Why Voting Matters on March 8th – the details and my argument for “No”
On March 8th the people will be asked to decide on amendments to Article 41 of the Irish Constitution which addresses the issue of what it refers to as the fundamental building block of society and the State – „the family”.
It’s important to note that we’re being asked to vote on two referenda, yet they concern one Article – number 41, so they both regard „the family”, which is why you see such a strong push from both sides for either a Yes-Yes vote or a No-No vote. These two issues are intimately linked.
Why It’s Important to Vote
Since as far back as history is recorded, the family has been the first line of defense for every individual against all types of danger, both physical and legal. Most of, and the best, modern democracies recognise this fact, as a country is a group of families – once known as tribes. When one tribe would have issue with an individual in another tribe, they would try to work it out between themselves. If that didn’t work, they would appeal to a higher authority – the state/government. To this day, the best line of defense any of us have is our family, as they are typically more likely to vouch for us in the legal and commercial systems. So it is important that HOW we define „family” in our Constitution reflects those needs. These upcoming referenda propose to radically alter that definition.
The Proposed Changes
„The Family” Referendum
It deals with Article 41.1.1°and Article 41.3.1° of the Constitution.
Original
41.1.1° The State recognises the Family as the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law.
41.3.1° The State pledges itself to guard with special care the institution of Marriage, on which the Family is founded, and to protect it against attack.
The Proposed Change
41.1.1° The State recognises the Family, whether founded on marriage or on other durable relationships, as the natural primary and fundamental unit group of Society, and as a moral >institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law.”
41.3.1° The State pledges itself to guard with special care the institution of Marriage, and to protect it against attack.
„Carers” Referendum
It proposes deleting the current Articles 41.2.1° and 41.2.2° and inserting a new Article 42B.
Original
41.2.1° 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.
41.2.2° 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 the home.
The Proposed Change
4.2.B 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.
Source: Electoral Commission (https://www.electoralcommission.ie/referendums/referendum-information/what-are-you-being-asked-to-decide-on/)
Arguments Against the Referenda
What is of primary importance is that these referenda are being rushed into implementation. The legislation for both were introduced to the Dáil on December 8th of 2023 and 3 months later we’re expected to decide upon this as a nation. Although there is no Constitutional law on how long a referndum is to remain in public conversation for until it’s voted upon, I think any reasonable person can agree that this is way too fast, especially considering the first month is a write-off (being the Christmas period). Realistically, the „bills” only passed the Dáil on January 17th, meaning we only really had 2 months to consider such a monumental change! It also skipped the legislative scrutiny stage which was designed and implemented in 2011 as a further protection of our Democratic process.
The Care Referendum – or “Woman in the Home”
It’s important to read the offending articles of our constitution again:
41.2.1° 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.
41.2.2° 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 the home.
The idea that’s being propagated is that this constitutional passage states that women belong in the kitchen. This absolutely isn’t the case, nor has this article been used to keep a woman in the proverbial kitchen, nor has the Supreme Court ever ordered a woman to „get back into the kitchen.”
Valuing Women
I can easily see how the above passages in the Constitution can sound like a commandment for women to “stay in the kitchen,” but I only seem to hear this from politicians, NGOs, and RTÉ (our state-funded, “neutral” media). Many women I know see this as an ackownledgement of an undeniable fact – women have always been central to the Irish family, and today they are the majority of carers within and outside of the home. Although the passage is a little archaic in that it could be updated to acknowledge carers can be of either sex, we cannot afford to erase women from our Constitution entirely. For the women in my life, this referendum represents a step in a very dark direction in the current climate of men invading their female-only spaces and sports, as well as our elected politicians’ inability to answer the simple question of, “What is a woman.”
Valuing Mothers
As I’ve mentioned above, women have been central to the Irish family as far back as our history goes, even being recorded in ancient legend, seen through the strength and wisdom of the Goddesses Danu and Macha, and the veneration of Brigid as the Goddess of Hearth and Home. It’s known that during our fight for independence, while the men left home to die in battle or argue amongst themselves about how to run the country, the women remained home with the family. Those women networked and built their own economy of “cottage industry”, making them just as influential and powerful as the men, just in a different realm. Although that realm wasn’t of politics and industry, I’d argue it was more important and impactful, because they raised tomorrow’s boys and girls. We can’t escape the fact that little children spend most of their time with their mothers over their fathers, and that this is how nature has wired our brains and biology. Although society has changed so much in recent years that this old way of life is almost gone, women remain at the center of Irish family life, so our Constitution must continue to reflect that reality.
“The Family” Referendum
„Durable Relationship”
If you’re going to add words to a constitution they should mean something. The following TDs from across the political spectrum don’t know what a „durable relationship” is:
- Ivana Bacik, Labour leader
“Durable relationships…is not a phrase which has that precise and established legal meaning which I think we need.” - Holly Cairns, Social Democrats leader
“What exactly is being defined as a durable relationship under the law? For example, at what point does a couple in a relationship come under the protection of Article 41? What are the implications for the application of taxation policy, social welfare payments, joint income assessments, succession, family law and mortgages, to name just a few areas?” - Jennifer Carroll MacNeill, Fine Gael TD
“It [durable relationships] is not a constitutional concept that I have ever seen. I questioned what it meant. It is really important that we tease this through now because it is naturally going to be a question later. What is durability? Is it about commitment or enduring?” - Sorca Clarke, Sinn Fein TD
“The word ‘durable’ is peculiarly odd and vague in a constitution…We need assurances that this language will not cause legal issues or loopholes. Ambiguity is not much use. We should have clear and defined wording.” - Verona Murphy, Independent TD
“The proposed amendment to the Constitution includes the words ‘durable relationships’. Marriage is a legal contract that is clearly defined and easy to understand. Therefore, we refer to marriage in the Constitution and it is legally clear what is being referred to. However, the phrase ‘durable relationships’ is open to interpretation, whomever you discuss it with. Is it a good idea to insert a clause in the Constitution which contains a very subjective term?” - Catherine Connolly, Independent TD
“I have the greatest difficulty with the word ‘durable’. If I take it on a personal basis in my own experience, I might apply the term ‘durable’ to one particular relationship and not another that was much longer than a shorter relationship. I do not know about that word. It needs to be teased out.”
The above quotes were collated by Gerard Casey (Ph.D)
Indeed it doesn’t mean anything, although it’s mentioned in EU legislation since 2004 (Directive 2004/38/EC, Regulation No 492/2011, Regulation No 1231/2010), with the vague description of EU citizens who have a relationship with someone, inside or outside the EU. The legislation leaves it up to the respective countries to decide what constitutes a „durable relationship”, but we haven’t done so as-yet. Chairwoman of the Electoral Commission, Judge Marie Baker, suggested it could mean anything as broad as people who deceive joint Christmas cards or wedding invitations.
Also of concern is that the EU could later implement legislation which defines „durable relationship” however they want, and we will be Constitutionally compelled to agree with it.
On the grounds of „durable relationships” meaning nothing alone, we should vote No.
Who Disagrees
Due to the overwhelming push from government ministers and NGOs for a Yes vote on both counts, it’s important to note that many notable individuals and groups have made their objection known to both changes. This list includes:
- Senator Michael McDowell SC – A former Tánaiste and Attorney General, opposes both referenda, arguing that they are unnecessary and would lead to legal chaos. He criticizes the proposed amendment on family, warning of potential uncertainty and opposes the removal of protections for mothers caring for their children at home. (source: https://www.christian.org.uk/news/irish-referendum-a-recipe-for-chaos-and-uncertainty-says-former-attorney-general/)
- Lawyers for No – A group of lawyers and legal experts who argue that the proposals are unclear, toothless, and unnecessary. They claim that the Family amendment would open the door to polygamy and undermine the rights of married couples and their children. They also claim that the Care amendment would give the State more power to interfere in family life and impose its own values on care.
- Family First – A group of parents, grandparents, and carers who advocate for the protection of the family based on marriage and the recognition of the role of mothers in the home. They contend that the Family amendment would weaken the institution of marriage and the rights of children to know and be raised by their biological parents. They also contend that the Care amendment would not improve the situation of carers, but rather increase the burden on them and the dependency on the State.
- Farmers for No – A group of farmers and rural dwellers who oppose the changes to the Constitution that they fear would threaten the future of family farms and rural communities. They assert that the Family amendment would create legal uncertainty and complexity for inheritance and succession rights, and potentially allow multiple claims on family farms. They also assert that the Care amendment would not address the specific needs and challenges of rural carers, but rather impose a one-size-fits-all approach that would disregard their autonomy and preferences.