Published in ONLINE OPINION on the 6th of December 2010
By Max Atkinson - a former senior lecturer of the Law School, University of Tasmania, with Interests in legal and moral philosophy, especially issues to do with rights, values, justice and punishment. He is an occasional contributor to theTasmanian Times.
One can learn a good deal about morality by looking, not at philosophical theories, but at commonplace arguments on moral issues, such as the issue of same sex marriage. A good example is the last episode of Tony Jones' Q&A, which shows what happens when important moral distinctions are ignored, in this case the distinction between opinions and values.
At the time of writing Labor opposes both reform of the Marriage Act and a conscience vote; it has, however, endorsed a Greens' policy that members consult with electorates to ascertain their views. No one has explained what this means, but it raises a fundamental question about the role of members viz. whether they are trustees to serve the interests of constituents, or delegates to reflect their views. As the Q&A debate suggests, this choice is likely to have profound implications for controversial issues.
When gay marriage was raised on this show, Senator George Brandis offered the following solution:
"I think there are two important principles … and neither can be looked at in isolation. The first principle is that people shouldn't be discriminated against because of their sexuality and I don't think any decent person would dispute that sexuality should not be a basis for discrimination ... On the other hand, I think that people who want to see the law change do need to accept that marriage is a unique institution. It has a deep cultural, and … religious significance and to change the definition of marriage in the Marriage Actis something that should not be done until there is a significant community consensus in favour of doing so. Now, where those two principles come into tension is the decision policy makers … have to grapple with ..." (emphasis added)
Bill Shorten, Minister for Financial Resources, agreed, using a less didactic, more blue collar explanation:
"… on one hand some people really do object to the idea of gay people getting married. On the other hand, a lot of people, including myself, think that why should someone be discriminated against because of their gender or sexuality. See, you've got these two issues ... I think a time will come where a whole lot of people will think, okay, what's the drama about changing the Marriage Act? I don't think the community is there yet to change the Marriage Act."
While both politicians claim to defend an ideal of fairness, each manages to ignore it. Brandis agrees with those who oppose gay marriage but for some reason wants to treat their opposition as if it were a moral value in itself. This fits his glib assumption that the art of politics is to balance competing principles. But in fact there is nothing to balance because there is really only one principle on the table; this is the duty of government to treat all citizens with equal concern and respect, arguably a foundation value for any political system.
On the other side are people who resent the idea of gay unions being granted the official recognition which they enjoy. Brandis is right in supposing his duty is to defend community values, but wrong to assume that this reaction expresses a principle he must defend, a point quickly spotted by an alert young woman in the audience:
"To me it seems that those two points completely contradict each other, because all of you seem to have agreed that religious ideologies should not be imposed on or should not dictate government policy but what you've just said there is that, oh, a lot of major religions, you know, dismiss or don't recognise the idea of the union of two people from the same sex. So why should that be applied to a government policy? I just don't understand … I just would like to hear a practical reason behind, rather than, 'Oh, I just have an aversion to it.' "
Bill Shorten's position is even more bizarre. He supports gay marriage and believes the opposition to reform has no rational basis, but he condones this prejudice simply because many in the community share it. But if Party leader Julia Gillard were to change her mind tomorrow, rather than in 12 months' time, it seems clear he would follow suit.
Sadly, what is missing in the Brandis/Shorten approach is any sense of concern for those who, regardless of the progress in removing material discrimination, are deprived of the rich moral and symbolic meaning which marriage bestows on the commitment to a loving union. Their detachment is a sure sign that something is wrong.
The media, for one reason or another, tend to reflect the Brandis assumption that community values are the same as popular opinions on moral issues.
While the views of Janet Albrechtsen, a well-known journalist who sat on the panel, are hard to fathom, anyone who reads the transcript might think her position is little better; this is an edited summary:
Albrechtsen: I don't have a problem with having a conscience vote at all on this issue …
Jones: What's your position? Are you happy to see limits on the rights of individuals because they happen to be gay?
Albrechtsen: I don't believe in gay marriage, no. No. No.
Randa Abdel-Fattah: I don't believe in gay marriage either, as a devout Muslim, but I think that in a secular, democratic society, I can't sustain that argument because my religious beliefs can't be imposed on others ….
Albrechtsen: But to me, Randa, it's - I'm not a Muslim and it's not a religious matter. It's not a religious matter for me.
Jones: What sort of matter is it?
Albrechtsen: I fundamentally believe that marriage is between a man and a woman and that you can have civil unions between lesbians or gay men. What is it about the word marriage that they need to have?
Jones: But you don't like the symbol of marriage?
Jones: Okay. But you don't believe in religion either.
Albrechtsen: No. No. No.
Jones: It's not a religious issue.
Albrechtsen: I'm just saying I don't come to it, you know, from a religious point of view.
We still don't know how or why she came to it; but it is surprising to find a professional opinion writer unable to articulate reasons to impose her views about marriage on others. The best she can offer in support of the opinion is that it happens to be her own, and that it expresses a "fundamental" belief.
Since those who disagree can make the same claim, one might think there is no further point in debate - it would be like people arguing in different languages. In practice, however, no one sees this as a reason to abstain; they expect participants to defend and if necessary review even their fundamental beliefs. There is no barrier behind which one can stand and simply demand respect for an opinion, at least not if it affects the lives and interests of others. Moral fundamentalism of this kind is inherently irrational.
One can think of at least two reasons why Brandis and Shorten confuse opinions with values. The first is a sceptical view of the nature of values which is still in fashion, and which underlies the silly idea that we ought to respect the opinions of others simply because they hold them. The second is a belief that majority opinion is some kind of moral authority. This ignores the fact that democratic theory says only that the representatives of a majority have a better right to make the rules than anyone else; whether these rules are wise or just or humane must be judged by the values we profess to share.