Opinion

The March 8th referendum aims to update the Irish constitution. But is the wording too vague?

Karen Kiernan argues the referendum is another step towards a more inclusive Ireland. For Donncha O’Connell it’s an empty formula and a gift to those hungry for a culture war

The Debate

The Debate

Karen Kiernan
Donncha O'Connell
Tue Jan 23 2024 - 06:15

Karen Kiernan: What matters is that all children are recognised as equal in Ireland

Many positive changes have been needed to realise the intention to cherish all children of our nation equally. The State – under pressure – has abolished illegitimacy, introduced a child-protection and welfare system, strengthened children’s and parents’ guardianship rights, and won the Children’s Referendum. But despite all this there are still many children in Ireland who are ignored in our Constitution. More than 40 per cent of children born this year are in nonmarital families. Clearly our Constitution is out of step with the reality of the lives of our citizens.

Breda Murray, a mother and grandmother, explained at the launch of One Family’s referendum campaign: “My two eldest children were born to me in an unmarried relationship and my last two children were born in a marriage that has now ended. There is absolutely no difference in how I love and care for them, and no difference for them in how they love me as their mother.”

Monday’s unanimous Supreme Court judgment in the O’Meara case highlights the inappropriateness of distinguishing between children in married and unmarried families. The court upheld a significant constitutional challenge by the bereaved nonmarital family over their exclusion from the widower’s contributory pension scheme. Five of the seven judges stopped short of ruling that the meaning of family under article 41 could include both marital and nonmarital families alike: Chief Justice Donal O’Donnell noted proposals to amend article 41 are under consideration and said the forum for debate on what the Constitution should say on this is not the court.

We believe that all families should have the same rights and benefits, regardless of their marital status. We will work to ensure that families are treated equally in the future. A Yes-Yes vote in the March 8th referendums will ensure equal treatment for tax, welfare and housing.

READ MORE

From our services over the past 52 years, we know that the work of families is about love, caring, support and a good dose of worry – not its legal form. Concerns have been raised about whether the language around families in the referendum is too vague, but as Minister for Children Roderic O’Gorman said, the wording is designed to recognise the “diversity of family in Ireland today”. It is clear that this referendum will give rights and protection to children in unmarried families, their parents and committed unmarried couples. Many couples do not wish to marry, or do not want to feel forced into marriage to start their family. We know that marriage will stay protected, but recognition will be expanded to other families, which is welcome.

We desperately want this family referendum to pass before we lose the generations who suffered most under it. Our founders fought for seminal changes that have benefited millions of people, and now they are asking the Irish people and electorate to let them finally be “real” families.

We also believe it is time to recognise the value of care in our Constitution. From our work with people sharing parenting of their children after separation, we know that dads as well as mams provide care and love. We believe that a gender-neutral recognition of care in our Constitution is welcome and more reflective of our family lives today. We will all give and receive care during our lives – men as well as women.

We and other organisations are calling on Government to provide carers with appropriate pay, pensions and State supports. We want to see political commitment to progressing the rights of disabled people to live independently. It is also time to remove the archaic and sexist language about a woman’s duties being in the home. In 2012, when people parenting alone on social welfare were subject to mandatory activation into employment, the attorney general advised the government this article did not apply to them. Single mothers don’t fit the constitutional mould and are not the type of women envisaged in 1937.

Same-sex couples had to ask and receive permission from the Irish people to marry and be families and the yes vote in the marriage equality referendum has been hugely positive. We are a compassionate and caring people; let’s grasp this opportunity to vote Yes Yes on March 8th for all children, for families and for equality.

Karen Kiernan is chief executive of One Family (www.onefamily.ie) Ireland’s organisation for one-parent families, founded in 1972 as Cherish

Donncha O’Connell: We are substituting one form of patronising recognition for another

The Irish Constitution is not unique in being a repository of vibes, but it is neither pedantic nor excessively legalistic to emphasise that it is also the fundamental law of the State.

In its underwhelming proposals to amend the Constitution, the Government appears to be taking a chance on the definition of “durable relationships” – while taking no chance at all on the possibility that a reference to “care in the home” could give rise to socioeconomic rights for those dependent on such care or their carers. The Government is luxuriating in the unpublished legal advice that it favours and ignoring, without compelling reasons, the more ambitious conclusions of a Citizens’ Assembly.

It is also disregarding the authoritative legal opinion of an independent NGO, Flac, that has worked for more than 50 years with people affected directly by the kinds of issues that the referendum could have addressed meaningfully.

Repeal of the provisions of the Constitution that ascribe to women idealised roles of motherhood and domesticity is long overdue. Even if the legal consequences of such sexist language are more apparent than real, the language itself is belittling, outmoded and, most definitely, patronising.

Few lawyers, apart from some traditionalists, would lose sleep over repeal of the “women in the home” provision. Many would prefer deletion of constitutional “vibes” altogether. Whatever replacement words should be used instead of the repealed provisions of article 41 will depend on your level of constitutional ambition.

If you buy into the dogma that socioeconomic rights have no place in the Constitution, it should not be beyond your tolerance level to vote for an expression of constitutional gratitude devoid of legal consequence by way of a tokenistic reference to “care in the home”. That is all that the Government is asking of those who become apoplectic at the mere hint of interference with the processes of redistribution by an unelected judiciary supposedly straining at the leash to redistribute the wealth. This model of judicially enforceable socioeconomic rights or “minimum core obligations” annoys unelected officials as much as it concerns some ideologically-driven politicians, even if it’s often presented as a caricature.

By inserting article 42B recognising “care in the home” while repealing the references to “women in the home” we are substituting one form of patronising recognition in our Constitution for another, without the excuse that it’s 1937. This is an unconscionable bargain and an empty formula. Although “striving to support” will, no doubt, be oversold as an incremental gain, it is no more than a replacement vibe.

It can, of course, be argued that something stronger within the confines of the family provisions of the Constitution might have no material impact on the lives of those in receipt of care and their carers, but why settle for so little? Ideally, issues such as this should be dealt with under the equality provision of the Constitution, a provision laced with antiquated language and no less in need of what the Taoiseach would call “constitutional catch-up”.

When it comes to socioeconomic rights, we still see the public interest as commensurate with the parsimony of the public purse. The drafters of the Constitution hooked their coherence on Catholic social teaching, perhaps seeing some dignity in charity. We should no longer pass off charity as rights.

The expansion of family rights, which is welcome in principle, to include “durable relationships” is a gift to those hungry for a culture war, in which the possible but implausible fuels a tendentious discourse that delights some media driven by controversy, cacophony and clicks. The early focus on polygamy and “throuples”, never mind polyamory, is instructive. If anyone thinks this is trivial, remember how the red herring of surrogacy continued to be discussed in the marriage equality referendum after the Referendum Commission said it was irrelevant.

Donncha O’Connell is an established professor of law in the School of Law, University of Galway

LATEST STORIES