Charlie Flanagan has secured Cabinet backing for a proposal to delete Article 41.2, which deals with women in the home, from the Constitution.
I think it’s fair to say that 2018 has been a year of some progress for women in Ireland.
Of course there is much still to be done, but as a Government, we have seen through the deletion of the Eighth Amendment from the Constitution, while as a department, Justice and Equality has completed the passage of the Domestic Violence Bill, initiated the Gender Pay Gap Bill, and funded the extraordinarily moving Dublin Honours Magdalenes gathering.
And all that has happened in just the first half of the year. So now, as we move into the second half, I am hoping we can continue to mark the centenary of women getting the vote, by taking one more significant step towards genuine equality.
Last Thursday, I secured Cabinet backing for my proposal to delete Article 41.2 from the Constitution.
I didn’t ask for amendment, I didn’t ask for replacement, I asked simply, for deletion.
Article 41.2 is of course the article which deals with women in the home. It states: “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’ and ‘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”.
I don’t think those statements belong in a modern constitution. There is absolutely no doubt that many people — and yes, most of them are women — give to the State huge support which contributes massively to the common good, but I think recognition of that, and policy around it, belongs in legislation, not in the Constitution.
And interestingly, that is what many women felt back in 1937. I was fascinated to discover that even then, the article was contentious. Many argued that it could be used to justify discrimination against women, particularly in employment.
And you could certainly argue that that fear was justified when you see what happened in 1941 — the marriage bar arrived.
So what do we do? I fully recognise anxieties which may arise when people consider deletion of this article. I know many people see it as on the one hand deeply flawed, but on the other containing at least some recognition of what many women DO do — the unseen, unpaid nurturing which, as they used say across the water “keeps the home fires burning”.
But I don’t believe we have any right to call that a woman’s “duty”. We have no right to assume that a woman’s place is in the home, or anywhere else, unless she chooses it to be. And that is what this referendum really is about — choice.
Back in 1937, Archbishop John Charles McQuaid wasn’t much into choice. His view was that nothing “will change the law and fact of nature that woman’s natural sphere is in the home”.
My view is that the home is a wonderful sphere for anyone — man or woman — who wants it to be. But it should be their choice.
In October it will be our choice. Do we want the article to stay? Or do we want it to go? Some people might, and I think
probably are, saying ‘Can we not amend it? Or replace it?’
We did look at those options, and of course the Constitutional Convention, back in 2013, recommended that Article 41.2 should be replaced with a clause about carers.
But while that recommendation did receive overwhelming and understandable support from those at the Convention, it was raised late in the proceedings and was not subjected to analysis or examination in terms of possible ramifications.
We did carefully consider it however, along with the other various reports and analyses that had been produced over the last 25 years or more.
We also sought extensive legal advice and our ultimate conclusion was that inserting new language into the Constitution could have unpredictable legal consequences, dependent on interpretation by the courts.
There is no question of course, that care is an important issue. We agree that a wide-ranging debate on it is needed.
Indeed on Thursday, Cabinet agreed that the Citizens’ Assembly will be asked to consider the policy area of care as part of its next work programme. But we don’t believe it needs to be connected to a referendum on Article 41.2.
But I believe those are needs which, after they’ve been thrashed out in a Citizens’ Assembly, will be best met by the Government and the Oireachtas through policy and legislation, not by inserting a subjective word or term into the constitution.
The constitution is not the place to solve big, complex policy challenges. And it is not the place for putting forward a narrow view of a woman’s place.
A woman’s place, like a man’s one, must be where she chooses it to be.
Let’s delete Article 41.2.
Charlie Flanagan is Justice Minister