Rite & Reason: Changes to Constitution on women in the home first mooted 27 years ago

Minister Roderic O’Gorman has announced that a gender equality referendum to amend the Constitution will be held in November 2023. It is likely that proposals to change Articles 41.2.1 and 41.2.2 will be made.

These Articles are as follows: “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: “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.”

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Twenty-seven years ago, in May 1996, the Review Group on the Constitution, chaired by TK Whitaker, reported. It was a privilege for me, an economist, to belong to the group, which included some of the best legal minds in the country. I looked at the report again recently and found among its recommendations “a revised Article 41.2 in gender neutral form which might provide: ‘The State recognises that home and family life give society a support without which the common good cannot be achieved. The State shall endeavour to support persons caring for others in the home.’” It’s possible that the referendum may include similar wording.

The Constitution of 1922 made no reference to the family or marriage. The references to both in the 1937 Constitution were described as “innovative” by John Kelly, author of the foundational work on the Constitution. The former President of the High Court, Declan Costello, pointed out that explicit reference to the family, novel in 1937, was subsequently made by the United Nations in the Declaration of Human Rights, the Council of Europe, the Organisation of South American States and the Organisation of African Unity.

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Mr Justice Gerard Hogan has shown the influence of Weimar Germany on both the Constitutions of 1922 and 1937.

Rather than examining the broader context, however, Ireland is often viewed by some commentators as having been uniquely in thrall to a narrow and, sometimes oppressive, Catholicism.

There is no doubt that the Catholic Church, represented by clergy – notably the Jesuit Fr Edward Cahill and, at a later stage, Fr John Charles McQuaid – had an influence on the drafting of De Valera’s 1937 Constitution. Cahill’s friendship with De Valera went back to the time when Cahill was Rector at Mungret College in Limerick and where, during the Civil War, some wives and children of Republicans were sheltered.

McQuaid would not become Archbishop for a further three years, however, and some of his suggestions were rejected by De Valera. McQuaid disapproved of feminists. In an undated memo to De Valera, he remarked: “The feminists are getting angry and are moving into action. They seem stung by the suggestion that the normal place for a woman is the home.”

If the priests took a conservative view, however, so too did The Irish Times. In its Leader page on February 22nd, 1937, the newspaper criticised working wives and marriages where both husband and wife worked: “Some day, please Heaven! The nation will be so organised that work will be available for every man, so that he may marry and assume the burdens of a home and for every woman until she embarks on her proper profession – which is marriage.”

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The 1930s had been a dreadful decade for the economy, partly due to the self-inflicted Economic War. All the policy emphasis was on jobs for men, the “breadwinners”. This was the priority with leading trade unionists, including John Swift and John Conroy, and with then Minister for Industry and Commerce, Seán Lemass. There is widespread agreement that Lemass was one of our best Taoisigh ever but, at the time, he was quite conservative.

The birth rate in Europe fell in the 1930s, while it reached a plateau in Ireland. In England, the Beveridge Report in 1942 suggested the introduction of children’s allowances for every child except the eldest. According to a 1943 memo in the Department of the Taoiseach, some Catholic writers opposed children’s allowances as a move towards “socialisation of children”.

It might be argued that children’s allowances, if paid to the mother, would reduce her “economic necessity to engage in labour” as stated in the Constitution. In 1943, however, Lemass proposed a Bill whereby children’s allowances would be paid to the third and each subsequent child. He insisted that the allowances be paid to the father and rejected a suggestion during the Dáil debates that they be paid to the mother.

Thirty years later, in 1974, children’s allowances, now called child benefit, would be paid to the mother.

Dr Finola Kennedy was the first woman to receive a PhD in Economics at UCD. She is author of Cottage to Creche: Family Change in Ireland’ (2001), Frank Duff: A Life Story (2011) and Local Matters: Parish, Local Government and Community in Ireland (2022).