Vote No. Twice. - Village Magazine

50 February/March 2024 February/March 2024 51

wo amendments to the Constitution

of Ireland on the family will be put

to referendum on 8 March 2024.

The Thirty-ninth Amendment of

the Constitution (The Family) Bill

2023 extends the deﬁnition of family to

explicitly include durable relationships

outside marriage.

The Fortieth Amendment of the Constitution

(Care) Bill 2023 removes patriarchical

references to a woman’s “life within the home”

and “duties in the home”, and adds a new

Article on care within the family.

The articles proposed for amendment

needed reform. The Citizens Assembly

advised government what to do. The

government ignored the advice. While

eecting modest improvements, in both case

Village considers the lost opportunity is more

dramatic than the beneﬁt oered. Vote no in

both cases.

The THIRTY-NINTH AMENDMENT would amend

two provisions of the Constitution.

Article 41.1.1° would be amended by the

addition of the text in bold:

The State recognises the Family, whether

founded on marriage or on other durable

relationships, as the natural primary and

fundamental unit group of Society, and as a

moral institution possessing inalienable and

imprescriptible rights, antecedent and

superior to all positive law.

This proposed amendment seems ﬁne,

recognising that the ritual of marriage should

not determine important family rights.

In passing we should note that it is nonsense

for the government, per Minister Roderic

O’Gorman, to say that throuples, long-term

Vote No. Twice.

Guide to referendums, 2024

Unfortunately the wording is ineptly

drafted, selling short children and

parents in non-marital families and

carers, both non-family who won’t

be Constitutionally protected and

family who’ll be recognised as carers

whether or not they want to be

By Jenny Duffy

bigamous marriages etc are not durable

relationships. Whether they are — and

whether they deserve protection — will

depend on the circumstances.

His wife, Emma Hamilton, and her lover

Admiral Horatio Nelson, were in a ménage à

trois from 1799 until Nelson’s death in 1805.

The political philosopher Friedrich Engels

lived in a similar ménage with his mistress

Mary Burns and her sister Lizzie. Psychologist

Carl Jung lived with Toni Wol, as well as his

wife Emma Jung, for several decades.

And indeed it is questionable whether a

Constitution needs to elevate anything as

“the natural primary and fundamental unit

group of Society”.

It is legitimate to suggest that this unduly

discriminates against people who do not ﬁnd

themselves in families whether by choice or

misfortune.

Article 41.3.1° would be amended by the

deletion of the text in bold:

The State pledges itself to guard with

special care the institution of Marriage, on

which the Family is founded, and to protect it

against attack.

It is a deficiency in the Thirty-Ninth

Amendment that the state will not pledge

itself to guard other durable relationships of

the Family such as the parent-child bond if it

is formed outside marriage. The amendment

will create a disparity between the

constitutional protection of children in

Marriage and that of children in other durable

relationships

The Citizens

Assembly

advised

government

what to

do. The

government

ignored the

advice.

OPINION

50 February/March 2024 February/March 2024 51

The FORTIETH AMENDMENT would replace

Article 41.2 of the Constitution, which

provides:

1° In particular, the State recognises that by

her life within the home, woman gives to the

State a support without which the common

good cannot be achieved.

2° The State shall, therefore, 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.

With a new ‘Article 42B’ which would

provide:

The State recognises that the provision of

care, by members of a family to one another

by reason of the bonds that exist among them,

gives to Society a support without which the

common good cannot be achieved, and shall

strive to support such provision.

Woman’s so-called place in

home

In a debate on the Claire Byrne radio show

with Neassa Hourican on 10 January Senator

Michael McDowell, working on a basis

unknown to serious constitutional lawyers

that ‘if it ain’t broke, don’t ﬁx it’, said of the

current Article 41.2.1: “It is not stated that a

woman’s place is in the home: all it says is that

a mother as opposed to a woman is entitled to

support from the state so as not to be obliged

to work outside the home”.

This is incorrect. Recognising “that by her

life within the home” woman gives the State a

support, depends on the woman having a life

within the home.

Mothers’ so-called duties in

home

The next provision states that mothers have

duties in the home. If they choose to see it

otherwise they should be allowed to do so.

It should not be illegal and certainly not

unconstitutional to do so.

McDowell went on: “What’s suggested

here is in fact to take away the special

protection for mothers who stay at home

which was relied on by the Supreme Court as

far back as 1980 in the Murphy decision

which ended up with the doubling of tax

allowances for married people. The Supreme

Court actually relied on the particular

provision which is now to be changed as part

of its reasoning and said that the tax regime

at that time was discriminatory against

married couples in particular and against

women who stayed in the home. It doesn’t

conﬁne women’s choices in any way, even

psychologically. Under equality law women

are entitled to compete equally with men in

the workplace and they’re entitled to work

outside the home so there is no discrimination

against women who work outside the home”.

This is utterly incoherent. The reality is that

the Constitution provides something

inquitous that is cut across by equality law

which risks to that extent being struck down

as unconstitutional until the provision is

amended. It is also incorrect that the current

article does not conﬁne women’s choices and

freedoms. It imposed duties, duties which it

does not impose on men. The fact the

imposition is usually downplayed in the

courts does not negate its oensiveness or

potency.

Article 41.2 is inappropriately sexist,

deriving from voguish 1930s Roman Catholic

teaching, and should be removed.

In 2017, the Government tried to hold a

referendum that would have deleted it from

the Constitution altogether. But civil society

groups — notably the National Women’s

Council of Ireland — resisted on the basis it

was better to amend 41.2 to recognise care

as a socioeconomic right.

This was a mistake. There are many other

services — social activism, voluntary work,

charities, scientiﬁc endeavour etc that could

usefully be recognised in the Constitution

but doing so does not have the same

imperative as removing blatant sexism.

Both the Citizens’ Assembly and the

associated Oireachtas committee on gender

equality recommended an amendment to

“oblige” the State to support carers. But the

Government’s wording commits it only to

“endeavour” to support carers within the

home — a weak and non-justiciable

commitment that is not actionable.

The Government’s wording also only

recognises care within the home, eliminating

all of the important care that happens in

wider society — paid and unpaid.

So the Fortieth Amendment is too weak

both in the nature of the duty it imposes on

the government and the range of care that it

protects.

Roderic O’Gorman, said over Christmas

that any progressive organisations that

didn’t back the Government’s referendum

campaign would have to explain why. Most

of those organisations take so much

government money they are likely to side

with the government’s messy approach. It

was improper pressure.

The Government’s approach is busybody

and hubristic.

It was easy to propose proper, progressive

changes and the government has failed,

leaving voters overall better to vote no on the

basis they can both be redone, better, later.