Labor, Bill and Gay Marriage.

[Rorschach]

A social revolution left in the hands of lawyers
The Australian
July 08, 2015 12:00AM
Janet Albrechtsen

When the US Supreme Court recently decided in favour of same-sex marriage, the usual sections of the Australian media succumbed to their standard state of furious excitement. And, as usual, they missed the point and went on their usual merry way, mocking anyone with a different view about gay marriage. There is a wrong way and a right way to bring about significant and long-lasting social change. Five judges on America’s highest court chose the wrong way.

“Just who do we think we are?” Those seven words from Chief Justice John Roberts in his dissenting judgment in Obergefell v Hodges sum up the arrogance of five judges cementing social change on behalf of a nation, ignoring the democratic right of the people to decide important matters for themselves.

“For those who believe in a government of laws, not of men, the majority’s approach is deeply disheartening,” Roberts said. “Supporters of same-sex marriage have achieved considerable success persuading their fellow citizens — through the democratic process — to adopt their views. That ends today. Five lawyers have closed the debate and enacted their own vision of marriage as a matter of constitutional law.”

Roberts pointed to the legislatures in Vermont, New Hampshire, the District of Columbia, New York and Maine, among many others, where duly elected politicians, on behalf of voters, have changed the definition of marriage to include same-sex marriage. That is as it should be.

It’s why the Chief Justice rightly admonished the majority for seizing for themselves “a question the Constitution leaves to the people, at a time when the people are engaged in a vibrant debate” about gay marriage. Acting as philosopher kings, not judges, the majority changed the definition of marriage “as an act of will, not legal judgment”. Just who do they think they are?

I make no apologies for quoting from the dissenting judges at length. Their words speak for themselves, providing an important and enduring lesson about the beauty of a healthy democracy. If that’s of no interest, by all means, stop reading.

Roberts said: “The court’s accumulation of power (today) does not occur in a vacuum. It comes at the expense of the people. And they know it … There will be consequences to shutting down the political process on an issue of such profound public significance. Closing debate tends to close minds. People denied a voice are less likely to accept the ruling of a court on an issue that does not seem to be the sort of thing courts usually decide.”

Roberts nailed the issue in his final paragraph: “If you are among the many Americans — of whatever sexual orientation — who favour expanding same-sex marriage, by all means celebrate today’s decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it.”

In equally hard-hitting, straight-shooting language rarely seen in Australian courts, Justice Antonin Scalia pointed out that judges were selected for their skills as lawyers, not because they were a cross-section of America. Taking the Supreme Court as an example, Scalia outlined the background of the Court’s nine men and women: all from Harvard or Yale law school, four of the nine live in New York City, eight of the nine grew up on the east or west coast. “Only one hails from the vast expanse in between. Not a single southwesterner or even, to tell the truth, a genuine westerner (California does not count). Not a single evangelical Christian (a group that comprises about one quarter of Americans), or even a Protestant of any denomination.”

Scalia’s point is that the conspicuously unrepresentative char­acter of Supreme Court judges would be irrelevant if the judges were acting as judges, determining legal questions that draw on their legal skills. But “to allow the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transform­ation without representation”.

Marking the 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.

In 2013, the High Court of Australia struck down a same-sex marriage law enacted by the ACT because it was inconsistent with the federal Marriage Act that defined marriage to be a union between a man and woman. But the majority of the court also said the federal legislature could redefine the word marriage in section 51 (xxi) of the Australian Constitution. Instead of saying the word marriage was well settled when it was written into our Constitution in 1901 to mean the union between a man and woman, a majority of the court decided it meant whatever the parliament wanted it to mean. The court decided that marriage in the Constitution included marriage between people of the same sex.

The High Court’s egotistical decision removed from the Australian people the right to change the meaning of marriage by a referendum. Sure, the High Court’s decision didn’t reach the hubristic heights of the US ­Supreme Court’s decision last month. At least the final decision around same-sex marriage in Australia has been left to elected members of the federal parliament.

But equally, if the High Court had adopted a principled position about the democratic way to effect social change, it might have shown due respect for section 128 of the Constitution — which says the Constitution may be altered only when a majority of voters in a majority of states agree to the change.

To suggest that fundamentally changing the definition of a word as long-settled as marriage does not require a constitutional change approved by the people by referendum raises the obvious question. To coin a phrase, just who do the High Court judges think they are to single-handedly decide that marriage includes same-sex marriage, when, for millennia marriage has meant the union between a man and a woman?

Gay-marriage advocates don’t want a referendum, even though they assure us the great majority of Australians support same-sex marriage. 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.

[Neferti]

I very much doubt that IF the ALP or Greens promise to give the Homosexuals what they want, that it would change voting at the next Federal Election.

Voters are more interested in health, welfare, education, infrastructure, etc .... all the STATE RESPONSIBILITY stuff that they also drag that out at Federal Elections.

You get what you vote for, peoples.

[S m i t h ' s J o h n]

Already there is lobbying for polygamy

[boxy]

Me, however, I think it's a joke (be it hetro or homo marriage). Just look at how most marriages are treated these days. The levels of infidelity is ridiculous, and the shit that people say about their long term partners (when they're out of earshot, if they're lucky).

You shouldn't equate what your wife says about you with everyone else. You're a unique case of complete fuckwit.

[IQS.RLOW]

Why should that worry you when you fags are the most promiscuous fluffy bunnies in the animal kingdom, you post changing camel fucker?

[Lucas]

I love it that reports are now surfacing of Bill's Shortens own homosexuality. I knew this loser wasn't all there.

[Rorschach]

Well Abbott got it right every way with this latest decision.
1/ Both members of the Coalition Government should have attended and voted yesterday.
2/ The Government should stand by it's policy going into the last election.
3/ If anyone is to make such a fundamental societal decision it should be THE PEOPLE...

Go Tony Abbott, you got it right on this one... the rabid Leftwing Progs are screaming about this one.