As of early 2016, there were over 20 countries that allowed same-sex marriage nationally, with the Republic of Ireland and the US being amongst the most recent, and the number continues to grow. Canada was amongst the first countries to introduce same-sex marriage, in 2005. By contrast, Australia has still not introduced same-sex marriage. This article focuses on answering the question of why that difference exists between Australia and Canada – two countries which ostensibly have much in common. However, our arguments have broader implications, contributing to analyses of ‘political will’ and highlighting the complex interplay between various factors that can contribute to whether the rights of minority groups are achieved in different national democratic settings. This is important because, as Kaplan (Reference Kaplan1997: 3) has argued, ‘the achievement of equality for gay and lesbian citizens is part of the unfinished business of modern democracy’.Footnote 2
Somewhat surprisingly, this is the first work to attempt such a comparison between Australia and Canada. Yet, as we shall see, their different trajectories in regard to same-sex marriage are all the more notable since both countries have removed many other forms of same-sex discrimination; surveys suggest that Australians are less religious than Canadians, and institutional differences that restricted litigation strategies have contributed to the Australian lesbian and gay movement being even more experienced at campaigning than the Canadian one.
Indeed, the lack of previous analyses is particularly surprising given that comparing Canada and Australia is useful for assessing whether differing political institutions have determined differing trajectories on same-sex marriage, as Miriam Smith has argued was the case between Canada and the US (Smith Reference Smith2008).Footnote 3 Although Australian and Canadian institutions have considerable similarities (partly because of the influence of British colonialism), they have one crucial institutional difference – Australia does not have a Charter or Bill of Rights, which was an important factor in lesbians and gays obtaining same-sex marriage rights in Canada. This article will therefore explore how crucial that difference has been.
However, the article will also need to consider the potential role of other factors that have been identified as being important in the introduction of same-sex marriage internationally, including how debates over the issue of same-sex marriage were framed, i.e. discursive factors (see e.g. Bob Reference Bob2012; Eekelaar Reference Eekelaar2014; Stone Reference Stone2012). In other words, a multifaceted approach is required in order to explore potential explanations for the difference between Australia and Canada adequately. Our analysis will suggest that while multiple factors, including institutional ones, play a role, taking the specific factors influencing political will in each country adequately into account enables a more nuanced and accurate understanding of the different trajectory taken by Australia and Canada regarding same-sex marriage. For example, analysing the Canadian and Australian cases demonstrates that political-institutional architecture such as a Charter of Rights could not bear fruit in the absence of a real political will to open civil marriage to lesbian and gay couples. The Charter could have been overridden if Canadian governments had chosen to do so. Despite not having a Charter or Bill of Rights, Australian governments could have introduced same-sex marriage if doing so had been compatible with their electoral strategies, and the very absence of such a Charter in Australia is itself the result of a failure of the political will to introduce one.
In short, the originality of our own approach lies in our emphasis on the importance of analysing political will, which we argue also throws additional light on the complex interactions between various factors which determine outcomes in regard to same-sex marriage, including interest group intermediation. This is a significant finding given that political will is a key component of policy outcomes, yet an under-analysed one in much political science (Malena Reference Malena2009: 17).
Utilizing The Concept Of Political Will
Despite the pioneering work of Mintzberg (Reference Mintzberg1983) more than three decades ago, the notion of political will is still under-conceptualized (Post et al. Reference Post, Raile and Raile2010: 654; Treadway et al. Reference Treadway, Hochwarter, Kacmar and Ferris2005: 231). This may be because it is sometimes ‘more a rhetorical than an analytic concept’ (Hammergren Reference Hammergren1998: 13), but more probably because it is a contextual and multifaceted one (Woocher Reference Woocher2001). Mintzberg pointed out that political will is a prerequisite for political action – one needs to be motivated to act. That is also precisely why a concept of political will is necessary in political science. Following Mintzberg, attempts have been made to define and refine what political will means. For instance, Kpundeh and Deninio (Reference Kpundeh and Dininio2006: 41) put the emphasis on ‘the motives and actions of political actors’ and Brinkerhoff (Reference Brinkerhoff2000: 242) on ‘the commitment of actors [such as elected leaders] to undertake actions to achieve a set of objectives’. In Treadway’s view, political will refers to an ‘intrinsic motivation’ to act (Treadway et al. Reference Treadway, Hochwarter, Kacmar and Ferris2005: 232). For Post et al. (Reference Post, Raile and Raile2010: 659), ‘political will is the extent of committed support among key decision-makers for a particular policy solution to a particular policy problem’. Malena (Reference Malena2009: 19) defines political will as ‘the commitment of political leaders and bureaucrats to undertake action’, and she identifies three elements to it: ‘political want’ (that is, a political leader genuinely wants to undertake an action), ‘political can’ (s/he has the capacity to do so) and ‘political must’ (when inaction may engage high political costs).Footnote 4
A common element underlying these definitions is that political will involves a commitment to act. Consequently, we will be analysing political will in regard to supporting (or opposing) same-sex marriage, and the specific factors influencing it in Australia and Canada. We will compare and contrast factors ranging from institutions to party structures and resource mobilization. We will establish the factors influencing political will, in that broader context, by analysing politicians’ positions on same-sex marriage as revealed in political statements, policy documents, electoral strategies and legislation. Since political will involves a ‘commitment to act’, the focus will be on politicians’ positions that had practical outcomes in regard to the introduction, or non-introduction, of same-sex marriage, rather than on providing a more general analysis of political discourse and rhetoric on the subject.
Nonetheless, discursive framing helps to express and formulate political will: ‘A frame is a thought organizer, highlighting certain events and facts as important and rendering others invisible’ (Ryan and Gamson Reference Ryan and Gamson2006: 13). Frames give meaning to facts and to what people think; they fashion worldviews and inspire collective action. Framing influences whether the lack of same-sex marriage is seen as a significant equal rights problem which can be solved by granting same-sex marriage rights. It influences ‘political want’ and ‘political can’, to use Malena’s terminology. However, achieving ‘commitment’ amongst key political decision-makers is also influenced by the factors mentioned above, including a range of institutional, electoral and resource mobilization issues that we will discuss below.
In order to develop our argument, it is necessary to provide a more detailed analysis of the politics of same-sex marriage in Canada and Australia, including evaluating the significance of political will in regard to other factors which could have influenced the different outcomes in the two countries.
Same-Sex Marriage In Canada And Australia: The Background
Traditionally, Western democracies such as Australia and Canada have been heteronormative – that is, shaped by heterosexual norms regarding both the sexual identity of the citizen and the citizen’s rights and entitlements (Johnson Reference Johnson2003) – just as other analyses have drawn attention to the ways in which democracies can be gendered (Chappell Reference Chappell2002; Waylen Reference Waylen2015). However, the difference between Australia and Canada in regard to same-sex marriage is all the more remarkable given that both countries have progressively removed many other forms of same-sex discrimination, having decriminalized male homosexuality, introduced anti-discrimination legislation, recognized same-sex relationships for government entitlements and introduced a wide range of same-sex family rights (Johnson et al. Reference Johnson, Maddison and Partridge2011). Admittedly, the initial struggle for decriminalization took longer in Australia than Canada because it had to be pursued at individual state, rather than federal, level. Nonetheless, Australian Labor leader Gough Whitlam had endorsed Canadian Prime Minister Pierre Trudeau’s (pre-Charter) argument that the state had ‘no place in the bedrooms of the nation’ shortly after decriminalization was passed federally in Canada (Whitlam Reference Whitlam1970). However, Whitlam’s subsequent federal Labor government (1972–5) did not then have the ability to intervene in state-level decriminalization matters, though federal powers were later extended (via a foreign treaties’ power) as a result of a successful 1994 appeal by Tasmanian state pro-decriminalization activists to the United Nations (see Johnson et al. Reference Johnson, Maddison and Partridge2011: 29–30). Consequently, while some states introduced decriminalization shortly after Canada – for example, South Australia (incrementally from 1972–5) – Tasmania did not do so until 1997. However, unlike decriminalization, marriage is a federal not a state issue so the historical delays in introducing decriminalization do not explain the differing trajectories in regard to same-sex marriage between Australia and Canada.
Nor does a difference in voters’ religious values seem to provide a simple explanation. Indeed, the World Values Survey suggests that significantly fewer Australians than Canadians believe that religion is important. More Australians than Canadians agree that the views of religious leaders should not influence government. (Australians are also far more likely than Canadians to think that abortion is justifiable.)Footnote 5 Surveys since 2007 have shown a majority of Australian voters support same-sex marriage (Johnson et al. Reference Johnson, Maddison and Partridge2011: 38). Australia does have conservative Christian groups which lobby politically, such as the Australian Christian Lobby (Maddox Reference Maddox2014) and also other groups formed more recently such as the Australian Marriage Forum and Marriage Alliance, but Canada also had conservative organizations opposing marriage – such as the Campaign Life Coalition, the Catholic Civil Rights League, the Canada Family Action Coalition, Focus on the Family Canada, the Evangelical Fellowship of Canada and REAL Women. However, it will be argued below that the Australian conservative groups did not have the power or financial resources of their US counterparts, and their role does not seem sufficient to explain the key differences between Australia and Canada.
Furthermore, a difference in the respective strength of progressive social movements also does not provide an adequate explanation. The institutional differences in rights protections have encouraged the Canadian lesbian and gay movement to rely somewhat more on litigation strategies than its Australian counterpart without totally abandoning the need for political mobilization (Smith Reference Smith1999). By contrast, the Australian lesbian and gay movement has a long history of sophisticated and successful political campaigning at state and federal level to remove forms of discrimination other than the ban on same-sex marriage (Bernstein and Naples Reference Bernstein and Naples2010; Johnson et al. Reference Johnson, Maddison and Partridge2011) and has succeeded in influencing both major Australian political parties (Labor and the Liberals) on other same-sex issues, such as the 2008 relationship recognition legislation. It will be suggested later in this article that a crucial factor in interest group intermediation was not so much a difference in the strength of various interest groups between Australia and Canada, but the role of political will in determining which interest groups were encouraged and listened to.
Comparative studies, which include Australia and Canada, suggest there are no major differences in regard to party regulation (see further Gauja Reference Gauja2010) that could explain the difference. Australia’s proportional voting system in the Senate (see Ward Reference Ward2012: 194–7) has sometimes facilitated minor parties to gain seats there, including the conservative, religiously affiliated party Family First (holding one seat after the 2013 and 2016 elections). However, the major beneficiary of the Senate voting system has arguably been the Australian Greens (holding 10 seats after the 2013 election and nine after the 2016 election), who are strong supporters of same-sex rights, including marriage. The preferential nature of Australia’s lower and upper house voting system (Ward Reference Ward2012: 171–2, 195–7) can contribute to both progressive and conservative votes being harvested by the major parties. Strategies to pull votes away from competing parties exist in first-past-the-post systems such as Canada’s as well as in voting systems such as Australia’s.
So while the analysis below will take into account the broader political and electoral context outlined here when analysing the role of political will, and parties’ strategies, these differences between Australia and Canada do not seem sufficient to have determined the difference in outcomes on same-sex marriage. Nonetheless, as already indicated, there is one major institutional difference, namely the lack of a Charter or Bill of Rights in Australia, which does need to be taken into account in more depth, given analyses suggesting that this factor played a key role in the introduction of same-sex marriage in Canada.
Canada
As mentioned in the introduction, this article particularly engages with the important work of Miriam Smith (Reference Smith2008). In her ground-breaking comparative analysis of Canada and the US, Smith found that political institutions and their legacies provided convincing arguments for explaining the then differences regarding lesbian and gay rights on either side of the border. It will be argued here that a change in the comparative lens through which factors are being considered both confirms aspects of Smith’s analysis and draws attention to some factors that Smith underestimated, especially the factor of political will.
According to Smith, institutional factors which have played a role in opening civil marriage relatively early to same-sex couples in Canada are: a federalist architecture where the federal government has the power to decide who can marry; an executive-controlled Westminster-based parliamentary regime; a hierarchical and centralized court system; and, crucially, a liberal-oriented Charter of Rights and Freedoms that applies across Canada (Smith Reference Smith2008: 109–67). The lack of means available to the social conservative movement, both within and outside Parliament, to oppose the federal government’s plans to open civil marriage to lesbian and gay couples is also relevant (Smith Reference Smith2008: 91). So too, we will argue later, is a lack of political will from the Liberal government to use the notwithstanding clause to bypass court decisions invalidating the exclusive heterosexual definition of civil marriage.Footnote 6
According to the Canadian Constitution, the federal government has jurisdiction over who can get married, whereas the provinces and territories are responsible for the legal and practical framework surrounding marriage. Consequently, the lesbian and gay movement only had to put pressure on one government (that is, the federal one) in order to open civil marriage to same-sex couples. That said, the fact that the power to define who can marry is concentrated in one government is not necessarily an asset for those demanding same-sex marriage if the government in power has no political will to support its introduction and in fact has the political will to oppose it – as the Australian case illustrates.
Canada has a Westminster-based parliamentary regime, which implies, first, that the executive authority is heavily concentrated in the government/cabinet (but in reality in the hands of the first ministers) and, second, that the executive power exerts a firm control on the legislative branch of state power (or the Parliament) through strong party discipline. Indeed, in the Canadian Westminster parliamentary regime, backbench members of Parliament (MPs) have very little influence on the executive and the government decision-making process. Thus, given tight party discipline, there is very little that can stop a federal government that is willing to act (i.e. prime minister and cabinet) from changing policies in areas over which it has jurisdiction, as was the case with same-sex marriage (Smith Reference Smith2010, Reference Smith2011). For instance, in Canada the federal government had full power to determine who can lawfully marry. In addition, the federal government was able to force this change through despite fierce opposition coming from some provincial governments (notably from Alberta). For the lesbian and gay movement, the executive-controlled Westminster-based parliamentary regime encourages it to form alliances with the government of the day, for instance by lobbying cabinet ministers or influencing electoral platforms of political parties (eventually by working to elect lesbians and gays in politics). That said, it should be noted that the vote on Bill C-38 was free for the Bloc Québécois, Conservative and Liberal MPs, meaning that they were allowed to vote according to their ‘conscience’ and not their party’s position. However, Liberal cabinet ministers and New Democrats MPs were obliged to support the Bill, the former because of ministerial solidarity (it was a government Bill), and the latter because their party platform endorsed same-sex marriage.
The court system in Canada is hierarchical and centralized; as a consequence, decisions issued by courts are in force throughout the country. Indeed, decisions rendered by lower provincial and territorial courts have immediate consequences in all provinces and territories because the Canada Supreme Court can review them through an appeal process. In addition, decisions by lower provincial and territorial courts invalidated the exclusively heterosexual character of civil marriage; in fact, from 2001 to 2005, 11 of the 12 provincial and territorial courts that heard challenges to the Charter put forward by same-sex couples invalidated the opposite-sex definition of civil marriage, an interpretation the Supreme Court of Canada endorsed in its 2004 Reference re Same-Sex Marriage decision, thus giving legitimacy to the federal government to open civil marriage to same-sex couples. It should be added that from 1995 onwards, the Supreme Court (and courts at the provincial and territorial levels) rendered decisions on same-sex unions in Canada – the consequence of which has been increased support by public opinion for homosexuality in general, and for same-sex marriage in particular (Matthews Reference Matthews2005). In fact, in 2004, shortly before Bill C-38 was adopted, 58 per cent of Canadians stated that they supported same-sex marriage (Langstaff Reference Langstaff2011). Arguably, favourable public opinion, manufactured by court decisions, played a pivotal role in the political will of the Liberal government to open civil marriage to same-sex couples.
In 1982, Canada adopted its Charter of Rights and Freedoms as Part I of the Constitution. The advent of the Charter has meant a revolution in Canadian politics, notably by subjecting the decisions taken by the legislative and executive branches of state powers to the principle of judicial review (thus empowering the courts), and by centralizing (or ‘federalizing’) the protection of human rights. In this regard, Section 15 of the Charter devoted to equality is especially important for lesbians and gays (Smith Reference Smith2005) – quite paradoxically, despite the fact that Section 15 left out discrimination on the basis of sexual orientation. Yet, this absence was a major motivation for lesbians and gays organizing from the second half of the 1980s at the federal level (Smith Reference Smith1999: 73–140). As a consequence, since the 1995 Supreme Court ruling in Egan v. Canada, sexual orientation is considered to be within the ambit of the equality clause of the Charter. Since then, as Smith argues, there is no doubt that the Charter has greatly served the equality rights of lesbian, gay, bisexual and transgender (LGBT) people in Canada, including as regards same-sex marriage.
This is particularly the case given that the Canadian courts’ conception of rights was based on arguments regarding ‘historical disadvantage and dignity’. In contrast, US courts’ conceptions, influenced partly by the history of racial civil rights cases, had originally placed more emphasis on issues such as whether homosexuality was an ‘immutable’ characteristic, as race was constructed as being, and therefore deserved anti-discrimination protections, including in regard to same-sex marriage (Smith Reference Smith2008: 90–2).
However, in the years since Smith’s book was published, US judicial interpretations have undergone development, partly in response to the dilemmas caused by the successful achievement of same-sex marriage in the majority of US states but the denial of same-sex marriage rights in others. An increasing number of decisions by US federal judges upheld same-sex marriage, eventually leading to the Supreme Court’s Obergefell v. Hodges (2015) decision in support of same-sex marriage rights. Such developments support the importance of judicial institutions for the progress of same-sex marriage in both Canada and the US and reinforce Smith’s arguments regarding the delays caused by US activists initially pursuing same-sex marriage via multiple state-based struggles, given that the US federal government did not have the same constitutional powers as its Canadian counterpart (Smith Reference Smith2008: 16–17). Smith’s historical institutionalist arguments therefore help to explain the different historical trajectory between Canada and the US.
Australia
Is it therefore possible to explain the key differences between Australia and Canada in regard to same-sex marriage outcomes in terms of key institutional differences – e.g. a difference in federal structures or Australia’s lack of a Charter of Rights? The argument here will suggest that Smith’s approach has useful insights to offer but that it does not work as well in Australia as in Canada. In fact, we will have to use somewhat different approaches and lenses in order to understand fully what happened in Australia, particularly analysing how the issue of same-sex marriage was used in party electoral strategies.
Smith (Reference Smith2008: 14–15) argues that Canada’s Westminster-based parliamentary system, combined with strict party discipline, gave the Canadian executive more power to implement changes such as same-sex marriage than was the case with their US counterparts. However, Australia’s system also draws on Westminster parliamentary traditions and has more in common with Canada than with the US (Ward Reference Ward2012: 7). Smith (Reference Smith2008: 15) argues that in the US, ‘the separation of powers system weakens political parties and lack of party discipline in the US system means that well-organized groups can easily lobby legislators and bring pressure to bear, whereas, in the disciplined Canadian party system, it is more of a challenge for outside groups to influence caucus deliberations’. Party discipline is also strict in Australia, though, as we shall see, same-sex marriage is currently a conscience vote issue for Labor (until around 2019). Christian groups do lobby in Australia, particularly attempting to mobilize electoral concerns about parties losing or gaining religious votes in marginal seats (Maddox Reference Maddox2014) but, as already noted, not with the same power and resources as in the US. So, overall, and given the shared influence of British colonialism, Australia seems far more similar to Canada than to the US. It will be suggested below that the differences in the roles taken by political parties between Australia and Canada owe more to the role of political will than to essential structural differences between the two political systems.
Smith emphasizes that the Canadian federal government had more power over marriage than its US counterpart. However, in Australia marriage was also widely accepted as being a federal issue after the states historically ceded their marriage powers to the federal government. Under the Australian Constitution, if there is a conflict between state and federal legislation in an area where the federal government is entitled to legislate, the federal legislation has precedence. Australian lesbian and gay lobbyists had to pursue some areas of recognition of same-sex relationships and recognition of family rights at both state and federal level (see further Johnson et al. Reference Johnson, Maddison and Partridge2011), but largely focused on the federal arena for marriage rights. Admittedly, some activists hoped that the federal government’s 2004 legislation to restrict marriage to being between a man and a woman had unintentionally confined the federal government’s marriage powers to heterosexual marriage only, thereby inadvertently enabling state and territory governments to legislate for same-sex marriage (see e.g. Croome Reference Croome2010). However, that contentious option appears to have been cut off by a 2013 High Court decision (High Court of Australia 2013) supporting the Abbott government’s legal challenge to the Australian Capital Territory’s attempt to introduce same-sex marriage. Thus, the Australian federal government had power to legislate in the area, as in Canada, and there were similar political opportunity structures in force. Unlike in the US, the Australian lesbian and gay movement did not have to pursue separate, nationally fragmented political and legal campaigns in regard to same-sex marriage that were spread over numerous state fronts (Smith Reference Smith2008: 16–17).
Nonetheless, despite similar federal powers over marriage, there is a major difference in political opportunity structures. Australia has neither a federal Charter nor a Bill of Rights, and that effectively ruled out the Australian lesbian and gay movement using litigation strategies to obtain same-sex marriage (with resource mobilization implications in terms of the protest and lobbying then being required).Footnote 7 This major difference from Canada reveals the important role that political institutions can play. However, Australia does have an independent statutory organization, the federal Human Rights Commission (previously known as the Human Rights and Equal Opportunity Commission), which the Australian lesbian and gay movement has utilized (see further Johnson et al. Reference Johnson, Maddison and Partridge2011). The Commission recommended that the government legislate to remove major forms of discrimination against ‘de facto’ same-sex couples on equal rights, human rights grounds. In Australia same-sex couples now generally have the same rights and entitlements as ‘de facto’ heterosexual couples who, after a number of years of co-habitation, have the same rights as married couples (see further Bernstein and Naples Reference Bernstein and Naples2010; Millbank Reference Millbank2009). The Human Rights Commission (2013) has also advocated same-sex marriage on the grounds ‘that the fundamental human rights principle of equality means that civil marriage should be available, without discrimination, to all couples, regardless of sex, sexual orientation or gender identity’ (see Human Rights Commission 2012). This demonstrates that there is a history of framing same-sex equality arguments in human rights terms even if there is no Bill or Charter of Rights. Admittedly, the Human Rights Commission has been under pressure from the government, given that Attorney-General George Brandis has criticized it for placing too much emphasis on protecting minority rights and insufficient emphasis on protecting citizens from undue intrusion by government. Brandis has singled out same-sex marriage as one of the areas in which the left allegedly tries to stifle dissenting views and undermine freedom of speech (Brandis Reference Brandis2013).
Former conservative Prime Minister John Howard also drew on American arguments that constructed lesbian and gay ‘rights’ as being pursued by ‘special interests’ (Johnson Reference Johnson2007: 39–56; Smith Reference Smith2008: 23). While Australia did not go as far as the US in embracing such a perspective (for example, Brandis supported Labor’s 2008 reforms recognizing de facto same-sex relationships), the framing of same-sex marriage as a human rights issue is arguably harder in Australia than in Canada, where ‘Charter values’ identified with ‘Canadian values’ in English-speaking Canada and lesbian and gay rights were clearly framed in policy debates as a human rights issue (Smith Reference Smith2008: 22–3). Nonetheless, it was not as hard as in the US given Australia’s relatively egalitarian tradition of giving everyone a ‘fair go’. Unlike in the US, ‘gay rights had not become associated with issues of welfare reform, school prayer and abortion’ (Smith Reference Smith2008: 22). Furthermore, Australia does not have a constitutional Bill of Rights, partly because of the lack of political consensus that one would be desirable. It has proved virtually impossible to win referenda to reform the Australian Constitution without bipartisan agreement between the two major parties. In short, the lack of a Bill of Rights in Australia is an important institutional issue – but it is partly due to a lack of political will to introduce one. In terms of Malena’s analysis of political will mentioned earlier, there was a lack of bipartisan political ‘want’ (the lack of a combined desire by both parties to introduce one), a lack of ‘political can’ (a lack of confidence in the capacity to introduce one in the absence of bipartisan support) and a lack of ‘political must’ (at the end of the day one was not seen as essential). Consequently, the lack of a Charter of Rights does not seem to be sufficient to explain why same-sex marriage has not been achieved in Australia, especially given that recognition of same-sex de facto relationships has been possible. Rather, it will be argued that the differing ways in which political parties have used the issue of same-sex marriage as part of their broader political strategies has proved to be crucial in shaping issues of political will in Australia.
Political Will And The Struggle For Same-Sex Rights In Australia
Same-sex marriage achieved prominence in Australia in the lead-up to the 2004 federal election. The Australian lesbian and gay movement had been mainly aiming for recognition of de facto same-sex relationships, rather than marriage (Bernstein and Naples Reference Bernstein and Naples2010). However, Liberal (conservative) Prime Minister John Howard drew on a George W. Bush electoral strategy of emphasizing socially conservative values (Bush Reference Bush2004). He argued that the Australian government needed to pass parliamentary legislation ensuring that marriage could only be between a man and woman in order to ensure that social engineering judges did not recognize overseas same-sex marriages – e.g. from Ottawa (see further Howard Reference Howard2004; Johnson Reference Johnson2003; Willett Reference Willett2010). Howard argued that marriage was traditionally between a man and woman, in line with Australia’s Judaeo-Christian values and those of other major religions (Howard Reference Howard2003, Reference Howard2004). However, as someone who had deep reservations about multiculturalism, Howard did not use the arguments about protecting the rights of religious minorities that have been used in Canada (see Tremblay Reference Tremblay2014). Howard also argued that marriage was for procreation, in views that were similar to those expressed in Canadian family discourse (see Howard Reference Howard2003; Tremblay Reference Tremblay2014). The move not only reflected Howard’s own values, it was an attempt to electorally wedge socially conservative blue-collar and Catholic voters away from Labor. Unlike Bush, Howard did not need to motivate electors to vote, given that voting is compulsory in Australia, but he did want to change voters’ allegiance. Howard was using opposition to same-sex marriage as a political ‘sign’ of his social conservatism (see further Johnson Reference Johnson2013). Same-sex marriage also fitted into Howard’s discursive framing of socially progressive rights issues as ‘politically correct’ ones favoured by ‘cultural elites’ who were disadvantaging ‘mainstream’ Australians to support minorities (Johnson Reference Johnson2007: 39–56).
Recent comparative studies have reaffirmed the importance of political leadership, including the role of leaders’ discourse in influencing voters (Bell Reference Bell2014: 148). Furthermore, Bell and Hindmoor (Reference Bell and Hindmoor2014) have demonstrated, albeit in a very different context, how important ideational relations and discourse can be in influencing state power over policy issues, determining which, if any, interest groups are listened to (e.g. the religious right) and suppressing the interests of others (e.g. the lesbian and gay movement). In other words, political will is an important element in interest group intermediation. Howard clearly intended to use same-sex marriage as an electoral issue that would mobilize voters, thereby translating his political will into collective action. Labor panicked and (without adequate internal party consultation but with the support of right-wing factional leaders) declared it would support the Howard legislation banning same-sex marriage. Drawing on Malena’s framework on political will, Labor theoretically had the political capacity to support same-sex marriage but did not want to do so, both because of conservative elements within the party and the electoral costs it believed were involved. We have discussed in the previous section why Canadian political leaders did not wish to reframe and act on the issue of same-sex marriage in the way that Howard did.
Labor was in a stronger electoral position by the 2007 election. However, when making his case to become the new Labor leader, Kevin Rudd had sold himself as a Christian who could win back Christian voters (Rudd Reference Rudd2006). He reassured the Australian Christian Lobby that, while it would legally recognize de facto same-sex relationships, Labor would oppose same-sex marriage (Australian Christian Lobby 2007). Once again, same-sex marriage was being used as a sign (see further Johnson Reference Johnson2013) to reassure socially conservative Labor voters, including blue-collar ones, given Howard-era claims that Labor had deserted workers to support politically correct, elite special interests. Same-sex marriage was discursively framed as a socially conservative mainstream values issue rather than an equality or rights issue. Labor feared losing socially conservative votes in key marginal seats like Western Sydney (including both Christian and Muslim votes).
Labor won the 2007 election. However, in 2010, Julia Gillard internally deposed Rudd to become Labor prime minister. Gillard kept Rudd’s agreement with the Australian Christian Lobby and reaffirmed that marriage was a Christian institution (Shanahan and Kelly Reference Shanahan and Kelly2010). Gillard needed the support of socially conservative factional bosses within Labor and also needed to reassure socially conservative voters, particularly given she was a self-declared atheist living in an unmarried ‘de facto’ heterosexual relationship. Gillard depicted marriage as a traditional institution, arguing that her own experience demonstrated it was possible to have a loving relationship without being married (Gillard Reference Gillard2012).
Despite an ongoing struggle within the Labor Party to change official policy, party discipline meant that even strong supporters of same-sex marriage, such as lesbian Senator Penny Wong, felt compelled to publicly state the Labor government’s position (Wong Reference Wong2010a). In this way, strict party discipline in Australia worked against same-sex marriage. Meanwhile some social conservatives within Labor mirrored Howard’s framing, suggesting that same-sex marriage was an ‘elite’ issue that alienated Labor’s working-class base (Franklin Reference Franklin2010). Nonetheless, in 2011, supporters finally succeeded in changing the federal Labor policy platform to support same-sex marriage, arguing on the grounds of equal rights (Wong Reference Wong2010b). Normally party discipline means that Labor MPs are bound by the party platform; however, there have been exceptions for moral issues. A conscience vote on same-sex marriage was controversially allowed (to accommodate Gillard and other opposed Labor MPs). The fear of losing particular marginal seats still concerns a (declining) number of Labor MPs, despite evidence that over 70 per cent of Australians support same-sex marriage.Footnote 8 Wong (Reference Wong2011) argued that same-sex marriage should not be a conscience vote given it was a basic equality issue. Some months before Rudd, in turn, internally deposed Gillard and regained the prime ministership, he declared that he had changed his position to support same-sex marriage because the Church and state could legitimately have different positions on marriage in a secular society (Rudd 2013). He claimed that his daughter and a former staffer had influenced his shift, though it also conveniently symbolized his difference from both Gillard and the then opposition leader, Tony Abbott.
After losing the 2013 election, Rudd was replaced as Labor leader by Bill Shorten. Shorten supported same-sex marriage but advocated a conscience vote, thereby rejecting Labor deputy leader Tanya Plibersek’s view that anti-discrimination votes should be binding (Plibersek Reference Plibersek2015; Shorten Reference Shorten2015). A compromise at the 2015 Labor Party National Conference saw a conscience vote being retained but only for the next two parliamentary terms (until around 2019). Plibersek is not only a long-standing supporter of same-sex marriage, her seat is one that is being sought by the Australian Greens, a left-wing minor party with a strong history of advocating same-sex marriage, and whose ability to win votes from Labor’s left has seen it gain both a House of Representatives seat and several Senate positions from Labor. Labor politicians have therefore been attempting to develop electoral strategies that allow for challenges from the left and the right. Labor has theoretically had the capacity to support same-sex marriage legislation (there have been no institutional barriers, for example) but its political will to do so has been shaped by internal debates over issues of values and equality and by electoral considerations.
The Liberal Party
Supporters of same-sex marriage within the Liberal Party (Australia’s equivalent to a conservative party) argued for a conscience vote too. They cited the support by conservative UK and New Zealand prime ministers David Cameron and John Key for same-sex marriage given the Liberal Party’s strong links with those parties, and their position was further bolstered by recent Irish and US developments. There were increasing internal differences between those Liberals who argued that same-sex marriage was an individual rights issue and those who used Howard-era arguments to oppose it (Bourke Reference Bourke2013; Wroe Reference Wroe2013). Liberal leader and subsequent prime minister (2013–15) Tony Abbott remained opposed. Originally he had argued that the Liberal Party was bound by its 2010 election position and the Liberals therefore voted against same-sex marriage legislation. However, during the Liberals’ successful 2013 election campaign, Abbott stated that the party roomFootnote 9 could decide whether a conscience vote would be allowed in future (Abbott Reference Abbott2013). Subsequently, Abbott came under increasing pressure from conservatives in the parliamentary party (whose support he required for retaining his prime ministership) to oppose granting a Liberal conscience vote. Opponents argued that not only was same-sex marriage inherently wrong and disadvantaged children, its introduction would lose Liberal votes to conservative minor parties and lead to discrimination against religious opponents (Abetz Reference Abetz2015). Furthermore, Abbott’s personal opposition to same-sex marriage formed part of his hyper-masculine image used to attract votes from social conservatives, including some blue-collar male workers. In August 2015, Abbott insisted on the issue of a conscience vote being taken to a combined party room meeting of both the Liberals and the Nationals (a conservative minor party with whom the Liberals were in coalition). The move for a conscience vote lost, with a majority of both Liberal and National MPs opposing it, thereby undermining attempts to pass same-sex marriage legislation through parliament. Abbott subsequently advocated that either a plebiscite or referendum should be held on the issue of same-sex marriage sometime after the next election, despite neither being required constitutionally. Abbott was thereby attempting to manage both anti- and pro-marriage supporters in the electorate, while depicting those who rejected a popular vote as being elitists who were opposed to the people, rather than politicians, deciding the issue (Abbott Reference Abbott2015). Abbott was subsequently replaced as prime minister by Malcolm Turnbull who, despite being a strong supporter of same-sex marriage (Wroe Reference Wroe2013), decided to stick by his predecessor’s decision in order to avoid alienating social conservatives in his government. However, Turnbull (Reference Turnbull2015) did state that his government (re-elected in 2016) intended to hold a plebiscite rather than referendum.
Plebiscites are non-binding on governments but require a simple majority nationally. By contrast, as mentioned previously, Australian referenda are notoriously difficult to pass without bipartisan support and require winning a majority of votes in the majority of states, which is one reason why some opponents of same-sex marriage prefered it. Federal plebiscites have only been previously held over conscription (during the First World War) and (in 1977) over replacing ‘God Save the Queen’ as Australia’s national song. Other highly contentious federal issues that have not required constitutional change have been decided by a parliamentary vote rather than a direct popular one. Therefore, deciding on a plebiscite was a strategic choice rather than being driven by Australian political leaders having a fundamentally different vision (Ganghof Reference Ganghof2016) from Canadian political leaders of how parliamentary representation per se should work. However, the Labor Party, along with the Greens and others in the Senate, pledged to reject the plebiscite bill. Labor argued that same-sex marriage should be decided directly by a vote in parliament, given that holding a plebiscite was unnecessary, expensive and discriminatory and would encourage homophobic discourse about same-sex couples and their families (Koziol 2016).
Political will, including the way in which same-sex marriage has played out in the major parties’ internal debates and electoral strategies, has therefore had a major impact on the outcomes in regard to same-sex marriage in Australia. This insight has also led us to consider whether factors influencing political will also played more of a role in Canada than Smith realized – a new insight that has arisen from the change in comparative lens from Canada and the US to Canada and Australia.
Adding Factors Influencing Political Will To Smith’s Analysis Of Canada
As we have seen, Smith argues that the institutional factor of the Canadian Charter of Rights and Freedoms played a crucial role in the introduction of same-sex marriage in Canada. However, the power of the Charter is not without limits. Indeed, the notwithstanding clause (Section 33) implies that a government can adopt an Act or a provision of an Act which would deny (or refuse) rights and freedom guaranteed by Section 2 and Sections 7 to 15 inclusive of the Charter. The Liberal government of Paul Martin could have exercised its political will to use the notwithstanding clause (which would have maintained the monopoly of heterosexuality on civil marriage), but did not have the will to do so. Why not? Prime Minister Martin framed his rationale for not using the notwithstanding clause using a clear ‘political want’ stand:
But there is a reason that no prime minister has ever used it [the notwithstanding clause]. For a prime minister to use the powers of his office to explicitly deny rather than affirm a right enshrined under the charter would serve as a signal to all minorities that no longer can they look to the nation’s leader and to the nation’s Constitution for protection, for security, for the guarantee of their freedoms. (see Parliament of Canada 2005)
Martin reiterated his willingness made in the English leaders’ debate held during the 2004 election campaign of not using the notwithstanding clause to block access to civil marriage to same-sex couples (it should be mentioned that the Conservative leader Stephen Harper made the same commitment of not using the notwithstanding clause – see Larocque Reference Larocque2006: 199). It is important to go beyond the political doublespeak to find out why the Liberal government did not use the notwithstanding clause and, more broadly, why it did not manifest a clear political will to refuse to open civil marriage to lesbians and gays, for example, by appealing court rulings in favour of such marriages in the early 2000s. Our hypothesis is that, in an electoral context that was extremely difficult for it, the Liberal government (which was a minority one) manipulated the judicial process to obtain responses from the court that would benefit it electorally.
As a background for this hypothesis, we should mention that it was under a government formed by the Liberal Party of Canada (LPC) that the Canadian Charter was adopted; thus, the LPC and the Charter are not only closely associated with, but also embody a shared project of Canadian identity (Smith Reference Smith2007, Reference Smith2008: 158–9). Furthermore, by positioning itself as a defender of the rights of lesbians and gays via Section 15 of the Charter, the LPC extended this association by broadening it to citizens and to minorities for which the Charter had the specific goal of protection against discrimination. In this context, filing an appeal against decisions made in 2002 by provincial courts in British Columbia and Ontario, ruling that the heterosexual definition of marriage is discriminatory and reformulating the definition in order to immediately permit the celebration of the marriages of lesbian and gay couples would not only have belied the image of an LPC guided by the principles of the Charter but – more importantly – would have shown the LPC to be turning its back on the minority of minorities. Lesbians and gays certainly constitute a numerical minority in Canada but also, and above all, are a social minority historically repressed by the federal state (Kinsman and Gentile Reference Kinsman and Gentile2010).
It is worth mentioning that the Conservative government formed following the 2006 federal election had the power to adopt an act overriding Bill C-38 by using the notwithstanding clause. However, it also lacked the political will to do so. Why? We suggest that this action would not only have involved the difficulty of rolling back an existing reform, doing so would have painted the Conservative Party as being against the Charter, thus antagonizing a substantial part of the (centre and centre-left) electorate. It could thereby make it harder to get a majority Conservative government in the next election, including by winning seats in the province of Quebec, where there was significant support for same-sex marriage. It should be added that since the adoption of the Charter in 1982, no federal government has used the notwithstanding clause (only provincial governments have done so – notably the Quebec government on language issues). This is because use of the notwithstanding clause may have significant political and electoral consequences: a decision made under the clause is valid for a maximum of five years; this means that a government that has made such a choice must pass the test of an election campaign during which it will have to answer for its decision to suspend democratic rights and freedoms guaranteed by the Charter. Consequently, although the notwithstanding clause provides to any government the ‘political can’ (i.e. the capacity to act in line with its ‘political want’), using it is not without certain electoral risks (which can result in a lack of political will to act).
That the Liberal government did not appeal the decisions made by the courts of appeal in British Columbia and Ontario is one thing (a negative action), but that it requested a reference from the Supreme Court in July 2003 on its Bill opening civil marriage to lesbian and gay couples is another (a positive action). In acting this way, the federal government seemed to be taking the attitude of asking the questions that suited it – and obtaining the answers it wanted! In December 2004, the Supreme Court published its reference supporting the Bill, as was to be expected. Basing itself on the ‘living tree’ rather than ‘frozen concepts’ doctrine, the Supreme Court opined that not only did the Canadian Constitution not exclude same-sex marriage, but opening civil marriage to same-sex couples was a consequence of the Charter itself:
The ‘frozen concepts’ reasoning runs contrary to one of the most fundamental principles of Canadian constitutional interpretation [namely] that our Constitution is a living tree which, by way of progressive interpretation, accommodates and addresses the realities of modern life . . . This . . . points unequivocally to a purpose which, far from violating the Charter, flows from it. (Reference re Same-Sex Marriage 2004, 3 and 4)
In other words, in the Supreme Court’s opinion, by opening civil marriage to same-sex couples the federal government was simply responding to the imperatives of the Charter (Tremblay Reference Tremblay2014).
In sum, as Miriam Smith suggests in her 2008 analysis, a favourable institutional design is probably the most important explanation for why Canada opened civil marriage to same-sex couples in 2005. However, taking political will into account adds to this analysis by highlighting the fact that neither the Liberal nor the Conservative government used the notwithstanding clause to restrict civil marriage to heterosexual couples, most probably for electoral reasons. Thus, using Malena’s terminology, political will was a ‘political must’ since inaction (i.e. refusing to open civil marriage to lesbian and gay couples) by the Liberal minority government and action (i.e. adopting an act overriding Bill C-38) by the Conservative minority government could have resulted in high political costs.
Conclusion
In this first study comparing Canada and Australia on same-sex marriage, we have argued that different outcomes were influenced by a diverse range of factors. Insights drawn from resource mobilization, political opportunity structures and discursive framing approaches all have something to offer. The historical institutional factors analysed by Miriam Smith provide very useful insights into why Canada introduced same-sex marriage relatively early internationally. It is also true that the lack of a Charter or Bill of Rights in Australia (albeit itself partly the result of a lack of political will to introduce one) ruled out the lesbian and gay movement predominantly pursuing litigious strategies and therefore made issues of political will even more important. For that reason, a detailed analysis of the major parties’ electoral strategies – including the ways in which same-sex issues were framed within the context of party competition – was necessary in the Australian case.
However, even in Canada factors influencing political will had a role to play. The federal government chose not to appeal the lower court’s decisions legalizing same-sex marriage. It decided not to use the option of the ‘notwithstanding’ clause or to ask the Supreme Court to evaluate whether Bill C-38 opening civil marriage to lesbian and gay couples was compatible with the Canadian Constitution. Political will is still important in terms of whether political parties will seize the opportunity structures available in regard to same-sex marriage – for example, to disallow the Charter in Canada or have the federal government bring in same-sex marriage in Australia. Political will is also important in regard to whether political parties are prepared to reframe the issue of same-sex marriage. While this article has focused on comparing Canada and Australia, it is interesting to speculate on whether Smith’s comparison of the US and Canada in regard to same-sex marriage should also be revised to take more account of the complex interactions between institutions and political will in the US case. These interactions occurred not just at state level but include the role of Congress, and the respective positions of President George W. Bush and President Obama concerning amending the federal constitution.
The analysis in this article therefore has implications for the comparative international literature on the factors that influence whether same-sex marriage is introduced. However, it also has implications for the international literature on political will. Our analysis has stressed the importance of understanding the interactions between political will and other factors such as resource mobilization, political opportunity structures and discursive framing. It has also emphasized the need for conceptions of political will that can situate the concept within the context of party competition and electoral strategies. The differing ways in which political parties used, or did not use, the issue of same-sex marriage as part of their broader political strategies has been a crucially important factor in both Australia and Canada. (Those broader political strategies have also had implications for interest group intermediation, influencing which interests are encouraged, listened to and mobilized for electoral support).
Finally, while this article addressed a specific case study, regarding the politics of same-sex marriage in Australia and Canada, our arguments potentially have a broader significance. They caution against taking mono-causal approaches and indicate the useful insights that can be gained by utilizing a range of comparative examples and analysing the multiple factors that can influence issues of minority rights in contemporary representational democracies in specific national contexts. Furthermore, we have argued that understanding the influences on political will in specific countries can assist in synthesizing and assessing insights from different approaches. The formation of political will is not only influenced by multiple factors, it can also influence which factors have effective outcomes.
