Same-sex marriage is more complex than the Yes campaign admits

When politicians opt for a plebiscite to let the people ‘have their say’, they run the risk of being told things they don’t want to hear.

Just ask former British Prime Minister David Cameron whose decision to grant a plebiscite on membership of the European Union to British voters in 2016 led to Brexit — and cost him his job.

A plebiscite is a high-risk strategy that ought to have a very limited place in a parliamentary democracy. After all, democracy does not mean government by the people; it means simply that the people get to choose their government.

Even so, the forthcoming postal vote plebiscite which will ask, Should the law be changed to allow same-sex couples to marry? is the plebiscite we had to have. The issue has become toxic for the Coalition.

A High Court ruling upholding the postal vote will clear the way for a vote in the Commonwealth Parliament – but only if the people give their say-so to same-sex marriage.

If the people, however, vote against changing the marriage law – or the High Court rules a postal vote plebiscite unlawful – the issue of same-sex marriage will remain stuck in thick mud with no plans for a fall-back conscience vote in Parliament.

However there has been some argument that changing the definition of marriage is a matter of Constitutional change, not simply legal change — and if that view is correct, changing the Constitution would therefore require a referendum.

A lot is at stake in the coming weeks as the respective ‘Yes’ and ‘No’ campaigns get underway, each side knowing that this highly charged issue still threatens to destabilise national politics – and political careers.

If ‘balance’ is likely to be one key feature of the campaign over the coming weeks, another feature will certainly be ‘religious freedom’. This concerns the extent – if any – to which the convictions of people who have a religious objection to the redefinition of marriage will be protected by the law.

Senator Dean Smith’s proposed Marriage Act Amendment Bill which he released earlier this month only offered protections for ministers of religion and civil celebrants who opted not to marry same-sex couples.

But as Sydney’s two archbishops, along with other senior religious figures and prominent secular critics, quickly pointed out, much broader protections are needed if the law on marriage is changed. Freedom of religion extends far beyond the walls of a church or a synagogue.

Schools, charities, and other faith-based not-for-profits, as well as ordinary business people such as bakers, florists, and photographers who wish to uphold the traditional meaning of marriage need to be protected from discrimination and attack if the law on marriage does change. Further, there should be consideration of the views of those who do not hold religious beliefs but also are not in favour of same-sex marriage.

Those in the ‘Yes’ camp frequently say that changing the law on same-sex marriage requires nothing more than changing a few words in Act of Parliament. What they fail to admit is that legalising same-sex marriage is far more complicated.

Religious freedom is a fundamental human right enshrined in international treaties to which Australia is a signatory. Yet other than patchy provision in some state anti-discrimination laws, Commonwealth law fails to offer specific protections for religious liberty.

We have already seen punishment meted out to companies opposed to same-sex marriage – for example the concerted campaign against Coopers Brewery for sponsoring a Bible Society debate on marriage equality.

If the law is eventually changed to allow same-sex couples to marry, it should not create an additional entitlement enabling some citizens to force other citizens to act against their religious beliefs conscience by making them help celebrate same-sex marriages.

The ‘No’ campaign has already skilfully broadened the debate on same-sex marriage to show it goes far beyond defining who can get married. Also at stake are concerns about protecting the human rights to freedom of speech and freedom of religion.

If the postal plebiscite does go ahead, politicians may be surprised to find that the Australian people share those concerns, too.

Peter Kurti is a Research Fellow at the Centre for Independent Studies and the author of The Tyranny of Tolerance: Threats to Religious Liberty in Australia.