I do not always agree with the political views of Una Mullaly as expounded in these pages. But I am in definite agreement with her suggestion that the referendums on March 8th should be occasions when citizens exercise their sovereign right under our Constitution to decide if their basic law should be amended in the manner proposed by the Government.
Referendums to amend the constitution are serious matters. Cynics once suggested that “referendums are a process by which you get an answer you didn’t expect to a question you didn’t ask”. There is no case for deciding the referendums’ outcomes as a protest against the Government on general grounds, or on specific extraneous issues such as housing policy failures.
That said, we are being summoned to the polls to cast votes in a process that will cost the taxpayers €23 million, or €16 for every family in the State. We are being asked to insert a toothless aspiration in a new family care article giving absolutely no justiciable rights to any carer, or person in need of care, at a time when a very large sum is being diverted away from cash-strapped carers and agencies.
We are also being asked to remove article 41.2 of the Constitution, when the Supreme Court has already fixed April 11th to hear an appeal on what the court considers an issue of “systemic importance to carers” – namely whether the same article 41.2 obliges the Government to accord the full rate of carer’s allowance to a woman, BM, who cares 24 hours a day at home for a profoundly disabled son with epilepsy, Down Syndrome, and borderline autism by reference to her partner’s earnings as was recently reported in this paper.
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The Seanad was informed that the Government was aware of that Supreme Court hearing date when it chose to rush through our parliament the referendum bills by guillotine procedure and to fix the votes for March 8th so, we are informed, to coincide with International Women’s Day.
[ Reader callout: How do you plan to vote in the March 8th referendums and why?Opens in new window ]
We are also being asked to vote on the proposals without sight of the very extensive minutes of the Government’s Interdepartmental Group which met to consider the amendments’ wording and implications on 16 occasions in 2023. We are told that FOI access was being refused in the public interest until after we have cast our votes.
Why? Because to let us, the people, see those records might influence the way we might vote and constitute “advocacy” prohibited by the Supreme Court’s decisions in the McKenna and McCrystle cases. Apparently, it is for the Referendum Commission to inform us about the referendums. But that Commission will not see the Interdepartmental Group records until after the vote either.
So, the bottom line is that we, the public, are, “in the public interest”, denied access to what State departments consider to have been the implications and wording choices until after we have voted.
We are being bombarded by ministers, lazy-minded commentators and activists with the untruth – with the brazen untruth – that the Constitution says that “woman’s place is in the home”.
We are being offered no explanation as to what “other durable relationships” means and are being told that it will be up to the courts to decide its meaning in the future. We are being told that it would be wrong to leave its meaning to be decided by democratically elected public representatives in parliament.
[ Has anyone thought about what happens when a durable relationship ends?Opens in new window ]
We are simultaneously offered bland assurances that nothing will really change and passionate claims that the amendments are important.
No serious lawyer believes that widening the definition of the family will have no long-term consequences for the State’s capacity to deport persons who claim family status by reason of being in a “durable relationship”. While it may never be a trump card, it will certainly have to be taken into account by courts when deciding such issues.
And just as the O’Meara family were found by the Supreme Court to be entitled to the benefit of a widow’s welfare payment by reference to equality and children’s rights, you can take it that there will be similar cogent claims to equal treatment for unmarried durable relation family members in respect of taxation.
How, post the O’Meara case, will the State successfully resist a discrimination claim that the family home can be inherited tax free by the wealthier married spouse of one parent who is their next-door neighbour, but not by the impoverished unmarried spouse in a durable relationship family?
The bishops are not alone nor unreasonable in opposing these vague-minded proposals. They would have the cumulative effect of making marriage, and the family based on marriage, a private personal choice to which the Irish State and society would be increasingly indifferent.
It is not wrong to protest these matters by your vote.