Last week Minister Roderic O’Gorman had an extensive and searching interview with Hugh O’Connell in these pages in which he blandly asserted that critics of his referendums were wrong. As I read the piece, it became increasingly clear that it’s the referendums that are “wrong” – not their critics.
We are being asked by two separate ballot papers to decide on amendments to one single article in our Constitution.
One of the proposed amendments asks us to decide that the Family as provided for in Article 41 of the Constitution need not be based on marriage but can be based on “durable relationships” in future.
It’s good to remind ourselves of what the Constitution says in Article 41.1 about the Family. This definition would not change on 8th March.
The constitutional Family is stated to be “the natural primary and fundamental unit group of Society”, and “a moral institution, possessing inalienable and imprescriptible rights, antecedent and superior to all positive law”, having “its constitution and authority”, and as “the necessary basis of social order” and “indispensable to the welfare of the Nation and the State”.
The Supreme Court held in the recent O’Meara decision that citizens are and must be entirely free to choose not to marry if they want to avoid the burdens and obligations or if they do want any State involvement in their private lives, and that marriage is a “legal status freely chosen by the parties with knowledge that it involves a corpus of rights and obligations, burdens and benefits”.
Everyone knows whether or not they are married. Nobody knows who is or who is not in a “durable relationship” unless a court decides in a disputed case that it is “durable”. Nobody knows how and when a “durable relationship” between two adults ends in the eyes of the law.
Asked by Hugh O’Connell whether a married person who separates from his or her spouse would be free, without getting a divorce, to become part of a second constitutional family based on a different “durable relationship”, Minister O’Gorman couldn’t answer “yes” or “no” but said that it would depend on the “magnitude of that relationship”. With respect, that is nonsense.
But it is legal and logical nonsense that lies at the very heart of the referendum proposals. He proposes that such undefined non-marital “durable relationships” will create constitutionally recognised Families that are “moral institutions” with “inalienable rights”, each with their own “constitution and authority”, and will be regarded as “the necessary basis of social order” and be regarded the courts as “indispensable” to the State’s welfare. Is he serious?
He ignores the inconvenient fact that the Constitution requires, and will continue to require, that applicants for divorce obtain a court order that must be refused unless proper provision has been made for spouses and dependents. None of those safeguards will apply to persons exiting non-marital “durable relationships”. They will end in the case of two childless adults informally and without court orders. The non-marital “family” involved will simply evaporate.
But if, as the Minister now proposes, a single mother is recognised as a constitutional family with her child, and she later cohabits with a man and has a second child, could their “durable relationship” make them a second constitutionally recognised family? If he later moves out and into a second “durable relationship” with a different woman, will that give rise to a second or third constitutionally recognised family?
Where will that leave the first single mother? Will she be in a different constitutionally recognised family with two children?
Will the man be simultaneously a part of two constitutionally recognised families?
Is any of the foregoing seriously described as being the “the necessary basis of social order” or “indispensable to the welfare of the Nation and the State”? And yet, Minister Thomas Byrne told RTE’s UpFront viewers last week that these domestic situations occur all the time.
Minister O’Gorman blithely assured Hugh O’Connell that the Government had the Attorney General’s assurance that the amendments would not impact tax law, family law, social welfare law, succession law, pensions law, and immigration and pensions law. I find that hard to credit, having been Attorney General myself.
The Attorney General recently unsuccessfully defended existing social welfare provisions in the recent O’Meara case, which invoked Article 40 equality rights and Article 42A children’s rights to force the Government to afford Mr O’Meara a widow social welfare payment, despite the fact that he was unmarried.
Take this example. Two neighbouring households, each with parents and four children, have existed for twenty years. The father in each case owns the house, and in one case the unmarried father dies. His partner does not inherit his estate and the house tax free as would happen next door. The unmarried household is much poorer than the married household and the tax bill is devastating for them, possibly requiring sale of their home.
If the unmarried woman, like Mr O’Meara, sues the State claiming that she is part of a constitutional Family based on a “durable relationship” recognised as such because of its twenty years existence, and claims the family is being “arbitrarily” discriminated against solely because it was not based on marriage, would the Attorney General be any more successful than he was in the O’Meara case, relying on the special status of marriage?
When we alter our Constitution, we as citizens need to understand the effects. When the Eighth Amendment was proposed in 1981, my late and very close friend Adrian Hardiman, then a barrister and later a great Supreme Court judge, warned on Questions and Answers that it would bring travel injunctions on women travelling to England for abortions. His warning was dismissed by the amendment’s proponents.
In 1992, the Supreme Court was invited to uphold just such a travel injunction in the case of a juvenile rape victim by counsel for the then Attorney General. We needed two referendums just to reverse that decision. And we eventually repealed the entire Eighth Amendment with a third referendum.
Putting words into the Constitution that nobody clearly explains or understands is collective madness and reckless. Reversing unwanted judicial interpretations needs a referendum, not just a statute.
The 39th Amendment would introduce gross social uncertainty; the 40th Amendment removes all recognition of mothers and women from the Constitution and offers no new enforceable rights to carers or people, including people with disabilities, who need care. All of the major issues are dealt with in the Lawyers for No paper available online at www.michaelmcdowell.ie .
I advise rejection. No and No.
