Although polling shows that voters are tending towards Yes in both votes, known locally as the “Family and Care” amendments, the gap has narrowed as the vote approaches on March 8.
The intervention of the Irish Bishops, in effect calling for a No–No vote, came as a surprise given the reluctance of the Church in Ireland to wade into the affairs of State in recent years – cowed by the never-ending crises and scandals it has endured since the 1990s.
Irish Senator and former Attorney General Michael McDowell has stated that he believes both votes will be rejected in the plebiscite. Citing past examples, such as a referendum to abolish the Seanad (Irish Senate), when polls appeared to suggest the government position would win out, he is assuming a relatively low turnout that will see the government receive a bloody nose.
McDowell has produced his own 8-page document calling for a No vote, advising voters that the changes will cause chaos. He, along with a group calling themselves Lawyers for No, argue that the inclusion of the term “durable relationships” on an equal basis with marriage into the Constitution will open the door to a variety of claims for relationships of all kinds.
And when durable relationships collide under the law, which gets priority, is the concern.
In a debate on national television, Minister Thomas Byrne, director of the referendum campaign for Fianna Fail, one of the coalition government’s parties, struggled to comprehend how the issue of inheritance or property rights between a married man not yet divorced but in a second relationship considered durable could become an area of confusion under the new law.
The “Family”referendum has raised its own vexing questions in relation to polygamous relationships and immigration that the government and supporters of a Yes vote have struggled to adequately resolve.
The “Care” referendum has come under criticism on a number of fronts. The main issue that has attracted the ire of No protagonists has been the essential erasure of women and mothers from the Constitution, as well as the devaluation of the role of mothers, under the guise of removing outdated and supposedly “sexist” language.
The current wording states that “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” and “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 proposed replacement is “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”.
In another televised debate, former barrister and stay-at-home mother Maria Steen crossed horns with deputy Prime Minister Micheal Martin. Steen said that mothers “go through a kind of exquisite agony to bring our children into the world that no man will ever experience. This is a noble and honourable thing and it deserves to be acknowledged with gratitude in our Constitution … and at the moment it is.”
FLAC, the Free Legal Aid Centre, is one of the few non-governmental organisations engaged in domestic social affairs, that has called for a No vote in the “Care” Amendment.
Previously, the government appears to have cautioned progressive NGOs that they would have to account for not supporting a Yes vote. Many interpreted this as a unsubtle warning to organisations who are substantially financially supported by the government to toe the line.
Disability advocate, Senator Tom Clonan, in recent Senate debates emphasised that the “State is trying to avoid compellability, or to provide any sort of legal framework or underpinning to the inalienable and fundamental human rights of disabled citizens”.
Equality Not Care, a disability carers group, has said the proposed wording perpetuates the notion that people with impairments are burdens on their families rather than rights holders on an equal basis with everyone else.
The National Women’s Council of Ireland, a heavily state-subsidised body, has called for a Yes–Yes vote. But a recent poll in Ireland has shown that a large majority of mothers with school-aged children would prefer to stay at home if they could afford it.
The diverging perspectives demonstrate that the NWCI seems to be unrepresentative of a particular class of woman on the one hand, and also that the current constitutional clause has failed to fulfil its function of not obliging mothers by economic necessity to enter the paid workforce.
Government representatives have increasingly come under the spotlight with the so-called “community notes” of X (formerly Twitter) indicating that information provided on relevant aspects of the debate has failed to deliver on the full facts. Misinformation – or disinformation – has been an increasingly frequent accusation.
Minister for Tourism Catherine Martin had to be corrected by the Chair of the Referendum Commission when she stated that the current constitution states that a “woman’s place is in the home“.
This flew in the face of the Irish Supreme Court’s position, when Justice Marie Baker clearly stated that this is not the case, rather that the Constitution says that mothers provide an “important support” to society and shouldn’t “have to go out to work” due to “economic necessity”.
Pro-change voices have been accused of repeatedly misrepresenting the current constitution in the manner of the tourism minister.
Also, the Minister for Children asserted that unmarried parents with children are not a family under the Constitution as currently worded, seemingly unaware of a Supreme Court verdict delivered on 22 January 2024 (so not exactly a distant judgement to have to be able to recall).
In that judgment, Justice Woulfe stated: “a careful scrutiny of all the constitutional provisions involved, including but not limited to Article 41.3.1, demonstrates that these provisions did not clearly and unambiguously mandate discrimination against non-marital families. The opposite is in fact the case.”
The government has been strongly criticised for changing the wording of the Constitutional amendments from those originally recommended by the Citizen’s Assembly. It was then accused of guillotining debate in Parliament in order to avoid serious legislative scrutiny.
Most recently, it has been accused of a cover up for refusing to release the notes from its Interdepartmental Group meetings that considered the proposed amendments to the Constitution over the course of the previous year.
Senator McDowell responded by saying that this suggests that “the public interest requires keeping the public in the dark.”
Taoiseach Leo Varadkar has claimed that concerns about immigration in relation to the “Family” Amendment were a “red herring”, although it was a fellow Fine Gael minister, Neale Richmond, who in December 2023 said: “It has serious consequences, particularly when we think of immigration law, and proving that someone is a family member, or family reunification.”
Additionally, the government has come under scrutiny for attempting to “”buy the vote” through its claims that voting for the “Care” referendum will put additional pressure on the government to support carers, but which is something that is already within the power of government to do.
The final area of unclarity comes from the government’s own interpretation of durable relationships.
Brief parliamentary debates saw government ministers assert certainty as to what “durable” would mean.
This contravened advice from the Chair of the Referendum Commission, Justice Marie Baker, who indicated that the courts rather than the executive will decide as specific cases are brought forward.
And despite the plight – and historic treatment by the State – of unmarried mothers frequently being used as an emotive leverage to bring them “under the protection of the Constitution” and right historic wrongs, it is by no means clear that “marriage and other durable relationships” will include single-mother-and-child relationships when assessed by the courts, or give that mother and child relationship as equal footing to a random form of romantic adult relationship.
The government itself admitted that it considered alternative wording such as “intimate” in its deliberations.
It is possible that
single-parent families could be even further excluded from the
protection of the Constitution, rather than included as they are
presently, and as interpreted by the Supreme Court this year.
Despite
all the above, the government appears certain that it can foresee how
the Courts will interpret any changes to the Constitution – and prior to
any test cases being brought to the Courts.
It is likely that when the Constitution was originally written in 1937, its authors did not foresee – nor indeed desire – that the Courts in 2024 would interpret that “the family, founded on marriage” should include unmarried cohabitants, as occurred in the O’Meara judgment earlier this year.
The current Irish government claims greater omniscience with amendments containing more complex wording, while dismissing any voices that challenge its certainty.