It has taken 11 governments spanning more than 30 years to finally dust off a towering stack of reports calling for the removal of a highly contentious part of the Constitution – the reference to a woman’s life and duties in the home.
The proposal to change this was supposed to be straightforward.
The Coalition wanted to hold a referendum on International Women’s Day, March 8th, to delete the reference, win the vote and claim victory, even if it would be a mostly symbolic one.
This week, however, the debate around the plans descended into confusion over “throuples” (relationships consisting of three people), polygamy, the definition of a durable relationship and even immigration.
There is mounting anxiety among ministers that the referendum’s success will be thwarted by confusion, misinformation and, in a worst-case scenario, outright apathy
A grudging reluctance among non-governmental organisations (NGOs) to support the planned referendums, coupled with some strong reservations expressed by the Opposition in the Dáil, have come before the starting gun has even been fired on the campaign.
There is mounting anxiety among ministers that the referendum’s success will be thwarted by confusion, misinformation and, in a worst-case scenario, outright apathy.
Starting with the 1993 report from the Second Commission on the Status of Women, countless forums, groups, committees and conventions have met to consider the issue and all have recommended some form of change.
There have since been at least 15 major reports on the issue.
What has emerged from this lengthy line of reports has been an overarching recommendation that the offending article – Article 41.2 – should be changed and that, alongside this, there should be a recognition of care work within the home. Many groups have gone further and called for a recognition of care outside of the home, too.
This is the first bone of contention among NGOs and Opposition politicians: the Government proposal says the State recognises care within the home and will “strive” to support this.
Opposition politicians have taken issue with the word “strive” instead of a more concrete promise, and have said care within the wider community should be recognised.
The Government was given a significant boost this week, however, when Family Carers Ireland said it would be calling for a Yes vote.
The Coalition also wants to widen the definition of family in a second referendum, by changing the Constitution to say that family can be founded on marriage and “other durable relationships”. The point of this change is to recognise that families now come in all shapes and sizes, whether they be lone parents or same sex couples.
The seeds of confusion have now been sown, however, around what this would mean for other kinds of relationships, what exactly a durable relationship is, and whether there would be an impact on immigration law if reunification was theoretically opened to a wider family group.
Minister for Children Roderic O’Gorman has said a durable relationship would “encompass relationships of strength, stability and commitment” and that the Attorney General has noted there will be no impact on immigration law. He also clarified that polygamous relationships or “throuples” do not come under the umbrella of durable relationships. Polygamous relationships are not recognised in Irish law.
With two referendums, and the debate around both becoming increasingly complex, political analysts have identified no fewer than five potential landmines for the Government in the weeks ahead.
1) ‘If you don’t know, vote No’
Prof Jane Suiter, a political scientist in the Dublin City University (DCU) School of Communications, warns that in increasingly complex debates, there is a danger of the busy voter going for the “if you don’t know, vote No” option.
“It’s always easier to sell a No vote than a Yes vote,” she says.
Gary Murphy, professor of politics at DCU, agrees. “Referendums are by their very nature unpredictable and hazardous for governments. You need to give people a reason to vote to change the Constitution.
“So this was straightforward enough in something like the marriage equality referendum of 2015 or the Repeal [the Eighth Amendment] referendum. It was a completely different story with something like reducing the age of candidacy for the president on the same day as the same sex marriage referendum. The government gave no real, cogent reasons as to why this should be done, so the electorate said No.”
This, Murphy says, is “the big danger” for the Government in the upcoming referendums.
“If people don’t think it will make a difference to their lives, the tendency is to say No or simply not vote.”
The No campaign had an early advocate in its corner when, in this newspaper, former minister for justice Michael McDowell raised a series of questions about the proposals and then went on to describe them as “blindman’s-buff referendums”. He said it would be “prudent” to vote No.
2) Getting the campaign right
The second issue for the Government will be getting the campaign right, not only in its messaging and information, but also in how often politicians are put forward to argue the case. Suiter says the Government will have to be active, articulate and on-message but ideally would not be the main player.
“People will trust certain actors,” she says. “Sometimes people trust the Church, the GAA, the president. Whatever the cause is, there are different shortcuts. The Government needs to campaign and be clear with their message, but they do not need to be the main actors.”
For example, Suiter points towards the referendum on removing the ban on abortion, which heavily leaned on the message of “trusting the advice of doctors” rather than politicians.
3) Turnout
In 2012, the Children’s Rights Referendum proposed inserting a new article into the Constitution strengthening rights around issues such as adoption, State intervention in neglect cases and giving children a say in their own protection proceedings.
More than 3.1 million people were eligible to vote, but a low-key campaign failed to capture the public’s attention and resulted in a turnout of just 33.5 per cent. It did pass, by 57.4 per cent to 42.6 per cent, though the scale of the No vote took many by surprise.
Murphy believes that a turnout of around 40 per cent for the referendums in March would represent a good day for the Government.
4) Misinformation
Murphy believes misinformation will be a “big challenge” for the new Electoral Commission, which has been tasked with combating this increasingly widespread issue in future votes.
“At a relatively minor level, there were allegations of foreign actors attempting to influence the 2018 referendum on the Eighth Amendment by urging Irish citizens to vote No through a variety of means,” he says.
“It is likely that some such influences will be made at these referendums,” Murphy adds, saying that “at a broader level, the need to counteract election interference will become increasingly pressing for the State over the next few years”.
The Government has a task on its hands to clearly explain why it has chosen to limit its recognition of care to the home, and what exactly constitutes a durable relationship.
O’Gorman told the Dáil this week: “If we were to identify and enshrine the rights of one particular cohort of workers and, in particular, if we were to enshrine rights around private sector employers and private commercial enterprises in the Constitution, that would be problematic.”
What he did not say is that many politicians - and lawyers - believe the Constitution should not become a document that dictates where the resources at the disposal of the government of the day should go.
5) Will voters take the chance to give the Government a kick?
This will be the first opportunity for voters to go to the polls en masse since the 2020 general election. Since then, the country has lived through a pandemic, a cost-of-living crisis and is now in the grip of a divisive immigration debate. Factor in a housing crisis and there is, Suiter says, “always the potential” for voters to take the chance to give the Government a kick.
Asked to give her prediction, she says: “The main thing will be turnout, having the debate, keeping it on the airwaves and having good, articulate people talking who can make the argument clearly.”
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