The Referendum explained

[Itchy]

I have extracted the "explanatory" type posts from the this thread of "debate" posts. So please debate the issues in the other thread but keep this for explaining it . If your post is "I am voting yes, because..." then it should be in the other thread and not this one. - Brendan

Justice Baker was on Pat Kenny this morning and I thought she was very clear.

She acknowledged that it would have to be determined by the courts to the extent to which Article 41.1 is relevant to the particular circumstances. So in the recent O'Meara case he argued that he was entitled to the widowers pension as they were a family. So he won the social welfare entitlement but did not win the part of the case where he was seeking the court to acknowledge his status as a family. So the constitutional element was not relevant, per se, and this is the case with other entitlements, rights etc. So logically, these existing rights/entitlements would be unaffected.

However, my question would be that if people are currently NOT entitled to those rights, will they now be given their new status? Again, Justice Baker on Pat Kenny this morning said the parameters around "durable" were 2 years w/kids and 5 years w/o kids based on existing case law/determinations etc. I think the real meaning of this, is that it will be context dependent and be determined by the courts (which is what happens currently with other constitutional provisions e.g. equality is not defined in the constitution but the courts are competent at interpreting it).

Another question, the state now has a way to say you are in a relationship whether you like it or not - young people don't get married until mid-30s now, but could be considered to be in a durable relationship the moment they turn 18 or so. The corollary of the O'Meara judgement is that the State can intimate that you are in a durable relationship and thus it must be considered for e.g. means tested benefits, when the persons themselves don't want to be defined that way?

The second is to remove Article 41.2 " “In particular, 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. 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.”
That sounds very misogynistic, because it kind of is, but it does give women additional protections.

What protections? The Courts interpretation of this provision has granted women the recognition that work within the home is of equal moral value NOT of equal financial value to work outside the home. There are no automatic entitlements that flow from this provision.

For example it's the reason that Children's allowance is paid to mothers.

That's not the reason why that happens. This provision was also not the reason for the marriage bar etc. etc. Those things happen/happened and have nothing to do with 41.2.

I'm in favour of removing it but I'm not sure I would be if I was a woman. Beyond the annoying and anachronistic language I don't see a downside for women in having it there.

Justice Baker again indicated that this provision envisages a woman with children working within the home.

So, In fact, the constitution as it stands provides recognition to family's without a man in them. But who gets the recognition when its two married women? Should both women not be obliged by economic necessity to work outside the home? Do both women "give to the State a support without which the common good cannot be achieved" in a way that a family of men do not? Maybe academic in the scheme of things but if the family referendum is not passed, this would seem to be a discontinuity.

In order to facilitate the first change a third change is being proposed; Article 41.3 is to be amended to remove the wording in italics, “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.”. I don't see how that matters either way.

Justice Baker confirmed that this is to ensure consistency.

The fourth change is to insert a new Article, 42B, (really replacing 41.1) which 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.”.

Now since we have no definition of what a family is, until the Supreme Court tell us in a decade or so, that sounds like a license for every lobby group, socialist, charity and chancer to try to assert their right to a handout and generally access services and supports that they shouldn't be entitled to. There's absolutely no way I'd vote in favour of that.

This is hyperbole in my view. The family is far more defined than an "unknown entity".

Say the family referendum does not pass. Then it will be continue to be founded on (not defined by) marriage. If the referendum does pass, those families founded on (not defined by) marriage will continue to be recognised in addition to those who have been determined to be founded on a durable relationship, which already have 'parameters' but whose boundaries (for want of a better word) have yet to be fully tested.

Interestingly, this change is more significant than has been discussed. The provision changes the wording from The State "shall endeavor..." to the State "shall strive...", why? Strive is a stronger word in my view. It implies that the State has to do more than its currently doing?

One question I have on this. if one of the changes here is to change the definition of family to remove marriage (and replace it with durable relationship), what was the point of the last referendum to allow gay marriage?

It sounds like a yes vote dilutes the importance of a marriage or else I'm missing something.

The State recognises the Family, whether founded on marriage or on other durable relationships

Marriage is not being replaced or diluted. Parity of esteem is not dilution, in the way that gay marriage is not a dilution of "marriage". You may not like the definition but that's subjective.

Family will be continue to be founded on marriage but there will now be another family structure that will be founded on a durable relationship. The institution of marriage will continue to have special status in the constitution.

 

[arbitron]

That's very helpful @Itchy - it's hard to evaluate all of this when people are projecting their fears/fantasies onto it.

The issues being considered are important to a lot of people, in particular certain groups who have not been well treated by society. They deserve to have these amendments considered in a respectful and serious manner, without facetious comments about wokeism and throuples.

It's unfortunate to hear people advocate protest votes, e.g. Sinéad Ryan: I’ll be voting No in the referendums as a protest – but not for the reasons you might think. Constitutional rights should never be weaponised to "punish the government" when the citizens are the ones affected.

We are lucky to live in a time and place where we have the protections of a written Constitution guaranteeing us freedoms that billions of other people could only dream of.

 

[thedaddyman]

So if I understand the lengthy and very good posting from above, if the referendum is passed, it will be up to the Supreme Court to define what a family is and if it's not passed, it will be up to the Supreme Court to define what a family is?

So why are we having a referendum?

 

[Purple]

Justice Baker was on Pat Kenny this morning and I thought she was very clear.

She acknowledged that it would have to be determined by the courts to the extent to which Article 41.1 is relevant to the particular circumstances. So in the recent O'Meara case he argued that he was entitled to the widowers pension as they were a family. So he won the social welfare entitlement but did not win the part of the case where he was seeking the court to acknowledge his status as a family. So the constitutional element was not relevant, per se, and this is the case with other entitlements, rights etc. So logically, these existing rights/entitlements would be unaffected.

However, my question would be that if people are currently NOT entitled to those rights, will they now be given their new status? Again, Justice Baker on Pat Kenny this morning said the parameters around "durable" were 2 years w/kids and 5 years w/o kids based on existing case law/determinations etc. I think the real meaning of this, is that it will be context dependent and be determined by the courts (which is what happens currently with other constitutional provisions e.g. equality is not defined in the constitution but the courts are competent at interpreting it).

Yes, that's the key point. Equality is not defined in the constitution but it is defined by law (The Equality Act 2000 & 2004). We don't know what the accompanying legislation will look like. Given the populist nature of Irish politics and the economic illiteracy of so much of the electorate I fear it will result in an even larger State with even more redistribution of income, thus increasing wealth inequality.

Another question, the state now has a way to say you are in a relationship whether you like it or not - young people don't get married until mid-30s now, but could be considered to be in a durable relationship the moment they turn 18 or so. The corollary of the O'Meara judgement is that the State can intimate that you are in a durable relationship and thus it must be considered for e.g. means tested benefits, when the persons themselves don't want to be defined that way?

It could happen that way but there's nothing stopping the State from just enforcing existing rules around who and what is a dependent and what constitutes a household and household income so I wouldn't hold my breath.

What protections? The Courts interpretation of this provision has granted women the recognition that work within the home is of equal moral value NOT of equal financial value to work outside the home. There are no automatic entitlements that flow from this provision.



That's not the reason why that happens. This provision was also not the reason for the marriage bar etc. etc. Those things happen/happened and have nothing to do with 41.2.

So it is currently unconstitutional that one parent is automatically entitled to financial supports and tax allowances solely by virtue of their gender? If not then that's down to Article 41.2.

Justice Baker again indicated that this provision envisages a woman with children working within the home.

So, In fact, the constitution as it stands provides recognition to family's without a man in them. But who gets the recognition when its two married women? Should both women not be obliged by economic necessity to work outside the home? Do both women "give to the State a support without which the common good cannot be achieved" in a way that a family of men do not? Maybe academic in the scheme of things but if the family referendum is not passed, this would seem to be a discontinuity.

That can be done by just removing the reference to women in the home.

Justice Baker confirmed that this is to ensure consistency.

In what way?

This is hyperbole in my view. The family is far more defined than an "unknown entity".

So what's the definition?

Say the family referendum does not pass. Then it will be continue to be founded on (not defined by) marriage. If the referendum does pass, those families founded on (not defined by) marriage will continue to be recognised in addition to those who have been determined to be founded on a durable relationship, which already have 'parameters' but whose boundaries (for want of a better word) have yet to be fully tested.

A parameter established in case law is not a sound basis upon which to change our constitution. It should not be up to unelected Judges to define such parameters or set such boundaries.

Interestingly, this change is more significant than has been discussed. The provision changes the wording from The State "shall endeavor..." to the State "shall strive...", why? Strive is a stronger word in my view. It implies that the State has to do more than its currently doing?

I agree. Another good reason to vote no.

Marriage is not being replaced or diluted. Parity of esteem is not dilution, in the way that gay marriage is not a dilution of "marriage". You may not like the definition but that's subjective.

I agree.

Family will be continue to be founded on marriage but there will now be another family structure that will be founded on a durable relationship. The institution of marriage will continue to have special status in the constitution.

I don't care about that one way or the other.

 

[Leo]

It shouldn't specify things like abortion or care or what is really just legislation.

Exactly, much easier for changes in society to be accommodated in legislative changes than the burden of repeated referenda.

 

[Brendan Burgess]

I held off thinking about this until I got the brochure from the Electoral Commission. But it's absolutely useless. No information in it at all.
Itchy's first post in this thread is the best explanation so far.

Brendan

 

[WizardDr]

Michael McDowell apart from being a Senator and past Attorney General is a fine barrister.

His views are widely available on Irish Times and he doesn't pull his punches.

He is recommend a NO vote x 2.

 

[Sophrosyne]

Question.

According to the Referendums Guide;

"The institution of Marriage will continue to be recognised as an institution that the State must guard with special care and protect against attack".

If different types of family units are to have the same constitutional rights and protections as marital families, why the above?

 

[Purple]

The fourth change is to insert a new Article, 42B, (really replacing 41.1) which 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.”

If families are now all equal, whether they are defined through marriage or not, then will they all enjoy the same rights to things like spousal pensions and the inheritance tax exemptions that spouses and children receive?

At the moment only two people can be married. How many can be in an enduring relationship? Can all of their children get those inheritance tax exemptions? I'm sure there are plenty of other examples in other area that I haven't thought of.

This article in the Irish Times articulates the issues of concern that many people have.

 

[Sophrosyne]

It is worth remembering that the Irish Constitution is an expression of the will of the Irish people as a whole and not just Irish politicians.

Therefore, in the case of constitutional amendments, the Irish people - with or without legal expertise - have the right to understand exactly what they are voting for.

A confusingly worded amendment where the intention is most unclear is worse than useless.

Moreover, it creates interpreting difficulties for our courts. One court may arrive at a certain interpretation, while a differently constituted court may arrive at another, depending on the method of interpretation used.

There are many interpretation methods that have been used – literal, purposive, historical, natural law, the constitution as a living document, etc.

The Irish people cannot be expected to foresee possible legal outcomes and methodologies used to arrive at those outcomes, in such an important and fundamental issue, as that would be contrary to the to the purpose of the constitution.

 

[Leo]

One court may arrive at a certain interpretation, while a differently constituted court may arrive at another, depending on the method of interpretation used.

In a common law system a judicial ruling remains precedent unless altered or over ruled by a higher court. They don't all get to make it up.