Women, Home and Economic Necessity: Retaining or Repealing Article 41.2

BunreachtHeadIt looks likely that there will be two referenda in October, one dealing with Article 41.2 of the Irish Constitution, on women in the home, and a second on blasphemy. Article 41. 2 of the Constitution currently provides:

1° 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.

2° 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 Government’s thinking differs from the Constitutional Convention’s recommendation to replace Article 41.2 with a gender neutral provision recognising the role of all carers within society, as well as providing the State should offer support to carers. The Irish Human Rights and Equality Commission in June 2018 have also recommended the inclusion of a gender neutral recognition of those with caring responsibilities, as well as a reference to a broader concept of family life.

In 2016, a Taskforce recommended including an explicit provision, which would provide:

The State recognises that home and family life gives to society a support without which the common good cannot be achieved. The State shall endeavour to support persons caring for others within the home as may be determined by law.

Absent a significant change in Government policy, it is likely that the option put to the people will be repeal simpliciter – simply removing any references to the support women provide to the State and the “imperfect obligation” upon the State to ensure women are not obliged by economic necessity to seek work outside the home.

A key question for me in determining how I will vote, is what to-date has Article 41.2 provided by way of substantive rights  and protection to those it purports to protect?

From a review of all case-law that engages (even minimally) with Article 41.2. (access this document  identifying these cases here: Case Law and Article 41.2), I would argue that there is no basis for maintaining Article 41.2 in the Constitution.

It is not to my mind a zero-sum game, that I would only vote for the removal of Article 41.2 if there is some other provision inserted to assuage our conscience as regards supporting carers. I might have a preference or see value in the inclusion of such a provision, but do not believe it should be used as a means of maintaining the status quo (if this is the only option we are provided with).

Judicial interpretation of Article 41.2 has never resulted in the provision of substantive rights to women or to carers more broadly. Where Article 41.2. has been utilised, it has in every single case been used as a subsidiary mechanism for bolstering interpretations of law provided under other constitutional provisions and legislation.

In the case of Dennehy v Minister for Social Welfare from 1984, Article 41.2 probably had its most expressive, but still subsidiary, impact. Judge Barron accepted that Article 41.2 permitted the State to provide a deserted wives allowance, and this provision further justified the State in not providing a deserted husbands allowance. (Legislation has now caught up with this issue, providing one parent family payment on a gender neutral basis). However, the core of the case fell to be interpreted on the (very weak) equality guarantees in the Irish Constitution.

In other socio-economic rights cases, Article 41.2 has never been utilised as a means of providing increased support to women who were carers. The closest it has come was preventing a married mother arguing that unmarried mother’s allowance was an invidious attack on the constitutional family. Chief Justice Finlay in the MhicMathuna case did make a much broader point,

With regard to the provisions of Article 41 of the Constitution, it is clearly conceivable that under certain circumstances statutory provisions, particularly those removing in its entirety financial support for the family, could constitute a breach of the constitutional duty of the State under Article 41.

Within other socio-economic rights judicial decisions on education rights, property rights, social welfare and income tax law, Article 41.2 has never provided grounds for enhanced supports for mothers and/or carers. In the area of property rights and marriage, the High Court in L v L did attempt to enhance the property rights of a non-owning wife, with reference to Article 41.2, however this was struck down by the Supreme Court.

Within divorce law, Article 41.2. has sometimes been referred to as a subsidiary basis for not providing clean break within divorce proceedings in Ireland. However, this no-clean break provision is fully grounded in the constitutional provisions on divorce, as well as the maintenance provisions of legislation under the Family Law (Divorce) Act 1996.

In legal fields relating to marriage, equality, surrogacy, child-care law and immigration law, attempts to rely on Article 41.2 have never resulted in anything approaching a positive benefit upon mothers/carers.

The 2016 Taskforce proposal  on replacing Article 41.2. would add nothing substantial or significant for the rights of carers. Note the wording, support that is provided by law (or not) will be adequate. Whether Article 41.2 remains, is replaced or is repealed, it should be clear that whatever approach is adopted, societal support for carers or men or women who decide to provide care in the home, will continue to be determined by the Oireachtas. The Courts would be exceptionally reluctant to ever review the determination by the Oireachtas as to what would be adequate supports for carers. The recommendations of the Irish Human Rights and Equality Commission deserve further discussion, however, I would think that the issue of definition of family may need to be considered much more broadly beyond the removal of Article 41.2.

For now, if its a decision between retaining, or repealing Article 41.2, then it would be wholly appropriate to repeal this article and send a strong message that gendered and misogynistic views of the place of women within society do not have a place within our basic law in 2018.