Australia just finalized a lengthy process of modernizing its marriage laws. After years of debates in the parliament, which went nowhere, the citizens of the country offered a clear opinion in a controversial popular vote. It was a seldom case of a positive plebiscite use, writes Canberra-based law professor Ron Levy.
It pains me, as a somewhat contrarian academic, to agree with the general sentiment that the marriage equality plebiscite was unnecessary. I have argued in the past that popular voting in referendums or plebiscites can be useful as democratic and deliberative exercises. For instance, in a situation where there is a social impasse to be overcome - where people on either side of an issue cannot come to an agreement - the public vote can be a way to reset the debate and perhaps settle the dispute. This is also known as the "circuit breaking function" of referring a contentious policy matter to the people themselves. But ultimately I take the view that those who were paying attention already knew marriage equality was popular before the vote, and we know the same thing now. So in an important sense the vote was unnecessary. The vote hardly budged the level of support for genderless marriage.
NEVERTHELESS, I AM GENERALLY A SUPPORTER OF DIRECT DEMOCRACY, IF DESIGNED WELL. AND I THINK THAT SOME SO-CALLED "VALUE" ISSUES CAN BE FRUITFULLY SETTLED THIS WAY. BELATEDLY, SOME ON THE PROGRESSIVE SIDE OF POLITICS HAVE ALSO BEGRUDGINGLY ADMITTED TO CERTAIN BENEFITS FROM THE PLEBISCITE.
Let me suggest the two best arguments for why the plebiscite was useful. I agree with these arguments, even if on balance they do not necessarily outweigh the downsides.
First, the plebiscite was in some ways the "lesser democratic evil". A judicial resolution of the issue was unavailable in Australia. Therefore the avenues left open were both democratic. Legalisation could either proceed (a) by parliamentary vote or (b) by referendum/plebiscite (followed, ideally after only minimal debate, by parliamentary vote).
Thus we had a choice of two democratic methods, both of which were going to involve a painful public discourse. Very often in politics, those who believe they have right on their side forget that they also need a workable democratic majority on their side as well. We cannot dispense with democracy; or at least, in this case we could not do so, because in 2013 the High Court predictably refused to intercede on the merits of the matter. There is no general guarantee of equality in Australian constitutional law.
We are therefore left with a choice of two democratic options for legalisation. I would argue that parliamentarians are, between the two, the more divisive and less trustworthy option in relation to rights. Indeed, this is why Parliament has not yet passed a marriage equality law despite about ten years of popular favour topping 60%.
WHAT´S MORE, THE ORDINARY CITIZEN IS NO WORSE - AND OFTEN FAR BETTER - AS A CALM, REASONED DELIBERATOR THAN THE POLARISED, PARTISAN MOTIVATED REASONERS WHO GENERALLY MAKE UP OUR PARLIAMENTS. MUCH OF MY RECENT WORK ON REFERENDUMS TAKES VARIOUS KINDS OF ELITES TO TASK FOR BEING UNABLE TO CHANGE THEIR MINDS AND TO RETHINK MATTERS FROM FIRST PRINCIPLES.
In the realm of reasoning about values, ordinary citizens are particularly adept. Foundational values inform everyday lives. Citizens cannot conduct their everyday affairs without prior value-commitments that give direction and meaning to much of what they do. Thus most citizens are deeply familiar with such values and do not, as in other areas, have an epistemic disadvantage compared with governmental and other elites.
Though this is counterintuitive, ordinary citizens often are more flexible about political views when a collective discourse considers matters from the foundational moral level. I explore this at length in my recent work. However, let me simply quote Adeno Addis, who writes that values such as those of identity are - partly bound up with discourse, and what has been imagined through stories and discourses can partly be reimagined through discourse as well. A well-regulated popular vote campaign can be an opportunity to rethink commitments, identities, values, and even antagonisms, in the campaign´s crucible of collective discourse.
VIDEO 'A growing appetite for direct democracy'
Watch the video interview with Prof. Ron Levy, in which he explains the making of the Australian same-sex marriage vote and what it means for the future of modern direct democracy in the country.The interview was conducted on November 30 by P2P Editor-in-chief Bruno Kaufmann at the Australian National University School of Law
My second argument is that direct democracy can put political debates into clearer perspective. What are we to make of the very real insults raised during the campaign, such as the homophobic graffiti scrawled on a commuter train? As an academic I am trained to view this as anecdotal, and to discount it. We cannot assume that Australia was deeply divided on the basis of the actions of the few who choose to troll the public discourse and seek fame by upsetting others. But media reporting causes us to lose this sense of perspective. That is, there is a "troll bias" in reportage.
Also, and importantly, the antagonists and trolls in the public debate were mostly in Parliament. In Australian politics, the troll bias has recently centred around the utterances of ultra-conservative MPs such as Bernardi, Christensen, Abbott, Katter and Hanson. Ultimately, the plebiscite inspired a euphoria among supporters, not at the start of the campaign, but at its conclusion. The standard line from LGBTIQ people and their supporters is: We wish we didn´t have this vote, but isn´t it wonderful how things turned out? That wonderful outcome is, if nothing else, a moment of clarity about the distribution of opinions in Australian society, which on this matter is overwhelmingly reasonable, open, embracing of difference, premised on inclusion, and not given to crediting specious arguments. The vote was an acknowledgement that the anti-equality view did not extend as widely as many cynically suspected.
The coming together of two communities
There are echoes here in the Obama election of 2008. After his election, many African Americans who had long been cynical that a black man could ever be elected president discovered they were wrong. These electoral moments of inclusion also have a performative element. They do not merely show us, more clearly than before, how citizens actually feel about each other. They also draw on the ceremony, authority and moral weight of the state to show such acceptance in the most significant and formal ways we have available - short of a constitutional amendment. There is an intriguing parallel here. A marriage begins of course with a wedding: that public ceremony that expresses and solidifies, in the eye of the community, a private relationship of love. Intriguingly, the marriage plebiscite - viewed in the best light - had a similar function: to express publicly a coming together of two communities, LGBTIQ and straight. You could say we all finally stopped merely cohabiting and decided to make it official, that we are committed to each other as equal partners in the Australian compact. (But we do still need to send in the paperwork, to make it official, in this case through an Act of Parliament.)
An important consequence of this plebiscite, then, was that it helped us to achieve a kind of clarity. With the result, we gained evidence that the discourse trolls are not as prominent as their media dominance seems to indicate. But the plebiscite did not merely show us that this is true; it also manifested this truth.
In sum, my view is that the vote was ultimately unnecessary, and in some respects detrimental - especially as it lasted for two very long months. But taking this view does not bar us from acknowledging some of the vote´s benefits. While a public vote does not allow us to silence the demagogic few in our democracy, it does ensure that they are not the only ones who speak and that - in the end - the last word goes to the more silent, reasonable, even deliberative majority of citizens.
Dr Ron Levy researches and writes on public law and political theory, especially constitutional law, the law of politics, and deliberative and direct democracy. He is the winner of several research awards including grants from the Canadian Social Sciences and Humanities Research Council and the Australian Research Council. On November 30 this year he hosted and moderated an international roundtable on the “global direct democracy challenge” in Canberra.
