What are we being asked to vote on, this March 8?

The 39th and 40th Amendments Explained

The Constitution is the foundational law of our State and, unlike ordinary legislation, cannot be amended by the legislature alone.

The Constitution can only be amended if the people vote to accept the proposed change in a referendum.

On March 8, 2024, you will decide whether Article 41 of the Constitution will be amended.

The first proposal asks if you want to modify the text of Article 41.1 (the family amendment), the second whether you want to delete Article 41.2 and replace it with a new Article 42B (the care amendment).

Although both amendment proposals focus on Article 41, they are stand-alone proposals that you can independently accept or reject.

The first proposed amendment involves Article 41.1.

Article 41.1.1 provides 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”.

Article 41.3.1 prioritises the martial family: “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.”

Since we amended our Constitution in 2015, the family founded on marriage is no longer confined to a marriage between two people of the opposite sex. However, there are many other forms of relationship, including those with children, where the couple are not married. These relationships are not currently recognised as families under the Constitution.

When Article 41.1 was considered by the Citizens’ Assembly on Gender Equality in 2021, they recommended that the Constitution should continue to recognise the family as the fundamental unit group of society and that it should recognise non-martial families as families protected by the Constitution.

The proposed amendment of Article 41.1 seeks to give effect to these recommendations. You are asked if you want to insert “whether founded on marriage or other durable relationships” after the word “Family” in Article 41.1.1 and if you want to remove “on which the family is founded” from Article 41.3.1. The State is still required to protect the institution of the marital family from attack.

The core debate around this amendment has focused on the absence of a definition of what constitutes a durable relationship, and concerns have been expressed, particularly within the farming community, that the widening of the definition of family may have implications for succession rights.

If this amendment is accepted, individuals who believe their relationship is or was durable will come into conflict with those who do not agree with their interpretation.

The legislature may also seek to define what relationships are durable for the purposes of obtaining social welfare or other benefits. Individuals whose relationships are excluded from these definitions may seek to challenge the constitutionality of that legislation.

As is the case with other provisions of our Constitution, the meaning of this phrase will ultimately be decided by the courts.

The second proposed amendment concerns Article 41.2. Article 41.2.1 provides 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.” Article 41.2.2 continues that the State shall “endeavour to ensure that mothers shall not be obliged by economic necessity to engage in economic activity to the neglect of duties in the home”. This Article is colloquially known as the “woman in the home” Article.

The Citizens’ Assembly on Gender Equality recommended that Article 41.2 be deleted and replaced with a new Article acknowledging the gender-neutral provision of care. They also recommended that the State be obliged to take reasonable measures to support this provision of care.

The government has taken on board some, but not all, of these recommendations. The proposal seeks to delete Article 41.2 and insert a new Article 42B which will provide: “The State recognises that the provision of care by members of a family to one another, by reason of the bonds that exist between them, gives to Society a support without which the common good cannot be achieved and shall strive to support such provision”. It adopts a gender-neutral approach to care in the home – so men and women and not just mothers will be recognised as caregivers – but does not oblige the State to take reasonable measures to support the provision of care. Instead, it encourages the State to “strive” to do this.

Those in favour of the amendment argue that it will serve two purposes, even though it might not go as far as they would like. The first is that it will remove what they regard as a sexist and limited understanding of the contributions women make to society from the Constitution. The second is that it will provide a platform from which to argue for more State support for carers as the people will have voted to recognise their contributions.

However, it is important to reiterate that the amendment, if accepted, does not oblige the State to provide this support. Those opposed to the amendment are concerned it will represent a downgrading of the status of women as carers and homemakers or render invisible the fact that this unpaid labour is frequently done by women. It does not, however, remove women from the Constitution. Women and men are identified as citizens and workers in Article 45.

The decision on whether to accept one, both or neither of these proposals is yours. Use your vote on the 8th of March.