a good reflection on the Referendum

Written by a Redemptorist colleague, Raphael Gallagher.

The Constitution of Ireland (1937) was enacted by the people of Ireland in the sense of giving us a law that we ourselves framed. It is our Constitution and only the people can change it. In the light of the noticeable changes in Irish society we arebeing asked to consider amendments in two sections of the Constitution.

                                          The Family.

We are being asked to consider a double change in the section on the family.  The first is in Article 41.1.1. “The State recognises the family, whether founded on the family or other durable relationships, as the natural primary and fundamental unit of society, and is a moral institution possessing inalienable rights, antecedent and superior to all positive law”. What we are being asked to change here is to insert the part in bold letters into the constitution. Why are we being asked to consider this change?  Irish society has altered much since 1937. There are now de facto differenttypes of living arrangements for people. The rationale for the change would be to be to treat these people not simply in a friendly and tolerant way, but to define them as a Family in the legal sense of the Constitution – a moral institution with inalienable rights preceding and superior to any positive law. There has been much debate about what durable relationships might be envisaged in subsequent law were the Referendum to pass. Whatever these might be, they will need to be considered durable in the particular meaning that our Constitution gives to Family.

The second change we are being asked to consider is in Article 41.3.1 which would now read “The State pledges itself to guard with special care the institution of Marriage and toprotect it against attack.”   The change proposed here is to delete the words “on which the family is founded” after the word ‘marriage’. If Article 41.1 passes, these words would be superfluous.

                                            Care within the family

The second referendum is related to the first one but focused on how the family functions as a unit of care and support within society.

The proposal is to have a new article inserted: “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”.  If this is approved, two articles in the current Constitution would be deleted: the recognition by the State of the support given to the common good by women through their life within the home, and taking out the reference to women not being obliged by economic necessity to work outside the home.

Why is this change being proposed? Although the 1937 Constitution does not say that ‘a woman’s place is in the home’, the language used is considered outdated. To understand this part of the Constitution in its original context, it is worth recalling that the common good which was being promoted presumed a just wage for workers. These were mainly male, though not exclusively so. Workers deserved a just wage. Refusal to pay a just wage should not be used to force women to work outside the home.

How should I vote?

When voting in a constitutional referendum, we are acting aslegislators. Whether we leave the Constitution as it is, or amend it, the justification for our decision is what we considerto be the better law. Changing the Constitution for its own sake is a weak argument, just as refusing to contemplate any change is also a flawed argument.

How do we decide which is the better legal formulation of our Constitution – the ones we have, or the proposed ones?

Our Constitution takes a common-good view of law. It is not a rights-based view of law. Our laws are to be framed in view of what we consider good for society as a whole. Thus, I couldvote for a proposal that I personally would not countenance but, on balance, I would allow it for the greater good.

The Preamble to the Constitution is explicit that it is a document “seeking to promote the common good, with due observance of Prudence, Justice and Charity, so that the dignity and freedom of the individual may be assured, true social order attained……”

Using that virtues template could be one way of deciding how to vote.  What is the prudent thing to do – not in the sense of taking the safe option but in the sense of choosing the intelligent basis for law? What is the just decision – for the other person more so than what I self-interestedly want?  And what is the most charitable decision? It is not often that we associate charity with law-formulation but that is what our Constitution does.  Law is not simply something to be rigorously enforced: law has an educational function in society, and it should encourage us to treat others with a charitable spirit.

Using this virtues- template for our decision will not impose definitive yes-or-no answers on referendum day.  Individual judgments will make different assessments.  That is as it should be. What the template could achieve for us, however, is to avoid an overly emotional approach to a decision that will have long-term legal consequences. Those campaigning for a yes or a no vote will, legitimately, use rhetorical techniques to persuade us. When I cast my vote, I should beable to justify the way I vote as my considered judgment as to what is the better formulation of the constitutional law on family and care.