How I’m Voting In The Constitutional Referendum (And Why)
On the 8th of March, the citizens of Ireland will be asked to make two changes to our constitution by referendum. Because of the importance of these decisions, I’d like to use this week’s post to discuss them. The first change would be to the constitutional definition of the family, adding “other durable relationships” alongside marriage in Article 41. The Article with the proposed change would read this way (updated wording in bold):
Article 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.”
As we consider this decision, we must recognise that adjusting our constitution is a serious matter. This is far more than a symbolic gesture—our constitution is the foundation of our entire legal system. Any changes to it will have far-reaching implications for how our society functions and how our laws are interpreted. With that in mind, I am happy that the proposed change still recognises that the family is the “fundamental unit group of society”. I believe that this order is God’s provision for humanity, along with the gift of marriage (we see this in Genesis 1 & 2, although we must also recognise that marriage and family have been greatly harmed by the effects of the fall in Genesis 3).
The question before us is this: how will including “other durable relationships” alongside marriage in our constitution impact our laws and society? What will the practical effects be of granting such relationships “inalienable and imprescriptible rights, antecedent and superior to all positive law”? The answer to these questions is this: no one knows the answer to these questions. And the reason no one knows is because no one has defined the term “durable relationship”.
The Irish government has told us that they will leave the definition of this phrase open and let the courts decide what it means. In all of this, only one thing is certain: the courts will be busy, making decisions. They will have to decide what a “durable relationship” means in family law, tax law, succession law, and immigration law, to name a few. How “durable” does a relationship need to be to qualify for “inalienable and imprescriptible rights” that are “superior to all positive law”? Does a boyfriend or girlfriend count? How long would a couple have to be dating, to count as “durable”? Could a very close friendship qualify? A group of friends? What if someone is married but also has a girlfriend as well, do they then have two simultaneous “durable” relationships? What would this mean for the application of family law, or for immigration applications for family reunification? How would we know for sure when a “durable” relationship has begun, or when it has ended for the purposes of tax or inheritance law?
To redefine the family in our constitution without any clarity on what the new definition even means is like saying, “let’s go down this road” without anyone knowing where the road will lead us. That sort of trip might be fun for a holiday adventure, but it’s no way to order a society. It is a recipe for chaos. If the goal of the government is to make sure that single-parent families and unmarried couples receive more supports, then they should make laws that provide those supports. There is nothing keeping them from doing so. A purposefully vague amendment that intentionally opens up a host of unknown legal implications is not a solution.
I’m voting no to this change.
The other constitutional change that we are being asked to make is to remove two clauses that specifically recognise the role of mothers in the home, and replace them with a new clause generally recognising the care that family members give to each other. The Articles that would be removed are:
Article 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.”
And
Article 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.”
These would be replaced by the following new Article 42B, which reads:
“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.”
The current Articles have been criticised as implying that a woman’s place is in the home, but it ought to be noted that they do not actually say this, and that they have never been interpreted this way in legal precedent to date. All the Articles really say is that the role women play in the home is vital for society (can anyone deny it?), and that the state has an obligation to seek to ensure that women are not forced into the workforce out of “economic necessity”. In our age of skyrocketing house prices and inflation, this is an important provision. What would our country look like if the government actually took seriously this constitutional obligation to make raising a family in Ireland possible on one income, rather than two? That’s really what these Articles are about. They do not obligate any woman to stay home with her children and out of the workforce. They only obligate the government to seek to prevent her being forced into the workforce against her wishes.
If this change is approved, the government’s obligation to families will change from a specifically economic one to a non-specific obligation to “strive to support”. What would this support look like? What family members would qualify for it, and what kinds of care? Why is it limited to family members, not other care situations? If the government wants to equal the gender balance of these Articles and recognise the vital role of fathers or other carers along with mothers, I’m all for it. Let them propose constitutional changes or new laws that do so, without removing this important economic provision for families in the process. In the meantime, I’m a lot more interested in them taking these Articles seriously as they stand and working to build a society where living as a one-income family is a realistic option for every family in Ireland, whether they chose to take it or not.
I’m voting no to this change as well.
I want to finish by saying how thankful I am to live in Ireland. I am thankful for the freedoms we enjoy here, and the privilege of living in a democratic society where every citizen can have a say in important decisions like these. I have found Irish society to be deeply caring and supportive to families and individuals, and I believe that our constitution already reflects this.
