‘A woman’s place is in the home’ considered by many, to be a joke of particular bad taste due to its sexist nature it is for the most part usually nothing more than an off the cuff comment in modern society. Therefore, raising the question how can such a draconian notion be enshrined in Article 41.2 (the Article) in Bunreacht na hÉireann. The article is widely critised by academics, members of the judiciary and Irish citizens for its obvious discrimination. These critics argue that Article 41.2 is now irrelevant to the lives of most Irish women and mothers as most choose to undertake employment outside of the family home.
Through reviewing, the wording of the article, the context of Article 41.2 within the Constitution historically and today, the injustice of the article, Article 41.2 before the courts, a need for reform, and finally recommendations for reform this essay will attempt to establish the role of Article 41.2 in modern society and how that role may be enhanced through reform.
Context of Article 41.2 within the Constitution Historically and Today
When discussing any article of the Constitution it is essential to remain mindful of the context of its time of writing and the personalities who contributed to its writing. Ireland in 1937 it was very much the norm that the mother of the family would stay at home to raise the children while the father of the family would perform non domestic labour bringing home an income. When judging Article 41.2 in this context it seems quite generous that the framers of the Constitution would provide a safeguard for mothers to continue their work within the home without fear of being forced into employment. Just as Article 41.2 seems absurd in modern society, it was perhaps inconceivable to the framers of the Constitution the extent to which women have become indispensable to the modern day workforce.
At this point the context of the modern day must be further developed to expand beyond women joining the workforce and acknowledge that some modern day families do not have a mother. An even more unimaginable thought for the framers. The Constitution itself now recognises families that do not have a mother with the passing of the Thirty–fourth Amendment of the Constitution Act 2015, Article 41.4, allowing same sex couples to marry. Following approval by the people by referendum as recently as 2015 this amendment to the constitution is a much more accurate reflection of modern day society. When viewing Article 41.2 and Article 41.4 together they may be regarded as being in direct conflict with each other as Article 41.2 provides protection to some families, namely those with a mother, without extending the same protection to families without a mother. This is but one injustice of Article 41.2.
The precise wording of Article 41.2 is as follow:
‘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.’
Hogan and Whyte taking the literal approach to constitutional interpretation correctly state that Article 41.2.2° states that only in situations that force a mother into employment outside of the home through economic necessity should result in a successful constitutional challenge.
A blatant disregard for Article 41.2 was most recently seen in the 2016 budget. Minister for Children and Youth Affairs Katherine Zappone with her colleague Minister for Public Expenditure and Reform Pachal Donohoe implemented subsidies to families who avail of childcare services. Without discussing in detail the various elements of the scheme introduced, there is no provision to grant a subsidy to any parent choosing to look after and raise their children within the family home. This could be considered an unconstitutional element to the budget as it could be seen to contravene the language of Article 41.2. However, neither members of the Oireachtas, the media nor the Irish people have questioned the constitutionality of this element of the budget, further highlighting the disregard Irish society has for Article 41.2. The absence of debate surrounding the constitutionality of the Article is perhaps, more significant in highlighting society’s indifference to the Article than the possible unconstitutionality of an element of the recent budget.
The injustice of Article 41.2
Many people in modern Ireland reject the glaring ‘endorsement to such a gendered division of labour’ stated in Article 41.2. To avoid injustice when reading Article 41.2 Doyle suggests that the article should be read in conjunction with Article 45.2 (i), which pronounces the equal right of men and women to adequate means of livelihood and Article 45.4.2°, where female workers are explicitly mentioned. However, the explicit mention of female workers in Article 45.4.2° is yet another element of gender discrimination in the Constitution as it states that citizens shall not be forced into vocations unsuited to their sex. Modern employment law which is governed by The Employment Equality Acts 1998-2015 do not tolerate discrimination against a person based on their gender and no profession is considered to be exclusive to a particular sex. Having read Article 41.2 giving consideration to Article 45 Doyle correctly states that it may be appropriate to take the opinion that Article 41.2 does not intend to discriminate women from employment. However, that still leaves the injustice of women and mothers as exclusive home-makers according to the Constitution.
Hogan and Whyte are of the opinion that Article 41.2 is one of the most outdate provisions of the Constitution. This opinion is also in line with the findings of the Constitution Review Group
‘Article 41.2 assigns to women a domestic role as wives and mothers. It is a dated provision much critised in recent years. Notwithstanding its terms, it has not been of any particular assistance even to women working exclusively within the home.’
The final point by the Constitution Review group on analysis of Article 41.2 seems to hold significant weight. To develop this point further a consideration of the Court’s interpretation of Article 41.2 is required.
Article 41.2 before the courts
Article 41.2 has been cited relatively few times by the superior courts of Ireland. Society has simply ignored its presence and evolved into a more egalitarian nation through other articles and legislation. However, on the occasions when the superior courts have considered Article 41.2 it has resulted in varying degrees of support from the judiciary. The most important role Article 41.2 has played in Irish society is perhaps in the socioeconomic context.
In Lowth v. Minister for Social Welfare, the Supreme Court found that social welfare provisions discriminating in favour of deserted wives as opposed to deserted husbands were constitutionally valid. The court stated ‘the provisions of the Constitution dealing with the family recognise a social and domestic order in which married women are unlikely to work outside the family home.’ This may be regarded as quite a controversial comment by the court given how recent this case came before the court. Taking a historical approach to constitutional interpretation of Article 41.2 in an era when many women held employment outside of the family home is perhaps an erroneous decision by the court. The courts have twice cited Article 41.2 when extending their support for legislation that discriminated on the grounds of sex.
In de Búrca v. Attorney General, O’Higgins CJ stated the authority in Article 41.2 to uphold the constitutional validity of s 5 of the Juries Act 1927, allowing women to be exempted from jury service, unless they specifically opted in under s 16 of that Act. Other members of the court disagreed with his decision and struck down s 5 of the Act.
In O’G v. Attorney General, the constitutionality of s 5(1) of the Adoption Act 1974 was challenged. The section in question granted adoption orders to be made in favour of childless widowers. McMahon J rejected the argument of the plaintiff based on Article 41.2 stating that although the act recognised the value of a mother’s work within the home that did not extend to a ‘denial of the capacity of widowers as a class to be considered on the merits as suitable adopters.’
In contrast to the Lowth case both of these cases are examples of the judiciary limiting the extension of Article 41.2 to prevent discriminate against women being called for jury service and as an instrument to discriminate against widowers.
Attempts to broaden the scope of Article 41.2 have not been consistently applied by the courts. Attempts by the judiciary to broaden the scope of the Article have resulted in their decision being overruled by a superior court. In L v. L a wife seeking judicial separation argued that she was entitled to a 50 percent share in the family property in circumstances where she had never worked outside of the family home. The High Court upholding her claim of beneficial interest in the family home was rejected by the Supreme Court. Finlay CJ stated that the judiciary could not hold that by ‘her life within the home’ the plaintiff had come to gain 50 percent beneficial interest in it. Finlay CJ then went on to state that the judiciary had no right to extend a beneficial interest in property to a stay at home wife ‘where that would be unrelated to the question of her being obliged by economic necessity to engage in labour to the neglect of her duties’. The Supreme Court in this case avoided straying into the territory of creating new rights failed to allow Article 41.2 to grant a right of beneficial interest in the family home to a stay at home mother. Finlay CJ speaking in great detail about Article 41.2 suggested that the article may only amount to an order being granted by a husband to support his wife financially, who is also the mother of their children, to avoid forcing her into employment due to economic duress resulting in a neglect of her duties in the home. He then concluded that Article 41.2.2 could not ‘consider that the transfer of any particular property right could be a general jurisdiction capable of being exercised in pursuance of that sub-article of the constitution.’ This is perhaps a very pragmatic decision by the Supreme Court as although considered somewhat unjust against women who devote their lives to their duties in the home to grant a beneficial interest in property may create difficulties when dealing with third parties such as banks or when conveyancing the home upon the break-up of a marriage. However, it must be noted although the court did not find Article 41.2 to grant a proprietary right to stay at home mothers it is granted through the Judicial Separation and Family Law Reform Act 1989.
In his judgement O’Flaherty J taking the literal approach to constitutional interpretation indicated that Article 41.2 is not confined to married mothers and expressed the opinion that the article could be extended to all mothers. O’Flaherty J is of the view that should any mother in the state in such a poor economic state be required to invoke Article 41.2 that it would not be a defence of the state to say that it was not obliged to provide any assistance to the mother in question. However, O’Flaherty J also notes that in such a circumstance the state would have the defence that it was restricted from helping the mother in question due to the state’s ‘budgetary situation.’
Buckley acknowledging that the decision in L v. L does not grant proprietary interests in the family home to a stay at home mother upon the break-up of a marriage questions whether upon a constitutional challenge to The Succession Act 1965 would be deemed to be constitutional upon Article 41.2.
In Sinnott v. Minister for Education, Denham J (as she was then) dissenting gave a lengthy judgement detailing the continued significance of the family in modern society. In her description of a modern family she further elaborates on the role played by women and mothers while also establishing unenumerated rights for fathers. Denham J stated that Article 41.2 must be read ‘harmoniously with other Articles of the Constitution’ Doyle notes that positive rights in favour of protection of family life are found in ‘Article 8 of the European Convention on Human Rights have been interpreted by the European Court of Human Rights as imposing an obligation on states to protect family life.’ Although these may be considered to be positive steps in recognising the role of family in society in a more meaningful way it is unlikely to amount to a substantive change in the view held by the judiciary. The courts are very much reluctant to grant positive rights to the family as it may result in a breach of the separation of powers. The Oireachtas is free to choose how best to allocate its resources, thus the hands of the judiciary are tied when it comes to granting some positive rights to mothers, as is the case of Sinnott.
In the recent case of DT v. CT before the Supreme Court Murray J in obiter stated the constitution is in effect a living instrument and should be interpreted through a contemporary lens stating that in today’s society work within the home is mutual to both parents thus the constitution implicitly extends recognition to the contribution made by a man within the home. The obiter by Walsh J effectively renders the gender discrimination of Article 41.2 null. However, although Walsh’s J comments almost certainly reflect the view of modern society, the wording of Article 41.2 as stated above, specifically mentions ‘women’ and ‘mother’ rendering his comments unconstitutional.
Recommendations for reform
There have been a number of calls to reform Article 41.2 from a variety of sectors in Irish life including women’s groups, members of the media and politicians. It remains to be seen whether the recent introduction into Irish law of same sex couples being allowed to marry will lead to further case law on Article 41.2. As the Article reads it explicitly discriminates in favour of women and mothers. Therefore, in the event of a same sex couple of two men encountering similar issues to cases stated above, there is perhaps scope for litigation against the state.
Both the All Party Oireachtas Committee and the Constitutional Review Group have submitted proposals for reform of the Article. Smith notes that The All-Party Oireachtas Committee on the Constitution following comments previously mentioned by Denham J on interpreting Article 41.2 in contemporary light and extending the use of women and mother to mean parent suggested that since the courts are inclined to interpret Article 41.2.1° to apply to either parent it would not be necessary to reword the Article. However, the All-Party Oireachtas Committee ultimately recommended on a rewording of the provision due to its discriminatory language. The All Party Oireachtas Committee contemplates the idea of repealing the provision before ultimately concluding that the Article should be changed to read:
‘Amend Article 41.2.1° to read
The State recognises that by reason of family life within the home, a parent gives to the State a support without which the common good cannot be achieved.
Amend Article 41.2.2° to read
The State shall, therefore endeavour to ensure that both parents shall not be obliged by economic necessity to work outside the home to the neglect of their parental duties.’
In its finding the Constitutional Review Group recommended that the wording of the Article be amended to read ‘persons caring’ changing it to a gender neutral article.
Without dwelling on the point in any significant detail in her brief overview of the development of the definition of family and marriage under the Irish Constitution Bergin-Cross is also critical of Article 41.2 as a source of gender discrimination. The author is of the opinion that the article ‘clearly subordinates women’ and believes Article 41.2.1° should be removed from the constitution following the recommendation of the Constitutional Convention Report and the UN Human Rights Committee July 2014.
The Constitution Review Group with a slight variation to the above recommended the Article be altered to read ‘The state shall endeavour to support persons caring for others within the home.’
Taking an objective view of Article 41.2 although seemingly a well meaning provision of the Constitution from its framers the Article serves no real purpose in contemporary Ireland. From an analysis of the interpretation of Article 41.2 before the courts and society’s apparent ignorance of the article it seems that the article does not hold any significant place in modern society. Although there is certainly scope for a full debate on the possible rewording or even repeal of the Article it remains a somewhat forgotten provision of the Constitution. While a rewording of the Article to include gender neutral language recommended by the Constitution Review Group and the All Party Oireachtas Committee would perhaps also result in no significant change to society. Hence, repealing the Article would result in almost no change to society.