Parliamentarians should have a conscience vote on gay marriage

We are at a turning point in the national debate on marriage equality.

From the moment in 2004 when the Labor Party decided to wholeheartedly support the Howard Government's amendment to the Marriage Act explicitly banning same-sex marriages, the leadership of both major parties has been locked in a kind of strange staring match on the issue in which neither dare blink first for fear of alienating fundamentalist voters.

But there are many people in both major parties who are tiring of this silly game.

Labor MP, Doug Cameron, has taken the federal Labor caucus to task over same-sex marriage. He declared it "crazy" that the Party was standing in the way of loving couples committing to each other, and said he is over "zombie" MPs being told they cannot speak their minds on the issue.

Cameron is not alone. Recently, I spent three days in Parliament House in back-to-back meetings on marriage equality with both Labor and Coalition MPs.

A majority of the politician we spoke to said they either have an open mind on marriage equality or support reform and are keen to get on with it.

This is a stark contrast to two years ago when almost all the MPs I spoke to feigned indifference, or four years ago when even the most progressive among them found it hard to put the words "gay" and "marriage" in the same sentence.

What's caused this remarkable change?

One possible cause we can discount is shifting public opinion.

Last week Australian Marriage Equality released an opinion poll which shows 62% of Australians believe same-sex couples should be able to marry. 60% last year but clearly the increase is slow.

Another cause we can discount is the regular rallies that have been held across the nation. Supporters of marriage equality have been rallying in very large numbers for six years but our numbers have not dramatically increased in that time.

What has caused change among politicians is how and by whom support for marriage equality is being communicated.

Politicians are now hearing support for the issue from people beyond the LGBTI community and beyond the inner city.

The federal election campaign highlighted this, with the issue being raised in regional and suburban forums. Encapsulating this shift was the exchange on the ABC's Q&A between Tony Abbott and the middle-aged, Liberal-leaning tradie Geoff Thomas speaking out for equality on behalf of his gay son. In response, some unexpected public figures spoke out for equality.

Tasmanian Liberal candidate, Cameron Simpkins, declared his support for marriage equality and called for his Party to have a conscience vote on the issue. Former Labor leader, Mark Latham, said he was wrong to endorse the same-sex marriage ban in 2004. Commentator Derryn Hinch publicly said he'd changed his mind too.

The federal election also showed that supporters of equality are not all talk. In inner city seats in Sydney and Melbourne there was an unprecedented shift in support away from sitting Labor members to the Greens. A shift would have occurred with or without marriage equality, but we can safely assume marriage equality played an important part in making it as large as it was.

If I'm right, if the staring game is coming to an end and people in both major parties are looking for a way forward, what options will they, and should they, consider?

The best way forward would be for one or both major parties to endorse marriage equality, and pass legislation with Green support.

But, of course, this is also the least likely.

A more likely but much less desirable option for Labor is a national civil union scheme as a substitute for marriage equality (by civil union I mean all those types of formal relationship recognition – including civil partnerships and relationships registries - that are not marriage).

I have no doubt this will emerge in the next few weeks or months as a possible "compromise". But it is a compromise that will suit no-one. The religious right will see it as "gay marriage by the backdoor" and campaign hard against it. Same-sex partners will also not accept it.

Australia is in the fortunate position of coming a bit late to the marriage equality debate. We can see what has happened in places that have gone down this path. Inquiries into the operation of civil unions schemes in Britain and the US show that civil union partners do not enjoy the same rights, recognition or respect as married partners, even when the law says they should.

The international experience also has a bearing on the argument that civil unions are a step towards marriage equality. Six years after civil unions in the UK and New Zealand, and despite friendly noises from Britain's ruling coalition partners the Liberal Democrats, full equality is as far off as ever in these two countries. Indeed, a strong argument can be made that civil unions have actually blocked the path to full equality by entrenching a second-class status for same-sex partners in the law and society.

I'm not against civil unions as such. They serve a useful purpose as an alternative to marriage for couples – gay and straight - who want a certificate and a ceremony without the cultural connotations and expectations of marriage. This is why I have been a strong supporter of such schemes at a state and territory level. But at a federal level, where there is marriage legislation that is clearly discriminatory, the situation is very different.

Until the Marriage Act is amended, a national civil union scheme would not be seen as an alternative for couples who don't want to marry, but as a poor substitute for same-sex couples who do want to marry, a substitute which no supporter of equality should accept.

So would such a scheme become law if Labor put it forward? The Coalition has said it would oppose a national civil union scheme leaving the casting vote in the hands of the Greens. They have said civil unions are not a substitute for full equality but it worries me that they have refused to declare they will vote a civil union scheme down before marriage equality is achieved.

So far I have only considered options for the future of marriage equality in the federal sphere. Talking of state civil unions raises the possibility of state same-sex marriage laws.

According to constitutional experts like professor George Williams, the marriage power in the federal constitution is shared between the federal and state governments. If the Feds do not legislate for a particular type of marriage, in this case marriage between people of the same sex, that power falls to the states. On the basis of this advice the Tasmanian Greens have twice introduced same-sex marriage laws. I understand MPs in other states are seriously considering going down the same path. I support this.

Another path to be considered is a court challenge to the constitutionality of discrimination in the federal Marriage Act. The section of the Constitution that gives the Federal Government the power to make marriage law does not define marriage as a different- sex union. On top of that, Australia has international obligations to ensure there is no legal discrimination on the grounds of sex and sexuality.

There's also an argument that marriage discrimination violates the free practice of those churches which currently solemnise same-sex marriages. But don't get too excited.

The High Court may well decide that marriage should be defined in the same way the Edwardian gentlemen who framed the Constitution saw it – as a different-sex union. It would also probably put weight on those international human rights decisions which have maintained the right to legal equality does not apply to marriage. It would probably reject the argument for religious freedom.

That brings me back to the final option for moving marriage equality forward: a parliamentary conscience vote.

In my lobbying last week I found strong support for a conscience vote among MPs in both major parties. They could see it is much more likely than some far-off party vote and much more desirable than the compromise of a national civil union scheme. They also know a conscience vote would be a popular move. Last week's poll showed a marriage equality conscience vote has the support of 78 per cent of Australians.

On the back of this support, Australian Marriage Equality has established a new website to make it easier for people to make their support for a conscience vote known to the leaders of the major parties. The address is www.freevote.org.au and I understand 3000 people have already sent through letters.

A conscience vote has its critics. The Prime Minister objects to it, pointing out it is Labor's practice to work as a team. Some people closer to the issue fear the anti-gay hate campaign it may unleash, or the loss of momentum if the vote goes against equality.

I am not so concerned. A well-funded anti-equality campaign is inevitable, no matter which path the nation goes down. If that campaign veers into hate, the cause of equality can only benefit.

It's true, there is no assurance a conscience vote will be won. But with the right campaign, one that raises society's expectation of change and campaigns' confidence and skills, it can be "lost forward", as the Americans say, becoming a spring-board to the next vote.

Of course, conscience votes are not magic solutions. There are preconditions for success.

First, it is vital to empower and skill people to tell their personal story of discrimination.

Second, these people have to have the confidence and the skill to tell their story to policy-makers and legislators.

Third, it is important to reach out to sections of the community who are conflicted about reform. According to the most recent marriage equality opinion poll the only demographic where there is not a majority in favour of equality is the over 50s. That demographic is evenly split 46% against and 46% in favour. Clearly, we need to be telling our stories to our parents and their friends, as well as to politicians.

In an effort to encourage all these things, equality advocates are planning to run marriage equality workshops in major centres over the next few months.

But there's one very special ingredient to any successful conscience vote campaign that no amount of workshopping can instill: a belief in ourselves and our fellow citizens.

A conscience vote calls on us to stop relying on parties, policies and public figures. It calls on us to rely, instead, on our own ability to make change, and on the openness of those around us to this change.

I can vouch for how important this is. I have seen before that when we have faith in ourselves and others, anything is possible. I am convinced that if do the same now, if we can find that faith and act on it, full legal equality for same-sex partners is within our grasp.