The recent announcement of the postponement of the planned referendum on article 41.2 of the Constitution might not do any harm if it allows more considered reflection on the origins, context and contested meanings of the clause.
The two sentences seem to bear all the hallmarks of a paternalistic state that reduces women to the domestic sphere: “In particular, the State recognises that by her life within the home, woman gives to the State a support without which the common good cannot be achieved. The State shall, therefore, endeavour to ensure that mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in their home.”
The discussions around this article in 1937 when the proposed constitution was being debated led to some heated exchanges. Economist and social policy expert Finola Kennedy in her 2002 book Cottage to Creche: Family Change in Ireland has rightly emphasised the consensus that existed in the 1930s about the importance of women in the home, in Ireland and elsewhere, and not just from conservative Catholics. The same year the Constitution was introduced The Irish Times, certainly not a newspaper in thrall to the prevailing Catholic ethos, criticised working wives: “some day, please Heaven! the nation will be so organised that work will be available for every man, so that he may marry and assume the burdens of a home, and for every woman until she embarks upon her proper profession – which is marriage”.
A succession of trade unionists over the decades endorsed this view; John Conroy, later to be president of the ITGWU, asserted simply “women should be at home”. A number of women’s groups campaigned against the clause, some claiming it was not in keeping with the promises of equality in the 1916 Proclamation or the 1922 Constitution. From London, the Six Point Group rebuked Éamon de Valera: “these clauses are based on a fascist and slave conception of women”.
Discriminatory against men
But was that true? A draft reply by de Valera to the Six Point Group, which was never sent, refuted its accusation and pointed out, “complete equality of the sexes is presumed throughout the Constitution”. De Valera also insisted in the Dáil that despite the contentious clause there was “no suggestion” a woman’s life “should necessarily be spent within the home”. That view was also echoed later by legal figures, including former judge of the Supreme Court Brian Walsh who rejected the view that article 41 implied “a woman’s place is in the home”. It did not, he insisted “in any way exclude . . . the woman who works outside the home and who also runs a home”. Social policy academic Anthony Coughlan even suggested in 1988 the article might be deemed discriminatory against men “because there is no expressed acknowledgment of the benefits to the community that flow from a man’s or a father’s duties within the home”.
When querying the inclusion of the article in May 1937, the Joint Committee of Women’s Societies and Social Workers wrote: “the question would arise as to who would decide whether the economic necessity in a household was such as to oblige the mother to do outside work, or not. Would there be an inquiry into the needs and finances of the household, and, if so, would such an inquiry not be resented?”
Yvonne Scannell noted the clause could be read as a benign constitutional guarantee no mother would be forced by economic necessity to work outside the home, or it could be interpreted as "grossly offensive to the dignity and freedoms of womanhood"
Decades later, law professor Yvonne Scannell noted that the clause could be read as a benign constitutional guarantee that no mother would be forced by economic necessity to work outside the home, or it could be interpreted as “grossly offensive to the dignity and freedoms of womanhood”, principally because it speaks of women’s life within the home, “not just her work there, implying that the natural vocation of woman is in the home”.
Protective guarantee
In truth, of course, women were not meaningfully compensated for what they did at home but, as Brian Walsh noted in 1988, “Astonishingly, this protective guarantee has never been invoked in any litigation.” This was a point reiterated by legal academic Laura Cahillane last year: the article has “never truly been tested” in the courts as a “protective guarantee” requiring the State to provide financial support for women in the home. Cahillane argued that there was no reason the article could not have been developed into a “rights-based provision” as was done with other constitutional provisions by the Supreme Court in the 1960s and 1970s.
Today, the State argues that the article, in the words of Minister for Justice Charlie Flanagan, is “not just sexist and reductive, but completely at odds with the Government’s gender-equality policies”. Earlier this week, Taoiseach Leo Varadkar added it was “insulting and outdated”. But it could be argued that the chorus of denunciation is also reductive, allowing little space for history and different interpretations to breathe.
All of which makes it more the pity that the courts have never properly tested the “guarantee”.