Dr Brian Tobin: Why marriage might no longer be the only basis of ‘family’

The referenda in March include a proposal to expand the definition of family to encompass ‘durable relationships’, such as single parenthood. Marriage will retain its special status, says Dr Brian Tobin

While marriage would retain a high degree of constitutional significance, it would no longer be the only relationship upon which a constitutional family could be founded.

THE Government has published the wording for the proposed referenda to amend Article 41 of the Constitution, with voting scheduled for March 8, 2024.

Among the proposals is the 39th Amendment, to extend the definition of ‘the family’ in Article 41.1.1 by inserting the words, ‘whether founded on marriage or on other durable relationships’.

Since 1937, the Constitution has recognised and protected only those families that are founded on marriage, albeit that, since the success of the Marriage Referendum in 2015 and the insertion of Article 41.4, a marital family can be comprised of opposite-sex or same-sex spouses.

All other types of family in Ireland are without any constitutional recognition or protection, so the 39th Amendment would certainly make the Constitution more inclusive.

Indeed, the reference to a family being founded on “other durable relationships” makes it clear that many family units beyond committed, non-marital adult relationships, such as parent-child relationships outside of marriage, would also be encompassed by the Constitution.

However, the State’s pledge in Article 41.3.1 to “guard with special care” the institution of marriage and “protect it against attack” remains untouched in these proposals.

It is only proposed that the words ‘on which the family is founded’ be removed from Article 41.3.1, no doubt to ensure consistency with the proposal to amend Article 41.1.1 and facilitate the extension of the Constitution to other families.

While marriage would retain a high degree of constitutional significance, it would no longer be the only relationship upon which a constitutional family could be founded.

The proposals to amend Article 41.1.1 and Article 41.3.1 would lead to the Constitution resembling the approach to the family under the European Convention on Human Rights (ECHR), to which Ireland is a contracting state.

The ECHR recognises and protects the married family under Article 12, yet it also provides for a right to respect for “family life” under Article 8, which has enabled the European Court of Human Rights to support families founded on relationships other than marriage.

Similarly, if the referendum is successful, all families founded on marriage or other relationships would be housed in Articles 41 and 42, but married families would retain an elevated constitutional status, because of the provisions of Article 41.3.1.

Due to the State’s guarantee in Article 41.3.1 that it will protect the institution of marriage, it could legitimately continue to treat married families more favourably, and may even be required to do so in some cases, given the rather cautionary wording of Article 41.3.1 and the need to enact legislation that is in accordance with the Constitution.

The approach that has been adopted by the European Court of Human Rights, when considering claims by non-marital families seeking equal legal recognition, under the ECHR, with marital families, is of interest in this regard.

The court has often held that, despite the express protection for other forms of “family life” in Article 8 of the convention, the contracting states can legitimately treat married couples more favourably than other relationships, because of the “special status” associated with marriage under Article 12, and the “social, personal and legal consequences” accompanying marriage. The alternative would be a proposed constitutional amendment to remove the State’s pledge in Article 41.3.1 to guard the institution of marriage with “special care”, and simply respect and protect all forms of “family life” equally in Article 41, but it is unsurprising that the Government has not put such a suggestion to the people in the upcoming referendum.

Marriage matters, both to the majority and the minority: That’s why the LGBT+ community campaigned vigorously for the right to marry, and why 62% of the electorate voted to extend this culturally revered, socially symbolic, and legally significant institution to same-sex couples in the Marriage Referendum of 2015.

Census 2022 revealed that married family units, with or without children, account for 66% of all families in the State, and marriage rates in 2022 were 14% higher than pre-pandemic levels.

Any proposal by government to “delete” from Article 41.3.1 the preferential constitutional status accorded to the institution of marriage could have encountered significant opposition from many sections of Irish society.

However, as the Government has not boldly proposed to withdraw the “special care” that has been afforded to marriage in the Constitution since its enactment in 1937, the proposed amendment to the definition of “the family” in Article 41.1.1 could, in many instances, be of greater symbolic than practical importance for “other durable relationships”.

For now, one thing is certain: The recent publication of the wording of the proposed amendment to the longstanding, traditional constitutional definition of “the family” is bound to ignite significant, perhaps vociferous, pre-referendum debate in the months ahead.

• Brian Tobin, lecturer in law, University of Galway.