Sir, – Michael McDowell (“A Yes vote on the family referendum is a vote for a foreseeable and avoidable mess”, Opinion & Analysis, February 7th) argues that “The Government has deliberately chosen not to allow the Oireachtas by law to decide on the meaning and extent of the term ‘other durable relationships’ . . . it is to be decided by the courts, who alone will have the function of deciding the meaning of the phrase.” In support of this analysis, he cites the fact that the Government opted not to use the wording “durable relationships as prescribed by law”.
The phrase “as prescribed by law”, where used in the Constitution, makes a matter solely one for the Oireachtas; it effectively excludes any role for the courts in determining the issue at hand. But Mr McDowell is incorrect in suggesting that the absence of this wording excludes any role for the Oireachtas and hands the decision entirely to the courts.
That the Oireachtas should make decisions on matters of social policy, and that the courts should defer to those decisions, is a general principle of Irish constitutional law. It is not contingent, as Mr McDowell claims, on the use of the phrase “as prescribed by law” in the constitutional text. It derives from the separation of powers between the organs of State, and the long-established understanding that the elected branches of government are better placed to make such decisions than unelected judges.
This principle has been repeatedly stated by the Supreme Court in recent cases concerning such issues as surrogacy, statutory rape and assisted suicide. It clearly also applies to future decisions on how different family forms should be treated in law and policy.
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That is not to say that the courts do not have a role to play in defining the boundaries of constitutional rights – but crucially, it does mean that the Oireachtas and government may formulate laws and policies based on their understanding of the constitutional text.
Laws enacted by the Oireachtas are presumed to be constitutional until proven otherwise, and the courts will defer to the position taken by the Oireachtas save in cases where no reasonable justification can be offered for the law in question. – Yours, etc,
Prof CONOR O’MAHONY,
School of Law,
University College Cork.
Sir, – Attempting to engage with the Yes side information in Jennifer Bray’s article, I came away more than a little confused (“Who’s who? The Yes and No camps in the March 8th family and care referendums”, Analysis, February 3rd). The article helpfully lists the reasons the various groupings are calling for a Yes.
The National Women’s Council’s position states “a woman’s place is wherever she wants it to be”. This is a correct and factual statement, so why hold a referendum at all?
Family Carers Ireland says that the referendum is “about acknowledging the immense contributions of those who dedicate their lives to caring for loved ones”. Doesn’t this describe your average parent, no matter their status?
The Labour Party believes that there’s “no excuse for sexist stereotypes in the Constitution in 2024″. Does this mean that the Women’s Caucus in Dáil Éireann will have to disband?
Fine Gael’s position echoes that of the National Women’s Council in that “a woman’s place is wherever she wants it to be” adding that (she) “should not be consigned just to the home”. Well, “she” is not so consigned, is “she”?
Fianna Fáil tells us that we must “remove an archaic concept on the role of women”.
Couldn’t it be argued that, given the time that has elapsed, the entire Constitution is “archaic”?
The Social Democrats agree that the “reference to a woman’s place being in the home is sexist, and it is”, but add, rather strangely, that “the provision is also useless”.
People Before Profit’s Bríd Smith says that her party will be “reluctantly” voting Yes in the forthcoming referendums. Reluctantly? I would have thought that “ditching the sexist archaic language” wouldn’t have led to any “reluctance” at all?
Green Party Minister for Equality Roderic O’Gorman, who recently issued a reminder to NGOs in receipt of Government funds (“‘Progressive’ organisations must explain any decision not to support referendum, says Minister”, News, January 1st), states that the constitutional reference to women in the home “has not delivered anything for any woman or any mother in this State”. A rather abstract argument, which cannot be argued with, whether one agrees or not.
Perhaps those calling for a Yes vote should coordinate their efforts, find some substantive and meaningful argument before attempting to create (or recreate) watery constitutional amendments, for which, in reality, there is no need. – Yours, etc,
PETER DECLAN O’HALLORAN,
Belturbet,
Co Cavan.