This year the Constitution turns 80 and the provision that caused most controversy when it was first published has only recently been earmarked for change.
Article 41.2, commonly referred to as “the woman in the home” provision, is a paternalistic throwback to 1930s Ireland that seeks to recognise the work done by women in the home and ensure mothers are not forced to work outside the home due to economic necessity.
While the sentiment may have been honourable, the language used is (in modern times in any case) insulting – particularly the reference to a woman’s “life within the home” rather than work in the home, and the desire to prevent mothers from engaging in the labour force “to the neglect of their duties in the home”. A further problem is that while this was described originally in the Dáil as a protective guarantee for women, it has never operated in this way.
We have never had a case on the direct issue of a woman being forced into employment out of economic necessity
The provision attracted the ire of women’s groups when the Constitution was first published, but de Valera repeatedly stated that, rather than curtailing the rights of women, as was feared by these groups, the aim of the provision was to protect women. When asked how he intended to prevent women from being forced into employment, de Valera vaguely suggested the possibility of financial support, but maintained that this should be left open.
Despite the grand language in the provision and assurances from those in power that women’s rights would not be curtailed, that is exactly what happened in the years that followed, with the public service marriage bar and other measures designed to preserve jobs for men. While societal changes and the influence of feminist movements meant many improvements in the lives of women later on, this provision was not part of that change.
The only case that ever focused directly on the provision was a marital separation case. The wife in the case had not contributed to the purchase price of the family home, and since it was in her husband’s name, the law at the time meant she could not be granted a beneficial interest in it.
However, in the High Court, Mr Justice Robert Barr recognised the inherent contradiction in that the Constitution prized the role of the housewife as giving such support to the State and was clearly designed to protect this role, but in law the women who chose or were forced to engage in paid labour were at an advantage since they could potentially make a financial contribution to the family home and thereby be given a beneficial interest. Thus, by becoming a housewife, a woman in this situation was in a weak position in law.
It was only a temporary victory, however, as the Supreme Court felt Barr had overstepped the mark into the realm of law-making – a job solely for the Oireachtas. This was a case that truly could have been a legal landmark for women in Ireland had the Supreme Court been receptive to the reasoning of Justice Barr.
The case acted as a deterrent to further action, and we have never had a case on the direct issue of a woman being forced into employment out of economic necessity. Because the provision has been essentially useless in law, the general consensus is that it should be either removed or amended.
In 2013 the Constitutional Convention recommended amending it to make it gender-neutral, recognising the importance of care work and providing for a reasonable level of State support for carers. The task force established by the Government to implement these recommendations formulated two alternatives as potential referendum options.
The first was to give gender-neutral recognition to care work in the home and to provide that the State would endeavour to ensure support for carers in the home.
The second approach was to give a purely symbolic recognition to home and family life and to include carers generally in Article 45. However, this Article is non-justiciable, which means it cannot be the subject of a legal case.
Given the cost of holding a referendum, surely all options should be explored before a question is brought to the people
Both of these options would constitute visual improvements in that the obvious gendered aspects and insulting language would be removed. However, neither option is likely to result in any significant change and thus the value of going through the expense of a referendum campaign simply to provide for symbolic recognition of care-work becomes questionable.
The wording “endeavour to ensure support” would provide no compulsion on the State to ensure that carers in the home would be adequately or sufficiently supported and given that existing legislation already provides for various forms of carers benefit and allowances, it would probably be decided that the constitutional obligation had already been fulfilled.
A third option (not considered by the task force) would be to recognise that care work in the home is of such importance that the State will ensure those who choose this role will be sufficiently supported financially.
Originally the idea of the provision was to provide for a stable presence in the home for children and potentially to compensate the carer for such a role. We need to decide as a society if that original principle is still desirable.
Of course, such an option will almost certainly not be considered by the Government because it would constitute a positive obligation (with financial consequences), and having it in the Constitution would mean it could not easily be derogated from.
However, given the huge cost of holding a referendum, surely all options should be explored before a question is brought to the people. The options proposed by the task force are certainly an improvement but if the resulting provision will remain essentially meaningless in law then it is difficult to justify.
What is important is that rather than rushing in and holding a referendum on this issue in the absence of any real discussion of it, there needs to be some proper debate on the matter before the proposal is decided upon and brought before the people.
Laura Cahillane is a lecturer in law at the Univerity of Limerick.