Last week, I wrote about the proposal to change the constitution, on which we will all be invited to vote on March 8th of next year, as it relates to the clause about women in the home. However, there are two referendums to be held on that same day, and the other might be vastly more significant.
The referendum on women proposes to amend article 41.2 of the constitution. The referendum on the family, however, proposes to amend article 41.1.1, as follows:
Plans were approved for a referendum to amend Article 41.1.1, which currently recognises the family “as the natural primary and fundamental unit group of Society”, to define the family as “whether founded on marriage or on other durable relationships”.
At first blush, that wording might not seem especially significant. It is, however, a potentially very significant change to the law.
The first thing to remember is that the constitution is the highest law of the state – the rules by which Government must abide, and the document through which the courts can force the state, regardless of who is in power electorally, to do their bidding.
In this context, it will be for the courts, ultimately, to come to a definition and understanding of the phrase “other durable relationships”. As such, the fundamental question for voters approaching this referendum next March is a simple one: What is an “other durable relationship”?
The obvious answer, and the one that comes to mind immediately, is a couple in a long-term relationship who have, for whatever reason, chosen not to be married. A few years ago, two heterosexual men who lived together platonically decided, in an openly strategic move, to get married in order to avoid inheritance tax:
When long-time friends Matt Murphy and Michael O’Sullivan got married, they openly admitted they did it to avoid inheritance tax. Two years ago, their marriage resulted in a blaze of publicity as it appeared to many that they were two straight men involved in novel tax planning.
Under the referendum we are to vote on next March, such a marriage of convenience would presumably not be necessary: They were living together in a mutually supportive and (platonically) loving relationship. This seems like exactly the kind of case where the courts might be moved to decide that their “family” deserves the same recognition under the new proposed constitutional text as that of a couple who have married for romantic love.
The problem voters will have to consider is whether in the first instance this is desirable, and in the second instance whether it is likely to stop there.
For example, in recent years the Irish media (and western media more broadly) has been keen to highlight the growth of so-called polyamorous relationships involving three or more adults living together romantically and sexually. Colloquially, a group of three is called a “throuple” and a group of four a “quad”. At present, marriage laws provide no option for the legal recognition of such relationships, since marriage is confined to the participation of two, and no more than two, consenting adults.
It seems relatively obvious to this writer that the proposed constitutional amendment to define the family as based on marriage “or other durable relationships” is aimed directly at providing legal recognition to polyamorous relationships, since they are the only kind of legal romantic relationship a person may be involved in at present where marriage between the participants is not lawful.
There are practical impacts on this: For example, marriage brings with it a series of tax and inheritance rights. Are these to be extended to those in “other durable relationships”? And if so, what legal structures will be necessary to codify in law the rights of people in such polyamorous relationships?
At present, the Government has no proposals to do anything in this area on foot of a referendum – but it could be forced to do so in the event of a polyamorous group taking a case for recognition under the constitution to the courts.
There’s also another salient issue: What will this mean for family reunification, in terms of immigration? At present, somebody granted residency here may bring their spouse and children to Ireland. But if “family” now means “other durable relationships”, then what is to stop somebody from bringing unrelated people here under the argument that the relationship with them constitutes “family”?
The implications do not end there either: For example, consider the case of an elderly farmer with no family who enlists over years the assistance of a younger, unrelated neighbour to keep his farm operational. Is that a durable relationship? Arguably so – since it has both endured, and is a relationship. It is not beyond the realms of possibility that such a younger neighbour might petition the courts to have himself declared “family” to the older farmer in the event of his death for both tax and inheritance purposes. After all, the laws of succession prioritise family, and we are about to change exactly what “family” means in the constitution.
This is not a small change: It is a potentially major alteration to what Irish people have always understood the word “family” to mean. It is also a change that has no accompanying proposed legislation to give voters any real ideas of how the Government intends the changes to be enacted in law – that will be entirely a matter for the courts.
This is a debate that needs to be held, and quickly. At the moment, Irish voters are being told that the changes proposed to their foundational legal document are small and symbolic. That simply is not the case.