Editorials

The Irish Times view on women in the Constitution: Home truths

The Government should explain why it ignored advice on the “duties in the home” provision

In a judgment in 2001, Supreme Court judge (and future Chief Justice) Susan Denham suggested that article 41.2 did not assign women to a domestic role. Photograph: Dara Mac Dónaill
In a judgment in 2001, Supreme Court judge (and future Chief Justice) Susan Denham suggested that article 41.2 did not assign women to a domestic role. Photograph: Dara Mac Dónaill
Sat Jun 23 2018 - 00:02

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.

Opposition to article 41.2 of Bunreacht na hÉireann is as old as the Constitution itself. While it reflected the strong influence of Catholic social teaching in the 1930s, the Constitution’s references to women in this and other provisions were the issue that stirred most debate when the document was drafted. Critics argued that the State could use those provisions to justify gender discrimination in the workplace. More broadly, article 41.2 has been derided for perpetuating outdated stereotypes and legitimising a long-vanished value system.

Arguably, article 41.2 could have been exploited more. It's tempting to wonder what the feisty Supreme Court of the 1960s and 70s would have done had a woman come before it citing the provision as a basis for obliging the State to improve financial support for stay-at-home mothers. In 2001, Supreme Court judge (and future chief justice) Susan Denham suggested that 41.2 did not assign women to a domestic role. Rather it recognised "the significant role played by wives and mothers in the home", and the "immense benefit" of that work for society. That did not exclude women from other roles, she remarked.

But in a Constitution that has stood up remarkably well for 80 years, article 41.2 has aged badly. It fails to reflect the spectrum of women’s roles and experiences in society. When the Convention on the Constitution considered this in 2013, it recommended making 41.2 gender-neutral but retaining recognition for carers . An official taskforce suggested something similar. Instead, the Government has proposed a referendum on deleting the article entirely. On balance that could be the right approach, but the Government has a duty to explain why it is ignoring the advice it has received.