The following is a summary of a discussion of the Ard Comhairle of the Workers’ Party relating to the two referendums scheduled for March 8th. Following the discussion, the Ard Comhairle opted not to endorse any position on either referendum. A full statement on the two referendums can be found by clicking here.

40th Amendment to the constitution – The Care Amendment

The 40th Amendment to the Constitution proposes deleting the current Articles 41.2.1° and 41.2.2° and inserting a new Article 42B.

Existing situation

Article 41

41.2.1° “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.”

41.2.2° “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.”

The Proposal

Proposed new Article 42B:

“The State recognises that the provision of care, by members of a family to one another by reason of the bonds that exist among them, gives to Society a support without which the common good cannot be achieved, and shall strive to support such provision.”

Arguments presented in favour of the amendment

Bunreacht na hÉireann was very much a De Valera project. However de Valera wrote very little of the actual constitution as we know it. In the articles relating to social policy de Valera relied heavily on the advice of John Charles McQuaid.These social policy Articles were unashamedly influenced by the social policy teachings of the Catholic Church and in particular by the papal encyclicals Rerum Novarum (Leo XIII, 1891) and Quadragesimo anno (Pius XI, 1931). The attitude to women in these edict s closely mirrors the earlier German concept of Kinder, Küche, Kirche (children, kitchen, church). 

These articles have always been recognised as discriminatory towards women. In the pre-referendum debates and in the referendum campaign of 1937 these articles were opposed by whatever progressive organisations then existing and particularly by women across the political spectrum ranging from Kathleen Clarke, Rosamund Jacob, Hannah Sheehy

Skeffington, to Jenny Wyse Power. Over many Ard Fheiseanna the Workers’ Party had demanded the removal of these articles from the constitution.

Those opposing the amendment, and indeed many of those supporting the amendment, agree that the proposed amendment to the constitution is both badly worded and aspirational.

In particular many point to the final clause of the proposed amendment “and shall strive to support such [care] provision” as totally aspirational and that it does not commit the government to ant concrete action.

On the other hand the original Art 41.2.2° “The State shall, therefore, endeavour to ensure…” was equally totally aspirational and in the 85 years of its existence was never relied on by the courts in any of the constitutional cases that expanded the rights of women. Indeed for the first 40 years of the existence of Bunreacht na hÉireann children’s allowance payments were given to the father and not the mother. Not exactly a ringing endorsement of the State’s recognition of women’s life within the home.

The argument has been advanced that the existing article provides “a backhanded acknowledgement that caring for children is necessary labour”. Perhaps! But even if that is true the proposed amendment does not negate that recognition, but also does not limit care to just the care of children. Care, as we know, can encompass care of one or both parents, care of a sibling, care of an uncle or aunt, or even at times care covering more than one of those categories. Also the amendment does not confine the concept of care being provided purely by parents and therefore the care-giver can extend to cover to grandparents looking after grandchildren, or people of whatever marital status, caring for any other family member.

In summary, the present Article 42.2 is reactionary, misogynist, and inspired by religious fundamentalism. We have long argued that they should never have been in the constitution in the first place.

The proposed new Article 42B, despite its fussiness of language and structural weaknesses, is certainly less reactionary than what it would replace.

Arguments presented against the amendment

It is taken as read that the language of the current article is highly offensive to women, and reflects a misogynistic attitude inspired by the reactionary catholicism of its authors.  At the same time, by giving an acknowledgement of the necessity of care and of work in the home, and in its reference to “economic necessity”, the current wording could also be interpreted to form the legal basis for real economic demands relating to wages and to economic support for parents and carers. 

The language regarding care provided by mothers, and the reference to “economic necessity” reflect an unspoken assumption about the nature of families and work: that all families should contain two parents, a father and a mother; that the father should work outside the home while the mother cares for children, and also, by implication, that the father’s wage is sufficient to provide for the needs of the family. 

In a modern context, where it has become next to impossible to rent or own a home on a single worker’s income, this last assumption seems positively utopian. In fact, were this provision changed to refer to “parents” rather than mothers, it could actually represent a progressive socialist demand: that it should be perfectly possible for a two parent family to raise their own children on a single income (or two part time incomes), and that single parents should be supported in staying at home and caring for their own children if they so choose.

In reality, however, these provisions have never been held by the courts to have any legal meaning, and are considered to be entirely symbolic, “aspirational”, statements. Neither the reference to “duties in the home”, nor the assumption that care must be provided exclusively by women, nor the implied entitlement to economic support and protection, has been found to confer any real duty or entitlement on citizens, and do not limit the state’s ability to legislate in these areas.

 The current proposed amendment is clearly not intended to alter this reality, but instead replaces the current symbolic language with a gender neutral, but intentionally vague and even less concrete gesture towards supporting care. If we are in the business of voting on purely symbolic promises, however, we should at least consider whether what is symbolically lost in the proposed change outweighs what is symbolically gained.

It should be noted that this proposed amendment stands in stark contrast to the recommendations of the Citizens Assembly, which considered article 41 and made the relatively progressive recommendation that the language should be strengthened to provide a concrete, gender neutral, guarantee of financial support for carers. What’s more, it completely omits any reference to care provided outside the family, either voluntarily, professionally, or as a public service. It is clear when comparing the citizens assembly’s recommendation with the current text that the amendment is in fact designed specifically to remove even the hint of such economic guarantees. In this sense it represents a typical example of “wokewashing”; an empty gesture towards “progressive” values, used to mask a reactionary neoliberal economic agenda.

We would happily support any amendment which altered the language of the current article to be gender neutral and remove the reference to “duties” in the home, and would be positively enthusiastic about an amendment which, following the recommendation of the citizens assembly, strengthened the language of the article to place a duty on the state to provide economic support, not only for parents, but for all carers. However, the proposed amendment will in fact confer no such benefits, and serves only to provide cover for an economically regressive neo-liberal agenda. Given that the state is in the midst of multiple crises in childcare, disability services, not mention housing, it is an insult to attempt to appease the genuine anger of the people with empty gestures. Therefore, we feel that is better to reject this amendment outright, and demand in its place real legislative action on care and social provision rather than empty symbolism.

39th Amendment to the Constitution – The Family Amendment

The 39th Amendment to the Constitution deals with Article 41.1.1°and Article 41.3.1° of the Constitution, both of which relate to the Family.

Article 41.1.1° – “The State recognises the Family as the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law.”

Article 41.3.1° – “The State pledges itself to guard with special care the institution of Marriage, on which the Family is founded, and to protect it against attack.”

The Constitution currently recognises the centrality of the family unit in society and protects the Family founded on marriage.

The Proposal

In this amendment there is one vote for two proposed changes. The Proposal involves the insertion of additional text to Article 41.1.1° and the deletion of text in Article 41.3.1°. These proposed changes are shown below:

(1) Proposed to change Article 41.1.1°:

Article 41.1.1° – After ‘family’ in the first line, add in the phrase “whether founded on marriage or on other durable relationships”

Article 41.1.1° would then read: “The State recognises the Family, whether founded on marriage or on other durable relationships, as the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law.”

(2) Proposed to change Article 41.3.1°

Article 41.3.1° – After the word Marriage delete the following phrase: “on which the Family is founded,”

Article 41.3.1° would then read: “The State pledges itself to guard with special care the institution of Marriage, and to protect it against attack.”

Background to Articles 41.1.1° and the 41.3.1°.

These two articles deal with the concept and definition of Family within the constitution.

These articles are based on exactly the same religious, political and sociological foundations as Articles 41.2.1° and 41.2.2°, as set out in the section dealing with the 40th amendment.

In particular the recognition of the family “as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law” is practically a direct transcription of the papal encyclical. However, during the 1937 referendum, the articles on the family did not attract the same level of opposition as the articles on the status of women did.

The Present Debate

The existing constitution defines family as solely existing within the confines of a married relationship. Thus, for example, it excludes families based on cohabitation or single parent families from constitutional recognition. It is obvious that those two articles are hugely discriminatory to many existing family units but also hugely insulting to the parents, siblings and indeed grandparents to those individuals.

It is unfortunate that the proposed amendment is, in the opinion of very many commentators, very badly drafted and very imprecise in its terminology. Many argue that the phrase “or on other durable relationships” is so imprecise that it will end up in the courts, perhaps on multiple occasions, to find an agreed definition of ‘durable relationship’.

While predicting the future is a notably difficult occupation, it is a fact that even the present wording of the constitution has been before the courts on many occasions, especially in respect of the implications of foreign marriages; foreign divorces; foreign annulments; Catholic church annulments without a matching state annulment; and many others.


The present Articles 41.1.1° and the 41.3.1° are outdated, clearly discriminatory, and based on a religious intolerance for any non-marital-based family structure. Many argue that this section should never have been in the constitution as it relates more strongly to theology than to jurisprudence.

The proposed change to Article 41.3.1° is straightforward, legally precise and is in general a step forward from the present wording. On the other hand, the proposed additional wording to Article 41.1.1° is, on the face of it, particularly imprecise. From our point of view, while we might deplore the fat fees that many barristers will earn from disputing the meaning of this wording, it is certainly less restrictive and less sectarian, than the existing wording.