Over the weekend, the Citizens’ Assembly made ground-breaking and pioneering recommendations on various aspects of gender equality, including recommending a replacement of the controversial “woman in the home” provision of the Constitution.
This is the second time it has been considered by an assembly, having already been considered by the Constitutional Convention in 2013. In fact, since then it has also been considered by a Department of Justice Taskforce and the Joint Oireachtas Committee on Justice, before being sent to the new assembly. Before that it had also been considered by the Second Commission of the Status of Women in 1993, the Constitution Review Group in 1996, the All-Party Oireachtas Committee on the Constitution in its first report in 1997 and the 10th Progress Report on the Family in 2006. While each body concluded that the provision is unsuitable, there has been little consensus as to whether it should be replaced and if so, what to replace it with.
What is the purpose of this and why was it put in the Constitution?
Catholic social thinking was a strong influence on this provision and the papal encyclical Rerum Novarum, which stated that “a woman is by nature fitted for homework” provided the inspiration for a draft of this provision written by Fr John Charles McQuaid introducing the language of woman’s “life within the home”.
When questioned on this during the Dáil debates on the draft Constitution, Éamon de Valera repeatedly stated that rather than curtailing the rights of women, the aim of the provision was to protect women and allow them to remain in the home. When asked how he intended to prevent women from being forced to work outside the home, de Valera answered that he would prefer to leave the methods open but vaguely suggested a form of state support should be provided.
Thus, while not explicit, the potential to use this provision to require the State to financially support women in the home would have been possible. However, despite the grand language in the provision and assurances from those in power that women’s rights would not be curtailed, that is exactly what happened in the years that followed with the public service marriage bar and further measures designed to preserve jobs for men.
Is the provision of any use in the Constitution?
One point which must be clarified about this provision is that it has never been of any benefit to women. While the position of women in society gradually strengthened over the decades, this provision was not part of that improvement. In fact, the few cases taken to court on the basis of this provision, confirmed a conservative interpretation which did not give rise to any rights and the only instances where the provision has had any impact have involved discrimination against men. For example, a social welfare payment for deserted wives but not for husbands was justified on the basis of this provision. Because of this we can say that it is very unlikely that this provision would be of any benefit in law and it certainly has not been of any use to date.
What if we just deleted it?
Some of the bodies which have considered the provision have recommended simply deleting the provision, since it is unlikely to be of value in law and in 2018, then minister for justice Charlie Flanagan proposed a referendum to remove the provision. However, some groups have argued that there is some value in having an acknowledgment in the Constitution, even if it does not result in concrete rights. They argue that it is important to recognise the work that carers do in our most basic law. Because of this, the Constitutional Convention in 2013 recommended replacing the provision with a gender neutral alternative with similar language to the current provision, meaning that it would continue to be a figurative rather than a functioning provision – though a less offensive version. However, while symbols can be powerful, it is not useful to clutter the Constitution with non-operative clauses and there is little point in having to undergo the expense and effort of a constitutional referendum for what would be a simply cosmetic amendment.
The danger here is the Government may announce it will support the recommendation to 'repeal and replace' but fail to proceed with strong wording supported by the assembly
What has the Citizens’ Assembly voted to do and why is it significant?
Unlike any of the previous recommendations on this, the Citizens’ Assembly has voted to do something quite different and that is to put a replacement clause in the Constitution which would actually have legal effect. The wording they have suggested would mean the State would be “obliged to provide a reasonable level of support” for carers. This does not necessarily mean that carers would be automatically entitled to anything more, from a financial perspective, than what they are already provided with, since Government can argue that they are already providing a reasonable level of support. But what it means is that judges would be given a constitutionally-mandated role in assessing whether, in fact, the support being provided is reasonable, in the event that an individual challenged it in court.
Where to from here?
It is clear that too much time has already passed without any action on this and further procrastination is not acceptable. The Government will have to make a call on whether to support the recommendation or not.
The danger here is that the Government may announce that it will support the recommendation to “repeal and replace” but fail to proceed with the strong wording supported by the assembly and instead propose the wording which was previously suggested and which would achieve very little, apart from ridding the Constitution of the out-moded paternalistic language that currently subsists. If the strong-form amendment is not accepted, then the provision should simply be deleted.
The citizens involved in the assembly were adamant that they wanted real, and not just cosmetic change. It is likely the general public will take the same view.