Article 41.2.2° of the Constitution (mothers in the home)

EveryoneKnowsNobodyCares

Hi all; question on Article 41.2.2°. I wondered whether to ask this over on the Referendum on Gender Equality forum, but this question of mine is to do with the current law as it stands. Forget for a moment that the text of the subsection is arguably misogynist, old-fashioned or whatever, and that it will be deleted if we vote Yes to the 40th Amendment to the Constitution ("the Care Amendment"). First, this:

Article 41.2.2° “The State shall [...] endeavour to ensure that mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home.”

So here's my question. I read ("reed") from that that the State shall endeavour to allow, say, single mothers, or mothers in marriages where, say, the father is unable to work for whatever reason, to remain at home to fulfil "their duties in the home" without having to get a job. But why do we not see this in practice? Has any mother ever found herself in the situation where she has had to go out and earn a living despite this constitutional protection? Or better still, has any mother been protected by the constitution in this way and been taken care of by the State? Why have we never heard of any cases winding up before the Supreme Court where a mother was "obliged by economic necessity" and had to go to work?

Peregrinus

The wording of the article is qualified — not "the State shall ensure that mothers shall not be obliged etc" but "the State shall endeavour to ensure . . .". This is contrast to more absolute obligations imposed by other articles — the State shall not participate in any war save with the assent of Dáil Éireann; The State shall not oblige parents . . . to send their children to schools established by the State; The State shall provide for free primary education; etc.

This "shall endeavour to" language turns up a couple of times in the Constitution, in relation to things that the State doesn't directly control. E.g. the State shall endeavour to ensure that organs of public opinion . . . shall not be used to undermine public order or morality or the authority of the State; The State shall endeavour to secure that private enterprise shall be so conducted as to ensure reasonable efficiency in the production and distribution of goods. The State doesn't run all the newspapers and radio stations and it doesn't (by definition) run all the private enterprises, so it can't absolutely control what they do or don't do; all it can do is try to influence it. It's clear that these article of the constitution don't guarantee any particular outcome; they just require the State to make an effort.

So, there's no absolute guarantee that mothers will not be obliged by economic necessity etc etc; just that the state try seek to advance that objective. And if you ask what the State does to advance that objective, they'll point to things like children's allowances, free education, etc. You might feel that this is an insufficient effort on the part of the State, but you can't point to Art 41.2.2 as requiring any specific measure that you think should be adopted.

I don't think there has been a great deal of judicial consideration of Art 41.2.2. I think it came up in the 1979 case of Murphy, where the (then) rules for taxing married couples were challenged on the basis that, if two married couples had the same aggregate income, the couple in which one spouse worked at home would be much more heavily taxed (because they only had one set of tax allowances and tax bands) and this was contrary to Art 41.2.2. The tax rules were found unconstitutional in Murphy, but on other grounds, so I don't think the court made any finding about the Art 41.2.2 argument.

Victor

The courts have taken the position that such rights are somewhat aspirational and it is for the government of the day to decide how much they should be funded. The courts are reluctant to bind the state to specific expenditure on a system-wide basis (but may order it in specific cases)

While there is Child Benefit, it has never been enough to fully fund a child. And while it is usually paid to the mother, it is paid to fathers in certain circumstances.

The above needs to be viewed in the context of a state, certainly in the 1922-1973 period (joining EEC) that was exceptionally pro-Roman Catholic and anti-communist. For example, the idea of a fully state-funded health system had both the Roman Catholic and the doctors aghast, not least that they would no longer control the system.

Peregrinus

https://www.boards.ie/discussion/comment/121698377#Comment_121698377

They weren't unique to Ireland; the Weimar consitution of Germany, which wasn't a particularly Catholic-influenced document, had similar articles on marriage, motherhood and parental rights, and these were probably the inspiration for the Irish provisions. But it likely the influence of Catholic thought that led the Irish drafters to follow the German precedent; the articles may not have been inspired by Catholic social teaching of the time but they were very much in tune with it.

Ironically, the Weimar articles also served as inspiration for the first constitution of the GDR, adopted in 1948, so they weren't that offensive to communists. The GDR constitution provided that:

• Marriage and family are the foundations of collective life and are protected by the state.
• The Republic shall issue a law for the protection of mothers.
• Institutions are to be created to protect mother and child.
• Laws must enable women to co-ordinate their tasks as citizens and workers with "their duties as wives and mothers".

EveryoneKnowsNobodyCares

Thanks all. Can't believe I asked a question and then abandoned you all to it for 3½ weeks... I'm making a habit of that! But great, insightful answers, and I'm very grateful.