Article 41 of the Constitution has been controversial since soon after its publication in 1937, particularly in relation to the way that women’s status in Irish society was defined.
Almost 90 years later, its definition of the family and women’s role in the home has lost meaning in the context of 2020s Ireland.
Article 41.1 states that the family is the “natural primary and fundamental unit group of Society”. Subsection 2 endeavours to “ensure that mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home”.
In 2021, the Citizens’ Assembly recommended the repeal of the Article in its entirety. It called for a new definition of “family” that was not limited to the marital family. To replace the “life within the home” reference, it suggested non-gender-specific language that would support care within the home and the wider community.
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The Government accepted the recommendation of the Citizens’ Assembly report and of a special Dáil committee which discussed the report’s finding. Earlier this year it promised a “quick” referendum on the matter to be held in November.
On Wednesday, Taoiseach Leo Varadkar said that it was still the Government’s intention to hold the referendum in November but immediately signalled that could change.
And will it change? All the indications are that it will. For one, the Government has yet to produce the wording for the referendum. The Taoiseach has said it will be ready by the end of September.
Secondly, Art O’Leary, the chief executive of the newly established Electoral Commission, has told the Government it would require three to four months to organise the referendum including an information campaign. That would make November nigh impossible.
In August, five civil agencies wrote to the Government asking why the proposed wording was not ready, reminding it they needed time to parse the proposal before it was finalised. On Thursday, the five groups held a joint press conference and again called for early publication of the wording and to clarify the timeline for the referendum.
“This is our chance to remove the limits on women from our Constitution and instead recognise the value of care in all of its forms, in the home and in the wider community,” said Orla O’Connor of the National Women’s Council of Ireland. “And it is our chance to recognise and protect all families equally, including but not limited to the marital family.”
Damien Peelo of Treoir said that in 2022 there were 24,754 (more than 40 per cent) of births outside of marriage and this percentage continued to increase.
“All of these families need and deserve recognition, support and protection by our Constitution.”
There would be very little in the arguments made by the five groups with which the Government disagrees. Everybody seems to be on the same page.
So why the delay? In an indication of the scale of the challenge, the Taoiseach revealed for the first time on Wednesday that the proposed repeal of Article 41 would require two referendums, not one.
Sources in Government say that one referendum would contain wording that recognises care. A separate amendment would then refer to different families that exist in addition to the married family.
In an opinion piece for The Irish Times this week, Labour leader Ivana Bacik argued: “While developing the appropriate wording for any constitutional change is always complex, it is not rocket science.”
It has proved to be rocket science though for the officials working on it. It is understood it has been difficult to arrive at rounded definitions of family and of care, in bombproof language that did not leave it open to legal challenge.
Problems have partly entered around gender issues, and in relation to recognising individuals and groups who are currently discriminated against, including those with disabilities.
