Former Justice Minister and Attorney, Senator Michael McDowell, has said repealing Article 41.2 of the Constitution, which will go to referendum in March, would take away special protection for stay at home mothers.
“Many, many women in Ireland do not want to be forced out of the family home,” the Barrister said.
The Irish Senator made the comments while debating the forthcoming referendums on RTÉ Radio 1’s Today with Claire Byrne programme.
Mr McDowell said that the article did not reference a woman’s place being in the home, as has been claimed, stating:
“Fundamentally though, what you said earlier, that a woman’s place is in the home – that is not stated at all.
“All it says is that, where a mother, as opposed to a woman, is entitled to support from the State so as not to be obliged to work outside the home. That’s all it says,’ the Senator told host Claire Byrne.
When it was put to him that the language was “archaic” and the opportunity should be taken to address it, Mr McDowell responded:
“Because it is, in fact, to take away the protection – the special protection – for mothers who stay at home, which was relied on by the Supreme Court as far back as 1980 in the Murphy decision, which ended up in the doubling of tax allowances for married people.”
He pointed out that the Supreme Court had relied on the particular provision, which is now to be changed, as part of its reasoning in saying that “the tax regime at that time was discriminatory towards married couples in particular, and women who stayed in the home as well” when it came to consider income tax laws.
Asked about his assertion that the article had a limited impact and does not confine women’s choices, Senator McDowell expanded:
“Simply, every woman now under equality law, is entitled to compete equally with men in the workplace. They’re entitled to work outside the home. There is no discrimination against women who work outside the home.”
Neasa Hourigan, Green Party TD for Dublin Central, challenged the former Attorney, and said the reason to remove the amendment was because it had “failed women,” and that the State had “marginalised women.”
She also said it dismissed the “increasing role” of men in the home. Deputy Hourigan said that while it was not suggested the article was “stopping women doing anything” by either the Citizens Assembly or the Gender Equality Committee, she described the amendment as “archaic, patriarchal, and rooted in religious dogma” – adding, “It does frame our lives, it frames our law.”
In response, Senator McDowell said that the Green Party TD had conceded one point – that “nobody is prevented from doing anything by this article.”
“But what it does do,” he said, “It commits the State to supporting women who do choose freely to stay in the home, and who want to stay in the home.”
Asked about the argument that this perpetuated traditional gender roles, which Claire Byrne asserted could mean maternity leave but not paternity leave would be provided, the Senator responded:
“All of those things could be dealt with by ordinary laws. The Constitution doesn’t dictate any law in relation to social welfare. All it does is prohibit the State from neglecting women who choose, as mothers, to stay at home to look after their children, from being unfairly treated. That’s all it actually does.”
“Changing this particular article won’t change that at all,” he added. “It’s entirely symbolic.”
Deputy Hourigan, however, said that the language in the Constitution “breeds a kind of environment that the onus is on women,” as she brought up the issue of childcare.
The Senator argued that the provision wasn’t behind childcare issues, and that changing the amendment would not solve issues.
“You’re pointing to all sorts of things that happened in the past,” he told the TD. “Like the marriage bar – the marriage bar is gone. It can’t come back. It’s constitutionally prohibited. It could not come back.”
“The pay gap is still there,” Deputy Hourigan argued. “The pay gap is not going to be dealt with by removing this particular article,” Senator McDowell responded. “It has nothing to do with this particular article.”
Asked what it would achieve to accept the change in the Constitution, Deputy Hourigan said: “In my short time as a legislator, the amount of times I have been told something I want to do can’t be done because it’s unconstitutional – or that we’re creating a law in the very specific way that we’re creating it because it aligns with the constitution. Our constitution is the bedrock on which all of our law is created.”
“The fact that this law focuses on women and locates the responsibility for care on women, is flawed, and it does marginalise women. It does make us dependent.”
“It has failed women,” she said.
“It hasn’t failed women,” Senator McDowell responded, pointing to the use of the amendment when the Supreme Court reformed the income tax system.
“It specifically relied on this provision,” he said. “Prior to that supreme court decision, [women] were faced with discriminatory, anti-family income tax.”
“I’m saying very simply that there are many, many women in Ireland who do not want to be forced out of the family home where they’re looking after their children by economic necessity,” he told the Green Party politician. “This particular provision obliges the State to support them – that’s all.”
He said it ensured this support through the tax system, through social welfare, through child benefit, and through maternity benefit. “Of course it does.”
The senior lawyer said an economic barrier faced at the moment was the absence of state-provided childcare, something he said had “nothing to do” with women choosing to stay at home and look after their children.
REFERENDUM ON THE FAMILY
Regarding the referendum on the family, to be held on the same day, Senator McDowell has also come out in favour of a no vote. He told Claire Byrne that the article should not be amended to include “durable relationships.”
“The constitution at the moment is saying that the family is based on marriage,” he told the programme. He said that there were problems attached to expanding the definition of the family to include durable relationships.
“What is an enduring relationship?” he asked. “That’s a matter that the courts will ultimately have to decide, but the Supreme Court has already said it doesn’t have to be a permanent relationship.”
“Does it involve,” he asked, “Say three people living together – two women and one man? Or one man and two women? Is this to be afforded the same status as a family based on marriage?”
He continued, “What is the reason for saying that a commitment which is involved in marriage – and it’s no longer indissoluble, we have had divorce for a number of years – but that the commitment that is made between a couple to each other and to any children they may have, that that is to be reduced to… [or equated to]… other enduring relations?”
Deputy Hourigan argued in favour of the amendment on the family being addressed, saying that all types of families “deserve to be recognised.”
“They’re nothing less than a family because they’re not married,” she said, regarding couples she knew who were not married.
However, Senator McDowell told the debate that there would be a “whole series” of implications if the article was amended.
“For instance, three-party relationships: What are the implications if you recognise them for family law, for pensions law, for immigration law?”
“And going back to the tax law issue,” he added. “All of those issues are significant,” he added.
“The Minister may say that he’s preserving the special position of the family – but what he’s actually saying is that other relationships are now to be equated with the family, without specifying what those relationships are.”
Pressed about the need for all family units to be recognised, the Senator argued that this could be done “and is done” by ordinary law.
“For instance,” he said. “We have cohabitation entitlements for people who are long-term cohabitants. We can do all of those things, but what this provision is effectively doing, it’s saying that the legal commitment that people enter into when they marry, even in the end if their marriage ends up in divorce, is that that legal commitment is not especially important. And I believe that that’s wrong.
He also pointed to the UN Human Rights Charter, which talks about the right of men and women to marry and start a family.
“I don’t think this is an unusually antiquated or old-fashioned Irish idea,” he said.
You can listen back to the full debate here.