Senator Rónán Mullen

Why some NGOs might not be so enthusiastic about the March referendums

Minister Roderic O’Gorman is out to put manners on any NGO that dares to oppose or ignore the Government’s very ideological referendums planned for March 2024.

According to the Irish Times (1st January 2024) ‘Mr O’Gorman said “any organisation that sees itself as progressive and as wanting to advance progressive change” would have to explain why they do not support the (referendum) plans.’

Note the Government’s attempt to own the space about who is ‘progressive’. And note the tone of command. “Would have to explain…” I wonder if this is a veiled threat to those NGOs that might be in receipt of public money. Not a good look, Roderic…

But it’s interesting that the Government has not been asked about why they dropped the specific ‘gender equality’ part of the referendum package.

The Programme for Government 2020 (Our Shared Future) promised to ‘respond to each recommendation of the Citizens’ Assembly on gender equality’, and ‘informed by the work of the Citizens’ Assembly, consider whether there should be a referendum on Article 41.2 of the Constitution.’

The Citizens’ Assembly, supported by legal advice of top academics from five universities (an Expert Advisory Group), overwhelmingly recommended (96.6% to 3.4%) that ‘Article 40.1 of the Constitution should be amended to refer explicitly to gender equality and non-discrimination.’

I am no great admirer of the Citizen’s Assembly process myself. One reason is the way it’s conclusions are used to bolster a pre-ordained policy from Government.

But it’s interesting that the Government here took some legal advice (or so we are told) and decided not to go with the Citizens Assembly near-unanimous proposal.

Take that in for a moment. An overwhelmingly supported CA recommendation, informed by top legal advice, but then trumped by the Attorney General!

I think this speaks volumes about the hot-house atmosphere of the Citizens’ Assembly and its potential to come up with strange recommendations. The Government is beating a strategic retreat on the CA’s gender recommendation. But if this is the Government’s caution about one of the CA’s recommendations, what does this say about the other CA recommendations and their implications for society.

Yet, despite impugning the Assembly’s credibility on one issue, the Government has decided to fast-track the CA’s other proposals.

Just before the Christmas recess, and at very short notice, the Government persuaded a private meeting of a Joint Oireachtas Committee on Children & Equality to waive pre-legislative scrutiny on the referendum proposals.

Which leads to a question: What are we not being told about the impact of these other changes? What’s the rush and what is there to hide? Exactly what ‘progressive’ advancement does Minister O’Gorman wish to achieve?

Here’s another reason we need pre-legislative scrutiny. Substantial elements of the constitutional changes proposed were not even part of the Programme for Government.

Maybe it is now time for government backbenchers (and the NGOs) to exercise their political muscle, interrogate the implications of these proposed changes and respond to the Roderic’s request that they ‘explain why they do not support the plans’.

‘Progressive’ change, but progress for whom?

‘Progress’ is supposed to be about making things better. And the claim being made by the Government for its March referendum proposals is that they are about ‘advancing progressive change’ (Minister Roderic O’Gorman’s words).  

 It’s change alright, but is it progress? 

 The Government’s radical proposals involve key terms such as ‘woman’, ‘family’, ‘mother’ and ‘home’ and mostly getting rid of them from the Constitution. The smokescreen being used to advance such ‘progressive’ radicalism is the need to give a mention to the valuable work done by carers of various kinds.  

 To get an idea of what the Government is up to, recall a recent speech given by Leo Varadkar to the UN in which he talked about, among other things, ‘LGBTI rights’.  (The Taoiseach missed the opening of the Oireachtas to make the speech, so he must have regarded this as an important UN visit and address.)

 “Ireland is deeply concerned at the alarming pushback against LGBTI rights and the rise of violence and hatred towards LGBTI people at home and abroad,” said the Taoiseach, as reported in The Irish Times. 

 Later he added: “Our culture has changed. Our society’s understanding of family and inclusion has evolved. The Ireland of today is more understanding, more accepting, more inclusive and more equal. More willing to respect fluidity, diversity and personal freedom.” 

 Most of what the Taoiseach was claiming here was rubbish, pure and simple. He gave no instance of any social ‘pushback’ against the legitimate rights and freedoms of any person. In fact, he clearly wasn’t talking about any authentic ‘rights’ at all, just making certain claims about how our understanding of ‘family’ and ‘inclusion’ should change in his view.   

 Since the main bone of contention in ‘LGBTI’ matters in recent times is the set of claims being made by trans activists and the risks these claims pose to women’s and children’s education and safety, we can assume that the trans issue was what was on the Taoiseach’s mind. 

 Leo was advancing what is academically known as ‘queer theory’ – a dystopian worldview that dismantles traditional assumptions about gender and sexual identity. To take one example, ‘queer theory’ challenges the notion that there is any kind of normative sexual behaviour or identity; all sexual behaviours are equally valid.

 Queer theory understands that by making all behaviours equally acceptable, all inequalities will be destroyed. So the sexual binary, male-female distinctions, the nuclear family with all its inequalities as between parents and children, and its differences as between men and women, are obstacles that need to be removed from our world if full ‘LGBTI rights’ (as the Taoiseach understands them) are to be achieved.

Reducing ‘family’ to being at most a caring community (which can take any shape) is just another part of that queer theory outlook. 

 Mr Varadkar says : ‘Our society’s understanding of family and inclusion has evolved’, and that Ireland is ‘more willing to respect fluidity, diversity and personal freedom’.

 This is the dystopian view that he wishes Irish society to follow, with whatever push he can give it. This is the ‘progressive change’ being advanced by Minister O’Gorman.  

 The redefining of ‘family’ in the Constitution is a key element in re-normalising society according to the ‘queer theory’ worldview. 

 Among other things, this taxpayer-funded referendum zeal from Leo, Roderick and the Government is a million miles from real life and from the daily hopes and fears, challenges and struggles that ordinary people are contending with. 

 The Government is engaging in a narcissistic and boutique programme of ideological cultural change, at the very time when all its energies should focus on healthcare, housing, putting order on our increasingly chaotic migration system, addressing addiction, violence and other crime.

 Mainstream-minded politicians, with an eye on the real suffering going on in our society, should say ‘Enough’. 

 It is not too late to shelve these divisive and silly, yet socially damaging, referendum proposals.

Does the Government really care about carers? 

There are two referendums being proposed by the Government for March: one on Family and the other on Care. 

 Following on the launch of the referendum wording, the Minister for Education, Norma Foley said: “We want to, and indeed I would say, we need to, recognise the dynamic and diverse caring arrangements of Irish families today.” 

 Few would disagree with those words. Carers are the backbone of our society, and all carers matter. But if you want to provide impactful constitutional recognition for care arrangements within society, it should be wider than care within the family, and it should not be expressed solely in aspirational terms. 

 But the Government isn’t really interested in giving any Constitutional recognition to carers that would amount to, perish the thought, rights of any kind. 

 No, they are using carers and ‘care’ as an emollient word, a ‘softener-upper’, to persuade people to remove Article 41.2 which refers to ‘mothers’ and ‘duties within the family’ (‘mháithreacha clainne, de dheasca uireasa, dul le saothar agus faillí a thabhairt dá chionn sin ina ndualgais sa teaghlach.’). 

 Instead of giving specific value to ‘mothers’, ‘fathers’, ‘parents’ and carers, the Government wants the Constitution to give bland praise to ‘care’. Among other things, this flattens down the meaning of ‘family’ to just being a caring institution, and fails to acknowledge the family for what it is, a community where there are mutual responsibilities arising from natural relationships, especially of adults towards children. What this may mean for legal relationships (e.g., decision making, custody) between children and parents is unknown, as is what it might mean for similar child-adult relationships within other ‘durable relationships’. Are future families to be measured according to some arbitrary or State definition of care, rather than on biological and natural law realities of familial relationships? 

 For example, as appears to be happening presently in Scotland, will a parent’s non-support for a child’s gender transition be deemed a lapse in care?

 The big picture here is that the Government would like us to redefine ‘family’ as something the State would like to fund and control, the way it funds and controls other institutions and relationships.  

Why expose the most vital institution in society to future uncertainty, legal battles and the whims of judges? And, again, why over-ride the normal practice of pre-legislative scrutiny before doing this?  

How the Government did a ‘bait-and-switch’ on it’s original ‘gender equality’ proposal

In the beginning … the Joint Oireachtas Committee on Gender Equality wanted to change the Constitution to make it less ‘sexist’.

So it proposed ‘to remove the ‘women in the home’ reference from Article 41.2 of the Constitution and to replace it with language that was not gender specific, and which provided recognition for care; and to amend Article 41 to protect family life, ‘with the protection afforded to the family not limited to the marital family.

That’s what the Government said it would act on. The reasonable person would therefore have expected:

  • Replacement of the reference to women with a reference to ‘men and women’;
  • A new standalone article on ‘Care’ in the Constitution;
  • And a line or clause about protecting non-marital families.

But what the Government is proposing to do is much different. So much so that we might diagnose a case of ‘bait and switch’ politics. This is where you rope in public support for Measure No. 1. And then, people having been lulled into a false sense of security, you hit them with an unrecognisable and much-more-radical Measure No 2.

Look at what our Government is proposing:

  1. To remove the only mentions of the words ‘woman’ and ‘mother’ from the Constitution (and doing this exactly when politics is hotting up on the issue of gender!);
  2. To empty the natural family of meaning by extending the reference to family to mean any grouping built on any relationship;
  3. To use the concept of Care as a smokescreen, reducing the notion of a family to a caring role only;
  4. To remove the word ‘home’ from the Constitution (in the midst of a housing crisis).

Four of the most important words in our language and society, ‘woman’, ‘mother’, ‘home’ and ‘family’ are to undergo major constitutional surgery, in some cases complete excision, with demand from the public, no build-up of commentary or debate, and no pre-legislative scrutiny. Why? Will the Government tell us why during the Dáil and Seanad debates on the referendum legislation? Or will all this be rushed through as well.

Not for the first time, you get the impression that a small number of actors are trying to drive a whole lot of social change. That certain NGOs have more access to decision-making than ordinary people or the majority of their elected representatives.

There’s a sleight-of-hand, a coup mentality about all this that doesn’t reflect well on the Government or on our democracy.

Whose agenda is at play in the Government’s March referendums?

There have been many gender controversies over the past months as State agencies have undemocratically sought to change the time-honoured understanding of the word ‘gender’ as meaning either ‘male’ or ‘female’:  

The National Council for Curriculum and Assessment (NCCA) now discourages the use of terms such as ‘mother’ and ‘father’;  

 The HSE, in some of its more looney ordinances, will not recognise the traditional definition of ‘woman’;  

 Men are allowed into women’s prisons and refuges;  

 Women are forced to participate against men in women’s sports;  

 The impartiality of the public service is threatened, and some universities claim it is unlawful discrimination or harassment to merely refuse to use preferred pronouns. 

 In the midst of these controversies, the Government now wants to remove mention of ‘woman’, ‘mother’ and ‘home’ from the Constitution. What impact will this complete removal of woman or mother have on our future understanding of these terms? Will ‘home’ now become simply a dwelling? So much for ‘home’ being much more than a ‘house’. 

 Until now the ‘home’ has been understood (including in the Constitution) as an institution where family life is nurtured. Its place in the Constitution is an acknowledgment of the importance of home as a private and protected space where family life can flourish. It implies a certain level of respect by the State for the domestic sphere and the right to privacy within the home.  

 We can only guess what its future exclusion from the Constitution might mean.  

 But we can look at what we are putting at risk: 

 In 2017, the Government’s special rapporteur on child protection said, concerning marriage breakdown, that ‘a dependent spouse fares better in Ireland than in virtually any other jurisdiction in the world and that is due to this lifelong obligation (of financial support for a dependent spouse). It is a safety net or a protective mechanism for the spouse who acts as homemaker.’  

 The constitutional removal of any mention of homemaker, male or female, surely undermines that understanding. 

 This is one of many unanswered questions, multiple unexplored problems.

 You have to wonder why, with hardly more than a year before the next General Election (and perhaps much less) the Government is running with such a vague and potentially far-reaching proposal. And without any pre-legislative scrutiny?  

 Is this about placating idealogues in the Green Party to make sure the Government goes-the-distance? Maybe so, but the actual changes being proposed were not specified in the Programme for Government.

A new Constitutional word-salad that would undermine children and family life

Today, without any pre-legislative scrutiny, the  Government proposes to rush through all stages of a Constitutional word-salad that will undermine children and family life.

Should the proposed referendum on Family be passed the Constitution will read:

‘1° The State recognises the Family, whether founded on marriage or on other durable relationships, as the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law.’

Any grouping in society based on ‘other durable relationships’ now becomes ‘a natural primary and fundamental unit group in society’, ‘possessing inalienable and imprescriptible rights, antecedent and superior to all positive law.’ These ‘durable’ relationships will henceforth be said to form the ‘necessary basis for social order.’

Gone will be the pledge “to guard with special care the institution of marriage, on which the family is founded”.

Even an aspiration to say a permanent ‘I do’ is of no value to this Government. They see it as having no promise to the children of the future. It is nothing worth encouraging.

Instead, it will be open to any grouping to claim that the ‘durable’ relationships within it give it a right to be a ‘family’.

Let’s think this out:

Whereas it is unlikely that courts might initially recognise cult groupings, it is not clear on what legal basis they might be refused.

What about three adults living together claiming family status?

What about polyamorous unions which are proposed by some these days? Polygamous unions would seem to certainly qualify (once these were not entered into in Ireland).

The Irish Immigration Service may argue that it can continue to interpret ‘family’ as it currently does. But surely that is not the case, once the Constitution removes the definitional dependence of ‘family’ on monogamous marriage? Could we see a decision that polygamous unions established elsewhere must now be honoured by the State, on the basis that the new definition of family includes any ‘durable relationship’?

And who decides anyway what is ‘durable’?

‘Durable’ may not mean what we think it means. According to our Courts ‘a durable partnership will tend to be one of some duration, but that is not to say that the duration of the relationship is, in itself, a defining feature.’

So (take a deep breath here) a durable relationship need not be proven to have lasted any significant period of time.

What of the impact of the proposed change on existing families?

The current constitutional definition links marriage and family. It allows the institutions of the State to consider non-marital unions in a manner similar to marital unions, but it also allows for differences that arise due to the different commitments involved. So, for example, all stay-at-home parents have status. Certain protections are there for people whose relationship of cohabitation comes to an end, due to death or otherwise. Other protections are there for widows and widowers, or where a marriage is dissolved. Our Constitution has generally been interpreted to mean it should not be a disadvantage to be married, but the Oireachtas has been free to legislate for the needs of different situations.

With the new definition, however, (if the referendum passes) must all or any differences between ‘family’ groupings be discarded?

By making the rights of family available to any and all ‘durable’ relationships, isn’t the State saying that ‘marriage’ is entirely superfluous to the needs and requirements of society?

The aim, according to An Taoiseach is to put ‘lasting relationships’ …on an equal footing with married families’.

This is the ‘contemporary reality’ that our State must catch up on.

But, as we have seen, for the Courts, ‘durability’ does not mean ‘lasting’. So what is the Taoiseach at?

When dropping the originally-proposed third referendum on Gender Equality, Leo said legal advice had said that references to “gender equality” could “unwittingly downgrade other minorities”.

But he seems to have no concern at all about downgrading ‘family’, ‘women’, ‘mothers’ and ‘home’ and, ultimately, the needs and welfare of children. Unwittingly or otherwise.