Former Minister for Justice Michael McDowell has questioned the need to hold a referendum on expanding the definition of family in the Constitution in light of a Supreme Court judgment on the social welfare entitlements of an unmarried father.
The Independent Senator was speaking during a Seanad debate about the wording for the upcoming referendum on the family.
The Seanad debate came on the same day that the Supreme Court unanimously ruled that the exclusion of bereaved unmarried father of three John O’Meara from the widower’s contributory pension (WCP) scheme was unconstitutional.
Mr O’Meara took the case after he was excluded from the WCP because he was neither married to, nor in a civil partnership with, Michelle Batey, his partner of almost 20 years and the mother of his children.
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Ms Batey died in 2021.
A majority of the court, five of the seven judges, agreed it was unnecessary in this case to decide the correctness or otherwise of a key 1966 Supreme Court decision, the Nicolaou decision, that the meaning of “family” under Article 41 of the Constitution is limited to families based on marriage.
Article 41.3 pledges the State “to guard with special care the institution of marriage, on which the family is founded, and to protect it against attack”.
The Chief Justice, noting proposals to amend Article 41 are before the people in referendums in March, said the forum for debate on what the Constitution should say on this is not the court. For the court to so find would exceed the limit of permissible interpretation of the Constitution, he said.
In the upcoming referendum the Government is proposing to change the Constitution to expand the definition of the family.
This would be done by adding a section saying that the State recognises the family “whether founded on marriage or on other durable relationships”.
Mr McDowell has been arguing for a ‘no’ vote in the referendum.
He told the Seanad that the Government’s proposals would see “other durable relationships” given the same status as marriage and he questioned whether this was either necessary or desirable.
He mentioned the O’Meara case saying the Supreme Court has “found that the State’s obligation to children is such that distinctions between non-marital and marital children for the social welfare purposes mentioned in that case are not constitutional”.
He said the Court was saying, pre-referendum, “that you may not discriminate against a parent of children on the basis that he or she was or was not married”.
Mr McDowell separately questioned whether the definition of a durable relationship could include one involving more than two people.
Addressing Minister for Equality Roderic O’Gorman he said: “if it is, don’t just airily dismiss throuples or bigamy or polygamy or polyandry.”
Mr O’Gorman told the Dáil last week that the proposals would not cover such relationships.
Mr McDowell said that in briefings to Oireachtas members Mr O’Gorman had suggested the definition would be determined in the courts.
He said this matter should be for the Oireachtas to decide and said it is “bad politics” to “say pass this legislation, and we’ll find out later what it means”.
He said: “Especially in the light of the O’Meara decision today – which effectively extends constitutional protection to children of non-marital parents – I do not believe that we should as a House put to the Irish people an amendment to the Constitution the terms of which we ourselves are not willing to define.”
Mr McDowell also argued that holding the referendum – and another on care – on March 8th, International Women’s Day, was a “worthless cheap gimmick” that means the legislation is being “rushed through” the Oireachtas.
Fianna Fáil Senator Erin McGeehan spoke of how she is an unmarried mother and said there shouldn’t be a hierarchy of family in the Constitution.
She told Mr McDowell that the Supreme Court judgment was “jurisprudence” and “It’s not our Constitution and I deserve to have my family acknowledged”.
In his response to the debate Mr O’Gorman said: “We’re not seeking to bring in novel concepts, concepts that have never been recognised in Irish law, such as polygamous marriages.
“Our courts have been very clear on that in the past and that remains the case.”
He had earlier told the Seanad the expanded definition is designed to recognise one-parent families and cohabiting unmarried couples.
Addressing the O’Meara case Mr O’Gorman quoted from a section where the Chief Justice said “the forum for any debate on what the Constitution should say in this or other regards, is not the court.”
Mr O’Gorman said: “The court is clearly stating that they are not going to change the definition of the marital family.”
He also said: “We as legislators are putting that change to the people on the eighth of March and we have this opportunity to bring a ‘yes’ vote and broaden the definition of the family in our society.”
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