Constitutional Confusion: Ireland’s Failed Referendum on Care and the Family

by | Apr 29, 2024

author profile picture

About Sophie Treacy

Sophie Treacy is a DPhil in Law Candidate at Mansfield College. Her research focuses on the conceptualisation of human dignity in the interpretation of the European Convention of Human Rights, under the supervision of Professor Sandra Fredman. She holds a Bachelor of Civil Law (BCL) from the University of Oxford and a Bachelor of Laws (LLB) from Trinity College Dublin. Her main research interests lie in international human rights law, constitutional law, legal philosophy, feminist legal theory and corporate governance.

There is no shortage of explanations as to why Ireland’s recent referendum on whether to amend Article 41 of the Constitution, which recognises the rights of the family, was met with decisive rejection. Two proposals were put to the Irish people; firstly, whether to redefine the constitutional family as an institution based not exclusively on marriage but also on “other durable relationships,” and secondly, whether to replace Article 41.2, which provides that the State will “strive to support” women with a provision that the State will instead strive to support carers. The defeat of the care amendment has been lauded as a “victory for human rights” on the basis that the proposal invoked ableist language and served to place the burden of care on the private family. The campaign against the proposed amendments however, were undoubtedly bolstered by the widespread confusion of the electorate regarding the necessity and future implications of a Yes vote. This blog post explores the dynamics of this confusion and what it can tell us about the current culture of referenda in Ireland.

It is important to situate this referendum within Ireland’s recent history of constitutional amendments to understand why such confusion took hold in the public sphere. This referendum was framed as an endeavour to “modernise” the Irish Constitution, by adopting a more encompassing vision of familial relations and removing the sexist language of Article 41.2. This resonates with recent referenda, such as the referendum on the 34th Amendment in 2015 which recognised civil marriage regardless of sex, and the referendum on the 36th Amendment in 2018, which repealed  the clauses added by the 8th, 13th, and 14th Amendments of the Constitution to allow the Oireachtas (Parliament) to legislate for abortion. Not least by choosing to hold the Article 41 referendum on International Women’s Day, the Government clearly envisioned this amendment as yet another milestone in an overall trajectory toward a more liberal Constitution that is truly reflective of modern Ireland.

In the previous referenda to adopt the 34th and 36th amendments, however, there was little to no disjuncture between the proposed constitutional amendment and the subsequent legislative upshot. The same cannot be said for the Article 41 referendum. It was clear that a vote for the 34th amendment was a vote for the legalisation of same-sex marriage. It was clear that a vote for the 36th amendment was, constructively, a vote for the enactment of the Health (Regulation of Termination of Pregnancy) Act 2018, legalising abortion up to twelve weeks. It was in no way clear to voters, however, what the recognition of the family based on “durable relations” and a duty on the State to “strive to support” family carers would entail. Unlike referenda of the past geared toward liberalisation, this time around the public were given no concrete assurance of what this proposed “liberalisation” would look like. The fact that there was no transparent legislative upshot undergirding a Yes vote, which renders a vote for constitutional amendment a constructive vote for legislative amendment, went against the grain of previous referenda, thereby stoking confusion in the public sphere.

The role that public confusion played in the failure of this referendum demonstrates how referenda are at their best when the proposed constitutional amendment is easily translatable into concrete social change, either through the introduction of a unambiguous right or removal of a constitutional inhibition to a proposed new legislative regime. The trouble with this referendum stemmed from the fact that it asked the Irish electorate to take a leap of faith in terms of how the amended Article 41 would be interpreted by the Courts, something which voters were not accustomed to. Accordingly, the Government was heavily criticised for the vagueness of the proposal, which provoked somewhat of a reaction on its part. For instance, Equality Minister Roderic O’Gorman ensured the public that polyamorous relationships would not be considered a “durable relationship” for the purpose of Article 41, an assurance which of course, the Government technically is unable to make due to the scope of the Article falling to the Courts to decide. In future referenda of this nature, the Government should do more to emphasise the mere expressive function of the Constitution, so that the legislative aftermath of constitutional amendments are not over-hypothesised in the public psyche and confusion is minimised.


Share this:

Related Content


Submit a Comment