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Referendums explainer: Yes votes ‘will not create immediately obvious rights’

In an interview less than a week before the family and care referendums, Ms Justice Marie Baker says the Supreme Court is unlikely to give an ‘outlandish’ interpretation of ‘durable’ relationships

On March 8th, the people vote in two referendums.

The “family” referendum proposes to amend article 41.1 of the Constitution to expand State recognition of the family as founded not only on marriage but also on “other durable relationships”.

The “care” referendum proposes to delete article 41.2, which recognises the contribution of a woman’s life within the home to the common good and provides the State shall “endeavour” to ensure mothers shall not be obliged by economic necessity to work outside the home.

A proposed new article 42B provides the State “shall strive to support” the provision of care “by members of a family to one another by reason of the bonds that exist among them”.


Here, Ms Justice Marie Baker, the chair of the Electoral Commission, the independent State body overseeing the referendums, answers questions about what is being proposed and its effect.


Here’s everything you need to know about the March 8th referendums #referendum #ireland #voting

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If passed, will the family amendment create legally enforceable rights for non-marital families?

Constitutions are expressions of value and first principles, how it plays out in legislation is a matter for Government. The Constitution is a source and testing ground for law, but none of these provisions have to date, nor will they now, create immediately obvious rights. Article 41.1 is about the status of the family unit, it is not about the status of the marriage institution or of the individuals, whether married or not.

There is no change in the special care that must be taken of the institution of marriage. Legislation would have to be assessed in light of the amended definition of the family and bearing in mind marriage has a special place. A reasonable view might be taken that the status of marriage protects the existing law. The current taxation regime for married people is more favourable than for those cohabiting. That is a result of a Supreme Court decision in the 1980s, based on the continuing special protection for marriage.

The courts might decide the differential treatment is perfectly legitimate, or that it does not sufficiently recognise the durable relationship. John O’Meara [who last month secured a Supreme Court declaration overturning his exclusion as a bereaved unmarried father from the widower’s pension allowance] won his case, not on the basis of anything to do with his marital status, but on the equality provision in the Constitution. It turned out this was the only area of social welfare law where marital status mattered. There has been huge change in social welfare, tax and succession law to take account of non-marital families but there are some anomalies.

Is the Government obliged to introduce legislation if the amendments are passed?

No, but it is obliged to analyse existing legislation to make sure it meets the new constitutional requirements. It may be the Government would take a view that article 41.3, which gives special protection to marriage, sufficiently protects existing legislation.

It appears the meaning of “durable relationships” will end up being decided by the courts. Is the Government failure to include the words “as prescribed by law” after “durable relationships” in the family amendment a missed opportunity to provide legislative guidance on such relationships?

The amendment is as proposed; to include the words suggested would be a very different referendum proposal which would have limited the power of the court. Whether that is a good or bad thing is a matter for the people of Ireland to consider.

Some claim the family amendment could lead to recognition of unconventional intimate relationships such as throuples, involving three people. Is that likely?

First, you never expect anything outlandish from the Supreme Court. Any constitutional interpretation will read the words in context, and it is likely the court will have regard to the position of article 41.1 among marriage-type relationships.

The Chief Justice, in the O’Meara judgment, identified various forms of relationship that looked like family units but said the identification of the margins of those would be best left to legislation.

The citizens rights directive gives rights to European citizens to bring their spouses and people with whom they have “durable” relationships to live here with them when they are exercising free movement rights. Case law has identified such durable relationships as committed, intended to last, presented as such in society and treated as such by people. The definition of marriage in the Constitution, between two people, will not be changed and the cohabitation legislation provides for cohabitation of two people.

There is nothing in the Constitution or existing law that would suggest we would take that very large leap of recognising a throuple.

Minister for Equality Roderic O’Gorman has said the referendum would help secure funding for disability services and carers. Will it?

That is a political statement, not a statement of fact. What the Minister says would not be in any sense regarded as important or even available to the court for its interpretation.

Disability rights advocates are unhappy the care amendment refers only to care within families, not the community, and say it does not address the rights of those cared for. Is this primarily about carers?

It is about carers. People being cared for would, at the moment, probably look to the equality provision for their rights more than this provision. In its plain words, it does not say anything about care in the community, it is about care in the family. It is in a sense intended to be gender-neutral and to recognise care given in the family by men as well as women, fathers, mothers, maybe even grandparents. It is not meant to recognise the rights of people with disabilities which may, or may not, be something that has to be looked at in another referendum.

Will the care amendment give constitutional expression to care being primarily a family role?

No, I don’t see that – that is not what the language is. It is recognising the value of care rather than saying it must be done in families. There is no obligation on women to care for their families in the existing law, and no obligation on mothers to try and stay at home rather than go out to work. Equally, there will be no obligation under article 42B on family members to care for one another. This amendment is simply a recognition that those bonds some family members have lead them to care for one another and that is important to the common good and society. The amendment says the State will strive to support this care.

The Supreme Court will hear an appeal next month raising issues of “systemic importance” for carers after the High Court upheld a carer’s allowance being refused to a woman based on her husband’s earnings under an interpretation of article 41.2. Would it have been helpful if the appeal was decided before the referendum?

It is pure happenstance the appeal will not be decided before the referendum. It was also pure happenstance that O’Meara was decided before the referendum. The courts look at each case in the context of its facts, the constitutional provisions and legislation.

Is the courts’ traditional deference to the legislature regarding the distribution of public money likely to influence the interpretation of “strive” in the care amendment?

There are two ways of looking at this. One is there is no positive obligation on the State to provide for care. The second is that strive is quite a strong word and the State has to make an effort to make provision. But the care amendment does not say this amount of money must be spent on care over a year. Constitutions must be general enough to last over time and the courts are not going to say you must have a payment that does this and this.

Are the referendums about symbolism and values rather than rights?

I would not say symbolic. It is about families, about statements of general values, but is also about a statement of general rights, all the time keeping the special recognition of marriage. The family referendum complicates the structure we envisage in society. We did have family units and the institution of marriage; if this passes, we will have family units that are founded on marriage and other family units. We will also have the recognition of people providing care within families, it is not just about disabled people, kids, or older people, it is about the way in which life within the family supports the common good generally.

With less than a week to polling day, what is your message to the electorate?

The main thing I want to say is that it is your Constitution, your chance to say these are the values, the principles, you want in it. It is a personal choice; you would not like to think people would use it as a vote for or against a government, you would like to think that people thought this is what the Constitution should say. I think Irish people have a lot of respect for their Constitution, I often hear people say: ‘I have a constitutional right’. Do not let somebody else decide what they are – decide it yourself.

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