We may never know how many Tasmanian politicians voted against same-sex marriage because they agree with the member for Apsley that 'most Tasmanians are against it'. But the logic is worrying; governments need to act with prudence and discretion when making controversial reforms, but public policy should not be decided by counting heads.
The idea that an elected member ought to follow a majority view misunderstands democratic theory, which says only that the representatives of the majority have a better right to make the rules than any other group. Whether the rules they choose to make are wise or moral is a different matter, to be judged by community values including human dignity and wellbeing, fairness, freedom, honesty, compassion etc.
There is a difference between acting on these principles and acting on a popular view of what they require. The latter treats a consensus of opinion - which may reflect ignorance, self-interest or prejudice - as a moral standard in itself. Politicians uphold values only when they act on their own judgment; when they defer to a consensus they give up this duty in favour of mob rule - it is a form of self-subordination which makes no moral sense.
Edmund Burke, the father of conservative political philosophy, had a clear and strong sense of this difference. In a famous address to the voters at Bristol in 1774 he explained his view of a member's duty:
'It is his duty to sacrifice his repose, his pleasures, his satisfactions, to theirs; and above all, ever, and in all cases, to prefer their interest to his own. But his unbiased opinion, his mature judgment, his enlightened conscience, he ought not to sacrifice to you, to any man, or to any set of men living. These . . . are a trust from Providence, for the abuse of which he is deeply answerable. Your representative owes you, not his industry only, but his judgment; and he betrays, instead of serving you, if he sacrifices it to your opinion.'
The issue of principle raised by same-sex marriage is whether discrimination is unfair - whether it treats one class of citizens with less than equal respect. The gist of the reform is that a 'civil union' is no answer because it deprives same sex couples of the rich moral and symbolic meaning official marriage confers on the commitment to a permanent and loving union - it serves to institutionalise, not mitigate, discrimination.
Although politicians often talk about values, few ask themselves what it means to act on principle. It means acting on a conscientious judgment of values we assume we share - at a certain level of abstraction - with the community at large; it also means acting on one's own judgment, with an informed sense of what (for example) fairness requires in other areas of social and political life. But it rules out acting on what others might think or prefer.
Acting on principle is the same thing as acting on conscience. Although it may appear paradoxical to say so, it follows that private conscience is the ultimate safeguard of public values. The same point, and the same criticism, is relevant when politicians of major parties defer their own judgment, not to popular opinion, but to a doctrine of party unity, as with the apology, same-sex marriage, and many other important issues.
Constraints on conscience are a sensitive issue because they cannot be reconciled with a sense of personal integrity. On the other hand, no party wants to risk election prospects by internal dissension, so easily exploited by the media. Because the problem seems insoluble, and because a government has the right to pursue its mandate (and to expect members to support it), a natural response is to downplay conflict, as Julia Gillard did in the 2002 stem cell debates:
'I have not at any time been required by party discipline to vote in a way that I have found did not accord with my conscience. We really do need to say that to dispel the media spin that most of the time we are robots exercising votes and that there are very few occasions when we get our conscience out of the cupboard, scrub it down and use it to define our position in relation to a bill. We use our conscience, our moral and ethical framework, all the time.'
This is homage to an ideal; it would, if true, have seen a good deal more interest in a Green's motion in early 2003 to hold a formal inquiry into evidence alleged to support the war in Iraq, a war which Labor opposed on the ground that the US had failed to secure the necessary UN resolution. But it is hard to dismiss the conjecture, given public opposition to this war, that Labor would not support an inquiry because its leaders were wedded to the alliance and back-benchers were sworn to party unity.
It suggests the nation's foreign policy was, in the end, compromised by the long-term benefits of the alliance, despite the weight of expert advice that war could not be justified by international law values we claim to respect. The readiness of members of major parties to delegate their judgment on such issues of principle as the Iraq War, the apology and same-sex marriage, and to defend policies they do not believe in, or whose merits they may never have seriously addressed, is arguably a prime cause of the present discontent.
It is time to reconsider Burke's views on the responsibility of an elected member and the priority of conscience. Most members would agree, on reflection, that their primary duty is to serve the community, the source of their salaries and offices. They also agree, and often remind us, that the duty includes upholding community values, such as fairness; no one can do this if they defer to a caucus vote or a public opinion poll.
Max Atkinson is 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 the Tasmanian Times.