In a decade where successive Irish governments have successfully navigated significant changes to the Irish constitution—becoming the first country to introduce same-sex marriage by popular vote in 2015 and removing the constitutional prohibition on abortion in 2018—the progressive movement may be about to meet its first defeat. This time the issue at stake is how Ireland’s constitution recognizes the contribution women make to society and the very definition of the family.
With a certain degree of hubris, the government decided to avoid parliamentary scrutiny of the legislation to introduce the constitutional vote, resulting in what many feel are loosely worded and ill-considered changes, delivering a bloody nose to a government that is already under pressure on issues such as immigration, homelessness, the cost of living, and a dysfunctional health system.
Initially posited on International Women’s Day 2023 as a referendum to enshrine ‘gender equality’ and ‘non-discrimination’ in the constitution, the first (and, it was assumed, the easiest) of the two proposed changes to the constitution appeared in a much different form from that recommended by a Citizen’s Assembly on the matter. The government pivoted, catching even its supporters by surprise, by announcing that plans to include a reference to ‘gender equality’ would likely weaken the equality provisions already in place, such as “those relating to disability, race, or ethnicity.”
It is proposed that the current Article 41.2, which says both that “by her life within the home, woman gives to the state a support without which the common good cannot be achieved” and also that “mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home,” will be removed and replaced with a gender-neutral provision.
The proposed replacement wording to the constitution is:
The State recognises that the provision of care, by members of a family to one another by reason of the bonds that exist among them, gives to Society a support without which the common good cannot be achieved, and shall strive to support such provision.
This language is considered progressive by the government and others who have been advocating for changes to the constitution, with many citing the original provision as a relic of Catholic Ireland, both outmoded and sexist. But critics argue that its removal is a sop to mask the failure of the government to provide reasonable solutions so that families in modern Ireland will not be forced, out of economic necessity, to embark on two-parent careers and push their children into daycare.
Others are concerned by the removal of the single protection for women in the constitution, which is being done under the guise of ‘gender equality.’ They see the move as a further erosion of women’s rights, with the changes being misleadingly promoted as ‘valuing’ women’s roles outside the home and removing restrictions on the role of women in society—with neither claim being correct.
Surveys consistently show that the majority of mothers, if they have the option, prefer to stay at home. Despite constitutional protection for this desire, repeated governments have failed to make it a possibility. Increasingly, the Irish government has provided incentives and subsidised daycare for young children without any similar provision for parents to remain at home. At the same time, the government has moved to tax individualisation, which means that single income families pay more tax than families with two salaries of the same income.
The Iona Institute in Ireland notes that the wording of the proposed amendment also removes any reference to the ‘home.’ The implications are unclear; but in a society that increasingly outsources care to institutions—whether children, the elderly, or the infirm—it will remove any constitutional preference for care in the home.
Disability rights activists are also concerned about a potential regression to institutional care. A joint parliamentary committee on disability matters has noted that Ireland has regressed in its commitments to independent living for people with disabilities since ratifying the UN Convention on the Rights of Persons with Disabilities in 2018.
The National Women’s Council of Ireland (NWCI) has received criticism for misrepresenting the present constitution when it claimed that the article to be removed currently “gives the State the oppressive role of keeping women from careers or employment of our own,” although Article 45.2.1 of the same constitution gives all “men and women equally” the right to work and earn money.
Critics point to the frequent omission of the sub-clause on ‘economic necessity’ when citing the current wording of the constitution, and that the NWCI’s CEO herself is a clear example that women are not kept from work, careers, or high achievement. The historical fact of 20 years of female presidents of Ireland, from 1990 to 2011, and the numerous female political party leaders currently in place, are all conveniently ignored.
The second proposed amendment to the constitution is a move to amend Article 41.1.1, which currently recognises the family “as the natural primary and fundamental unit group of Society.” The proposal is to extend the definition of the family beyond marriage, as “whether founded on marriage or on other durable relationships.” This proposal follows a 2016 referendum to introduce same-sex marriage into the Constitution, which was approved by 62% of voters, abrogating the interpretation of the family as founded on marriage between a man and a woman (and including their children).
Speaking from Dublin Castle at the announcement of the referendum, Irish Taoiseach (prime minister) Leo Varadkar stated that, “In relation to the family, our constitution will continue to explicitly protect both the family and the institution of marriage.”
Loose words cost constitutional change. Much of the focus has been on the meaning of ‘durable relations’ if it is to be adopted into the constitution. There is ongoing debate about whether polygamous and polyamorous relationships would be covered under the proposed concept of the ‘family.’ The government has denied that this would be the case; however, this assertion has been challenged by legal experts who have been at pains to point out that the courts will be the ones who define the meaning of ‘durable relationships’ in the future.
Ms. Justice Marie Baker, the chair of the Electoral Commission—an ostensibly independent and impartial body meant to inform the public on referendum proposals—added to the uncertainty by stating that the interpretation of what was a durable relationship would be somewhat subjective:
There are all kinds of things, some of them are subjective and some of them are objective. So subjectively, a relationship is durable, if committed, if it presents itself as committed, if it means to be committed, if it intends to be committed.
Its durability can sometimes be how you are treated by other people. Are you invited as a couple to weddings? Do people send Christmas cards to both of you? These are the indicators of your commitment to each other.
The Irish prime minister considers the change as an extension of the current protections against external or state intervention that are afforded to families under the constitution, broadening them “to other lasting relationships and putting them on an equal footing with married families.” Hence, the provision is seen as a ‘constitutional catch-up’ with no impact on social welfare or taxes.
Critics argue that the constitution gave primacy to the family founded on marriage because that family is the one that gives the best outcomes for children, and because it places a positive requirement for the state to promote and incentivise that particular form of durable relationship. But still, others consider that the 2016 referendum had already eroded this understanding of the constitution, and that even prior to 2016, government policy had failed to promote and protect the marriage founded on the family in any meaningful manner. These new amendments will do little to change their minds.