Australia has just passed a law to legalize same-sex marriage, making it only the second country to do so democratically. The bill will come into effect today, with gay weddings to be allowed from January 9, 2018.
The bill was passed by parliament after two months of debate and amendment proposals, following an October public vote that resulted in a 61.6% result in favor of changing the law to allow same-sex marriage. Prime Minister Malcolm Turnbull made good on his campaign promise to put the matter of gay marriage to the people, by conducting a postal survey which allowed the public to make up their own minds.
Unlike electoral voting, which is compulsory in Australia, the postal survey was neither mandatory for voters, nor legally binding for parliament. However, a notably high 80% of the public turned out to vote, and the law passed through parliament with a huge majority vote.
The survey wasn’t without its detractors, with voices on both sides criticizing the financial and social expense of the process. Australian actress and pro-LGBT activist Magda Szubanski said that “The LGBTQI community were used as unwilling human guinea pigs in a political experiment,” while US-based commentator John Oliver called the survey, “pointless,” in a set of profoundly anti-democratic remarks.
GAY MARRIAGE AND DEMOCRACY
Whatever one’s opinion on LGBT rights or the meaning of marriage in society, as a democratic country, Australia has allowed its citizens to make the decision on whether or not same-sex marriage should be a part of the national culture, though, to date, few countries have afforded their people the same privilege.
Australia has become one of around 30 countries to allow gay marriage, but only the second to bring it into law by popular vote. Up until now, Ireland was the only country to democratically bring gay marriage into law following a 2015 referendum that passed with 62% of the popular vote. The remaining 26 countries, including the US, have demonstrated an alarming anti-democratic pattern of pushing the matter through the law books without bothering to consult the public.
This brings up a far wider constitutional issue surrounding the role of government in today’s society: are our law courts and legislative bodies in place to represent the will of the people, or are they entitled to act as the moral arbiters of our times?
Contracts and Culture
From one point of view, marriage is essentially just a legal contract, which can be adequately handled by our elected officials and law courts; but on the other hand, an alteration in the status of marriage represents a huge change in the culture of a society, and has wide-ranging implications for religious freedoms. The public should surely have a direct say in such a fundamental societal change, yet gay marriage has typically been made into law through one of two routes: parliamentary vote or court decisions, without any real public consultation.
Same-sex marriage was legalized in Britain by former Prime Minister David Cameron in a move he described as one of his “proudest” achievements. The snag is that he had no public mandate to pass such a law. Mr. Cameron never campaigned on the basis of legalizing gay marriage and seems to have taken the decision to do so without consulting the public at all. The bill passed with virtually no public awareness that it was happening until it was already done. If same-sex marriage was such a priority for the PM, why didn’t he and his political party campaign on the issue?
We elect our officials based on a series of campaign promises and manifestos; do they have the right to act outside the parameters of these promises? As a society, we accept that campaign promises made to us are often broken but are we willing to accept that the authorities have the right to make fundamental societal changes without even mentioning it to us first?
Power Over the People
Finland’s parliament voted to allow same-sex marriage in 2015 after a citizen’s initiative was brought, with the support of a petition that had only around 167,000 signatures. New Zealand passed their gay marriage laws as the result of a private member’s bill, not an election promise. Germany’s Bundestag literally saw a “snap vote” that legalized same-sex marriage only days after Chancellor Angela Merkel announced that she would allow such a vote, to the surprise of everybody. But so far the government of Slovenia has shown the most anti-democratic conduct, pushing through a gay marriage law in 2016, after a 2015 popular referendum rejected it with 63% of the vote.
Other countries, including the US and most recently Austria, have seen a change in marriage law via the court system. Most countries do not elect their judges, who are generally appointed by the political officials of the day, a matter which is of particular public contention in the US. While judges are certainly qualified to make legal decisions on the legality of existing legislation and constitutional issues, have we given them too much reign over decisions that should really be decided by the people at large?
The purpose of this article is not to speak against gay marriage, but rather to express concern over the undemocratic patterns that have emerged as same-sex marriage has gradually become legal across the Western world. The implications of allowing a political elite to simply pass through their own agenda, without first getting a mandate from the people, go far wider than just LGBT rights. Whether you are for or against gay marriage, at least the Australian government allowed the public to choose for themselves and carried through the will of the people.
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