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The case for civil rights

By James Carman - posted Wednesday, 8 December 2010

If there’s one mistake that gay marriage advocates have made, it’s to separate the issue from the larger narrative and debate it independently. Perhaps they’ve simply allowed the opponents to do this and gone along with it. Regardless of the reason, I propose we stop talking about “gay marriage” as a separate issue and instead site it squarely within the larger scope of civil rights where it belongs.

One of the civil rights that has been held as fundamental by every generation in historical record is marriage. In modern times, this has become read as the right to marry the person of your choosing. Historically, marriage has been between men and women. Times, however, change.

Christopher Pearson (quoted by Ben-Peter Terpstra) notes that many proponents of this civil right fail to give very good reasons why they support it. The reason for this is simple: we live in a liberal democracy. In liberal democracies, actions are legal unless there is a compelling reason to make them illegal, not the other way around. The default position is permissiveness; there must be reasons to bar civil rights, not the other way around.


No more argument need be mounted in favour, only counter-arguments dismissed. The principle for this one area of civil rights is the same as any area in the field: that there is a right (in this case, the right to marry the person of one’s choosing) that is permitted to the majority but denied to a minority and that this is a harm that must be addressed. Do we allow the majority to decide what is right for the minority? I refer back to the famous quote from Ben Franklin: “Democracy has to be more than two wolves and a sheep voting on what to have for dinner.”

The American founders referred to this as “tyranny of the majority”; the great danger inherent in democracy. The rhetoric that speaks out most strongly against such tyranny is this: that the civil rights that are in most need of defence are those that are unpopular. Those possessed by minorities. Popular views will always be heard; unpopular views require support. The rights of majorities will be defended at the ballot box every time; the rights of minorities will be crushed unless the majority sees its own tyranny for what it is. Therefore, a “right” is possessed only if it is defended for all. Not just the popular, not just the majority, but by all. If it is not possessed by all, then it is not a right.

While we do not have Constitutional rights in the same vein as the United States, we do talk about rights extensively. There is a common belief that none are enshrined in law; this is false. We have Common Law and customary rights; these differ from Constitutional rights in that they can be overridden by parliament. We cannot mount a Constitutional challenge in favour of gay marriage as they have in several American States.

This does not, however, mean that these rights are absent. The law infringes these rights and our remedy, rather than the courts, is through fora such as these. To speak our mind, to persuade, cajole and exhort.

We do this because we understand a simple truth: that everyone has civil rights; or no one does. All we have in Australia are those things that we are currently permitted to do by society. They are not rights; just things that not enough people object to right now.

Of course the opposition will rise against us. They mount arguments that we’ve all heard before: that marriage is between a man and a woman, that marriage is fundamental to our society. In fact, we have heard those arguments before: decades prior to this, when interracial marriage was discussed. To many people of that generation, those same arguments were trotted out almost verbatim. If we were to re-write Terpstra’s words and substitute ethnicity for sexual preference, almost none of the content would need to change. “Not all [black] people want to marry [whites]! Why should we change the definition of marriage to satisfy a small minority?”


It is pointed out that some homosexuals have no wish to get married, or don’t support the proposition. So what? I have no doubt there were non-whites who were opposed to letting any of their own people marry outside their ethnicity, too.

In Australia, we never banned such marriages in law. We didn’t have to; societal pressure was enough. We did neglect to count our Aboriginal population in the census, barring them from taking part in the democratic process. When the census to correct that came for vote in 1967, every single State approved it by over 80 per cent. We came together as a nation and declared that this violation of civil rights, even though it did not affect them, was too much for them to bear.

This may not seem as fundamental as disenfranchisement of an ethnicity, and to many reading this, it won’t be. Those who seek the right to marry the person of their choosing, however, may disagree. We all have rights, or no one does. Mount your arguments against gay marriage, therefore; but leave out the claims that you “just don’t believe it’s right”. Whether you would like it, or even approve of it is irrelevant. Show harm, or you have no basis to deny civil rights to all.

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About the Author

James Carman lives in Melbourne and blogs at Critical Commentary.

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