March 8th: The Referendums on the Family and Care with Ms. Justice Marie Baker
By Current Affairs Reporter Jack Walsh
This year, International Women’s Day, falling on Friday March 8, will be particularly significant. Two referendums - yes there are two - are being held on this day with voters asked to consider the proposed 39th and 40th amendments to the Irish Constitution, Bunreacht na hÉireann.
Overseeing the running of the referendums is An Comisiún Toghcháin, Ireland’s independent electoral commission. As part of the Commission’s information campaign ahead of the referendums, the chairperson of An Comisiún Toghcháin, Ms. Justice Marie Baker of the Supreme Court, visited UCC on Thursday February 22 to engage with students and staff at an event organised by the UCC Women in Business and Leadership Society in collaboration with the Government and Politics Society.
The first referendum deals with the proposed 39th Amendment, also known as the Family Amendment. It will be on the white ballot paper and concerns Article 41.1.1° and Article 41.3.1° of Bunreacht na hÉireann.
With one vote, you will either approve or reject the insertion of ‘whether founded on marriage or on other durable relationships’ to Article 41.1.1° of the Constitution and the deletion of ‘on which the Family is founded’ from Article 41.3.1°.
The proposed new Article 41.1.1° would read:
‘The State recognises the Family, whether founded on marriage or on other durable relationships, as the national primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law’.
And the proposed new Article 41.3.1° would read as:
‘The State pledges itself to guard with special care the institution of Marriage and to protect it against attack.’
Providing some commentary on this first referendum at the event in UCC’s Council Chambers, Ms. Justic Marie Baker explained this proposal will see the definition of the Family, which is the primary unit in Society, expand to include those ‘founded on marriage or on other durable relationships’.
The wording of ‘other durable relationships’ has been the subject of much debate, with Ms. Justic Baker herself noting that it’s ‘the part of the proposed constitutional amendment that causes the most difficulty’. However, in response to a question from the audience asking her how ‘durable relationships’ might be defined, Ms. Justice Baker had the following to say:
Firstly, she explained that while the word ‘durable’ is a new constitutional word, it is not a ‘completely unfamiliar legal phrase’. It appears in the Citizen’s Rights Directive which permits European Citizen’s, exercising their freedom of movement rights, to bring their spouse, partner, or dependent family members with them when travelling in the EU.
Secondly, we already have cohabiting legislation in Ireland which is part of The Civil Partnership Act. This allows certain financial reliefs to persons who are cohabiting, with cohabiting being defined as people who live in an intimate, committed, and serious relationship with another person.
Furthermore, because the law always looks at the particular details of a case, it will be the specific relationship in such a case, not some generalised relationship, which will be examined, and a determination then made as to whether it is a durable relationship or not. Ms. Justice Baker went further, outlining how durable relationships would have to form a unit in Society which implies they are not secret, or in the background, but open at some level and recognised by Society.
Ultimately, it will be up to the courts to decided what exactly is meant by the term ‘durable relationships’, but by taking the above into account, it is possible to get a sense of where roughly a definition may end up.
The second referendum concerns the proposed 40th Amendment to the Constitution. Also known as the Care Amendment, it will be on the green coloured ballot paper.
Again, as with the first referendum, there is one vote for two proposed changes which would see Article 41.2.1° and Article 41.2.2° of the Constitution deleted and replaced with a new Article 42B.
This new article would read as follows:
‘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.’
Ms. Justice Baker is of the opinion that this second referendum is much ‘harder to explain’, and pointed out how it is perhaps wrongly referred to as the ‘Woman in the Home Referendum’. The existing provision, Article 41.2.1° ‘does not say that a woman’s place is in the home’, although she conceded that it does elevate mothers and women to a role that they are not elevated to in any other constitution in the world that she could recall.
Of the two referendums, it is this Care Amendment which Ms. Justice Baker feels ‘it’s less likely to have an immediate consequence because its more obviously a declaration of values and because of a lot of support, financial support and otherwise, has been provided to carers within families that it may be some time before any case comes to the courts or any legislation is looked at.’
On the concerns about the language of the new proposal, specifically around the word ‘strive’, Ms. Justice Baker said, ‘We think the word strive means a little bit more than endeavour which is there at the moment.’ In short, ‘strive’ might be interpreted as to ‘try very hard’ while endeavour could just mean to ‘try’.
Finally, while the two referendums are connected, Ms. Justice Baker noted in response to a question about whether the family in the proposed care amendment is the same as the Family in Article 41.1.1°, that they are probably different given the use of a capitalisation in one instance and not the other. The Family in Article 41.1.1° is the fundamental unit group of Society not the individuals in it, whereas the care amendment is about the bond between individuals within the family unit. It is not taking about the unit, but the care individuals family members provide for one another.
For many UCC students, these referendums will be the very first time they will be able to exercise their right to vote as the last opportunity to cast a ballot was the 2020 General Election. With Dr. Teresa Reidy of the Department of Government noting that turnout in these ‘low intensity’ referendums tends to be around 50 per cent, it is especially important that all students registered to vote turnout and cast their ballot.
Your voice matters. Make sure it counts.
Be informed, and vote March 8.
*More information on the referendums can be found via www.electoralcommission.ie/referendums
