Referendum will just replace a sexist dead letter with a gender-neutral dead letter

After years of discussion (and much prevarication), the Government has finally set a date and published a wording for a referendum on amending Article 41 of the Constitution to update the infamous “life of the woman in the home” provision – and to expand the definition of the family beyond that based solely on marriage.

The choice of March 8th – International Women’s Day – will be seen as a fitting one for a long overdue updating of an especially antiquated part of our constitutional law that has been recommended by the Constitution Review Group in 1996, the Constitutional Convention in 2013 and the Citizens’ Assembly in 2021.

The detail of the proposed amendment is a mixed bag, with progressive proposals on the definition of the family mixed in with a half-hearted and mostly symbolic proposal on recognising the value of care in the family.

Removing the link between the definition of the family and the institution of marriage is an overdue recognition of the fact that this link has long ceased to be the norm in Irish society. The Constitution Review Group recommended this reform in 1996 at a time when 25 per cent of births took place outside of marriage. This proportion has since increased to 40 per cent and there are also many committed relationships outside of marriage in which children do not feature.

Family and care referendums: what exactly does the Government want to change, and why?

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Who’s who? The Yes and No camps in the March 8th family and care referendums

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The 1937 vision of the family inspired by Catholic social teaching, has led to the exclusion of a large proportion of Irish families from the protection of Article 41 of the Constitution. It is high time we remedied that.

Removing the words “on which the family is founded” from Article 41.3.1 and adding the words “whether founded on marriage or on other durable relationships” to Article 41.1.1 should effectively achieve this aim. A more comprehensive re-wording of Article 41 to clarify and modernise the language might have been desirable, but ultimately is not necessary to achieve the core aim of the amendment.

In contrast, the proposed amendment of Article 41.2 (the “women in the home” provision) lacks any meaningful substance.

The Citizens’ Assembly specifically considered whether symbolic or more meaningful reform was preferable. The recognition extended to women in the existing text has never led to concrete legal effects compelling support for women in the home. (One attempt by the High Court in 1989 to use the provision to give homemakers a share in the ownership of the family home was overturned on appeal.) As such, replacing the existing references to the value of the work that women do in the home with a broader reference to the value of care in the family would make the provision gender-neutral, but still merely symbolic.

It is evident that the clear intention of the Citizens’ Assembly’s recommendations have been ignored by the Government

Having considered this option, the Citizens’ Assembly instead voted by a margin of 81 per cent to 19 per cent in favour of a stronger wording that would “oblige the State to take reasonable measures to support care within the home and wider community”. This wording is modelled on the South African Constitution, which allows the courts to declare government policies on issues such as housing, healthcare or education to be unreasonable. Courts may not formulate policy themselves – but they can tell Government that existing policy falls short of constitutional obligations and to go back to the drawing board.

Now that the wording has been published, it is evident that the clear intention of the Citizens’ Assembly’s recommendations have been ignored by the Government. The proposed amendment would delete Article 41.2 and replace it with a new Article 42B (why this is moved outside of Article 41 is hard to fathom). Article 42B 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.”

In practical terms, the use of the word “strive”, and the omission of the requirement to take “reasonable measures”, mean that no remedy other than political campaigning will be available if future Governments ignore the aspirations of Article 42B. The wording further departs from the Citizens’ Assembly by excluding other forms of care in the wider community.

It is important to note that the Citizens’ Assembly (and its predecessor, the Constitutional Convention) accurately judged the mood of the country in the past. On the proposal to amend Article 41 of the Constitution to allow for marriage equality, the Constitutional Convention voted 79 per cent in favour in 2013; the electorate approved the proposal by 62 per cent to 38 per cent (a smaller, but still resounding margin). Similarly, on the repeal of the Eighth Amendment (which constitutionalised the prohibition of abortion in Ireland), the Citizens’ Assembly voted 64 per cent in favour of amending the law to allow for abortions without restriction up to 12 weeks; the referendum that allowed for this proposal to become law was approved by 66 per cent of voters.

Given this track record, a vote of 81 per cent in favour of giving the revised Article 41.2 some teeth should not be lightly dismissed. The Assembly vote is strongly indicative of a public appetite for meaningful reform of Article 41.2. The Government seems set on denying the people that choice, offering them instead a choice between maintaining the unsatisfactory status quo or replacing a sexist dead letter with a gender-neutral dead letter.

As currently formulated, the proposed Article 42B is little more than a symbolic gesture without any prospect of a practical effect. The problem with this is that it would allow future Governments to say that something important has been done for carers, when in truth little or nothing has been done. In this way, the proposed Article 42B may impede rather than stimulate positive future change.

Professor Conor O’Mahony lectures in constitutional law and child law at University College Cork