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Monday, 27 November 2017
Page: 8805

Senator LEYONHJELM (New South Wales) (13:32): I prefer not to use the term 'marriage equality'. That's because I'm pretty dubious about equality in general. As soon as you mention the word 'equality', you have to define it—equality of what? However, I make a big exception for equality before the law. This is the principle that each individual must be treated equally by the law and that all people are subject to the same laws—in other words, the law must ensure that no individual or group of individuals is privileged or discriminated against by the government. Equality before the law is one of the basic tenets of liberalism. It's because of the importance of equality before the law that libertarians support same-sex marriage. If the law provides for some adults to marry, it should not prevent others from marrying on the same terms. That's discrimination by the government and obviously not equality before the law. But it's not the only reason libertarians have no objections to same-sex marriage. We simply don't believe the government should have the power to determine the sex of who can or cannot marry. We maintain that the government does not grant us our rights; it must justify why it should limit them, and in the case of same-sex marriage it has never done that. We believe people ought to have the freedom to choose their own life path—that is, they have liberty. As John Stuart Mill said:

… over his own body and mind, the individual is sovereign.

That said, governments have often sought to impose their views of marriage in the past. Prior to Federation, several states denied Aborigines the freedom to marry who they liked. Sometimes there was disapproval of Aborigines marrying Aborigines, and sometimes there was disapproval of Aborigines marrying non-Aborigines. In other countries that we like to think of as similar to ours, there were restrictions on Jews marrying non-Jews, Protestants marrying Catholics, and blacks marrying whites. In Australia, a marriage between a Protestant and a Catholic was once described as a mixed marriage. These days we are horrified when we hear stories detailing how in some countries parents still arrange their children's marriages and exact revenge on them when the kids won't play along. Yet it's not fundamentally different from allowing the government to dictate the gender of the person who someone can marry.

Those who oppose same-sex marriage often attempt to fix in time and law a particular definition of marriage, like trapping an insect in amber. They assume that heterosexual monogamy was a historical and legal norm worldwide. That's not true. Human societies have had every form of marriage imaginable, including same-sex marriage, and a couple of societies have had no conception of it at all. Even within opposite-sex marriage, definitional differences over time are pervasive. The use of marriage to retain control over property, including inheritance, was a major concern long before it became a religious matter. Marriage of close relatives, particularly cousins, has wreaked havoc in many societies.

Religious guidelines around Judaeo-Christian marriages are not thought to have developed until the practice was several hundred years old and were first used as a means of preventing the loss of wealthy followers by restricting them from marrying people from other religions. As the church gained power, a priest's blessing became required, while priests themselves were banned from marrying to secure the church's own property wealth. By the eighth century, the church used marriage as a ceremony to confer heavenly grace while consolidating earthly power. Only in 1563, at the Council of Trent, was marriage promoted as a holy sacrament.

In Western Europe, it wasn't until the Middle Ages that marriage in churches began to occur. However, they were not the norm until the 17th century and then only for nobility. Marriage was also used as a tool to unite different royal families' bloodlines, creating alliances that were instrumental in enabling the European monarchies to colonise much of the rest of the world.

Some supporters of what they call traditional marriage cite Blackstone's commentaries, attempting to recruit the great English jurist to support their concept of marriage. They forget that, in Blackstone's time, the wife lost both property and legal capacity on marriage. The couple could not divorce without extraordinary difficulty, and what we now consider criminal activity was sanctioned within the relationship. This latter included marital rape as the woman had supposedly given irrevocable consent.

It wasn't until the 20th century that the status of married woman in developed common-law countries surpassed that of a married Roman woman in the first century AD. Roman law took women's interests seriously and did not treat them as property after marriage or in criminal law. Rape under Roman law was a crime against the person, for example, as it is across the developed world today. The Roman justification for marriage was the same as that in the modern developed world—they used the term affectio maritalis, which means exactly what it says.

It has become fashionable to argue that marriage in the past was always loveless, a matter of arrangement and alliances, but that is just as historically inaccurate as universalising the modern world's focus on love and affection. The Roman term also highlights another reality often neglected by those who insist that marriage always equals procreation. There have never been any laws preventing women who are past child-bearing age from marrying, or remarrying after widowhood.

Another common claim made by those arguing for religiously-inflected marriage law is that Christian Europe was the first truly monogamous civilisation. In fact, classical Rome made monogamy a marital universe, with this great empire imposing civilisational family values on conquered peoples that would make the governors of British India blush.

Libertarians also believe that marriage should be treated as a private matter. Indeed, in civil law countries, that is the case. It is part of private law, not public law. The state simply provides a legal framework, particularly in the event of divorce or intestacy. In Roman law, marriage was a simple contract. That's very appealing to libertarians, who often propose repeal of the Marriage Act rather than amending it. But, even if we did that, most people would still see a need to regulate for incest, age of consent and polygamy. And in any case, repeal of the Marriage Act would not simply default to contract. There is a mass of common law and old state laws that would rise to the surface. Libertopia is not so easily achieved.

Of course libertarians recognise that, while those have a particular view of marriage should not seek to impose that view on others, neither should it be necessary to approve of other people's marriage choices. If we accept the view that marriage is a private matter between consenting adults, the only choice we each need to make is whether to participate.

Being a private matter does mean that marriage occurs in private, though. A marriage ceremony involves a public declaration of commitment. There must be witnesses. But that's not an invitation to the state to intrude. Its role is to simply record the marriage in a register and issue a certificate. Frankly, I don't understand why gays and lesbians think that matters—or straight couples either. My wife of 33 years and I have no interest in being listed in a register or having a piece of paper. But, since the state does operate a register and it does issue pieces of paper, and since, obviously, these things matter to some people, there is no reason to deny them on gender grounds.

It can't be denied that the community places a certain significance on the institution of marriage. It accepts that individuals can live together in all kinds of relationships, irrespective of gender and numbers, but marriage is different. We need to respect that.

My record on the issue of same-sex marriage goes back to my first speech in 2014, in which I indicated my support. I introduced a private senator's bill to allow same-sex marriage in 2014 and then again in 2016. Unlike the Greens, I have voted in support of same-sex marriage in this Senate on every single occasion, including on procedural matters. They have not. My bills introduced the notion of freedom to marry, rather than marriage equality. I argued that the issue was one of lessening government control rather than of amending government control. I was particularly pleased when Senator Dean Smith, whose bill we are debating, told the media in early 2015 that he had altered his views on same-sex marriage in part because of my arguments. I feel as if I have contributed to this outcome.

The bills that I introduced not only sought to amend the Marriage Act to allow same-sex marriage but also sought to protect those who held a different view from suffering legal consequences if they acted in accordance with that view. I will be moving amendments to Senator Smith's bill that do the same. Based on the premise that the state should never discriminate, one of my amendments would require public servants to solemnise marriages between same-sex couples who turn up at registry offices, irrespective of the public servants' personal views. But non-government celebrants would not be required to solemnise marriages, either between same-sex or opposite-sex couples. Whether they are a religious celebrant or a non-religious celebrant, the law should not penalise them for declining to participate in a ceremony they do not support. A celebrant who specialises in same-sex marriages should not be obliged to officiate at a heterosexual wedding. This is allowing free choice based on conscience. Religions do not have a monopoly on conscience, so why should they—and only they—receive protection under the law in a secular country such as ours?

My amendment also contains an exemption from the Sex Discrimination Act so that no-one will breach the act for declining to provide goods, services or facilities in connection with a wedding. Again, a service provider specialising in gay weddings would not face consequences for declining to provide services to a heterosexual wedding. Changing marriage law shouldn't be about turning the powers of the state around so that they now constrain opponents of same-sex marriage. That would amount to revenge, and we cannot allow that. Changing marriage laws should be about reducing the powers of the state so that marriage heads back to being a private matter on which we can have differing views without risking legal penalty.

I have heard some say we don't want to remove one source of discrimination and replace it with another. If we are talking about discrimination by the government, I agree. But discrimination by individuals is a part of life. We all discriminate, every day. There are no exceptions. Whether it's based on appearance, behaviour, personal attributes, location, beliefs or whatever, it's natural and it's integral to making choices. How much should the government intervene to prevent us from making certain choices? Libertarians view such intervention as primarily the role of civil society, not the government.

The Sex Discrimination Act tells us we are not permitted to discriminate on the basis of sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy, potential pregnancy, breastfeeding or family responsibilities. This is incredibly broad. The act applies to the government, which is good because it promotes equality before the law. But it also prescribes how we must deal with our fellow Australians in a private capacity. It prescribes our one-on-one dealings, largely irrespective of the circumstances. This is not good.

My amendment will seek to wind back this intrusion in private affairs in a very small respect, although I think it's time we had a discussion about winding it back on a much broader basis. Changing the definition of marriage is not a trivial matter, and there must be room in our society for people to have different views. My amendment will ensure that those who are in the minority view, the 38 per cent who support the traditional view of marriage, are not exposed to the intrusiveness of the Sex Discrimination Act.

Finally, I want to make a few observations about the process that led us to this occasion, where we are about to change the Marriage Act to allow same-sex marriage. While I have always been a little wary about conducting a public vote on other people's rights, other countries do it regularly via citizens-initiated referendums—Switzerland and California are the most well-known examples—and I don't believe their democracy or rights are diminished as a result.

Those who argued that this matter should have been dealt with by parliament are probably correct in absolute terms, but it would have required a majority in both houses to pass. It would not have achieved that. True, Australian Marriage Equality held the view that there was a narrow majority of MPs in favour. I disagree. Some members and senators that I spoke to were privately in favour of same-sex marriage but would not vote for it for fear of losing their preselection. Others were opposed to it but were unwilling to say so because of their party's position. In a free vote, prior to the plebiscite, I suspect that both groups would have voted no.

On the other hand, I have never had any doubt that a sizable majority of Australians was in favour of change. I have said so regularly. I also don't believe the 'yes' and 'no' campaigns in the plebiscite changed many votes at all. Most people recognised it was time for a change. I do know that some people voted no because they disliked the way the 'yes' campaign was run, but I can't say I know or heard from anyone who was persuaded to vote yes on the strength of the campaign.

My concern all along was to enable those who wanted to get married to be able to do so. To me, it has never been about anything else. The Labor Party, Greens and motley crossbenchers wanted to make it about symbolism, virtue signalling and moral superiority. They were profoundly wrong to have voted against the plebiscite legislation on the two occasions it was presented to the Senate. Same-sex marriage will be legal because we went down the plebiscite path. This would not have been achieved with just a free vote in parliament. But I hope we can now agree on one thing—the less the government intrudes into the private domain of marriage, the better off we all are.