How marriage equality was defeated in Tasmania

The nation knows that Tasmania’s move to allow same-sex marriages has failed, for now, following a vote of 8 to 6 against the Same-Sex Marriage Bill the state Upper House last week.

But what many people don’t know is how close the Bill came to passing, and the real reason was for its final defeat.

Several Legislative Council members who voted against were deeply conflicted.

One apologised to supporters of the Bill after her vote.

Another was so close to voting “yes”, other MLCs thought the Bill was through.

Even the sole Liberal MLC, Vanessa Goodwin, couldn’t be relied on to vote against.

At least that seemed to be the view of her evangelical Lower House Liberal colleague, Michael Ferguson.

He made a sudden appearance when Goodwin stood to speak, sat within feets of her and stared at her while she spoke, then left as suddenly as he arrived when she confirmed she’d be a “no”.

The Tasmanian Liberal Party is nowhere as united on this issue as it wants to pretend as Ferguson’s guard-dog behaviour shows.

But the most prominent waverer was Jim Wilkinson, who represents a socially-progressive seat in Hobart’s southern suburbs.

He was a strong “yes” to start but with just days to go he suddenly began to express doubts about the Bill.

He claimed it wasn’t real equality because it only applies to same-sex couples and to Tasmania.

He again opened his mind to the Bill when it was pointed out that not a single same-sex couple shared his views because what we want is the option to marry.

But then MLCs were hit with a last minute fear and misinformation campaign from opponents of reform.

With less than 24 hours before the debate was due to begin, MLCs were avalanched with legal opinions that exaggerated the constitutional risks associated with passing the legislation.

One was from Neville Rochow SC, the Australian Family Association’s go-to guy on the constitutionality of marriage equality law.

Rochow produced a table showing the state would face a bill of up to $1.25 million if its same-sex marriage law was struck down in the High Court.

This fellow had already proven his advice is unreliable.

He had previously advised MLCs that state same-sex marriage laws are unconstitutional because the matter is one for the Commonwealth.

But in May he gave contradictory evidence to a Senate inquiry when he said the Commonwealth can’t act on same-sex marriage, so only state laws are constitutional.

http://tasmaniantimes.com/index.php/article/rodney2

Prof George Williams, who wrote the textbook on the Australian Constitution and who had already briefed MLCs on the constitutional validity of state same-sex marriage laws, pointed out the glaring mistakes in Rochow’s advice.

Together with the Tasmanian Solicitor-General he made clear a High Court loss, should it ever occur, would cost far, far less.

But on top of Rochow came a letter from former state governor and chief justice William Cox which asserted without any legal reasoning that “the present Bill is clearly inconsistent with the Federal Marriage Act”.

He then went on to say that same-sex marriage will lead to same-sex surrogacy (which the Upper House voted to legalise a few weeks ago), polygamy (which is the sure sign of pre-existing bias against marriage equality), and “a stolen generation” of children (which is an even surer sign).

But unfortunately some MLCs couldn’t see the faults in Cox’s case because they seemed dazzled by his name.

In retrospect, it was at that point the fight for Wilkinson and several others was lost.

Herein lies a lesson for other states and territories moving toward marriage equality.

The Tasmanian Upper House is no longer the homophobic chamber it was when it obstinately blocked the decriminalisation of homosexuality in the 1990s.

Sure, some members showed a lack of empathy about how important this issue is for same-sex couples.

Some also showed a deep lack of confidence in Tasmania’s ability to take a leading role in the federation.

But there are no dogmatic Christian fundamentalists in the Upper House, and no haters.

To pull wavering Upper House members back from supporting a reform they aren’t naturally too worried about, opponents of reform exaggerated the constitutional risks associated with the issue.

In reality, there is no certainty there will be a High Court challenge to state same-sex marriage laws and less certainty they will be struck down.

But opponents of marriage equality ignored reality and created the illusion a strike-down is a foregone conclusion.

Then at the last minute they spiced this exaggerated risk with high costs and some big names.

I predict they will do the same when other state and territory parliaments come to debate this issue. The opponents of marriage equality may be wily but they are rarely novel.

Proponents of equality need to be ready with a realistic, easy-to-understand, independent and well-endorsed assessment of what the risks are.

A motion has been tabled in the Tasmanian Upper House for an inquiry into the constitutional issues raised by state same-sex marriage laws.

If it goes ahead it will hopefully provide a foundation for this realistic assessment.

Meanwhile, I am confident the future for state same-sex marriage laws is bright.

In Tasmania, majority community support for reform, healthy public debate driven by the many brave same-sex couples and their families publicly advocating for change, the narrowness of Thursday’s defeat, and support for the principle of allowing same-sex marriages among many Upper House members, all show that we have won the marriage equality debate, even if we have lost the vote this time around.

I’m also confident others states will be encouraged by what has happened in Tasmania and will move forward with their own laws.

When they do I urge them to learn the lessons of Tasmania’s near miss.