Vol 12, Issue 4
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?
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
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