws in this country to allow paid surrogacy here.

    It has long been my belief that the underlying point of the the push for gay marriage has nothing at all to do with recognition of same sex relationships they are already treated the same as defacto unions for all purposes that matter (property tax ect) but as a visible public affirmation of homosexuality per se. As you suggest here the Yes case are doing a very good job of undermining public support because they simply can’t imagine anyone objecting for reasons other than hating homosexuals which makes so many undecided voters unwilling to vote yes because they hate being bullied.

  3. Jeremy Gans
    Posted September 14, 2017 at 9:15 am | Permalink

    “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 think this explains just about everything I ever think or say.

  4. Jeremy Gans
    Posted September 14, 2017 at 9:18 am | Permalink

    On s6: query whether your post is intended to prompt a survey response. Also, note the exemptions for communications solely for academic or personal purposes.
    On s15(2): note the exemption for expression of views on the survey. As near as I can tell, s15 is mainly intended for abuse that happens during the survey period, but is not expression about SSM! Strange, but makes sense given the implied freedom of political communication.

  5. kvd
    Posted September 14, 2017 at 12:26 pm | Permalink

    So, Iain, you are against surrogacy. I expect (population-wise) there are as many unfertile couples of opposite sex engaging in same, not to forget loving adoptive parents – my own brother and his good wife included – and you feel their outcomes to be somehow questionable, maybe even substandard?

    To my simple mind that is an issue quite distinct from marriage equality – which is the actual subject of the ‘survey’.

  6. Lethall
    Posted September 14, 2017 at 1:02 pm | Permalink

    I’m ambivalent about the entire issue for an entirely different reason: as a divorced single mother for many years I have been treated by the community of the coupled as nothing more than a threat to the nuclear family and I’m sure I’m not the only one e.g. The stats earlier this year about how many married men will not even talk to a single woman or the movie, The Lobster, about how the newly single are turned into animals to be hunted if they remain uncoupled for more than a few weeks. Marriage is in many respects a device which is used to discriminate between the “respectable” and the rest of us. Why should I endorse the expansion of a group that defines me as a lesser person on the basis of my marital status?
    Next, personal anecdotes are a double-edged sword: four weeks into a new job, at a work social event, my superior got drunk and verbally abused me on the grounds that it was obvious from the fact that men looked at me that I was a “slut” and that my children should be taken away from me and given to stable homosexual couples like him and his boyfriend to raise. The concept of marriage as a mark of one’s value as a human being and the justification of misogynist attitudes it justifies makes me hostile to the entire enterprise.

  7. Iain Hall
    Posted September 14, 2017 at 5:03 pm | Permalink

    “So, Iain, you are against surrogacy.”

    Not entirely, but when it is a commercial arrangement it does become far more morally ambiguous and in the case of a (male) homosexual couple there is no other way for them to gestate a child they wish to create and then it will be the mother who will be alienated form the child they create whcih is not something so easily dismissed.-

    I expect (population-wise) there are as many unfertile couples of opposite sex engaging in same, not to forget loving adoptive parents – my own brother and his good wife included – and you feel their outcomes to be somehow questionable, maybe even substandard?

    I have already said that same sex couples can do a perfectly adequate job of raising children that is not the basis of my concerns I am concerned about children being alienated from their heritage and I am concerned that human gametes will become just another commodity.

  8. Aimee
    Posted September 14, 2017 at 7:51 pm | Permalink

    Typically fascinating and erudite post.

    Two points regarding biblical notion of marriage, at least from a Christian (and possibly Jewish, although I haven’t read modern views) POV.

    1. Levirate marriage aside – while not inaccurate to say that polygamy and concubinage feature in the Old Testament, I don’t think it is correct to talk about them as part of a shifting specifically Jewish notion of marriage. In the same way that idol worship was a feature of various people’s lives as recorded in Old Testament accounts (Golden Bull, Rachel hiding idols etc), but not part of Jewish religion, these activities are recorded as what happened, rather than what according to their religion was supposed to happen, perhaps as a product of living among the pagan Philistine nations or just their own sin. While the kings of Israel couldn’t go past the political advantages (and personal gratification) of multiple wives / concubines, the instructions given to kings in Deuteronomy 17:14-20 included NOT to have multiple wives (Solomon managed to break most of these instructions). My understanding is that idol worship and polygamy remained recurring social / religious problems until the Exile, but seemingly not thereafter.

    2. For Christians marriage has a particular significance because of the way human marriage is used in the NT as a metaphor for the marriage of Christ and the Church (eg Eph 5, 2 Cor 11, Rev 19 and 21) – the coming together of two heterogeneous bodies, the end of suffering and death, and making all things new.

    Whether any of this has any relevance to the State definition of marriage is a separate issue for individual consciences.

  9. Posted September 15, 2017 at 5:00 am | Permalink

    Great post: I see you have taken some of our private discussions and draft bits of my forthcoming (hopefully) book on marriage and run further in your typical well-sourced and reasoned way.

    [email protected] Polygyny remains a somewhat controversial element in Jewish law.

  10. Iain Hall
    Posted September 15, 2017 at 6:44 am | Permalink

    Katy @10
    It may be a different question but it is something that may well be a clear and obvious consequence of changing the marriage act/ As a Lawyer surely you can appreciate that you can never expect changes to any law not to have consequences many are being enunciated by those arguing for no change are dismissed out of rhetorical expediency because yes advocates want to pretend that this will be a consequence free change to our society but no change of this magnitude is ever without consequences.

  11. kvd
    Posted September 15, 2017 at 1:19 pm | Permalink

    Iain, with great respect, you are suggesting that the primary reason you are against so-called ‘marriage equality’ is your concern for any children which might eventuate from such unions?

    Perhaps I’m mistaken; indeed when I read your first post, I thought your “because I am concerned about its effect on children” was such a hackneyed stance as to maybe be parody – but it seems not?

    I don’t see the automatic connection you make between the recognition of ‘a marriage’ and the inevitable production of children. I can distinguish between the two events, but I believe you cannot, or maybe choose not to. Is this a fair summary of your position?

  12. GALove
    Posted October 14, 2017 at 5:17 pm | Permalink

    Hi there
    I read your article on SSM and I like the way it has been set out, in a polite, respectful manner. I wish there were more people like you who could discuss and debate this issue in a civil way.
    Both sides have a basis for argument and each person through their own life outlook and circumstances will speak for themselves.
    What I am calling you to do is take a look at statistics. I keep hearing similar arguments – that heterosexual couples can abuse their kids too. Is this ratio 1:10? Because statistically homosexual couples have a much higher rate for child abuse..
    Moving away from child abuse, one has to think what the consequences of such a vote are? Most of us are not aware. Is this a Trojan war effect whereby you vote for one thing and all hell breaks loose? Are people aware that the State will take over education of your kids and you as a parent will have no rights to opting out of any lessons or subjects in the curriculum based on new laws?. Is anyone aware that the biological parent will be called the legal guardian eventually? And the terms man and woman will be erased from vocab entirely for the sake of political correctness? Does this sound like much freedom to you? I have felt very free up until yesterday. Not these days however. There is a noose around our heads and it’s getting tighter and tighter. I think we need to look closer and then again more closely at what is being proposed here instead of hearing sob stories from same sex attracted people. I think the argument about children should be noted as they are defenseless little human beings that need our protection and not our disregard due to adult concerns which can and could be settled some other way. Surely there are other ways to gain equality without changing the Marriage Act. They can work something out without imposing on every other person but mostly on children that may not want to be subject to radical sex education in schools from Primary or transgender issues from 4 years old!
    Surely we can work out another way to not impose on religious groups and people that want to live the way they like and are used to. They have come this far and why is the LGBTQ stopping with marriage. Is it really that they wish for equality or rather Inequality. I have read a few articles and seen some videos that relate to good arguments for why many people have chosen to vote No. and not because they don’t want equality as that would not be true for any of us I’m certain..see the ‘anonymous’ post on SSM; Google Miranda Devine and Canadian parent steve tourloukis herald sun; Ryan Anderson on SSM.
    Let’s take a responsible approach and know what we are really voting for. Equality is a two-way street. The only thing that can set us all free is Truth.
    Wish you the best in finding truth

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