Beware of conservatives

'There is a moving and welcome humility in the conception that society should not be asked to give its reason for refusing to tolerate what in its heart it feels intolerable.'

Which drew from a correspondent in Cambridge the tart reply:

'I am afraid that we are less humble than we used to be. We once burnt old women because, without giving our reasons, we felt in our hearts that witchcraft was intolerable,'

Devlin, a civilised and scholarly judge, set a high threshold - society had the right to criminalise private conduct if public feeling had reached a concert pitch of ‘intolerance, indignation and disgust’ and this test could not, in his view, justify making homosexual acts illegal. The debate had major consequences for criminal law; it led to the Wolfenden Committee Report which adopted the liberal stance argued by Hart, who defended JS Mill’s view that there was a realm of private morality not the law’s business. It led to major reform of laws dealing with victimless offences. 

The reforms were, by and large, adopted in Anglo-western countries such as Australia, New Zealand and Canada, and were a major boost for liberal principles. Over time there came a wider acceptance of the idea that citizens had the right to live by their own values, so long as their actions did not harm others, or limit their freedom to do likewise.

Conservative opposition to reform of homosexual laws in Australia made this a long-drawn out and painful process. The reforms began in 1976 in South Australia under Don Dunstan, with resistance in each state from both Labor and Liberal administrations, the common theme being that the public was ‘not yet ready’, a mantra which ignored the idea that politicians might have a responsibility to prepare the way, leaving the task to anti-discrimination lobbies. Tasmania, the last state to decriminalise homosexual acts in 1997, acted only when it was clear the federal government would use its external affairs power to force the issue.

While the debate on same-sex marriage is broadly part of an unfinished task of taking liberal principles seriously, the specific offence is to a principle of fairness rather than freedom - it is no less serious an affront to human dignity, but the gist of the complaint is unfair discrimination. Because the Liberal Party philosophy has no general principle of fairness, it finds this argument unpersuasive - in fact it barely understands it.

This is surely the most charitable explanation for shadow Treasurer Joe Hockey’s inability to demonstrate his party’s support for egalitarian values when challenged by Linda Ma during Tony Jones’ Q and A of May 14^th. It goes to the heart of the Party’s reluctance to accept the role of fairness, along with freedom, as hallmarks of the good society. It is why party leaders treat appeals to fairness as a form of envy - they cannot see the difference:-

Linda Ma: The question was what measures would you take to protect egalitarianism in Australia?

Joe Hockey: Well, the first thing is to rile against division. To rile against division on the basis of how much you earn.

Linda Ma: What reforms?

Joe Hockey: What do you mean what reforms? Leadership comes from the heart as much as anything else and it's about what you believe our nation to be. We are a nation of equals. That's the starting point and frankly...

The show ended with a question to Hockey on gay parents asking him why, given his belief that all Australians are equal, he thought he and his wife ‘made better parents than Penny Wong and Sophie’. Hockey, with no deep commitment to fairness, could not see the insult to Wong; and with no coherent political theory, he saw no need to justify the discrimination - he sat puzzled and discomfited as the show ended, the audience watching in embarrassed silence.

We also need to keep this risk in mind when we look at what the major parties have to offer.