Chairing the discussion on Tuesday, 13 February, Professor Eve Patten, Director of the Trinity Long Room Hub alluded to the complicated nature of the amendments, referencing the diverse meanings of family, care, domestic life and home for many people.

Speakers included Professor Lindsey Earner Byrne (School of Histories and Humanities, TCD), Dr Claire O’Connell (board member of LGBT Ireland and of the LGBT+ Parenting Alliance), Professor Rachael Walsh (School of Law, TCD), and Senator Tom Clonan (University of Ireland Panel, Seanad Eireann).

Attendees also had the opportunity to ask the panel questions and engage in further discussion.

Recordings of these events are now available to watch here and listen to here.

Historical context

Professor Lindsey Earner Byrne, Professor of Contemporary Irish History, said that the women of Ireland in 1937 had a very “visceral reaction” to the articles in the Constitution under consideration this coming March, arguing that they felt betrayed by the promise of equality in the 1916 proclamation.

She also spoke of the significance of the 1929 economic crash and how it heightened anxieties around male unemployment, turning attention towards women and their increasing public role in society. Women workers were blamed for men’s lower pay, and also perceived as undermining the family. She added that a number of measures introduced in the run-up to the ratification of the Constitution (including the marriage bar, and the Juries Act exempting all women from jury service, curtailing employment in the civil service) were posed under the language of “protection of the family”.  

Senator Tom Clonan, Prof Lindsey Earner Byrne, Dr Claire O'Connell, Prof Rachael Walsh, Prof Eve Patten

 

Family and the Constitution

Dr Claire O’Connell is an expert on how Irish law can recognise intending parentage while vindicating the child’s right to identity in assisted human reproduction. On the panel, she spoke of amendment to the Constitution as it pertains to the family (The Family Amendment).

Discussing the interaction of case law with the Constitution around children’s rights, unmarried mothers, and unmarried fathers, she said it is important to note that “even where the family based on marriage is given a special status in legislation, this is always going to be subject to the equality guarantee in Article 40 of the Constitution.” In illustrating this, she referred to the recent O’Meara case to the Supreme Court which was successful in challenging the refusal of the widower’s pension to an unmarried father of three. She said that had this case not happened, the Family Amendment (Article 41.1.1) “would have meant a lot more”, adding “there may actually not be that much practical change by virtue of this amendment in light of the O’Meara case.”

“To vote yes would be to further align with the Supreme Court’s thinking and further push the legal and symbolic case for more inclusive legislation for committed relationships, notwithstanding the absence of marriage.” 

 

Property and the home

Asking “does home have a place in the Irish constitutional framework at all?”, Associate Professor Rachael Walsh said that besides the Article 41.2 (known more colloquially as the ‘place of the women in the home’) the only other place where home is specifically mentioned is in Article 42.2 of the Constitution, which guarantees the right to parents to educate their children at home. She further noted Article 40.5 of the Constitution, “which protects everybody’s right to the inviolability of their dwelling.” Professor Walsh argued however that the courts have interpreted this provision as a right to protection from state interference in the home rather than any right to a home or acquisition or maintenance of a place to live.

Professor Walsh said “the provisions in relation to women in the home have had very little impact on judicial decisions in the courts, and equally very limited obvious impact in policy making.” She said in the legal sphere, there is only one notable case “over the whole history of the 1937 Constitution” where an attempt was made to use the provision in relation to the ‘women in the home’ article to secure practical benefits for women and that was the case of L v. L (1989) and related to property rights and marriage.

Care and the state

Senator Tom Clonan spoke of his experience as a carer for his 22-year old son who has a neuromuscular disease as he challenged the proposed new wording in Article 42B (the care amendment). 

“We are outliers in European terms in how we legislate for the rights for disabled citizens”, Senator Clonan stated, “we live in a parallel universe…everything is a fight.”  He said the proposed wording gives “constitutional expression to the notion that care is primarily or exclusively the responsibility of the family.” The Senator argued that while many (including the Citizens’ Assembly) have argued that the wording should include a commitment on the part of the Government to support care in the community, “the Government struck that down” and that the new wording “strive to support” is “non justiciable.”

Senator Clonan said that he “had no issue with what we’re trying to take out of the Constitution” but “we really need to stop and think about what we’re going to put into the Constitution.”

 

 

Here’s what the audience said:

“I already know a lot about the referendums, so I wasn’t expecting to learn a lot, but in fact I learnt so much. It was really helpful and I feel that my vote will be a lot more considered after this event.”

“I loved the combination of historical and legal scholars.”

“The speakers offered a range of perspectives.”

“It's a step towards a change but definitely not enough.”

“Still not sure which way I will vote but will be more proactive in finding out more.”

“I liked that it was direct and to the point.”