Once again our sternest opponents – this time in the shape of Australian columnist Janet Albrechtsen – are demanding our equal rights should be decided by a referendum, or plebiscite, suggesting that this is “democratic.”
Referenda are for changing the Constitution (like, ‘should we recognise the first Australians in the Constitution), and the High Court has ruled that the Constitution says legislating equal marriage is Parliament’s job.
in 2013, the High Court held that the federal marriage power can authorise marriage between people of the same sex. It described marriage in gender-neutral terms as being “a consensual union formed between natural persons in accordance with legally prescribed requirements”.
The High Court’s decision did not give legal recognition to same-sex marriage in Australia. It merely clarified that the Federal Parliament has the power to bring this about. As a result, no referendum to change the constitution is required. [Sydney Morning Herald]
A plebiscite, or vote of the whole country would be as expensive and time consuming as a referendum, but would change nothing. It would merely be a massive opinion poll with no legal force. The job of legislating for marriage equality lies with our democratically elected representatives.
The way they did when John Howard and Nicola Roxon changed the Marriage Act to exclude us. Remember the massive plebiscite they held before they did that? No, me neither. Instead they rushed it through in an afternoon.
Albrechtsen gets it wrong on all counts. She wrote:
There is a wrong way and a right way to bring about significant and long-lasting social change……Marking the US Supreme Court’s gay-marriage decision according to democratic principles, it scores a zero. In Australia, our High Court’s decision about same-sex marriage scores five out of 10.
The Abbott government says a referendum about same-sex marriage is not necessary. Strictly speaking that is correct. But it does not mean there shouldn’t be a referendum because that would score 10 out of 10 on the democratic scale.
Those who, like Albrechtsen, think the will of the majority automatically overrides the needs, wishes and rights of minorities do not understand democracy. That would be what the Greeks called ochlocracy, better known to us as ‘mob rule.’
Democratic states have mechanisms such as the US Supreme Court to ensure that the wishes of the majority are not elevated above the rights and freedoms of a minority or an individual. All democratic systems recognise that they must be ways to prevent the majority riding roughshod over minorities. That is one of the things that is meant by the Rule of Law.
The favourite philosopher of the extreme libertarian right, Ayn Rand, wrote against such “tyranny of the majority”. She said that individual rights are not subject to a public vote, and that the political function of rights is precisely to protect minorities from oppression by majorities.
Therefore the Supreme Court was fulfilling its constitutional function, acting within the Rule of Law, and not overreaching. Its decision scores 10 out of 10. And so does that of our High Court. The will of the majority must give way to the rights of the minority.
Subjecting our rights and freedoms to a popular vote, in a referendum, plebiscite, etc would not be “10 out of 10 on the democratic scale”. It would in fact be mob rule, the tyranny of the majority, and profoundly anti-democratic.