Referendum on the family: Irish courts to decide on meaning of durable relationships in ‘hard cases’

The full implication of referring to durable relationships alongside marriage in the Constitution through next month’s referendum on the family would be interpreted in the courts by “hard cases”, the chair of the Electoral Commission has said.

Ms Justice Marie Baker said terminology introduced into the Constitution had to be “specific but not too specific,” to allow for examples “that haven’t yet been considered”.

The judge said interpretation of what was a durable relationship would be somewhat subjective. “A relationship is durable if it’s committed… Are you invited as a couple to weddings, do people send you postcards, Christmas cards to both of you?” Ms Justice Baker said.

A recent debate in the Dáil heard that polygamous relationships and “throuples” will not be covered in the proposed expanded concept of the family in the upcoming referendum.

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Ms Justice Baker said she was aware of some of the “humorous” questions that had arisen. “It’s debate and that’s good, it’s healthy, people will inform themselves… I’m not concerned about that. The worst thing that could happen is nobody cares about this,” she said.

The commission, set up last year to provide independent information during referendums, on Thursday launched its campaign in advance of the two votes due to take place on March 8th.

The first referendum proposes expanding the definition of family in the Constitution to recognise durable relationships, such as cohabiting couples and their children. The second referendum proposes the replacing of language around “women in the home” in the Constitution with language recognising care within families.

Ms Justice Baker said the commission would be providing people with objective information on the votes, having replaced the Referendum Commission, which was previously set up before referendums and then stood down.

The Supreme Court judge said part of the legislation giving the commission “real teeth” to tackle online misinformation had not yet been commenced into law. The regulatory powers would allow the commission to go to the High Court to seek orders directing social media companies to take down misinformation or disinformation on their platforms.

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Art O’Leary, chief executive of the standing commission, said it was “highly unlikely” the powers would be commenced in law before the upcoming referendums. “These conversations never happen quickly, but I understand that it is a priority for Government that the powers be in place as soon as possible,” he said.

Mr O’Leary said he expected the powers would be in force at some point this year. The commission had been meeting social media companies and hoped that they would act to voluntarily take down flagged misinformation during the current campaign, he said.

“I have always been of the view that it would be a sad day when we actually have to invoke some of these powers… It would only be in very extreme circumstances,” Mr O’Leary said.

Booklets setting out the details of the proposed changes in both referendums will be sent to every home in the country between the middle of February and March 1st.

In the week before the vote the commission will also publicly push people to vote and encourage a high turnout. “We will do our best to persuade people to go out and vote, if people don’t want to vote they won’t vote,” Ms Justice Baker said.

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