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Why consult the electorate on gay marriage?

By Scott MacInnes - posted Friday, 17 December 2010


With our parliamentarians voting in support of a motion to consult their electorates on gay marriage, it is worth asking why they should consult on this issue, what it means and how it should influence their vote.

That there is some confusion about this becomes apparent if you look at the way Tony Windsor has approached two different issues since his re-election.

It is clear that in deciding which party he would support to form minority government, he took the view that it was his individual judgment that he was required to exercise, not the majority views of his electorate or public opinion at large. This is in accordance with the duty of an elected representative as classically formulated by Edmund Burke.

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By contrast, if you look at the way he approached the issue of our continuing involvement in the war in Afghanistan, he seemed reluctant to commit to a position himself. He referred in his speech to the representations he had received at his electorate office (mostly opposed) and urged others to contact him to express their views. Whether he would defer to a clear majority opinion from his electorate on this issue if it was against his better judgment is unclear.

The motion passed in Parliament urging members to consult their electorates on gay marriage seems to be in line with the notion that parliamentarians should represent the views of those who elected them. This is reinforced by proponents of change pointing to opinion polls now showing majority support for gay marriage. The implication is that all parliamentarians need to do is canvass and then follow the most recent majority consensus on the issue, because that is how democracy works.

But is this really all that is involved in the obligation to "consult" and is this how we want our democracy to work? Surely we want our parliamentary decision-making to be able to stand up to critical scrutiny, to be rational, to be moral, to be supported by evidence and to be in accordance with some principles that can be defended.

If the majority public opinion once more shifted against gay marriage, would its proponents still be so enthusiastic about such polls or would they argue, as they have in the past, that the majority opinion was wrong for various reasons?

And if our elected representatives considered the majority public opinion to be morally indefensible, should we expect them to vote contrary to their own better judgment and conscience?

What if the majority opinion is found, on closer examination, to be irrational, or logically flawed, or morally inconsistent when judged by the values we otherwise profess to live by, or based on inadequate evidence, on prejudice, on no more than knee-jerk reaction, an emotional response or an unthinking deference to the views of others?

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Surely we would want our elected representatives to do better than merely parrot a fickle and all too easily manipulated public opinion.

When there is public controversy about a proposed course of action or inaction involving some moral concern, it is the job of our representatives to discern what moral principles are relevant and how they should be applied in each particular case.

It is their duty to act always to protect and advance not only our best interests but also the values we profess to live by. We accept that these act as guides to reform (as in the gay marriage issue) and also as constraints on our freedom to protect our interests (as in the debate on the war in Afghanistan.)

When the issue is one of grave moral concern, like war, it is their duty to pay full regard to the moral principles that have been adopted in our own community and under international law. Both clearly prohibit the killing of people in all but the most exceptional circumstances. These are restricted to proportional self-defence from imminent attack and the keeping of the peace in ways specifically authorized by a recognized legal authority.

Likewise, on the issue of gay marriage, their duty is to determine the morally relevant principles and arrive at the most morally defensible position. Consulting the electorate can only be justified in so far as it assists the member to discharge that duty.

The proponents of gay marriage argue on the basis of a moral principle that it is unfair and disrespectful to discriminate to deny someone the enjoyment of a legal status solely on the basis of their sexual orientation. The principle of equality before the law is relied on to justify removing this final barrier.

Their opponents argue that the institution of marriage as traditionally understood is still central to the fabric of our society, that its rich moral and symbolic significance is inseparable from the relationship between a man and a woman, and to undermine it would be to the detriment of child rearing.

Rather than rigorously examining the merits of these arguments, some of our political leaders have concluded that what we have here a conflict between two conflicting moralities, representing two competing world views – one arising out of an older view based on religious conviction and the other arising out of a newer conception based on secular humanism. The direction of change is inevitable. The challenge, they say, is to handle the transition by waiting for public opinion to arrive at some magic tipping point.

This is a cynical view, implying that our representatives should not act to right a wrong unless and until it is politically expedient to do so. This is morally indefensible and a clear abdication of their responsibility.

It is also far too simplistic because it confuses public opinion with "public morality." While we must respect the right of people to hold their own opinions, we are not bound to respect the opinions themselves. Opinions about moral issues are not necessarily moral. And a consensus of public opinion does not constitute a public morality. Nobody believes slavery was moral when it was supported by majority opinion.

Failure to appreciate this leads to the extraordinary double bind some of our politicians have got themselves into in the debate on gay marriage. They accept that opinions denying equal access to gays cannot be morally justified. However, they feel constrained to act by their false belief that these opinions reflect moral positions which must still be respected.

This does not mean that these opinions are of no importance. Clearly they matter in terms of how to argue the case politically. However, they can have very limited relevance to the determination of issues of morality. Rather, our focus should be on those moral principles we commit to that best reflect our moral concern. These can only be resolved by each individual deciding for themselves what is right, not seeking the views of others.

When our elected representatives consult us, we should remind them of the job we are paying them to do: to make reasoned and principled decisions on our behalf. In deciding how they should vote, we should ask them to exercise their own best judgment and conscience, without fear or favour. This will relieve them of the impossible task of determining "the moral will of the people" and refocus their responsibility where it properly resides.

We might then engage in a mutually respectful conversation about those moral principles we hold dear and wish to advance in the best interests of our society. This is the real value of consultation with others. It reminds us of our core values, as distinct from our opinions, and it forces us to reflect critically on our own moral blindness as well as that of others.

Only through such a process can we hope to arrive at wise decisions that do justice to the seriousness and complexity of the issues involved.

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About the Author

Scott MacInnes has a background in teaching, law and conflict resolution. He is now retired and lives in Tasmania.

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