This Friday, Irish citizens will decide whether to approve two amendments to their Constitution: one, legally redefining “family” as resting on “durable relationships” rather than exclusively on marriage; and another, reformulating an aspiration to support mothers as caregivers in the home in a more gender-neutral language.
The government is selling these changes as an opportunity to create a more “inclusive” society, but this is nothing but a smokescreen: the care amendment is a useless exercise in virtue-signalling, that will have no real impact on the rights of caregivers; while the family amendment, given the chaos it will sow in the Irish legal system, can only be described as an act of constitutional vandalism.
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The amendment concerning recognition of caregivers will delete two provisions in the Constitution that explicitly recognise the role of mothers in supporting the “common good” and commit the State to “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.” It is proposed to replace these provisions with the following article:
The State recognises that the provision of care, by members of a family to one another by reason of the bonds that exist among them, gives to Society a support without which the common good cannot be achieved, and shall strive to support such provision.
This violates an elementary principle of constitutional change: don’t waste taxpayers’ money tinkering with a constitution if the practical benefit from the change is negligible or non-existent. We don’t pull down the foundations of a building or replace them just because we don’t like the look of them. We do so because we think there is a pressing need for new foundations and we can improve the stability of the edifice by rebuilding part of its foundation. In this case, we are just removing a bit of old-fashioned language, in return for…another aspirational clause that will have virtually no impact on citizens’ everyday lives.
The Family amendment, if passed, will undermine citizens’ ability to form reasonable expectations concerning their legal rights and duties. This amendment is so extraordinarily destructive from a legal and constitutional standpoint that it is the equivalent of taking a wrecking ball to the Constitution.
What is being proposed is to revolutionise the definition of “family” as the basic unit of society by resting it no longer on the distinctive bond of marriage, but on something that nobody can make head or tail of: “durable relationships.”
Article 41.1.1 of the Irish Constitution currently recognises “the Family” as “the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescrible rights, antecedent and superior to all positive law.” Article 41.3.1 affirms that “The State pledges itself to guard with special care the institution of Marriage, on which the Family is founded, and to protect it against attack.”
What our constitutional vandals would have us do is to sever the essential link between family and marriage, so that the Family may be “founded on marriage or on other durable relationships.” What does this mean in practice? The honest answer is, nobody knows. The impact of this constitutional anomaly, should it be validated by a public vote, will be to sow the seeds of uncertainty in the very foundations of the Irish legal system.
Even though the term “durable relationship” is used in the context of EU residency and migration law in reference to unmarried couples in a stable relationship, there is no reason to assume that Irish courts would carry over this highly contextualised and pan-European sense of the term to domestic matters such as inheritance law, tax law, and social welfare under a regime of “durable relationship” families.
Because there is no legally accepted understanding of “durable relationships” in Irish constitutional law, this constitutional innovation will be entirely opaque to the average citizen. But it will also be opaque to the most erudite legal mind, because it has no established legal meaning as a general foundation for family law. You will have to wait until a judge looks in the tea-leaves to decide whether that unmarried partner you lived with for five years is your “family,” for inheritance, alimony and tax purposes.
This legal term is so opaque that its official proponents cannot even agree among themselves about what it means. We will have to wait years for complicated legal cases to make their way through the courts to decide how basing the family on “durable relationships” will affect family reunification rights for migrants, property inheritance rights for people in unmarried relationships, tax law, social welfare provisions, and pension rights. For example, if a woman dies without a last will and testament, an ex-boyfriend might battle out his right to a share of her property with the woman’s natural family.
A former Attorney General and sitting Irish Senator, Michael McDowell, has gone to great lengths to point out the level of legal uncertainy this referendum will generate in the lives of ordinary citizens. His voice has been joined by several other, including that of a former Minister for Justice, Alan Shatter, who could certainly not be described as “conservative” or as a champion of “family values.”
The damage done to our legal system and our society by this act of constitutional vandalism, should it be approved by citizens on Friday, is incalculable. We can only hope that citizens will not fall for the simplistic idea that destabilising family law is a recipe for social “inclusion.”
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Woohoo, what a win!!
...could be the start of the end of the elite patronising us and telling us what to think. Another wasted €25 million of OUR money stuffed into RTE and the NGOs and all the Hard Left Woke Artists with too much time on their hands and not enough real problems.
Sorry for the rant!!! (Just excited about the government getting it in the solar plexus)
Ireland's Family Referendum is an Act of Constitutional Vandalism
A quote for The West Awake shares your candor, as do i
Thankfully, I am not a legal expert and so do not offer to provide a legal opinion. But, the old bog-warrior in me does love chewing over words and phrases. So, I will re-print one of the proposed amendments here to make an observation.
“The State recognises that the provision of care, by members of a family to one another by reason of the bonds that exist among them, gives to Society a support without which the common good cannot be achieved, and shall strive to support such provision.’
The above is a sentence devoid of any Irish spirit. Or any traces of spirit at all. Removing the words mother and woman takes a slash-hook to her links with mother nature and beyond that to the eternal. A string of text not pregnant with the possibilities of future Irish springs or any other seasons for that matter. A contrivance of words designed by the spiritually spastic for the roll-out of an Ireland gutted of its soul. In addition, far from the madding crowd and luxuriating in the heather of the unmaddening bog, I wonder aloud to myself if a paedophile ring might be considered a durable relationship.