Equality before the law is a fundamental right

One of the most enduring objectives of western scholars is to define the parameters of debate within their field of expertise. This is then countered by another scholar who wishes to emphasise the boundaries within which their own expertise will shine. In this way, an endless and largely redundant struggle for supremacy in a particular discipline is perpetuated.

It is a competitive and adversarial model, in the same tradition as Westminster liberal democracy (government and opposition), the common law (prosecution and defence), and free market theory (supply and demand). In academia, the ‘marketplace of ideas’ includes scholarly journals, books and book chapters (for publication prestige); undergraduate (prescribed) texts (think of the royalties!); and public debate.

Only a very small proportion of scholars in any field carve out a public profile, translating their research into comprehendible language for a wider audience. Some make it an artform, like Karl Kruszelnicki; others crash and burn on a crusade which is more culture war than expertise, such as Richard Dawkins. Kruszelnicki made his name talking science on youth radio, while Dawkins crashed and burned on social media, where his poorly-conceived thought-bubbles were a kind of proto-type for Trumpian Twitter.

It should go without saying, but unfortunately does not, that the dominant voices are products of the same social organising systems from which Westminster liberalism, market theory, and the common law hail: English-speaking white patriarchy. These societies are rigidly hierarchical and operate on principles of exclusion rather than inclusion. Heteronormativity excludes LGBTQI people, rainbow couples and families; ableism excludes people with disabilities. Women and black people and First Peoples and people of colour must work twice as hard and be twice as good for half the reward of their white male counterparts.

Crucially, aggressive competitiveness is coded, not as harmful and nasty, but as rational self-interest. The hierarchical adversarial model demands that individuals, as the smallest (and, ridiculously) most revered social unit, scramble over one another for prominence and various shonky measures of success. The model is designed to create winners and losers; and winners and losers it creates.

As any socio-cultural scholar will recognise, this is a system populated by power-holders. Systems and systemic power-holders allocate a huge volume of resources to ensuring systemic reproduction. This has the intended result of married white able-bodied men continuing to dominate every platform – books, journals, public debate – in every discipline. These dominant voices squabble among themselves as to who gets to define the parameters – inclusion and exclusion along hierarchical lines – of each discipline and discourse.

The same in-crowd also devotes substantial time and effort to promulgating the lies of liberalism: that the playing field is level; or the market place, including the ‘marketplace of ideas’, has no barriers to entry; that merit is the key determinant of reward; or that critique of positional power is mere identity politics.

Enter a new model for scholarship and public debate into this intangible social construct of the marketplace of ideas: The Conversation website. It is brilliant business model. Universities subscribe and its academics contribute; research is disseminated to a wider audience; the public get access to expert commentary from which they would otherwise be locked out, or turned off by jargon. It is at heart a project with integrity, because the democratisation of knowledge – coming down from the ivory tower – is an inherent social good.

However. There is no reason The Conversation is quarantined from the same aggressive, competitive forces which are iterated across the English-speaking liberal democracies. Positional power is signalled by title – Professor, Director, Dean – and is more likely to gain editorial attention. This carries the risk that quality may be assumed rather than assessed. ‘Contested’ ideas may be enthusiastically uploaded to a space conceived of as a competitive marketplace of ideas, in a scholarly iteration of clickbait.

Nor is academia immune from the kind of intellectual dishonesty which drives popular positions on patriarchal values. This is the kind of perspective which proclaims rape culture ‘comedy’ to be edgy, when it is just rape culture, which is neither edgy nor funny, but simply another manifestation of patriarchal values which simultaneously trivialise, normalise and invisibilise male violence against women. How is something which pervades every aspect of women’s lives, and harms us in specific and known ways, new or edgy?

It is from this critical perspective that I question a respected professor writing in favour of boycotting the ugly mess of a policy that is the survey on marriage equality in Australia. He may be perceived as brave and edgy, because the social sciences are assumed to be bastions of the left. But research institutes specialising in sociology and cultural studies are just as likely to be headed up by married white men as any other institution. It is not brave or nuanced to argue against marriage equality. It is to reinforce the status quo.

This is a matter of social fact. We do not have marriage equality in Australia, so to take a position against change is to take a position for conserving the current norm, the very definition of conservatism.

With a level of incredulity I no longer thought possible at my age, I read the words of a man with positional power, a white man, published in The Conversation, which pointed to the concerns of religionists rather than the basic human rights of lesbian and gay people, bisexual and trans and intersex people, of queer people. Before answering the questions he posed, and the answers are not complex, I set out the basic principles at stake in this space.

Ending marriage inequality in Australia is a matter of amending the Marriage Act 1961 (Cth). This act was passed by the Commonwealth and is therefore binding on the states and territories (to the extent of any inconsistency with state or territory law, see the paramountcy principle as codified into s. 109 of our Constitution). The relevant section is the definitions section. It states, among other meanings, that “marriage” means the union of a man and a woman to the exclusion of all others, voluntarily entered into for life (original emphasis).

The Marriage Act was passed by the conservative Menzies government in 1961 under s. 51 of the Commonwealth of Australia Constitution. It states: ‘The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to… (xxi) marriage’. The act was amended by the conservative Howard government in 2004 to exclude any marriage other than marriage between ‘a man and a woman’.

The amendment breaches two fundamental principles.

Firstly, the foundational principle of all common law countries is Rule of Law. While our political leadership expends considerable rhetorical energy pronouncing on Rule of Law, few question its content. The content of Rule of Law says all are equal before the law; and nobody is above the law. This statement is not a social fact in any common law country, but that does not change the content of the rule.

The second principle can be found in the Universal Declaration of Human Rights. The Declaration has been endorsed by more leaders representing more people in more countries than any other statement in the history of humanity. The very first article declares that ‘all human beings are born free and equal in dignity and rights…’

The Declaration is not of itself an instrument of international law, although many of its articles have been so coded (Article 14 into the Refugee Convention (1951), for example, another area where Australia operates contrary to our stated values and legal principle). The Declaration is not of a single social or cultural or political or legal category. It is a statement of global human aspiration; and it contains standards by which nations may evaluate our humanity, our polity, our society, our laws.

With regard to marriage inequality in Australia, therefore, we are at a place well short of global aspiration, and the problem is codified in the legal space: by Commonwealth statute as passed and amended under the authority of the Australian Constitution; and by common law principle, in this case the first principle, Rule of Law itself.

Turning to the questions posed by a white male professor, a research institute director, and thus a person who can and does exercise considerable social-positional power, on a website widely respected in the academy and by the public:

  • How can we ensure equality of intimate partnerships for all, with appropriate cultural, political and legal recognition?
  • Second, how can we maintain respect for customary and traditional rites?

Here are the answers:

The first requires positive change, an action by lawmakers. What they do is table a bill which repeals the words ‘[between] a man and a woman’ in the Marriage Act 1961 (Cth) s. 5; and insert the words ‘two consenting adults’.

The second requires nothing. Zilch. Zero. Whatever respect society holds for customary and traditional rites will be maintained, or not. Either way, it is not a question of human rights or equality before the law.


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