Let Opponents of Same Sex Marriage SPeak

15/8/2017

Vol 12, Issue 4

SCOTT DRAPER

If you’re aged 8-80 and are exposed to any news media outlet, you’ve likely become aware of the impending postal plebiscite on same-sex marriage. A few identical messages have been plastered on the social media pages of every proponent for change. The first, a caveat that the plebiscite is not a good idea for various reasons. Secondly, a call for ‘yes’ votes; that if it’s going to happen (absent a successful High Court challenge), proponents of an amendment to the Marriage Act may as well win it.

Since the majority of LGBT people did not want a plebiscite, these messages are reasonable and expected. But controversy, I think, arises from the way in which individuals conduct, and demand others to conduct, themselves during this process. The third message from proponents is one which attempts to pre-emptively demand silence from, and character assassinate those who will not vote, or even consider voting ‘no’.
Let me begin by saying that I am a supporter of same-sex marriage/marriage equality. If the plebiscite occurs, I will be voting ‘yes’ and I would encourage others to do the same. And it is because of this that I understand the temptation to fall into the trap of backing fallacious arguments and using inappropriate means to achieve what appears to be an obviously moral outcome.

It is tempting to profess that “love is love”, that “LGBT folk have faced endless persecution in the past and still today”, and that any opponents to this change are necessarily “divisive homophobic bigots”. No matter how true these things are, however, I think their endless expression as a means of combatting opponents is a mistake.

I say this for two reasons. Firstly, as we should be especially familiar with within law school, disagreements of opinion are won with arguments, not mere emotional assertions, however strong. Expressions of solidarity, pride and love are fantastic, and inspiring for those who already agree. But they do not persuade those who disagree. And we should want it this way. Our cultural desire for free speech, beyond the limited legal protection it is afforded, exists for this reason. In an alternative society with a minority of support for LGBT rights, we would yearn for their capacity to speak out against the status quo, and would be understandably outraged to be silenced on the basis that such speech offended a sufficient number of people. Allowing non-violent dissent is crucial. So the push to categorise all opposition as ‘hate speech’ – or, as Tim Minchin says: “at least we’ll know how many Aussies are bigoted c****” – is problematic, and misunderstands something foundational. People are not wrong because they are bigots. They are bigots because they are wrong; because they believe unfounded, discriminatory things.

This abstract truth flows into the pragmatic point. Attempting to hinder the free speech of others rarely convinces them to agree with you. In fact, it is likely to do the opposite. We must be wary of believing that this is a battle already won, just as the polling before the 2016 US election and Brexit referendum was not determinative. The alleged racists of America, and alleged xenophobes of the UK were still victorious, no matter how many times they were told they were bigoted.

Is it ‘hate speech’ to compare such an amendment to legalisation of polygamy? It is a false analogy, but not hateful. What about comparisons to paedophilia? Almost certainly.

Will describing these things as bigotry stop people believing they are accurate and good arguments?

No.

Many believe that it is impossible to convince others who hold opposing views. But I would note that all of us prefer to change our minds in our own time, and seldom during a real-time conversation. Some proportion of society – usually hard-line religious and conservatives – will be unpersuaded regardless. But the fact is, there is likely a significant subset of Australians who are indifferent or undecided on this issue, and we cannot risk losing their support nor the moral high ground by branding any and all dissent as bigoted hate speech. Many, whom this issue does not affect, but are still eligible to vote, do not understand why their opposition is wrong, and rebutting their arguments in an open manner demonstrates that there is no foundation for a ‘no’ vote. Reactionary hostility just indicates that this argument cannot be won on its merits, and promotes the illusion that a movement of tolerance is actually one of oppression.

It is, of course, unfair that LGBT people are burdened with engaging civilly in this public conversation, given the history of gay rights (or denial thereof), that much of this debate will consist of debasing the legitimacy of same-sex couples and families, and that the target of these attacks is a particularly vulnerable group of Australians, far more prone to mental illness and suicide. But to demand that others behave civilly is to shackle oneself with the duty to remain so. In fact, it is possible to view this as an opportunity. We do not need to run from an intellectual conversation that is, I think, impossible for the other side to win. Instead, we must demonstrate that this is the case. So, let opponents of same-sex marriage speak, and let them lose the discussion.

Scott Draper is a second-year JD student

More articles like this:

Party Politics Hindering Marriage Progress

The rest of this issue:

Figel Narage

15/8/2017 08:37:17 am

"We must be wary of believing that this is a battle already won, just as the polling before the 2016 US election and Brexit referendum was not determinative. The alleged racists of America, and alleged xenophobes of the UK were still victorious, no matter how many times they were told they were bigoted."

Please stop making the false equivelance between Trump and Brexit. The issues surrounding British withdrawal from the European union are far more myriad and complex than the left's favourite saturday morning cartoon villain 'xenophobia'. There were and are very good arguments on both sides of that debate, notwithstanding the latest trash you've probably read in the Guardian.

'Many believe that it is impossible to convince others who hold opposing views. But I would note that all of us prefer to change our minds in our own time, and seldom during a real-time conversation.'

It is certainly helpful to remember that not even a generation ago a solid majority was opposed to same sex marriage, and a little farther back than that, opposed to homosexuality entirely. Things didn't change by some sort of militant uprising or revolution whereby gays forcibly took their rights from their oppressors, they changed after decades of a hearts and minds campaign where people were convinced that gay people are actually ok. This offends the sensibilities of some who believe that their rights shouldn't have to come from the mere charitable benevolence of the majority, but this is in fact the reality of the advancement of gay rights practically the world over.

Tilly

15/8/2017 01:35:34 pm

"Things didn't change by some sort of militant uprising or revolution whereby gays forcibly took their rights from their oppressors, they changed after decades of a hearts and minds campaign where people were convinced that gay people are actually ok."

You are not ready to hear about Stonewall.

15/8/2017 03:59:23 pm

I was thinking about Stonewall as I wrote that. It is very likely true that gay rights would never have advanced without gay people standing up for themselves, sometimes militantly.

What I'm getting at is the tendency of many people now to abandon dialogue and retreat into their echo chambers, harbouring some sort of zero-sum revolutionary fantasy where people are either with you or your irredeemable enemy, presumably to be overthrown at a later date and never have to be dealt with again.

The reality is that gay people have never had the demographic or political clout to singlehandedly win ourselves rights, we had to do it through a slow but steady process of showing the 98% or so of the population who are not gay that we are really just like them, and deserving of the same rights as them. Our rights ultimately were not foistered on the majority against its will. One of course can point to certain court cases that sped things up, such as overturning proposition 8 in California. Nevertheless, even that sort of thing would never have succeeded if a strong majority of the population still considered homosexuality immoral.

Dialogue and persuasion won us acceptance. Thank goodness that approach was begun several decades ago.

Ben Wilson

15/8/2017 04:25:00 pm

Great article.

Katherine Smith

15/8/2017 05:22:08 pm

I may disagree with what you say, but I will defend your right to say it - provided it is not blatant hate speech.

I do not want to silence anyone who opposes SSM. I will debunk and disprove their arguments, and advocate against their views, but I do not want them silenced.

I will not, however, tolerate insulting, offensive and homophobic hate speech - not because my sensibilities are too delicate, but because of the LGBTI children who will be witness to this debate and are far more vulnerable to rhetoric that tells them they are inhuman, undeserving of life or love, deviant or wrong. The higher rates of depression, self harm and suicide among LGBTI teens is why hate speech should not be tolerated...

An interesting article, thank you.

Not sure?

15/8/2017 05:37:51 pm

Correct me if I am wrong, and I may very well be as I am no expert, but I was under the impression that same sex couples enjoy the same legal advantages and disadvantages as married couples in the form of civil unions (e.g. Relationships Act 2008 (Vic), simply under a different word?

Would someone please clarify for my benefit what specific legal rights are held by married couples, that are not held by those in civil union relationships?

Or are same-sex marriage activists just seeking to claim the word "marriage"? If so, why?

Betty

15/8/2017 07:11:11 pm

Crap article.

Verbose and pretentious, and just generally crap.

Mark Johnson

15/8/2017 09:58:37 pm

Yeah, no.

If the last, oh, 30 to 40 odd YEARS of debate aren't enough to convince you that gay people deserve equal rights, then me saying pretty please isn't going to magically convince you.

Sending a message to society that certain types of idea are bigoted and will not be accepted by the majority may, however, *shut you the fuck up*. And if you're so bigoted that you think two men or two women being married is somehow your business, I'm pretty much fine with that.

(And, before anyone starts going on about free speech - I'm not the government, and speech has always had consequences. If you want to advocate lowering the age of consent to 8 years old, or that we should ban mixed-race marriages because of what the bible says, I'm not going to debate you either.)

If you want it more academically-phrased, yada yada yada shifting Overton window.

Slippery slope fallacy fallacy

15/8/2017 11:33:39 pm

'if you're so bigoted that you think two men or two women being married is somehow your business'

Is it your business, and are you opposed to siblings marrying each other, or parents marrying their (adult) children? Congratulations! You are now a bigot. There is not a single principle applicable to gay marriage that is not also applicable to incestous marriage.

What's that you say? Retard offspring? Assume for the sake of argument both are or agree to become sterile, or are even a same sex incestous couple. Then the situation falls entirely within the principles that are advocate for gay marriage. Yet somehow I imagine you are still opposed to it, so I suppose you must be a bigot

16/8/2017 12:06:45 pm

Yeah, you're an idiot and not worth talking to.

Buh-bye now.

16/8/2017 12:22:14 pm

Y'know what, fuck it, I've got time.

Marriage is an agreement to enter into a specific type of legal relationship. These days, I'd categorise it as a set of shared powers relating to property, children, and other rights (e.g. Medical authority for next of kin). I'd also note that there are non-legal expectations that generally come with the agreement (cohabiting, a sexual relationship), and that there's a lot of scope within marriage for variation.

As a general rule, adults can enter into any kind of legal relationship with each other based on mutual consent.

Some things can act to displace that rule. In the case of marriage between a parent and a child, the main reason we would displace that rule is that, structurally, there is a general presumption of undue influence and authority by the parental figure.

Now, this won't apply in every case, adopted parents, yada yada. But it's a likely enough presumption that we apply it universally. It's why Woody Allen p's marriage to his defacto adopted daughter grosses us the fuck out, despite being technically legal.

This, therefore, has fucking NOTHING to do with same sex marriage,

The only reason to oppose same sex marriage is if you believe that two adults shouldn't be able to enter into a legal relationship with each other solely because of their gender or the type of sexual experiences they have. And that, my friend, is why it is NONE OF YOUR DAMN BUSINESS.

Typing in capitals makes arguments more convincing

16/8/2017 05:30:37 pm

If you are speaking in terms of undue influence then, presumably, you will know that these presumptions are rebuttable.

I take your position to be then that if two adults, being closely related by blood, are able to rebutt a presumption of undue influence that stands as a bar to their capacity to marry one another, that they should be able to marry. Imagine a scenario of a parent and child separated at birth, reunited 25 years later, or siblings separated in infancy and reunited 25 years later. Such things have been known to occur.

Equity presumes undue influence between parent and child but as mentioned it is rebuttable. This is why we don't see the courts voiding all contracts between adult children and their parents, which are quite common occurrences. Both law and equity also have nothing to say about presumptions of undue influence between siblings or other close blood relatives other than parent-child, which I note you conveniently ignored. So why would there be such a presumption of undue influence in the context of marriage?

But in any case the fact is that incestous relationships are not illegal because of the courts voiding them for undue influence, but because it is arbitrarily forbidden in the marriage Act, just like same sex marriage.

There should be no reason then why you would be opposed to amending the marriage act to allow incestous marriages, because,

A) there is no presumption of undue influence in law or equity between blood relative relationships other than parent-child, and so no question of a lack of consent, and

B) because the presumption of undue influence in a parent child relationship will void all such marriages in which there is undue influence anyway, and those incestous relationships which can rebut the presumption also rebuts what you seem to consider to be the moral problem of a lack of real consent standing against incestous marriage.

So what are we left with here? Two closely-related by-blood adults, to whom either presumptions of undue influence do not apply or have been rebutted, and who are thus consenting adults. They elect to marry each other. Moral quandaries of genetic disorders do not apply, either because they are a same sex incestous couple or because they have otherwise taken steps to prevent reproduction, such as the man having a vasectomy.

On what basis then do you deny them the right to marry? On what basis do you oppose extending the same rights that non related heterosexuals possess and which you want to extend to homosexual? Are you just opposed to it because it's icky and you don't like it? Are you a bigot?

18/8/2017 12:52:41 am

I don't know if you've had much court experience yet, but a word of advice. The thing where you deliberately misinterpret someone in order to create a strawman argument? Does *not* play well in front of a judge.

"But it's a likely enough presumption that we apply it universally."

In the words of one of the greats of our profession, Vincent Gambini, "I'm finished with this guy".

Strawman Strawman

18/8/2017 09:05:02 am

Nice retort. Failure to address any of the arguments raised, raising a straw man of your own about apparently irrefutable presumptions, rounding it off with a witty quip from a dated pop culture reference. I am obviously no match for what are undoubtedly your own extensive talents and experiences in court.

Silly

16/8/2017 07:27:17 am

Nah.

There are genuine reasons to prevent incestuous marriage -
genetic risks and lack of consent being the main two. SSM is just marriage, with all the same rules and requirements just without laws on gender.

If you were genuinely concerned about slippery slopes (and not just being a bigoted troll) then you'd want to ban all marriage, since confining it to purely between a man and a woman hasn't done anything to prevent incestuous relationships.

Billy

16/8/2017 08:41:01 am

I already adressed genetic risks. If an incestous couple agreeing to something like a vasectomy doesn't strike you as realistic, how about same sex incestous couples, who can't reproduce and so create no risk of genetic problems.

And who are you to presume that fully autonomous adults are not able to consent to incestous relationship with each other? How can you delegitimise this as a valid choice entered into freely? Is it somehow not valid just because you don't like it?

Same sex marriages advocates always make a very lazy dismissal of incestous marriage as above. They fail to realise, or perhaps realise but dismiss for being inconvenient, that their arguments for the former can also be employed for the latter once reproduction is taken out.

So what's my point? That it is woefully inadequate to roll out a 'it's not your business and you're a bigot if you are opposed to two consenting adults (who may or may not be in love) marrying, because clearly this can be extended against anyone opposed to incestous marriage, which is most of us. Clearly, people's true positions about what sort of relationships are appropriate for 'marriage' must in reality come from an alternate basis.

Silly Billy is Very Silly

16/8/2017 02:05:25 pm

I think Mark covered it fairly well, but to repeat:

There is an issue of consent when any parent or figure in position of influence and power over a person conducts a relationship with them; it's why relationships between officers and subordinates in the army are banned.

As I said, linking incest to gay marriage is disingenuous - if your concerns are genuinely that incest could become legal, then you should be opposed to ALL forms of marriage and ALL relationships. Otherwise, you're just taking an opportunity to be a bigoted troll.

Fee fi fo fum

16/8/2017 05:44:24 pm

If your conception of marriage is 'two people consenting to a contract' then you're right that there is no logical reason why it should not extend from heterosexual marriage to every other type of union, including incestous marriages in which there is consent, as outlined above.

If your conception of marriage is more nuanced, then there are reasons why either incestous couples, polygamous couples, same sex couples, or any combination of them, should not fall within its definition.

The arguments pushed by same sex marriage advocates for why we should extend marriage to same sex couples are also arguments for why it should be extended even more broadly.

As such, I'm not necessarily opposed to same sex marriage, I just want a better argument.

The Author

16/8/2017 07:01:32 pm

Thanks for the comments guys. Despite some passive-aggressiveness, it's good to see actual debate on aspects of the debate which are often dismissed through pretty empty assertions.

Nonetheless I still think that the incest argument fails, for reasons other than the ones above.

While there are certainly issues identifiable with incestuous relationships/marriage, and thus can be distinguished, the deeper point is that no one (as far as I'm aware) is asking for it to be legalised. No one is arguing for it.

Your argument (I assume your name is Billy?) is that gay marriage advocates want gay marriage, but this would be equivalent to incestuous marriage which is inherently problematic (although you haven't indicated why), and so we shouldn't make an amendment, because it would be inconsistent in principle.
But this doesn't go to the moral/legal value of a gay marriage amendment. The only conclusion that could be drawn, if you say incest is not a problem, is that incestuous marriages can be just as morally/legally valid. It says nothing about whether gay marriage should be legal. To make this argument, you would need to identify an actual issue with incestuous marriage that is also found in gay marriages. All you've said is that they're both unproblematic. As far as I can tell (and pointed out numerous times from other contributors), the only issues arise purely from the problematic nature of incest - that it frequently involves some presumed coercion or manipulative power dynamic. Consensual, adult, non-repductive incestuous relations have been described as "morally dumbfounding" because the majority of people take issue with them despite being unable to identify an actual problem (at least from a liberal perspective, outside of religion).

But again, this doesn't matter, because even if we can ascertain circumstances where incest can be morally unproblematic, no one is demanding it. Gay marriage should be legalised because there is sufficient social push for it AND no moral/legal problem can be identified to the contrary. On the other hand, there is (virtually?) no social push for incestuous marriage, and there are problems identifiable/generally society has not accepted it. If you want to argue for its introduction, by all means argue for it. But it does not go to this issue.

Cows @ the Beanstalk

16/8/2017 08:59:27 pm

An overwhelming, indeed any, quantity of opinion in favour of something doesn't make it valid. Even if the whole world said the Earth is balanced on a turtle's back it wouldn't make it true. "Social push" is not a convincing argument.

The pro-SSM position also has to be valid with respect to the old rule, marriage pre-SSM, to be called marriage and not marriage(2). Even if 99% of the world's population agree to pass a bill mandating cucumber sandwiches be eaten not only between 11am to 1pm, but also until 2pm, it doesn't make the new sandwich hours valid with reference to the original hours, hours which are arbitrary without the pejorative sense of arbitrary. A separate set of time has been created.

Reasons for the modification of the original, arbitrary sandwich eating hours must be valid with reference to the original rule, the traditional institution of marriage pre-SSM, for SSM to be marriage, and not a separate category of relationship unification practice.

WellSaid ^^

17/8/2017 11:26:06 pm

"Reasons for the modification of the original, arbitrary sandwich eating hours must be valid with reference to the original rule, the traditional institution of marriage pre-SSM, for SSM to be marriage, and not a separate category of relationship unification practice."

SSM will never be "marriage" for the purposes of the traditional institution of marriage as has existed throughout the ages, across religions and cultures.

17/8/2017 12:22:37 am

Actually, that is just pragmatically not true. Perhaps you misinterpreted what I meant. The "social push" I meant described merely the pragmatic component. Broadly, things "ought" to be legal/illegal for moral reasons. For example, slavery was always immoral regardless of how many people thought otherwise.
Whether something "will" change is dependent on the social impetus for that change. Therefore, regardless of whether incestuous relationships can be objectively moral or not, the fact is that such a change (legality) won't occur because there is a lack of social agreement of it.
Besides, your example is not analogous. The Earth on a turtle is demonstrably false. Whether we include gay couples in the institution of marriage, an abstract, legal concept, is a matter of policy. It is subject to change.

This goes to your second point. I don't fully understand how you get from A to B, but it seems to be about modification vs replacement/parallel systems. Again, marriage is not set in stone, it is a legal concept controlled by the legislature. You said "reasons for modification must be valid with reference to the original rule..." This is circular. If we may only use the rules governing the original system, then no change could ever be 'valid'. Rather, we must look to the underlying reason a system is in place. Marriage, for example, is a celebratory, symbolic, but (relevantly) legal recognition of a relationship, including various rights and obligations. The question must simply be asked: what reason is there to preclude a person from marrying another on the basis of their gender? There is no underlying nature of marriage which must necessarily preclude them on this basis. And whether you view this change as creating a "new institution" or modifying the original really is not relevant, because we get to decide what things are called. We control marriage, and we control what is the criteria for validity.

Thin end of the wedge

17/8/2017 09:15:15 pm

Imagine one day a father and his adult daughter decide they want to get married, and the factual circumstances mean there is no lack of consent due to undue influence, and one or the other or both are infertile for whatever reason.

What will the 'marriage equality' crusaders say to that? "Sorry, there just isn't enough of a social push for it, therefore we don't care about you"?. Wouldn't it be exraordinarily hypocritcal for those who support same sex marriage to oppose it? Why aren't the 'marriage equality' crusaders already pushing as hard for this as they are for Gay Marriage? Is that just a battle for another day once the thin end of the wedge of same sex marriage is a reality? Are they just bigots, opposed to incest marriage for no logical reason? Are they really just self serving hypocrits? Hasn't the argument that 'the majority dont want it' always been dismissed by same sex marriage advocates as illegitimate because human rights do not and should not derive from the tyranny of the majority?

I'd actually be very interested to know the MLS equality and social justice portfolio's official position on incestous marriage (under the conditions already described), polygamous marriage, or any other description of consent-based-intimate-relationships-between-adult-humans marriage, and what, if any, are their reasons for not championing them to the same degree it champions same sex marriage, though I don't expect those positions will ever be forthcoming.

Hypotheticals for tangential issues

18/8/2017 10:12:34 am

Again, you miss the point. Yes, you can get as outraged as you like about inconsistency of advocates for not pushing for an extension of marriage beyond gay marriage. And that father and daughter would be absolutely entitled to make those arguments of hypocrisy. But still, this is not an argument against gay marriage.

This is the situation. Advocates say "X should be legal". Your response is "well if X is legal than logically Y should be too, and you wouldn't want that." It is true that this might make advocates hypocrites, but (1) they have identified issues that exist with Y in a majority of cases, and (2) this does not identify a problem with X. For example, even you have failed to identify a problem with Y (incest, polygamous marriage), despite seemingly arguing that this is a disqualifying ground. If anything, you are suggesting that Y is perfectly fine.

Further, for anyone suggesting that "gay marriage wouldn't be marriage for the purposes of tradition/history": this is rather like saying "female voting will not be voting based on history", or "black civil rights will not be rights for the purposes of history". To suggest that any existing system must be recreated or something new made to extend the definition is ludicrous. If anything, all history has shown is that definitions of human social/legal systems always continue to evolve and adapt depending on cultural circumstances.

Costanza

18/8/2017 11:39:17 pm

Female voting was about extending the democratic vote to all members of society rather than just some, which is more democratic. Black civil/political rights were the same in the domain of political rights.

SSM can't be compared to those. It isn't a struggle for the right to have a family, because same sex couples already have those legal rights, and are able to form a family right now. SSM is a campaign to change the legal definition of marriage. Marriage defines the idea of family institutionally, which is functionally to do with the best environment for raising children (not functionally about love); it doesn't confer any practical rights that aren't covered elsewhere.

sick of bigotry

18/8/2017 12:06:28 am

Yeah see I might have agreed with these points before a bunch of Neo-Nazis rioted in America and Pauline Hansen walked into the Senate wearing a burqa. I'm kind of done with trying to engage with, or excuse bigotry. Love is Love isn't just an emotional argument it's a rational one- being able to marry has nothing to do with anyone else except your spouse. It's the exact same as divorce. It's nobody else's business and thus there is really no reason to be against gay marriage.

Evasive action

18/8/2017 08:59:03 am

In what way do those unconnected incidents undermine the internal logic of the arguments that makes them less worthy of consideration? I sure hope you've also included the terrorist attack in Barcelona within that incomprehensible matrix.

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