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Catholics, socialists and disability advocates all have concerns about Ireland’s proposed family amendments

Kevin Hargaden March 07, 2024 in America (Jesuit) magazine, Facebook, Twitter, Email

Children place Easter lilies on a lawn during an event in Dublin on March 15, 2020. (CNS photo/Brian Lawless, Reuters)

Children place Easter lilies on a lawn during an event in Dublin on March 15, 2020. (CNS photo/Brian Lawless, Reuters)

Just days after French legislators affirmed a constitutional right to abortion, Irish citizens will go to the polls on March 8 to consider two amendments to the Irish Constitution that have significant implications for family life in Ireland in the future.

The “Family Amendment” would alter constitutional articles relating to marriage, adding “durable relationships” as another potential foundation for families in Ireland. And the “Care Amendment” would delete what have come to be understood as the “woman’s place is in the home” clauses (though such language does not actually feature in the text), replacing them with new language that promises that the state shall “strive” to support caregiving that takes place in the family. The votes on the amendments have been timed to coincide with International Women’s Day.

The coalition government, which includes Fianna Fáil, Fine Gael and the Green Party, brought these proposals to the public as part of a process for updating the Constitution, which was first drafted and accepted by the Irish public in 1937. Clauses like “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” now read as anachronistic and sexist.

In this light, the amendments seek to remedy clauses that are “not reflective of today’s society,” as one member of the Irish parliament put it. Similarly, in a context where 43 percent of children in Ireland (on par with the rest of Europe) are now born outside of marriage, the addition of “durable relationships” as a mode of family formation can be seen as a recognition of reality.

When responding to complex social policy questions, Irish governments increasingly rely on a process called the Citizens’ Assembly, in which a random selection of 99 people deliberate on an important topic over a sustained period, informed by a range of international expertise. The Citizens’ Assembly on Gender has been a major force in the decision to propose the family and care amendments.

That assembly recommended back in 2021 that families outside marriage should be protected under the Constitution and that gendered language in the “care clauses” should be removed. The proposed amendments are a response to those requests from the assembly, but they fall short of its recommendation that the care clauses should be strengthened. The Citizens’ Assembly on Gender suggested new language about the state taking “reasonable measures” to support the task of family caregivers and recommended that gender equality and non-discrimination be explicitly referred to in the constitution.

As polling day approaches, two prominent Socialist Party politicians who had been actively campaigning in support of both the Family and Care Amendments have withdrawn their support for the second “care” proposal. And one of Ireland’s most influential intellectuals, Fintan O’Toole, has described the wording of the clauses as “wretched.”

His critical assessment accompanies growing public disquiet with the language of the amendments. Critics say that the Irish electorate wants meaningful, material social change, not new language that merely replaces aspirational moral rhetoric of a bygone age with slightly more contemporary aspirational moral rhetoric.

One group that is eager to foster more debate over the amendments is the Irish Catholic Bishops’ Conference. It has advised Catholics to carefully consider both proposals and to weigh their long-term ramifications.

Denis Nulty is the Bishop of Kildare and Leighlin and serves as president of Accord Catholic Marriage Care Service and as chair of the Irish bishops’ Council for Marriage and the Family. He explained that the bishops’ call for voters to more critically evaluate the proposed amendments flows from a concern to better esteem the importance of family in Irish society. He worries about the ambiguity of phrases like “durable relationship” and suspects that the new clause on care “weakens the state’s constitutional responsibility to materially and legislatively support such care.”

Emerging critics of the amendments say that ultimately the primary challenges to family formation in Ireland are not to be found in some outdated language in its Constitution, but in more practical problems around the cost of housing and childcare. “Couples getting married should have the support of society,” Bishop Nulty said, but instead they are being encouraged to resign themselves merely to “durable relationships.”

The bishops’ statement is clear that “there are families in all our communities which are not founded on marriage” that are nonetheless part of the life of the church and Irish society.

“Families today come in all shapes, forms and configurations,” Bishop Nulty said, adding that “the most important thing with families is that children feel loved and they know that they belong.” This can happen in a range of different family formations, he agreed, but stressed that marriage should remain the most significant family structure and retain a special status in Irish society.

The proposed constitutional amendments were announced in December. While there were some concerns expressed then about pressure being applied by the government to ensure civil society bodies backed the proposals, initial polling suggested that the changes would pass easily. All but one political party in Ireland supported the amendments, along with a range of different civil society groups and public figures.

Rhetoric depicting a society progressing beyond its Catholic past into a more pluralist future has an instinctive appeal for many contemporary Irish voters. But the ambiguity of the wording of the amendments and sense that the clauses will have little consequential effect have been diluting enthusiasm for the changes. In recent weeks, as the implications of the amendments became more widely debated, that initial support has wobbled.

“Durable relationships” is a term susceptible to wide interpretation. Unfortunately the coalition government has stated it will not legislate its explicit meaning but let the courts decide. The judiciary has an important role to play in how the constitution is interpreted, but many politicians and civil-law attorneys are uneasy at the idea of allowing case law to entirely carry that burden.

One parliamentarian wondered if the new constitutional language could enshrine polygamy into Irish law. That may be a far-fetched interpretation, especially since the language of the amendment does have some precedent in E.U. law. But the natural law logic of marriage in the original constitutional text sits awkwardly against the new “durable relationship” construct, awaiting a hard definition through court rulings. Because of that fuzziness, some prominent lawyers have called for a rejection of the clause, joined this week by Alan Shatter, who recently served as Minister for Justice.

And while there is widespread support for the removal of the gendered language in “the woman’s place is in the home” clause, there have similarly been growing misgivings about the new text, which will be known as Article 42B. The proposed amended language recognizes the role played by “members of a family” in care, which is defined as that support which is shared between citizens and institutions to serve the common good. The proposed clause seems to limit the state’s role to merely to “strive” to support such care.

Senator Tom Clonan, a noted disability rights activist, referred to the Care Amendment as the “Neo Liberal Referendum on Care” because of how it effectively relieves the state of responsibility to support those in need.

The Free Legal Advice Centre was one of the first groups to voice strong concerns about the care clause, arguing that it is “as ineffective” as the original text while embedding “harmful stereotypes” into the Constitution, depicting people with disabilities “as the subjects of family care rather than autonomous individuals and rights-holders.”

According to an analysis from F.L.A.C., the amended text “is unlikely to provide carers, people with disabilities or older people with any new enforceable rights or to require the State to provide improved childcare, personal assistance services, supports for independent-living, respite care or supports (at home or in school) for children with disabilities.”

Worse, F.L.A.C. warns that the proposals “create a situation where the only mention of people with disabilities in the Constitution is an implicit reference to them as the subject of family care.” This diminishment of people with disabilities, according to the center, does not reflect social reality and echoes the same paternalistic generalizations that mark the “woman in the home” clause.Leonard Taylor teaches constitutional and human rights law at the Atlantic Technological University in Sligo. He recognizes that the referendums represent “a big effort to be inclusive and to address the question of equality.” But he is concerned that the proposals fail to achieve this aim.

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