The Government plans to have two referendums on March 8th to amend our Constitution. One is to amend Article 41.2 of the Constitution to remove the acknowledgment that women’s role in the home is something essential for the common good and to remove an obligation on the State to “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”.
This article in no way diminishes any choice for mothers but casts an obligation on the State to amplify their free choices whether or not to work outside the home by assisting those who freely choose to work in the home and would otherwise be forced against their wishes to engage in labour outside the home.
Yes, the language is archaic in that it assumes, as most but not all people in the 1930s believed, that men typically have a lesser domestic role than women. It also probably reflects some of the contemporary attitudes that tolerated the marriage bar in public employment. And it is also redolent of Roman Catholic and other Christian denominational thinking about the patriarchal nature of the family.
But even where the “duty” cast by the article on the State still lies somewhat “neglected” – in that many mothers still feel compelled by economic necessity rather than freely choose to work outside the home – that is not an argument for its repeal. One could argue that doubling married income tax allowances and bands, maternity leave, and universal payment of child benefit represent some recognition, however inadequate, of the State’s constitutional obligations under the article.
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I disagree with Orla O’Connor of the National Women’s Council when she says of women that Article 41.2 in its present form “frames our lives, our society and our value”. It doesn’t. Mothers and other women working outside the home are in no way prejudiced by the present article. It does not confine women’s choices in any way – even psychologically.
It is the one place in the Constitution where mothers are supposedly afforded a favourable, additional protection in the form of a special State obligation. It did not necessitate the unjust public service marriage bar. It does not inhibit employment equality or wider equality legislation for Irish women or families in any way. It is an argument for facilitating work-from-home policies for mothers.
The proposed amendment would substitute for Article 41.2 recognition and “reasonable” support measures in respect of “care within and outside the home”. Describing different forms of care in this way arguably weakens the entitlement of mothers to freely choose to remain in the home and to look to the State for real economic support in making that specific choice.
The second proposal is to amend constitutional references to “the Family”, to delete the reference in Article 41.3.1 to the institution of Marriage “on which the Family is founded” and to extend the meaning of the term Family in Article 41.1.1 by describing it as “founded on marriage or on other durable relationships”.
The term “durable relationships” is not defined and is not required to be defined “by law”. Such relationships will be as decided by the judiciary in case law. Clearly these relationships can be between unmarried persons but could be between persons who are parties to different marriages or to none. But the relationships must be durable. “Durable” means capable of lasting but is not necessarily the same thing as “enduring” or permanent as the Supreme Court has already found.
Are we talking about households with one male cohabiting with two women or vice versa? Or polygamous relations recognised abroad? Are we confining the term to households at all? Are all such relationships to constitute the “natural, primary and fundamental unit groups of society” from now on, as the amendment proposes? Is a family to include relationships where one party to the relationship is by agreement in a durable relationship with another? What are the implications for family law, immigration law, tax law, citizenship and nationality law, and inheritance law, to name but a few?
Given the marriage equality referendum outcome and our existing legal protections for cohabitants and non-marital children, what would such a constitutional amendment achieve that cannot now be done by ordinary legislation? And what ordinary legislation would be prohibited or invalidated in future by such an amendment?
The fact that a Citizens’ Assembly recommended constitutional change in general terms does not justify us in engaging in a process of constitutional amendment by blindman’s-buff referendums.
The old maxim “if it ain’t broken, don’t fix it” applies to constitutional amendment – especially if ordinary legislation can cure anything that is currently alleged to be broken or unjust.
Apart from ideological gesturing, these amendments appear to serve no positive purpose. Far from being retrograde, it would be entirely prudent to vote No.