Plebiscites and pontification

There has been a plethora of pundits weighing in on the subject of same-sex marriage in recent weeks. A significant amount of intellectual energy has been expended by libertarian commenters attempting to assert that a yes vote in the upcoming postal plebiscite is inconsistent with libertarian values. In particular, it has been argued that the true libertarian position would revolve around the complete devolution of marriage from its current status as a function of the state to its historical role as a function of religious and secular civil society. Another common objection revolves around the protection of the religious liberties of those who might be called upon to cater to same-sex wedding celebrations. It is all well and good to pontificate about perfect libertarian solutions involving getting government out of marriage altogether and protecting the right of businesspeople to choose who they will and won’t do business with but in the pragmatic real world of libertarian politics we can only play the hands we are dealt.

The libertarian arguments for a no vote do have valid philosophical grounds, but in assessing whether or not to accept them as deserving of our consideration we need to examine them against the status quo. With this in mind it becomes far more difficult to mount a case for a no vote.

The first, and most obvious, red herring from the no camp is the idea that enacting same-sex-marriage will compel bakers, florists, photographers and other providers of services to weddings to engage with same-sex couples against their own deeply-held convictions against same-sex-marriage. While business owners certainly have an intrinsic moral right to refuse to do business with people based on any criteria they choose, there are already well-entrenched anti-discrimination laws that make it unlawful for a business to discriminate on the basis of gender, marital status or sexuality in addition to race, religion and a slew of other factors. Regardless of what we think of the laws as they stand, as libertarians we should agree that they should apply equally to all.

The number of people expressing concern for Christian bakers who may be forced to produce cakes for same-sex weddings against their own personal belief makes me wonder where the chorus of support for White supremacist bakers against inter-racial weddings and Jewish bakers against atheist weddings. This argument totally falls apart when it is pointed out that same-sex weddings are not illegal. The only prohibition is on marriage celebrants saying the magic words and filling out the paperwork for a same-sex couple’s wedding in order for it to be recognised by the state. Same-sex weddings occur around the country all the time, they’re just not recognised as “marriages” by the state. The conflation of “wedding” with “marriage” even if naïve rather than mendacious renders this a complete non-issue. Most business people are smart enough not to turn away good money for spurious reasons, especially when dealing with clients who are more likely to have more money to spend. The pink dollar is real and highly sought-after. There is no meaningful change to the status quo here.

The other non-issue that seems to be rearing its head in various circles is the idea that removing the stipulation for two people who want to get married to have different genitalia somehow imposes a definition of marriage on everybody else. Leaving aside the fact that the Howard government already imposed a definition of marriage, without asking the electorate for their opinion when the marriage act was amended to include the words “the union of a man and a woman” and insert section 88 which states that:
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.

It is the words “must not be recognised” that underscore the silliness of this argument. The marriage act places absolutely no restriction on what definitions citizens may use. Currently any and all adults can have a wedding (or not) and decide to refer to themselves as “married” (or not). I married my wife by swapping rings and promising to love and support each other no matter what. We chose not to invite the government to our wedding, but where other couples do, it goes against the government’s own anti-discrimination principles to refuse to record some people’s marriages on the basis of their sexuality. The definition of marriage in the marriage act serves only to constrain the government in terms of which marriages it will recognise. It does not force the definition on anybody but those who choose freely to avail themselves of it. The amendment of a provision of an act of parliament which has no effect but to revert the scope of the act part way to what it was less than 20 years ago is entirely consistent with a libertarian outlook.

I’m not going to address any arguments rooted in religious teachings or asserting that same-sex marriage either is, or will result in, some sort of attack on the institution of organised religion. Religious objections are not libertarian arguments If you choose to subscribe to a religion then you are only binding yourself to the tenets of that religion, not others. The religious freedom of service providers is already infringed by the state and allowing same-sex marriage will simply maintain the status quo in that regard. The various organised religions all have multiple definitions of marriage depending on which denomination, sect or branch someone chooses to follow so asserting that there is one unified religious definition of marriage that is somehow under threat by allowing a secular government to recognise same-sex marriage is nonsensical.

The “slippery slope” arguments predicting a parade of horrors being visited upon organised religion should the camel get its nose in the tent are nothing more than simplistic appeals to probability. It is an extraordinarily long bow to draw to suggest that allowing the secular recognition of same-sex marriage will somehow open the floodgates for the Catholic Church to be forced to allow lesbians to become priests. Even if we accept that it is possible that religious institutions may be compelled to officiate same-sex marriages against the teachings of their church, we have already pointed out that libertarians should value the equal and consistent application of laws.

Freedom of religion is important, equality before the law is also important. Religious exemptions to the equal application of the law are an anachronism not afforded to other groups who may have similarly strongly-held convictions. It is absurd that a man who follows the Sikh religion can be excused from wearing a bicycle helmet based on religious beliefs that are – in nearly every case – an accident of birth, while a libertarian who objects to being compelled to wear a bicycle helmet based on considered political opinions arrived at over a lifetime of contemplation will simply be told to pay his fine. Likewise, it is absurd to insist that a priest should be granted an exemption from anti-discrimination laws on the basis of his religious beliefs while a civil celebrant would be granted no similar protection for their political beliefs.

Other slippery slope arguments revolve around the sanctity of the family unit, the imagined right of children to be provided with primary caregivers both male and female, and the spectre of polygamous relationships with the attendant obvious downfall of Western civilisation that is sure to ensue if a woman is allowed two husbands. Even if such consequences could be considered likely – given the dearth of evidence this is another long bow – to suggest that the government should refrain from legalising same-sex-marriage as a result is an invocation of the precautionary principle. The notion that the government has a duty to protect citizens from harms real or imagined even in the case where the evidence for potential harm is scarce and equivocal is thoroughly inconsistent with libertarianism’s long-standing and important aversion to paternalism.

I’m aware that plenty of extremely liberty-minded individuals hold objections to the government legalising same-sex marriage. While I respect their right to hold those opinions I will point out that an objection doesn’t automatically become a “libertarian objection” by virtue of being held by a libertarian.

Libertarians are just as capable of holding opinions that are rooted in something other than libertarian principles as anyone else. We are still human and subject to the same intellectual foibles that we regularly call out in our opponents. Just because you are a libertarian and have presented an argument against same-sex marriage doesn’t mean you have presented a libertarian argument against same-sex marriage. The purported libertarian argument that recognising same-sex marriage doesn’t go far enough toward deregulating marriage altogether is a manifestation of an intellectual foible that appears more common in libertarians than elsewhere – letting “perfect” be the enemy of “good”. To object to the legitimation of same-sex marriage on the basis that the government should be getting out of marriage altogether is like voting against a tax cut on the basis that the government shouldn’t be taking our money in the first place.

Politics is the pragmatic application of principle. Pragmatism without principle is simple populism, principle without pragmatism consigns one to highly principled ineffectiveness. The government recognition of same-sex marriage is an almost infinitesimal step forward for liberty. The plebiscite and associated WOFTAM are unnecessary when all that is required is an act of parliament. Libertarians have no cause to celebrate the government’s chosen course of action, but if you’re going to object to it, at least stop pretending you’re objecting on libertarian grounds.



Gabriel Buckley

7 Comments on "Plebiscites and pontification"

  1. Most people do not object to same sex Unions, just don’t call it marriage. Does this impact me – yes it will. When I currently say I am married, as a male it means that I have a wife, not a same sex partner.
    Call the union between same sex partners whatever you want – but do not use a well defined term.
    Just as I cannot as a heterosexual person claim to be “gay”, or “transgender” or even indigenous on a job application form – the word marriage has cultural, religious and historical meaning. It is NOT the job of a Government to change the meaning of language. This surely from a Libertarian perspective should be upheld. As the people we should not be told what to think and how to use words?

  2. A comprehensive and convoluted discourse that is really just explores the simplistic public face of the YES campaign and mischaracterised the No campaign as only religious. As a father, surely Gabe has some appreciation of the importance of parents of both sexes in the success of the family and of adult outcomes for children. By completely failing to explore this connection and the fact that this process is asking the huge number of traditionally married people to allow themselves to be re-categorised as the SAME as same sex couples is to reduce the concept of marriage to a trivial idea of just a committed loving relationship. Real marriage is a comprehensive foundation for family. It is the best possible structure to raise children in. Commitment and love between two adults is only a part of that foundation. The only possible response to protect the liberty of the main body of our future Nation, our children, is to vote NO.

  3. If it is not broken, do not fix it.

  4. “Regardless of what we think of the laws as they stand, as libertarians we should agree that they should apply equally to all.”

    I disagree. If the law said every newborn should have their left pinky toe removed at birth, but redheads were exempt, I would not support applying the law “equally to all” by removing the redheads exemption.

    The same goes for anti-discrimination laws. If changes to the marriage act have the effect of expanding the situations in which bad law is enforced, then there is a legitimate libertarian argument that this is a bad outcome. I support equality in the law to the degree that the law is just, and not for equality’s sake alone.

    I note of course that this is a tricky situation where a change in the law will have both good and bad outcomes. That means we have to argue that negative effects are either, (a), already part of the status quo, (b), practically impossible or inconsequential, (c), offset by greater or more likely positive effects. However, we should not pretend that negative effects can be explained away by saying, “at least everyone is equally negatively affected.”

    Otherwise, great article 🙂

  5. So what will people be called when they are married, too confusing to have 2 husbands or 2 wives

  6. No, this is like objecting to a tax increase because you don’t want the govt taking money. This is a case of the govt increasing their interference in a religious rite.

  7. Not really, I’d say gay marriage is just adding a layer of regulation to the tax system.

    Gender matters.

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