Vote No, twice

A referendum takes place in the 26 Counties on Friday to alter two articles of the Irish Constitution relating to families. Unfortunately the wording is ineptly drafted, selling short children and parents and carers, both non-family who won’t be protected and family who’ll be recognised as carers whether or not they want to be, according to Jenny Duffy (for the Village magazine).

Two amendments to the Constitution of Ireland on the family will be put to referendum on 8 March 2024.

The Thirty-ninth Amendment of the Constitution (The Family) Bill 2023 extends the definition of family to explicitly include durable relationships outside marriage.

The Fortieth Amendment of the Constitution (Care) Bill 2023 removes patriarchical references to a woman’s “life within the home” and “duties in the home”, and adds a new Article on care within the family.

The articles proposed for amendment needed reform. The Citizens Assembly advised government what to do. The government ignored the advice. While effecting modest improvements, in both case Village considers the lost opportunity is more dramatic than the benefit offered. Vote no in both cases.

The Thirty-Ninth Amendment would amend two provisions of the Constitution.Article 41.1.1° would be amended by the addition of the text in bold:

The State recognises the Family, whether founded on marriage or on other durable relationships, as the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law.

This proposed amendment seems fine, recognising that the ritual of marriage should not determine important family rights.

In passing we should note that it is nonsense for the government, per Minister Roderic O’Gorman, to say that throuples, long-term bigamous marriages etc are not durable relationships. Whether they are — and whether they deserve protection — will depend on the circumstances.

Emma Hamilton, and her lover Admiral Horatio Nelson, were in a ménage à trois from 1799 until Nelson’s death in 1805. The political philosopher Friedrich Engels lived in a similar ménage with his mistress Mary Burns and her sister Lizzie. Psychologist Carl Jung lived with Toni Wolff, as well as his wife Emma Jung, for several decades.

And indeed it is questionable whether a Constitution needs to elevate anything as “the natural primary and fundamental unit group of Society”.

It is legitimate to suggest that this unduly discriminates against people who do not find themselves in families whether by choice or misfortune.

Article 41.3.1° would be amended by the deletion of the text in bold:

The State pledges itself to guard with special care the institution of Marriage, on which the Family is founded, and to protect it against attack.

It is a deficiency in the Thirty-Ninth Amendment that the state will not pledge itself to guard other durable relationships of the Family such as the parent-child bond if it is formed outside marriage. The amendment will create a disparity between the constitutional protection of children in Marriage and that of children in other durable relationships.

The Fortieth Amendment would replace Article 41.2 of the Constitution, which provides:

“1° In particular, the State recognises that by her life within the home, woman gives to the State a support without which the common good cannot be achieved.

“2° The State shall, therefore, endeavour to ensure that mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home.”

with a new ‘Article 42B’ which would provide:

“The State recognises that the provision of care, by members of a family to one another by reason of the bonds that exist among them, gives to Society a support without which the common good cannot be achieved, and shall strive to support such provision.

Woman’s so-called place in home

In a debate on the Claire Byrne radio show with Neassa Hourican on 10 January Senator Michael McDowell, working on a basis unknown to serious constitutional lawyers that ‘if it ain’t broke, don’t fix it’, said of the current Article 41.2.1: “It is not stated that a woman’s place is in the home: all it says is that a mother as opposed to a woman is entitled to support from the state so as not to be obliged to work outside the home”.

This is incorrect. Recognising “that by her life within the home” woman gives the State a support, depends on the woman having a life within the home.

Mothers’ so-called duties in home

The next provision states that mothers have duties in the home. If they choose to see it otherwise they should be allowed to do so. It should not be illegal and certainly not unconstitutional to do so.

McDowell went on: “What’s suggested here is in fact to take away the special protection for mothers who stay at home which was relied on by the Supreme Court as far back as 1980 in the Murphy decision which ended up with the doubling of tax allowances for married people. The Supreme Court actually relied on the particular provision which is now to be changed as part of its reasoning and said that the tax regime at that time was discriminatory against married couples in particular and against women who stayed in the home. It doesn’t condone women’s choices in any way, even psychologically. Under equality law women are entitled to compete equally with men in the workplace and they’re entitled to work outside the home so there is no discrimination against women who work outside the home”.

This is utterly incoherent. The reality is that the Constitution provides something iniquitous that is cut across by equality law which risks to that extent being struck down as unconstitutional until the provision is amended. It is also incorrect that the current article does not condone women’s choices and freedoms. It imposed duties, duties which it does not impose on men. The fact the imposition is usually downplayed in the courts does not negate its offensiveness or potency.

Article 41.2 is inappropriately sexist, deriving from voguish 1930s Roman Catholic teaching, and should be removed.

In 2017, the Government tried to hold a referendum that would have deleted it from the Constitution altogether. But civil society groups — notably the National Women’s Council of Ireland — resisted on the basis it was better to amend 41.2 to recognise care as a socioeconomic right.

This was a mistake. There are many other services — social activism, voluntary work, charities, scientific endeavour etc that could usefully be recognised in the Constitution but doing so does not have the same imperative as removing blatant sexism.

Both the Citizens’ Assembly and the associated Oireachtas committee on gender equality recommended an amendment to “oblige” the State to support carers. But the Government’s wording commits it only to “endeavour” to support carers within the home — a weak and non-justiciable commitment that is not actionable.

The Government’s wording also only recognises care within the home, eliminating all of the important care that happens in wider society — paid and unpaid.

So the Fortieth Amendment is too weak both in the nature of the duty it imposes on the government and the range of care that it protects.

Roderic O’Gorman, said over Christmas that any progressive organisations that didn’t back the Government’s referendum campaign would have to explain why. Most of those organisations take so much government money they are likely to side with the government’s messy approach. It was improper pressure.

The Government’s approach is busybody and hubristic.

It was easy to propose proper, progressive changes and the government has failed, leaving voters overall better to vote no on the basis they can both be redone, better, later.

Urgent Appeal