Tinkering with the Constitution for symbolic gain will do nothing to make women’s lives better
Upcoming referendum will generate more heat than light
AS the country heads to the polls on March 8 to vote on proposals to amend the Constitution on family roles, the debate is generating more heat than light.
As it stands, ‘family’ is defined in Article 41.1 as founded on marriage, and the amendment would extend this to include ‘other durable relationships’. The second proposal would remove the existing recognition of the role of women in the home, replace it with gender-neutral wording on care and remove the State’s obligation to ensure mothers are not forced to work through economic necessity.
This so-called ‘women’s clause’ has become a hot-button issue characterised by certain interpretations and claims that do not stand up to scrutiny.
Orla O’Connor, director of the National Women’s Council of Ireland, claims the clause ‘gives the State the oppressive role of keeping women from careers’. It manifestly does not. Former chief justice Susan Denham stated in the Supreme Court that Article 41.2 ‘recognises the significant role’ played by women in the home but ‘does not exclude them from other roles’.
Ms O’Connor appeared to differ, describing Judge Denham’s interpretation as ‘most surprising’. I suspect, however, that many people would prefer to rely on the informed opinion of the highest legal authority in the land.
In the same context, Ms O’Connor previously proclaimed that ‘women in Ireland have been systemically excluded from politics and top decision-making posts’. How, exactly?
We have had female presidents for 21 out of the past 32 years; women have reached top positions in law, academia, finance, business, medicine and justice; three political parties are led by women; Francesca McDonagh headed Bank of Ireland on a salary of €1millionplus; Margaret Sweeney operated Ireland’s biggest private landlord group overseeing a €1.5billion property portfolio; Helen McEntee is Minister for Justice; Dee Forbes was the director general of RTÉ; and tens of thousands of other women enjoy, and have enjoyed, successful careers while raising families. Did all these women just get lucky?
And what of the women at the heart of this debate, mothers of young children and those who care for disabled relatives?
A family member, the mother of a child with Down syndrome, decided on the particular set of family circumstances that she should stay at home, rather than her husband. So will this purely symbolic change make this woman’s life, or those of thousands like her, any better? Not one whit. They will be forgotten about as soon as the ink is dry, left behind once again.
As a living document, the Constitution is amended from time to time for sound legal reasons, but even the most ardent campaigners concede that this change will bring no material benefit.
Earlier this month the debate turned farcical when Minister Simon Harris took a swipe at former attorney general Michael McDowell for using ‘legalistic arguments’ to support his opposition to the amendment.
The minister should be aware that amendments to our fundamental overarching legal document are in fact legal so we need ‘legalistic arguments’ – emotion and half-cocked hypotheses do not stand up in court.
And what of women who want to stay at home to raise their children? Is that not their choice to make?
As someone who has always had a career outside the home, I detect an unedifying whiff of disapproval of stay-at-home mothers creeping into the discourse. Mischaracterising what this clause actually says and means also smacks of disregard for the women these campaigners claim to represent.
In a jaw-dropping debate with Mr McDowell on RTÉ, Green Party TD Neasa Hourigan claimed Article 41 had ‘failed’ ‘marginalised women’ and made ‘us dependent’. Her argument appeared to revolve around the ban on married women working in the civil service but it was left to Mr McDowell to point out that said ban predated the Constitution by a decade, and ended 50 years ago.
Yes, the language is outdated and it’s fair to say probably informed the thinking during the four decades or so after 1937, but since then our laws have evolved beyond recognition.
Personally, I have never been marginalised or dependent but I do concede one point: the State has failed women, through lack of affordable childcare, housing and support for those who care for disabled relatives and so on. But this could, and should, have been addressed through legislative reform, something Ms Hourigan’s party was best placed to do given it has been in Government for the past four years.
Another commentator was also incorrect when she said on RTÉ that the existing provisions ‘never buttered any parsnips’ and needed to go. Article 41 was relied on by the Supreme Court in 1980 in the Murphy tax case decision which ended up doubling the tax allowances for married people. As someone who benefited significantly from that decision, I recall that it buttered quite a lot of parsnips at the time.
But it’s the proposal to put the nebulous concept of ‘durable relationships’ on a constitutional footing that, potentially, has significant consequences for existing laws, including family, inheritance, social welfare, taxation and immigration.
Concerns about the equal treatment of marital and non-marital children and diverse families are valid but are addressed through reform of our ordinary law.
Moreover, the 31st constitutional amendment expressly recognises the ‘natural and imprescriptible rights of all children’, which, in context, must have particular reference to those rights regardless of the status of their parents. Legislative changes to inheritance and other statutes also recognise all children without distinction.
‘Durable relationships’ is an excessively broad term capable of many different meanings and legal interpretations, something junior minister Jennifer Carroll MacNeill red-flagged when the wording was first mooted. One does not need to be an expert in constitutional law to foresee challenges and test cases of various complexities ahead.
It’s worth noting that, in 2017, the Supreme Court ruled that the State could not recognise the second and subsequent relationships in a polygamous marriage, as marriage remains a fundamental aspect of the Irish legal order. Would a similar case be decided differently in future if ‘durable relationships’ formed part of the same legal order? Arguably. If every cloud has a silver lining, this amendment will prove a bonanza for the legal profession. Implications for existing laws were examined in inter-departmental research summarised in Cabinet memos which would be good to see – preferably before March 8. Tinkering with the Constitution for symbolic gain will do nothing to make women’s lives better, and we are asked to amend the family provision in exchange for a mess of pottage that has the potential to affect existing laws in ways that, at this remove, we cannot even quantify. There is much to consider, so we must have a proper, frank debate – not one characterised by ideological posturing, half-cocked statements and hyperbole. The public, especially women, deserve better.
OI detect a whiff of disapproval of stay-at-home mothers This will prove a bonanza for the legal profession