There are still two weeks to go before the citizens of Ireland decide whether to amend our Constitution by the 39th and 40th amendments. Posters have appeared on lamp-posts carrying the inane message “Family and Care Yes”.
Ministers and some lazy-minded commentators keep using the wholly untrue and intentionally misleading claim that the Constitution states that “woman’s place is in the home”. It doesn’t. The chairwoman of the Referendum Commission, Ms Justice Marie Baker, has put that canard beyond dispute. On the contrary, Article 41.2 makes no such suggestion, and Article 45 acknowledges the right of all citizens “men and women equally” to freely earn their livelihoods and pursue occupations.
Now we have independent bodies criticising the wording of the “care” amendment. Not only are these considered and legitimate expressions of political opinion; they carry extra weight because the organisations are not heavily funded by the Irish taxpayer.
The so-called “care” amendment would also delete provisions of the Constitution which have in the past been relied on by the Supreme Court to invalidate income tax laws that were discriminatory against married people and in holding that husbands with adequate means could not demand that mothers be obliged to work outside the home where it was their choice to look after their children.
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The nub of the “family” amendment is to extend the constitutional meaning of family to what are termed “other durable relationships”.
The Government insists that it will be for the courts to determine what “other durable relationships” means. But courts only decide issues where there are disputes between litigants. And so, we are being asked to redefine the family so as to allow its meaning to be decided in future cases where disputes between parties are brought before the courts.
If relationships between unmarried people are to be the constitutional foundation of families in future, we have to ask whether they include what are now termed “single-parent families”.
While that might seem uncontroversial, what happens if a single woman and her child constitute a family – and an unmarried man joins the household and they have two further children? Does her family based on her first child continue to exist? Does a new family based on the new arrangement come into existence in a way that somehow absorbs the first family? If the man later leaves that household and establishes another relationship, what happens to the “family” or “families” he has left behind? Could one simultaneously be a male partner in two or more families?
At present the Constitution provides that marriage can only be dissolved by court order. That order cannot be made unless the court considers that proper provision has been made for the spouses and children of that marriage. No such requirement will exist in relation to parties to a “family” based on “other durable relationships”. Nobody can remarry while their first marriage remains undissolved by the courts. But parties to durable relationships will, in all probability, be free to unilaterally end the relationship and to enter into another.
This is a recipe for chaos and uncertainty arising from the Government’s proposal to ascribe to the courts the function of defining what is meant by “other durable relationships”. The chaos will arise from competing “family” arrangements existing either in sequence or contemporaneously, without clarity as to when and how they begin, exist, and end.
Given that the amendments would leave “the Family” as the natural, primary and fundamental unit group of society, and would describe the new range of relationships as “moral institutions” possessing “inalienable and imprescriptible rights, antecedent and superior to all positive law”, it is hard to imagine precisely how the courts are to interpret the proposed amendment in any rational way.
Head-to-head: The Yes and No arguments ahead of the family and care referendums
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At present, people know if they are or are not married. Moreover, society can easily distinguish between the family rights of people who are party to relationships by reference to their marital status. Likewise, people know whether their marriage has ended, whether by divorce, nullity or death. Dissolving the legal concept of the family in a veritable soup based on litigation outcomes in hard cases is neither necessary nor advisable.
The Oireachtas has power to do justice to single parents and to cohabitants by ordinary statute law. It can, in the case of cohabitants, establish clear criteria for relationships that give rise to maintenance and succession issues on their termination.
I know of no legal right that the Oireachtas cannot extend by ordinary statute to a single mother to put her on a par with a married mother or widowed mother.
The bottom line is that these referendums are not necessary to achieve any policy goal; they bring damaging and costly uncertainty into whole swathes of law, from pensions, family law, tax law, migration law, residence law and succession law – to name but a few.