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Lively Law Society debate on referendums
(L to R): Ivana Bacik TD, Senator Rónán Mullen, Orla O'Connor, Brenda Power (Pic: Jason Clarke Photography)

02 Feb 2024 / law society Print

Lively Law Society debate on referendums

The Law Society hosted a lively debate yesterday (1 February) on the forthcoming constitutional referendums, with Roderic O’Gorman (Minister for Children, Equality, Disability, Integration and Youth) telling attendees that the current article 41 “does not reflect our country’s values”.

Independent Senator Rónán Mullen, however, strongly criticised what he described as “the appalling process” leading up to the 8 March votes, saying that debate had been rushed, and there had been no pre-legislative scrutiny.

‘Family, Care and the Constitution’, part of the Law Society’s Justice and Law Reform Series, took place at the Merrion Hotel in Dublin.

The first referendum will be on a proposed amendment to article 41.1 that will broaden the protection offered to the family to include families other than those based on marriage.

The second vote will be on a proposal to repeal article 41.2, which includes a reference to women ‘in the home’, and insert a new article 42B to provide recognition for care within families.

‘New legal obligation’

Minister O’Gorman said that, under the current situation, thousands of relationships were not recognised in the Constitution, because they were not based on marriage.

He added that article 41.2 prescribed a role for women that was “entirely divorced from the reality of women’s lives”.

The minister also argued that the Constitution did not currently do enough to value care, and the different types of care relationships that existed.

He also said that the proposed changes would “place a new legal obligation on the State” to support those care relationships.

‘Disrespect to Constitution’

Senator Rónán Mullen, however, described the process leading up to the calling of the referendums as “disgraceful”, adding that it had shown “disrespect” to the Constitution and the people.

He added that “the minimum of debate” had been allowed on the proposals, with no pre-legislative scrutiny.

“We have a wording on a ‘durable relationship’; no one knows what it means within the context of immigration ... Will it mean polygamous relationships going before the courts seeking recognition?” Senator Mullen said.

He told the event that the proposal would undermine the role of home-makers, and at the same time “do nothing” for carers.

Journalist and barrister Brenda Power also opposed the changes, quoting former Chief Justice Susan Denham as saying that article 41.2 had never limited nor undermined women, but had acknowledged their significant contribution to Irish life.

She described proposals to remove this acknowledgement as “insulting, offensive and disingenuous”.

Power also referred to a pending Supreme Court case, in which a woman was seeking to have a decision to reduce her carer’s allowance overturned on the basis of entitlements under article 41.2. She said that the case would not go ahead if the care referendum was passed.

‘Yes, yes, and’

Labour Party leader Ivana Bacik agreed with the minister that article 41, as it stood, did not reflect the values of Irish society. She said that what was recognised at the moment was “an outdated, sexist stereotype” of women and mothers.

Deputy Bacik also referred to the recent Supreme Court ruling in the John O’Meara case, where a man whose long-term partner had died, leaving him to care for their three children, successfully challenged a decision not to grant him a widower’s contributory pension.

The Labour leader pointed out, however, that the court had not been able to recognise his situation as ‘a family’ because of the current constitutional position.

She described Labour’s stance on the referendums as “yes, yes, and”, with the new text being used as a “stepping stone” from which to build a more effective, robust framework for valuing care.

Care wording 'not far enough'

Catherine Day, who chaired the Citizens’ Assembly on Gender Equality, said that she would still urge its members to vote ‘yes’, even though their wording on care would go further than what was contained in the proposed changes.

“What is on the referendum paper goes very far in terms of what they asked for, but not far enough,” she told the event.

She added, however, the constitutional change was not needed “for everything”, and policies that would take forward the assembly’s aims would be possible, once the concept of Ireland being a society that valued care was in the Constitution.

Orla O’Connor (National Women’s Council) described the holding of the referendum as “a really important moment” in terms of giving recognition to one-parent families throughout the country.

She stated that care was particularly important for women, because of the absence of State support for care, adding that women “strongly felt” that this absence that was rooted in article 41.2.

O’Connor said that the current wording “absolves the State of taking any responsibility” for care. She concluded that a ‘yes’ vote would be a “start in the right direction” in addressing this issue.

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