De Valera was in the perfect position to understand the importance of a caring stable influence in a child’s life. Born in New York and sent to Ireland to live with his grandmother, because his single mother could not look after him while continuing to work and provide for herself, he keenly felt the loss of his mother in his life. Combine this experience with the influence of Fr John Charles McQuaid – later Archbishop – a family friend of De Valera’s who was invited to provide insights from Catholic social teaching on the drafting of the Constitution.
McQuaid sent De Valera draft wordings of a provision, based on a Papal Encyclical called Rerum Novarum which pronounced that “Woman [was]... not suited for certain occupations; a woman is by nature fitted for homework”. Add into this mix the lawyer who drafted the Constitution – John Hearne, a staunch Catholic who also drew inspiration from European constitutions of the time, many of which contained provisions designed to protect “maternity”. This combination of influences led to the insertion of the provision, commonly referred to as “the woman in the home” provision of the Constitution – article 41.2.
The provision itself says 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. It goes on to provide that 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.
The purpose of the provision is to acknowledge the importance of care – then provided by mothers – and also to try to achieve a position whereby mothers could remain in the home and would not be forced to work due to financial reasons. Of course the big problem is that the policy underlying the provision was never pursued. Worse again, the provision was often used to bolster arguments that a woman’s place was in the home and so policies which excluded women from work were seen as acceptable.
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No one ever took a case on the exact issue in the provision – being forced to work rather than provide care at home – but the only time an attempt was made to derive an economic benefit from the provision, this was unanimously and comprehensively rebuffed by the Supreme Court.
The possibly well-meaning though paternalistic provision has now become outdated and does not reflect the Ireland of today. So why haven’t we removed it? Unfortunately, while there seems to be general agreement that it should be removed, there has never been a consensus on whether or not to replace it, or on what to replace it with.
The beauty of this wording is that it walks a fine line between providing something meaningful in law while not going so far as to impinge on the executive power of the purse
In 2018, a referendum was proposed to remove the article and not replace it. Lawyers rejoiced – there is usually little point to a constitutional provision which has no legal effect. However, care organisations objected to the removal of the acknowledgment of the value of care – which they argued is still of benefit, even if only symbolically.
This lack of consensus is what led to the provision being considered by the Citizens’ Assembly, who carefully deliberated, having heard lots of evidence from various organisations on this. In the end, they decided that they wanted to replace the article with a gender-neutral alternative but not one that would be symbolic only – they wanted it to have meaning.
The wording that was proposed was that the State would be obliged to take reasonable measures to support care. This draws on similar wording from the South African Constitution and the beauty of this wording is that it walks a fine line between providing something meaningful in law while not going so far as to impinge on the executive power of the purse.
This wording would mean that the State could argue that it is already taking reasonable measures to support care, with the various legislative supports that are provided. But it would also allow for a carer to take a case to court arguing that what is provided is not reasonable – then it becomes a question for the courts to decide. The court would not tell the State what to do or how much to spend – just whether it is reasonable and, if not, the State would be required to address the deficiency.
Of course we don’t yet know whether it is this wording that will be put to us in the forthcoming referendum. The Citizens’ Assembly report, and the report of the Oireachtas Committee on Gender Equality which endorsed it, are the latest in a long line of reports on this issue but none of the previous recommendations have managed to achieve a consensus among the public.
The wording recommended by the assembly is the best chance of achieving that since it goes back to the original idea behind the provision – the idea that as a society we value care and that we want to have that supported by the State. If the Government wants to put this issue to bed with this referendum – and after so many years this really needs to be the final word on this – they would do well to adopt the wording of the assembly and ask the people to replace the provision with a gender-neutral alternative which both values and supports care.
Dr Laura Cahillane, senior lecturer in Constitutional Law, University of Limerick