The Gist: The Zugzwang Referendum

It is voting day in Ireland, and International Women's Day around the world. And the citizens of this fair polity have been asked to change the Constitution. Bunreacht na hÉireann is no stranger to amendments, and so we are being asked to vote on the 39th and the 40th changes to the basic law of the land.

In respect of the 39th Amendment (the Family referendum on the white Ballot Paper) it's pretty easy to know if you're on the Yes or No side. You just ask if you're happy if Families (with a capital F) should be defined more broadly than just Families based on marriage. There has been some noise about what the new phrase "durable relationships" means but it basically isn't worth engaging with. The phrase is already used in EU law and in Irish law when applying that law here, and the courts will simply interpret it in a way which is compatible with those preexisting interpretations. For me, this is a simple Yes.

The 40th Amendment is, in contrast, just a headwrecker. It will, in one vote, ask if we want to take out the gendered reference of working at home as women's duties (obvs, yes) and then also put in a new thingy about care work in general (which is very much not obvious in its impact).

So it was with great interest that I saw that The Ditch had got hold of a piece of unobtanium in the form of the Attorney General's legal advices to Minister Roderic O'Gorman. These advices had been withheld, but now, here they are for everyone to read. And what an interesting read they make.

On the question of whether the proposed wording intended to increase or decrease the level of supports the state would be required to provide to people giving care (and this is not to brush over the fact that centering the provision and not the receipt of care and support is a problematic framing in the first place), the AG is clear where he stands. He thinks that there will be plenty of litigation claiming that it does, but then he goes on to say

"there can be little doubt that the obligation on the State to 'strive' to support the provision of care will have real effects which will be enforced by the courts and it will be relied upon in a very wide range of contexts.... and could result in declaratory orders against the State with significant financial implications."

He also raises an interesting point on the use of a new word in the Irish language version of the proposal in the place of 'strive'. This translation is different to the translation of 'strive' already used in the Irish language version of the text. The existing one ("Déanfaidh an Stát a dhícheall" in Article 45.1) is explicitly used for a clause which can't be relied upon in court (sometimes called a non-judiciable clause). So this new one Irish translation of "dréim" is to be distinguished from an explicitly weaker ambition.

This is important because the Irish version of the constitution is the superior text and in any effort to distinguish meaning, it can be relied upon to determine the correct interpretation.

With dark irony, this was demonstrated to be more than just a pious statement of support for the language when the Supreme Court relied upon the difference between a 'child' in the English text and a 'leanbh' (more like an infant) to reject efforts by Kathy Sinnott to assert her son's right to an education.

It appears that people with disabilities shall always be forced to discover the limits of the State's responsibilities.

The AG also stresses that the Heneghan judgment from the Supreme Court left it open to the court to take account of things said in a referendum campaign when interpreting the purpose and scope of a constitutional amendment. This makes the Taoiseach's statement that he felt that it was not the duty of the state but foremost the duty of families to provide care ("I don’t actually think that’s the State’s responsibility, to be honest. I do think that is very much a family responsibility") appear more strategic than previously.

Such a statement in a campaign by a Taoiseach on national TV could be a strong piece of evidence for the state in any future litigation try to avoid those 'significant financial implications' the AG refers to.

For what it is worth, I go now to the polls still unsure how I will cast my vote on the green ballot. But do try to get out to vote, however conflicted you might be. Families, defined in a way that matches our society now, at least, deserve the support through the 39th Amendment.