Analysis: while the proposed care amendment will likely remain aspirational, the family amendment could have concrete legal impacts
Constitutional provisions and amendments can have different functions. One function is expressive: to express values and aspirations that are deeply held in society. Another function is instrumental: to use the Constitution as a lever to facilitate or compel the enactment of certain types of laws or policies, or as a barrier to preclude their enactment. A constitutional provision can be either or both of these things; and where it is both, the proportion of each function can vary.
The forthcoming referendums on March 8th on the amendment of Article 41 of the Constitution are a good example of this. Voters will be asked to approve or reject two amendments. The care amendment proposes to amend Article 41.2 of the Constitution (which currently recognises work done by women in the home) and replace it with a gender-neutral alternative. The family amendment proposes to extend the recognition and protection of Article 41 of the Constitution beyond the marital family, and to include all families based on "durable relationships" within its scope.
The care amendment is really just expressive in nature. It aims to send a signal that the gender norms of the 1930s no longer hold sway; both women and men should play an active role in all spheres of society. But the care amendment will have no real instrumental function because the existing provision has had little concrete effect on law or policy over the past 87 years.
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From RTÉ News, referendums on family and care to be held in March 2024
Article 41.2 has been decisive on just one issue before the courts (justifying a finding that it is legitimate to provide social welfare payments to deserted wives, but not to deserted husbands). Its continued presence in the Constitution has not acted as a barrier to laws or policies aimed at achieving gender equality. Given this virtual complete absence of instrumental effect, replacing the sexist language of the existing Article 41.2 with a gender-neutral alternative that contains no additional obligations seems unlikely to fulfil anything other than an expressive function.
By contrast, the family amendment would have both expressive and instrumental functions. The emphasis is possibly more on the expressive dimension, signalling that a wide diversity of family forms beyond the martial family are valued in society. Many differences in the legal treatment of marital and extra-marital families have been ironed out over the years through ordinary legislation without any need for a constitutional amendment. Nevertheless, some issues remain – for example, the lack of automatic guardianship for unmarried fathers, or differences in pension entitlements – and there is no guarantee that progress made on other issues won't backslide or be eroded over time.
It is also noteworthy that some of the progress that has been made up to now required decisions of the European Court of Human Rights, in cases such as Johnston and Keegan, to prompt the reform of laws that failed to recognise or protect family relationships. A revised Article 41 that recognised family relationships not based on marriage might have potential for similar litigation in the Irish courts in future.
Read more: 5 reasons why it is difficult to define the family in Irish Law
A brief examination of court decisions over the years on the definition of the family illustrates a range of concrete implications that may flow from the family amendment. The most obvious beneficiaries would be unmarried fathers. Ever since the Supreme Court decision in the Nicolaou case in 1968, the Irish courts have consistently held that unmarried fathers have no constitutional rights at all in respect of their children. As a consequence of this, they cannot challenge laws or policies that treat them less favourably. In Nicolaou, this meant that the father was unable to challenge a law that allowed his child to be placed for adoption without him having any say in the process.
Unlike unmarried fathers, unmarried mothers are not entirely excluded from constitutional protection. While they have no rights under Article 41, their relationship with their children receives residual protection under the personal rights guarantee of Article 40. However, these residual rights are less strong than the rights afforded to married mothers under Article 41. As such, the family amendment would afford them a higher level of constitutional protection than they currently enjoy.
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From RTÉ Radio 1's Drivetime, adopted girl 'Baby Ann' to return to parents next month (broadcast 21 December 2006)
A clear illustration of this issue can be seen in cases involving mothers who initially consented to adoption, but later withdrew that consent. In McC v An Bord Uchtála in 1981, the High Court dispensed with the necessity for the mother’s consent on the basis that "a child becomes assimilated into its family or bonded from the age of six months and that a change after a year is usually difficult and may even be dangerous".
By contrast, in Re JH in 1985, and more recently in the Baby Ann case in 2006, married parents who withdrew consent to adoption had the child returned to them after more than two years of living with the prospective adoptive parents. The decisive factor determining the different outcomes in these cases was the martial status of the parents and their ability to invoke the protection of Article 41 of the Constitution.
For various reasons, both legal and social, cases similar to these are not especially likely to arise again. Nevertheless, these cases demonstrate the general principle that at present, the rights of unmarried mothers can more easily be restricted than the rights of married mothers.
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From RTE1 Radio 1's Drivetime, Dr Laura Cahillane, Senior Lecturer in Constitutional Law in the University of Limerick on Article 41 of the Irish Constitution (broadcast February 15, 2021)
Finally, while the Constitution was amended in 2015 to allow same-sex couples to marry (and thus qualify for protection as a family under Article 41), unmarried same-sex couples (even those who have children) remain excluded from constitutional recognition and protection. This was demonstrated in the Supreme Court decision in McD v L in 2009, where a lesbian couple who fell into a dispute with a friend who had acted as their sperm donor was found not to be a family with constitutional rights under Article 41.
Consequently, if, for example, a non-biological parent in a same-sex couple was excluded from any legal recognition of their relationship with a child they have raised as their own, no constitutional challenge would possible. The family amendment would open the door to such a parent to assert a constitutional right to at least some level of legal recognition, albeit that it would remain primarily a matter for the Oireachtas rather than the courts to address.
Our survey of past cases shows that the family amendment has clear potential for concrete impact on law and policy
This survey of past case law illustrates that the family amendment has clear potential for concrete impact on law and policy. The reasoning relied on by the courts in all of the above cases would no longer be sustainable.
None of this is to say that we will see lots of such cases in the future. Constitutional protection is like a safety belt: in an ideal world, people would not have to rely on it. If the Oireachtas legislates for the rights of all families based on durable relationships, the Constitution will remain in the background rather than the foreground of Irish family law. But if it fails to do so, the family amendment would, if passed, provide a legal route for those affected to challenge laws that fail to recognise and protect their family life.
The views expressed here are those of the author and do not represent or reflect the views of RTÉ
