A Review of the Family Referendum due to take place on 8th March 2024

1. A brief overview of the Family Referendum

On 5 December 2023, the General Scheme of the proposed 39th Amendment of the Constitution (Family) Bill 2023, was published (a General Scheme is the draft heads of a proposed Bill).

On 6 December 2023, Roderic O’Gorman TD, sought and was granted a waiver from pre-legislative scrutiny.

On 7 December 2023, the Government approved the publication of the proposed 39th Amendment of the Constitution.

On 8 December 2023, the 39th Amendment of the Constitution was published.

As of 20 February 2024, the 39th Amendment of the Constitution is currently at the 3rd stage in the Seanad having completed 8 out of 11 stages in a matter of weeks (and having completely bypassed the pre-legislative scrutiny stage) – all in a bid to ensure the vote takes places on International Women’s Day on 8 March 2024.

The Explanatory Memorandum to the Bill states that the purpose of the Bill is to propose: “to add text to Article 41.1.1° of the Constitution ….which acknowledges that the Family may be founded on marriage or other durable relationships. The Bill also provides for the deletion of the words “on which the Family is founded” from Article 41.3.1°”.

Roderic O’Gorman TD, has said that the present wording of Article 41.1.1° does not reflect the values of the country and: “means the exclusion of thousands of families from the recognition and the protection of the Constitution solely because those families aren’t based on marriage”.

In short, the purpose of the proposed amendment is to extend the definition of Family, which is currently based on marriage, to also include “other durable relationships”.

What is Pre-Legislative Scrutiny?
– Pre-legislative scrutiny is a process by which the Dáil and Seanad scrutinize draft Bills (meaning the General Scheme of a Bill) – and report back with observations and/or recommendations to the Minister sponsoring the legislation.
– Pre-legislative scrutiny was first introduced into the Houses of the Oireachtas following the 2011 General Election, as part of negotiations between coalition-partners during the formation of the then Government, following calls for parliamentary reform in light of the economic and banking crisis.
– The requirement for pre-legislative scrutiny was formally adopted into Dáil and Seanad Standing Orders as a requirement for Government Bills (“save in exceptional circumstances”) in November 2013, a reform which was retained by the 32nd Dáil in 2016.
– This reform was considered necessary due to the perceived weakness of the Houses of the Oireachtas in terms of executive oversight and political and institutional capacity to influence the Government’s legislative agenda (note that when we talk about the Government we mean the Cabinet, which is made up of a group of senior ministers responsible for the executive power of the State. Article 28 of the Constitution states that the Government may consist of no less than 7 and no more than 15 members, namely the Taoiseach, the Tánaiste and up to 13 other ministers).
– The fear was that the Government (meaning a maximum of 15 people) were effectively running the country, without any real oversight, from any of the other elected representatives.
– As a means of responding to this lack of oversight, it was agreed to introduce pre-legislative scrutiny as a mechanism by which the Dáil (meaning all TD’s) could have meaningful involvement in the drafting of proposed legislation before it became a Bill, thereby giving them real and substantive influence in the law-making process.
– The 2016 Programme for Government stated: – “We will support mandatory pre-legislative scrutiny for all new bills and post enactment review of legislation by Oireachtas Committees”.
– In light of this commitment, the 2016 Standing Orders (which are simply the rules which govern the work of the Dáil) included the mandatory requirement for pre-legislative scrutiny at Rule 146A.
– When the 32nd Government of Ireland took office in June 2020, their Programme for Government and thereafter their Standing Orders significantly diminished the requirement for pre-legislative scrutiny:
– which from 2016 onwards could only be waived “in exceptional circumstances;
– to permitting a waiver “in accordance with any guidelines agreed thereon by the Committee” (per new Standing Order Rule 30).
– As stated earlier, in the case of this proposed amendment to the Constitution, Roderic O’Gorman TD, sought and was granted a waiver from pre-legislative scrutiny on 6 December 2023 (noting that several TD’s raised this as an issue of significant concern during the Dáil debates on this Bill).
– If nothing else, this Governments disregard for effective and meaningful oversight of the legislative process should be a cause for concern, as should the speed at which this Bill has proceeded through the Dáil and Seanad.
– In relation to the manner in which the Government have railroaded this Bill through the Oireachtas, Senator Michael McDowell said the following: “first, I have to totally endorse what Senator Mullen has said about the guillotining of the Bill. It is disgraceful that it is being shoehorned through in the manner that it is. What was the hurry? I will tell the House what the hurry was. Some eejit in Government Buildings said there would be a better chance of getting this through if we say it is going to be held on International Women’s Day, 8 March. That is what happened. We got stuck with the ridiculous notion that this will help the Bill to go through and we will be seen to be “pro-woman” and doing something on International Women’s Day if we select that day for the vote on a referendum. As I said yesterday, that is a gimmick but it is a crude little gimmick. It is not the way a Constitution should be changed. It is shameful that that stunt was allowed to become a backstop in terms of time for considering change to our Constitution.”

2. Current wording of the Constitution 

 

3. Proposed amendments to the Constitution 

4. Why the Government state the Constitution needs to be amended

The Government state that Article 41 (The Family) of the Constitution needs to be amended:

• due to societal changes to the meaning of the Family;
• to introduce the recommendations from the Citizens’ Assembly on Gender Equality; and
• to extend the protections offered to the Family under the Constitution, which they say are limited to families based on marriage to include “other durable relationships”

In reality, the Government are seeking to sever the special ties that exist between Marriage and the Family under the Constitution, thereby diminishing the importance (perceived or otherwise) of the institution of Marriage

4.1 – The Government state that Article 41 (The Family) of the Constitution needs to be amended due to societal changes to the meaning of the Family

4.2 – The Government state that Article 41 (The Family) of the Constitution needs to be amended to introduce the recommendations from the Citizens’ Assembly on Gender Equality

4.3 – The Government state that Article 41 (The Family) of the Constitution needs to be amended to extend the protections offered to the Family under the Constitution, which they say are limited to families based on marriage to include “other durable relationships”

5. What might “other durable relationships” include?

Roderic O Gorman has repeated time and again that the term “other durable relationships” will mean that there will be a recognition of “families beyond those based on marriage, including lone-parent families and couples who choose not to marry, whether or not they have children”.

Roderic O Gorman insists that the term “other durable relationships” will extend the definition of family to also include (and only include):

– lone parents;

– co-habiting couples with children; and

– co-habiting couples without children.

Roderic O Gorman cannot give this commitment, as the extent of the term “other durable relationships” will be a matter for the courts to decide (noting that TD’s across the political spectrum have raised this as a serious issue of concern, with long lasting unintended (or possibly intended) consequences.

Roderic O Gorman TD has stated that “other durable relationships” will only include:

• lone parents;
• co-habiting couples with children; and
• co-habiting couples without children.

HOWEVER – TD’s, Senators and the Electoral Commission have raised concerns that “other durable relationships” may include:

• friends living together, who are not in an intimate relationship (Jennifer Carroll MacNeill TD); AND
• couples (which does not necessarily mean people in an intimate relationship) who are invited to weddings together or send Christmas Cards in join names (Electoral Commission); AND
• polygamous marriages (Michael McNamara TD); AND
• foster children (in relation to contesting a foster parents will) (Senator Sharon Keogan); AND
• persons engaged in extra marital affairs (in relation to contesting their married partners will) (Senator Sharon Keogan); AND
• family and friends and extended family and friends of asylum seekers (Michael Collins TD, Neale Richmond TD, Senator Sharon Keogan, Senator Michael McDowell, Senator Ronan Mullen) AND

6. Are the proposed changes to the Constitution necessary to enable the Government to offer the same rights and protections to those who are not married

No – Brian Walsh, Supreme Court Judge has stated that families other than those based on marriage are both recognised and protected by the Constitution (see below):

THE QUESTION THAT ARISES IS:

1)IF IT HAS ALREADY BEEN DETERMINED THAT FAMILIES OTHER THAN THOSE BASED ON MARRIAGE ARE BOTH RECOGNISED AND PROTECTED BY THE CONSTITUTION (according to Brian Walsh, Judge of the High Court from 1959 to 1961; Judge of the Supreme Court from 1961 to 1990; and Judge of the European Court of Human Rights from 1980 to 1998); AND

2)IF THE GOVERNMENT ALREADY HAS THE ABILITY TO INTRODUCE LAWS WHICH WOULD ENABLE IT TO OFFER THE SAME PROTECTIONS TO UNMARRIED COUPLES, AS MARRIED COUPLES CURRENTLY ENJOY (WHERE PROTECTIONS DIFFER); AND

3)CONSIDERING THE SUPREME COURT HAVE (AS RECENTLY AS JANUARY 22ND 2024) HELD IN THE O’MEARA CASE THAT IT IS UNCONSTITUTIONAL TO PROVIDE A SOCIAL WELFARE BENEFIT TO A SURVIVING SPOUSE OF MARRIAGE AND NOT TO A SURVIVING COHABITEE

– WHAT IS THE REAL AGENDA BEHIND THIS REFERENDUM?

7. Potential consequences of a Yes Vote

7.1 – Sever the Special Relationship that exists between Marriage and the Family

Why? To fulfill the Marxist agenda of abolishing oppression in society

• 176 years ago, Karl Marx drafted an infamous document called the Communist Manifesto which was an attempt to solve the problem of oppression in society
• Marx developed a theory that divided society into classes with those who owned property being the oppressors and those without property being the oppressed (classical Marxism)
• As far as Marx was concerned, wealth was accumulated through the exploitation of the working class and his theory therefore sought to dismantle the class structure through the abolition of property – this is why Marxists hate capitalism
• Marx believed that if a benevolent dictating authority forcefully took ownership of all wealth, property and resources, that it could be redistributed in a more equitable manner and this would be for the common good and bring about utopia
• In order to bring about utopia, the Marxist Left believes that society needs to completely change, and to achieve this you first you need to destroy the 5 key pillars of society such as religion, the family, education, media and law and order
• The Communist Manifesto specifically talks about the need to abolish the family and says:

• Marxists believe a) that the nuclear family is the ultimate symbol of oppression (with husbands oppressing their wives and parents oppressing their children); and b) that the nuclear family serves the interests of capitalism as they produce the next generation of workers to be exploited – thus meaning that the nuclear family is only beneficial to capitalism and the ruling class
• Marxists believe that the nuclear family rose to prominence because of capitalism, and that we moved from primitive communism to capitalism through the establishment of family norms such as private ownership of property and inheritance and this was done through the oppression of women and children
• During primitive communism there was no private property, and thus no social classes or private family units, property and resources were owned collectively and it is the ultimate goal of Marxists to revert back to this way of life

7.2 – Taxation, Social Welfare, Succession, Guardianship, Family Law

• According to the below extract from the Bill Digest, if this referendum succeeds, there are potential legal consequences for those who have chosen to cohabit, instead of marry in relation to taxation, social welfare, succession, guardianship and family law

Because the Government refuse to define what “other durable relationships” means
– an ex-partner, that you had an obscure relationship with, some time in the past, may very well have a legal claim over your property both in life and in death, in the same way a husband or wife would

7.3 – Immigration

• Serious concerns have been raised by numerous TD’s and Senators regarding the very real impact a Yes vote could have on immigration rights and specifically reunification rights
• The most recent poll on Irish attitudes towards immigration (undertaken by the Irish Times/Ipsos on 10 February 2024) found that:

– 59% favored a more closed policy on immigration
– while only 16% favored a more open policy

• In light of these (and similar results), if there is any potential that this Bill may impact on Irelands immigration obligations, The People have a right to be made aware of this to allow them to vote accordingly

Because the Government refuse to define what “other durable relationships” means
– the term will certainly be exploited to facilitate unlimited numbers of economic migrants entering the country under family reunification programmes, at the expense of the Irish people

Link to video presentation: https://youtu.be/b5ZWWpAQomo?si=sTv-9NxD0S8ZNWhu

If you would like a copy of the Powerpoint presentation, please email [email protected]