Referendum: What 'durable relationship' actually means
At present, the scope of constitutional protection for the family is restrictive, but clear: a married couple (with or without children) is included, but any non-marital relationships are not.
As voters begin to focus their minds on the referendums due to be held on March 8, debate is intensifying about what exactly the proposed constitutional amendments would mean if they are passed.
Two separate amendments will be the subject of separate ballot papers.
The care amendment would replace the current Article 41.2, which recognises the contribution to society made by women in the home, with a gender-neutral provision obliging the State to “strive to support” care in the family.
The family amendment would extend Article 41 of the Constitution, which obliges the State to protect the Family, beyond marital families to include families based on “durable relationships”.
Voters can vote yes or no separately to each.
One of the key points of debate that has emerged at this stage of the process relates to the meaning of the term “durable relationships”. At present, the scope of constitutional protection for the family is restrictive, but clear: a married couple (with or without children) is included, but any non-marital relationships are not.
The proposed amendment would certainly be more inclusive and reflective of the reality of modern family life in Ireland, but the flipside is that it would lack the clarity of the current position.
What form of durable relationship would qualify for constitutional protection? Who would decide this?
The answer to the first question is that we don’t know at present; nor should we expect to have a comprehensive definition available that would cover all scenarios. The entire purpose of the amendment is to move away from a rigid definition of the family towards a more flexible approach that accounts for the fact that families come in all shapes and sizes.
Constitutions are not supposed to cover every angle with detailed and prescriptive language. On the contrary, they set down broad principles that are capable of evolving over time in line with the needs of society. This promotes stability in our fundamental law, and avoids the need for frequent amendment.
Our experience with constitutional provisions on divorce and abortion over the past 40 years has demonstrated the difficulties that can arise if the Constitution sets down black-and-white rules on matters of social policy instead of defining general parameters within which the elected branches of State can operate.
This brings us to the second question: who would have the responsibility of deciding what sort of durable relationships would qualify for constitutional protection?
Over the course of the campaign, it will be said this will be for the courts to decide. But that is not the whole story. In the first instance, it will be for Government and the Oireachteas to decide (in policy and in legislation) which families are sufficiently durable to be recognised as such.
Anyone who feels that their family relationships have been excluded from such recognition and protection would be entitled to rely on the amended Article 41 to mount a constitutional challenge to their treatment. To that extent, the courts would have the role of clarifying our understanding of the meaning of the term “durable relationships”, and would have the power to find that laws or policies are invalid due to a failure to recognise a family that enjoys constitutional protection.
But while the decision of the courts would be final (subject only to reversal through a further referendum), it is well established in Irish constitutional law that the courts should afford considerable deference to the elected branches of government, especially on matters of social policy.
This means that the position taken by the Oireachteas or by the Government regarding which families fall within the scope of constitutional protection for “durable relationships” would not be invalidated by the courts unless there were compelling reasons to do so.
This dynamic reflects the fact that politicians are elected and representative of society; as such, they are better placed than unelected judges to make an assessment on sensitive social policy matters, or on matters impacting on the distribution of public resources (such as taxation or social welfare arrangements). The Supreme Court has repeatedly emphasised this point in recent years.
Essentially, the family amendment would leave us in a position not dissimilar to that seen in the European Convention of Human Rights. The convention protects a right to family life that includes “de facto families” as well as marital families. The meaning of “de facto family” has evolved in the case law of the Strasbourg court over several decades, and the court has found member states (including Ireland on two occasions) in violation of the convention for failing to recognise and protect family life.
However, it has also frequently found that member states had acted within their discretion in deciding that certain family forms did not amount to “family life” within the meaning of the convention, and that the court should be slow to second-guess this assessment.
Leaving the definition of the family open to evolution over time, with the lead role played by elected branches of State and the court acting only as a safety net, has worked well in international law. There is good reason to believe it will work well in Irish law also.
- Professor Conor O’Mahony lectures in constitutional law and child law at the School of Law in University College Cork.