The public might soon be asked to vote via referendum on the constitutional definition of a family contained in article 41, the Attorney General has told the Supreme Court.
Rossa Fanning disclosed to the seven-judge court that the possibility of putting the issue to a vote is “under discussion”. It might be added alongside the referendum already proposed for November asking if the reference to “women in the home” should be removed from the Constitution, he added.
Article 41 recognises the family as the “natural primary and fundamental unit group of society”, while 41.3 contains the phrase “marriage, on which the family is founded”.
A Citizens’ Assembly recommended in mid-2021 that the article should be amended to protect family life not limited to the “marital family”.
Mr Fanning’s disclosure came as the Supreme Court decided on Thursday to adjourn constitutional appeals, brought by a man and his three children, so issues that were not argued in the High Court can be brought into the appeal.
The Chief Justice, Donal O’Donnell, said a number of “very, very important” legal issues arise that cannot be appropriately dealt with as the case is currently formatted.
The appeals brought by John O’Meara and his children, of Toomervara, Nenagh, Co Tipperary, concern the Minister for Protection’s refusal to grant him the Widower’s (Contributory) Pension following the death of Michelle Batey, who was his partner of more than 20 years and the children’s mother.
Ms Batey died in January 2021 after contracting Covid-19 when she was recovering from breast cancer.
Mr O’Meara, an agricultural contractor, and his children, who are suing through him, claim sections of the 2005 Social Welfare Consolidation Act are discriminatory in preventing him from receiving the pension due to not being married to or in a civil partnership with his late partner.
Last October the High Court’s Mr Justice Mark Heslin dismissed the cases, saying, among other things, the payment is not a benefit for any child regardless of the marital status of their parents.
Further, he held, the marital status distinction underpinning eligibility for the pension was permissible and based on rational grounds and the State’s legitimate objective of supporting marriage and the family based on marriage as enshrined in article 41.
Overall, the judge was not persuaded Mr O’Meara, and in particular his three children, had been the subject of discrimination.
In appealing to the Supreme Court, the O’Mearas argued the case concerns perhaps one of the last examples of discrimination between marital and non-marital children in Irish law. Marital children benefit from this State support while non-marital children do not, their appeal claims.
On Thursday, the Supreme Court judges questioned why the O’Mearas’ legal team did not seek to argue in the High Court that Mr O’Meara, with or without his children, is entitled to the pension.
Mr Justice O’Donnell observed that the three children do not qualify for the pension, while a spouse benefits even if he or she is childless. “The only difference is marriage,” he said.
The O’Mearas’ senior counsel, Derek Shortall, said the courts have previously taken the view that marriage has a special protection. In the lower court his team argued that Mr O’Meara would not have qualified for the pension on his own, due to this special protection for marriage, but his minor children “elevate” him to the point of qualifying, he said.
Mr Shortall asked the court if it would be possible to “row back from” the initial limitations the plaintiffs placed on their case.
When asked for his position on the possibility of allowing the appeal to be widened, Mr Fanning, representing the State parties, said he was “loathe to deal with an important case such as this on technical grounds” and did not want to be seen to be avoiding “significant constitutional issues”.
However, the case was “shifting quite significantly” and it is important the court observes rules on the running of cases, he said.
After a short break for the judges to consider this issue, the Chief Justice said the appeal as currently presented was “unsatisfactory”. He and his six colleagues decided it was best to adjourn the appeal to allow the parties to address the new legal point.
Hearing the appeal will not resume until autumn, Mr Fanning said it would be remiss of him not to inform the court it is “possible that a proposal would be put forward to amend article 41″. The “direction of travel” on this possibility should be clearer by the time the case is heard, he added.
