If the five weeks of campaigning on the two referendums to be held on March 8th have established anything at all, it is the truth of the view stated by Cearbhall Ó Dálaigh. “Gentlemen,” he said, according Ruadhán Mac Cormaic’s book, The Supreme Court. “We have a Constitution. Yet no one seems to know what it means.”
It is all too easy – amid the columns and radio debates; the talk of Christmas cards and wedding invites; the baffling segues into “throuples” and polygamy; the arguments about whether the Constitution does or does not suggest women’s place is in the home; the impressive certainty of men who insist that Article 41.2 has no bearing, real or psychological, on the lives of women; the response from women who say that it very much does have an impact and removing it would rob them of “their ennobling acknowledgment in An Bunreacht”; the letters to the editor from those who breezily say it never stopped them going out to work; the debate about whether “strive” is stronger than “endeavour”; the concerns about whether the care amendment is no less stereotyping than the original – to forget what these referendums are actually about.
No wonder, according to recent Irish Times polling, that more than half the population are in the “haven’t got a clue” camp.
At the heart of both questions that will be put to voters is a simple wish. It is the desire that the Constitution should recognise that the breadth and complexity of families, the nature of care and women’s lives is greater than could have been captured by a document drawn up by a group of (married) men (with stay at home wives) in 1930s Ireland.
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The 39th or “family” amendment was always going to be tricky. If you ask people whether they want to extend the definition of the family, don’t be surprised if they ask “to what?” Telling them the courts will decide later may be reasonable, but it’s not entirely satisfactory. As Justine McCarthy has suggested, the answer lies in legislating for some form of civil partnership.
It was the values statement of a society in which women drew status from marriage
The heated response to the 40th or “care” amendment has been more unexpected, revealing much confusion about what the Constitution actually says. As chair of the Referendum Commission Justice Marie Baker pointed out recently, Article 41.2 does not say that a woman’s place is in the home. What it does say is that “by her life within the home, woman gives to the State a support without which the common good cannot be achieved” and that the State will “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.” As we’ve discovered, some read this as an offensive and paternalistic pat on the head. Others see it as a pragmatic reflection of the reality of women’s lives in 1937 – or at least the lives of middle class women. Yet others see it as a welcome endorsement of the domestic duties that are still mainly carried out by women.
But few could deny that the phrasing – “the neglect of their duties in the home” – is loaded. It may never have “been cited explicitly by either the Oireachtas or the courts to justify gender discrimination” as Prof Gerry Whyte put it, but neither was it ever interpreted by the courts as conferring any obligation on the State to provide anything more substantive than a Constitutional “well done, good girl”.
For decades, it was the scaffolding constructed around women’s lives which ensured that they remained small and confined. It was the values statement of a society in which women drew status from marriage – and in the case of mothers, where a wedding ring could mean the difference between freedom and incarceration. It was the backdrop to the marriage bar, which from the 1920s until 1973 required Irish women in the public sector to leave their employment upon marriage, and to the generations of women denied a pension because they didn’t accumulate enough stamps before stopping work to care for their children.
Those arguing in favour of retaining article 41.2 point out that women do still carry most of the domestic burden, so why change the Constitution to suggest otherwise?
And there’s plenty of data to back them up. Yes, there are now many more men who share the childcare and who know where the vacuum cleaner is kept and who are good, even brilliant cooks. But in this, I’m afraid, the statistics don’t lie. A CSO survey from 2021 found that nearly two thirds of women living with an opposite sex partner say they are mainly responsible for household chores, compared to 9 per cent of men.
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There are still far too many women who work all day and then come home for the second shift. They pick the children up from childcare and do homework and wash uniforms and throw on a stir-fry and RSVP to the birthday party invites and wonder why they’re still the ones doing it all. Article 41.2 might recognise the truth that women have always carried most of the domestic burden, but the answer is not to keep Article 41.2; it’s that the division of domestic labour needs to catch up with the reality of our lives. Women never wanted an insulting constitutional pat on the head. Mostly, what they want is a hand.
Voting yes to the deletion of Article 41.2 is not going to change anyone’s life, but it is another step to dismantling a society where women’s individual lives and expectations didn’t matter, where their value was measured in terms of their contribution to the “common good”. And when in this country did the “common good” ever mean anything other than the good of men?