On March 8, people across Ireland will take to the polls to vote in two referendums, determining whether constitutional amendments relating to the family and care will be implemented. The first referendum aims to broaden the constitutional definition of a family, while the second proposes a replacement of language referencing the place of women in the home with language recognising the care provided within families.
When these referendums were first announced by Taoiseach Leo Varadkar in December, they were perceived by most as a mere formality, updating obvious discrepancies in the Constitution to align with the present-day values of the Irish people. Referring to the amendments, Varadkar said they will “reinforce the fact that Ireland is a modern, inclusive nation that strives to treat and care for all its people equally”.
However, as the election has drawn closer, the proposed wording of the amendments to the Constitution has come under particular scrutiny, with debate emerging regarding the specific wording of each of the amendments, and the consequences they will have.
The outcome of these referendums will determine the course Ireland will take in its approach to navigating key social issues moving into the future, and carve out a new path for the law in this country to follow. For this reason, it’s important to remain conscious of what you are voting for, and what the consequences of your decision will be.
The Family Amendment
The first question that will be proposed to the Irish public on March 8 will be to amend article 41.1 of the constitution. Article 41.1 currently recognises the family as “the natural primary and fundamental unit group of society, and as a moral institution possessing inalienable and imprescriptible rights”. The proposed amendment would add the family is “founded on marriage or on other durable relationships” as a qualifying statement.
Accordingly, reference to “the institution of marriage, on which the family is founded”, in Article 41.3 of the Constitution, would also be altered to remove “on which the family is founded” to align with the proposal.
Much of the debate in regards to this proposed amendment has been centred around how the term “durable relationships” would be interpreted by the courts.
An open letter to the Irish times, whose signatures included a number of staff from the Trinity College School of Law, aimed to address this uncertainty by clarifying the impact that this amendment may have.
“The extended definition would have few practical effects”, the letter said, “because constitutionally protected families only have rights in limited situations.”
“The principal relevance of the amendment is the statement it makes about the forms of family that warrant constitutional recognition”.
So what does a yes vote mean in this context? A vote yes in the the referendum for the 39th amendment to the constitution is a vote to accept a definition of family that extends beyond those which are founded on traditional marriages, but to include families with single parents, families where a choice not to marry has been made, and to afford these families equal constitutional familial protections .
It also is a vote to accept a certain level of uncertainty – while the open letter signed by Trinity academics assures that the amendment will only have a limited impact due to the limited constitutional family protections, it remains to be seen exactly what types of relationships would come under the heading of “durable relationships”.
The constitution has a longstanding practice of incrementally constructing the meaning to terms laid out in the Constitution, and “durable relationships” would come as an addition to these undefined terms.
In a recent Trinity Long Room Hub discussion panel regarding the constitutional amendments, Dr Claire O’Connell referenced the recent Irish case O’Meara v The Minister for Social Protection, Ireland and the Attorney General, where a widowed father of three was able to successfully appeal against a decision that would have denied him access to the pension of his deceased long-term partner.
“To vote yes would be to further align with the Supreme Court’s thinking and further push the legal and symbolic case for more inclusive legislation for committed relationships, notwithstanding the absence of marriage,” she said.
The Care Amendment
The second question that will feature in the referendum involves the removal of the highly contentious section 41.2 of the constitution, which says that “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”, and assures that “mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home”.
The referendum proposes replacing this with article 42B, which recognises the support given to society by “the provision of care, by members of a family to one another by reason of the bonds that exist among them”, and says that the state “shall strive to support” these carers.
For the majority of the referendum campaign season, the debate on replacing 41.2 has centred around deleting the word “woman” from the constitution. Opposition to the change has claimed it is an “attack on women”, especially when women still do the majority of work in the home, while those for the change have said the new wording simply brings the Irish constitution up to date with society. However, in recent weeks, a second argument against the referendum has emerged, but instead of focusing on removing the current wording, it finds issue with the proposed new wording.
Last week, Trinity Senator Tom Clonan summarised the argument of many who support amending the definition of family, but reject the new provision for care: “I had no issue with what we’re trying to take out of the Constitution… [but] we really need to stop and think about what we’re going to put into the Constitution.”
Speaking at the Trinity Long Room Hub, Cloan said the proposed amendment gives “constitutional expression to the notion that care is primarily or exclusively the responsibility of the family”.
This wording, according to the senator, misses an opportunity for the government to commit to supporting care within the community – “The government struck that down”, Clonan said, referencing the government’s decision to ignore the Citizen Assembly’s call for this commitment.
On February 21, the Equality Not Care campaign protested outside Leinster House argued the amendment “seeks to deny us the right to state support such as personal assistance services”.
“A lot of disabled people want to live in their own home and be independent with personal assistants,” Equality Not Care member Dr Margaret Kennedy said.
“If the Yes vote wins, it will enshrine in this constitution that the family is responsible for my life. I won’t have a say.”
The legal body Free Legal Advice Clinics (FLAC) has also mirrored this #YesNo sentiment: “It is highly regrettable that voters do not have the choice to simply delete the current so-called ‘women in the home’ provision which is ineffective, sexist and offensive.”
FLAC raised concerns that the amendment would give “constitutional expression to harmful stereotypes”, such as the idea that caring for adults with disabilities is the unpaid responsibility of their family members.
Trinity College Dublin Students’ Union (TCDSU) is also the only student union in Ireland currently to have taken a stance on the referendums and advised members to vote against the care amendment: “We need to vote no on the care referendum to ensure stronger rights from the government – ones based on enforceable, rights-based wording, not vague promises.”
Decision-making
Other commentators, however, such as former Trinity lecturer and current Labour party leader Ivana Bacik, have called the proposed amendment a “step forward”.
Bacik, advocating for a yes-yes vote in the referendum, has promised that her party will keep pushing for further support for carers after the vote.
Commenting on the proposed amendments to the Constitution, Bacik said they offer “a real step forward towards a more contemporary text, towards a more fair Ireland and towards a more inclusive and more equal society”.
The yes side has also addressed concerns from people with disabilities. Catherine Cox from Family Carers Ireland argued the amendment “recognises care in all its forms”.
“The family have, I suppose, the primary responsibility for caring for loved ones and most family carers want to do that, but they shouldn’t have to do it on their own,” she said.
“The idea of this is that the State has a responsibility, and they are committed to supporting that care.
“That care may well be in the home or in the community, it can bring in things like personal assistant hours for people with disabilities.”
Voting opens on March 8, and will be the first time many Trinity students are voting in a nationwide ballot. You can find your polling station here.
