by Alessia Riccioli*
1. Topics addressed in the twin referendums
On the International Women’s Day, Irish citizens voted on two Constitutional Bills to modify the 1937 Irish Constitution. The two proposed Amendments concerned Article 41, regarding women’s role in the home, defining the family as a unit based on marriage.
The Family Amendment
The Thirty-ninth Amendment of the Constitution, also known as the Family Amendment (Bill no. 91 of 2023), sought to amend Article 41.1.1°. It currently states that “The State recognises the Family as the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law”.
The Amendment aimed at adding the expression “whether founded on marriage or on other durable relationships”. If passed, the Amendment would have allowed for not-traditional models of family, not just those based on marriage, to be recognized by the Constitution.
Moreover, the Amendment sought to modify Article 41.3.1°, which acknowledges the “special care” that the State recognizes to “the institution of Marriage, on which the Family is founded”. The proposed change aimed at removing the expression “on which the Family is founded” from this constitutional provision, allowing for durable relationships outside of marriage to be recognized and protected by the State as well.
As stated in the official proposal of this Amendment, a YES vote would have established the concept of a family based on “different types of committed and continuing relationships other than marriage”. Nonetheless, the proposal guaranteed that marriage would still be treated with special care and protected by the state “against attack” (as currently stated in this provision).
In Ireland, the rights of cohabitating couples are regulated in the Civil Partnership and Certain Rights and Obligations of Cohabitants Act (2010). According to the latter, cohabitants are defined as a same-sex or opposite-sex couple, unmarried or in a civil partnership, who live together in an intimate and committed relationship (not being related to each other). Although this law provides cohabitants with some security, the legal protection is far from being equivalent to the rights guaranteed to married couples (or couples in a civil relationship). If the proposed Amendment had passed, it would have granted different types of family units the same constitutional rights and protections as married couples. [1]
The Care Amendment
The second bill was known as the Care Amendment (Fortieth Amendment of the Constitution, Bill no. 92 of 2023). It aimed at deleting Article 41.2.1°. The current constitutional provision at stake defines the role of women “within the home”, stating that “woman gives to the State a support without which the common good cannot be achieved”. Moreover, through the Amendment, it would have also been deleted Article 41.2.2°. This provision outlines the State duty to protect working mothers, meaning that “mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home”.
Thus, this Amendment aimed at removing from the constitutional text expressions such as the woman’s “life within the home” and “duties in the home” and adding a new Article 42B on care within the family, instead. This new provision would have provided for a constitutional more sensitive wording towards care activities, also more equally distributed within the family. It stated that “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.”
2. Issues related to Article 41
Both the proposed amendments aimed at updating the constitutional text, perceived as old-fashioned by the political majority that endorsed the referendums. The current Article 41 indeed enshrines the role of women in the family, outlining the traditional distinction between the private and public spheres and the women limitation to the former. Although this article provides for fundamental constitutional protections related to family and working mothers, it follows an accommodationist model (Rubio, 2016). It provides for constitutional measures seeking to protect pregnant women and working mothers, however enforcing their roles as mothers and main caretakers of their family. As far as European Constitutions are concerned, the centrality of the family domain, especially of motherhood (and not just parenting), represents a common feature. “Accommodationist workerism” allowed mothers and workers to obtain a broader range of essential protection. However, from a long-term perspective, it showed several shortcomings. The latter concerned women’s rights since it entrenched a phenomenon called “normative motherhood,” namely the state expectation that a woman citizen will be a mother. Consistently, women have historically been considered the reproductive means of the state, whereas men have traditionally been regarded as its political body.
3. Results and interpretation
Irish people largely rejected both amendments. The Family Amendment was rejected with a majority of 67% versus 32%, while the Care Amendment was rejected with 74% versus 24% [2].
It was a defeat not only for the government but for all main parties too, since the referendums were supported by all major parties, including centrist government coalition partners Fianna Fail, Fine Gael and the Green Party and the biggest opposition party, Sinn Fein. The electorate was not fully aware of the implications of the amendments, according to how the results have been interpreted.
Recently, conservative political forces have gained more political space in Europe (and beyond). Nevertheless, right-wing forces growth does not seem related to the Irish political background. In the past decade, Ireland has successfully passed two significant liberal reforms that gained great from public support. These include the 2015 same-sex referendum and the 2018 abortion referendum.
As far as the 2015 referendum is concerned, the Thirty-fourth Amendment of the Constitution was approved, amending Article 41 to provide that persons may marry without distinction.
Moreover, the 2018 referendum is particularly interesting since the recent European constitutional developments on the abortion issue. It involved the Thirty-sixth Amendment, concerning Article 40.3.3°. Whereas abortion was previously prohibited unless a severe risk to the mother’s life, the amendment added that “provision may be made by law for the regulation of termination of pregnancy”. Nevertheless, it is worth noting that this provision did not grant constitutional protection for the right to abortion. It just provided for a legislative regulation on the issue. Thus, it differs significantly from the new Constitutional Amendment passed by the French Congress on March 4, which regarded abortion as a fundamental right (defining it as a “guaranteed liberty”).
These referendums represent a missed opportunity to entrench women’s rights, promote a more balanced distribution of care work, and challenge the assumption that women are the primary family caretakers. Article 41 of the Irish Constitution currently defines the family solely in terms of marriage and gives it a “special constitutional status”, which undermines other family models beyond the traditional, heteronormative structure.
*PhD Candidate, University of Pisa
