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Family matters – Irish voters against constitutional change

Ireland is known for its conservative constitution and direct democratic system, relying on referendum in most major government decisions. Article 46 of their Constitution prescribes submission of a Referendum for every amendment proposal of the Constitution to the decision of the people. Article 47 describes the procedural requirements for a successful referendum regarding constitutional changes. According to this, a simple majority of the voters shall favor the enactment of the proposition into law. The article distinguishes between a referendum regarding amendments to the Constitution and a referendum dealing with other propositions.

In the past decade, the Irish constitution went through several major changes and became more liberal in its content. In 2015, Ireland became the first country to legalize gay marriage by a referendum. The voter turnout was amounted for more than 60%. The Yes votes prevailed, equalizing marriage, by 62.38%, signaling wide-scale support. Another milestone referendum in the 2010s was held in 2018 to legalize abortion to repeal its almost total ban. In this referendum, the Taoiseach, Leon Varadkar campaigned for the reform which prevailed by 66.4% of the votes for Yes with a record high turnout of 64.1%. Amendment 36 provides the regulation on the termination of the pregnancy which in force since 2019, allowing establishing laws regulating the termination of the pregnancy (Article 40 (3) point 3.).

The previous amendments indicated a shift towards a more liberal constitution, however, the current referendum can be regarded as a “setback” according to many, not only for the government but also for many opposition parties supporting the amendment.

The current referendum was held on 8 March 2024 to signal a symbolic message for International Women’s Day dealing with two issues, the family referendum and the care referendum. The question concerned the proposed alteration of Article 41 of the 1937 Constitution of the country. Article 41 deals with family protection stating that a family shall be considered a moral institution as a fundamental unit group of society. The same provision has been extended in 2015, after the successful referendum of accepting marriages without any distinction regarding sex as mentioned above. The current proposition concerned the extension of the definition of a family and to include not only marriages as a special institution of the society but also “durable relationships”, hence widening the content of Article 41 (3). The care referendum considered changing the old-fashioned language of Article 40, to remove language about the role of women in the household and the family.

The vote for Yes was promoted by the government and all major opposition parties as well. The Irish prime minister, Leo Varadkar publicly announced that a result of No would send the wrong message to unmarried people and also women, towards whom the Constitution’s text is old-fashioned in its language. Many criticized however the wording of the proposition and considered it too vague. The family referendum was buried with 67% of the votes supporting No for amending and the care referendum defeated with an even bigger rejection rate (74%). The government accepted the defeat, while opposition parties put the blame on them as according to their view, the government communicated the message poorly and the wording of the propositions were also too vague to be understood properly and hence, voters feared that the changes could lead to unintended consequences and would remove the protection of families from the Constitution.

Following the defeat, the Irish prime minister, Leo Varadkar has resigned and stated that he does not have strong belief that he is the most appropriate person for this job anymore. His resignation caused confusion in the country as he was widely popular among Irish voters and the decision shocked the public greatly.

Looking at the current constitutional provision of Ireland, a Family is considered to be a marriage between not only a man and a woman but also two people of the same sex can receive the family status, hence, they are also entitled to the constitutional protection of the families under Article 41.

Considering the Hungarian Fundamental Law in comparison, the Family as a fundamental unit of society is also constitutionally protected. It is mentioned in multiple parts of the Hungarian Constitution including the Preamble (Nemzeti Hitvallás = National Avowal) as a fundamental value, the Foundation (Alapvetés) as an institution of society (Article L and P (2)), the Freedoms and Responsibility (Szabadság és Felelősség) as a fundamental right and a specially protected value (Article VI, XV.). As indicated, the Hungarian Constitution, not like the Irish one, includes family protection sporadically and not summarizes it in one article. The reason for that comes from the differences in the systemic construction of the two documents. In their content, however, they show some similarities. The family is declared as a special and fundamental unit of society that needs to be protected according to both documents. Both the Hungarian and Irish constitutions accept only marriage as a founding base of a family with the children included. In the ninth amendment of the Hungarian Constitution, it was highlighted that marriage is considered only between a woman and a man and that the mother is female, and the father is male. This differs from the Irish Constitution, as there, marriages irrespective of the couple’s sex is considered a marriage, hence can found a family together.

In this respect, the Hungarian constitutional text is more restrictive when it comes to defining what a family is. Both documents exclude durable partnerships (as its inclusion was rejected by the Irish referendum) and accept only marriages but in Ireland, the regulation for marriage is more liberal and inclusive towards same-sex couples. The rejection of both the family and care referenda puts forward several questions, including whether the Irish politics will reverse to its more conservative standards or regardless of the result of the referenda, it will continue on easing up its providing and leaning towards a more liberal content.

Dorina BOSITS is a law student at the Széchenyi István University of Győr, Hungary, and an international finance and accounting graduate of the University of Applied Sciences of Wiener Neustadt, Austria. The main area of her research includes freedom of speech, digitalization, data protection, and financial law. She is a student at the Law School of MCC and a member of ELSA Győr.

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