I have extracted the "explanatory" type posts from the this thread of "debate" posts. So please debate the issues in the other thread but keep this for explaining it . If your post is "I am voting yes, because..." then it should be in the other thread and not this one. - Brendan
Justice Baker was on Pat Kenny this morning and I thought she was very clear.
She acknowledged that it would have to be determined by the courts to the extent to which Article 41.1 is relevant to the particular circumstances. So in the recent O'Meara case he argued that he was entitled to the widowers pension as they were a family. So he won the social welfare entitlement but did not win the part of the case where he was seeking the court to acknowledge his status as a family. So the constitutional element was not relevant, per se, and this is the case with other entitlements, rights etc. So logically, these existing rights/entitlements would be unaffected.
However, my question would be that if people are currently NOT entitled to those rights, will they now be given their new status? Again, Justice Baker on Pat Kenny this morning said the parameters around "durable" were 2 years w/kids and 5 years w/o kids based on existing case law/determinations etc. I think the real meaning of this, is that it will be context dependent and be determined by the courts (which is what happens currently with other constitutional provisions e.g. equality is not defined in the constitution but the courts are competent at interpreting it).
Another question, the state now has a way to say you are in a relationship whether you like it or not - young people don't get married until mid-30s now, but could be considered to be in a durable relationship the moment they turn 18 or so. The corollary of the O'Meara judgement is that the State can intimate that you are in a durable relationship and thus it must be considered for e.g. means tested benefits, when the persons themselves don't want to be defined that way?
What protections? The Courts interpretation of this provision has granted women the recognition that work within the home is of equal moral value NOT of equal financial value to work outside the home. There are no automatic entitlements that flow from this provision.
That's not the reason why that happens. This provision was also not the reason for the marriage bar etc. etc. Those things happen/happened and have nothing to do with 41.2.
Justice Baker again indicated that this provision envisages a woman with children working within the home.
So, In fact, the constitution as it stands provides recognition to family's without a man in them. But who gets the recognition when its two married women? Should both women not be obliged by economic necessity to work outside the home? Do both women "give to the State a support without which the common good cannot be achieved" in a way that a family of men do not? Maybe academic in the scheme of things but if the family referendum is not passed, this would seem to be a discontinuity.
Justice Baker confirmed that this is to ensure consistency.
This is hyperbole in my view. The family is far more defined than an "unknown entity".
Say the family referendum does not pass. Then it will be continue to be founded on (not defined by) marriage. If the referendum does pass, those families founded on (not defined by) marriage will continue to be recognised in addition to those who have been determined to be founded on a durable relationship, which already have 'parameters' but whose boundaries (for want of a better word) have yet to be fully tested.
Interestingly, this change is more significant than has been discussed. The provision changes the wording from The State "shall endeavor..." to the State "shall strive...", why? Strive is a stronger word in my view. It implies that the State has to do more than its currently doing?
Marriage is not being replaced or diluted. Parity of esteem is not dilution, in the way that gay marriage is not a dilution of "marriage". You may not like the definition but that's subjective.
Family will be continue to be founded on marriage but there will now be another family structure that will be founded on a durable relationship. The institution of marriage will continue to have special status in the constitution.
Justice Baker was on Pat Kenny this morning and I thought she was very clear.
She acknowledged that it would have to be determined by the courts to the extent to which Article 41.1 is relevant to the particular circumstances. So in the recent O'Meara case he argued that he was entitled to the widowers pension as they were a family. So he won the social welfare entitlement but did not win the part of the case where he was seeking the court to acknowledge his status as a family. So the constitutional element was not relevant, per se, and this is the case with other entitlements, rights etc. So logically, these existing rights/entitlements would be unaffected.
However, my question would be that if people are currently NOT entitled to those rights, will they now be given their new status? Again, Justice Baker on Pat Kenny this morning said the parameters around "durable" were 2 years w/kids and 5 years w/o kids based on existing case law/determinations etc. I think the real meaning of this, is that it will be context dependent and be determined by the courts (which is what happens currently with other constitutional provisions e.g. equality is not defined in the constitution but the courts are competent at interpreting it).
Another question, the state now has a way to say you are in a relationship whether you like it or not - young people don't get married until mid-30s now, but could be considered to be in a durable relationship the moment they turn 18 or so. The corollary of the O'Meara judgement is that the State can intimate that you are in a durable relationship and thus it must be considered for e.g. means tested benefits, when the persons themselves don't want to be defined that way?
The second is to remove Article 41.2 " “In particular, the State recognises that by her life within the home, woman gives to the State a support without which the common good cannot be achieved. The State shall, therefore, 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.”
That sounds very misogynistic, because it kind of is, but it does give women additional protections.
What protections? The Courts interpretation of this provision has granted women the recognition that work within the home is of equal moral value NOT of equal financial value to work outside the home. There are no automatic entitlements that flow from this provision.
For example it's the reason that Children's allowance is paid to mothers.
That's not the reason why that happens. This provision was also not the reason for the marriage bar etc. etc. Those things happen/happened and have nothing to do with 41.2.
I'm in favour of removing it but I'm not sure I would be if I was a woman. Beyond the annoying and anachronistic language I don't see a downside for women in having it there.
Justice Baker again indicated that this provision envisages a woman with children working within the home.
So, In fact, the constitution as it stands provides recognition to family's without a man in them. But who gets the recognition when its two married women? Should both women not be obliged by economic necessity to work outside the home? Do both women "give to the State a support without which the common good cannot be achieved" in a way that a family of men do not? Maybe academic in the scheme of things but if the family referendum is not passed, this would seem to be a discontinuity.
In order to facilitate the first change a third change is being proposed; Article 41.3 is to be amended to remove the wording in italics, “The State pledges itself to guard with special care the institution of Marriage, on which the Family is founded, and to protect it against attack.”. I don't see how that matters either way.
Justice Baker confirmed that this is to ensure consistency.
The fourth change is to insert a new Article, 42B, (really replacing 41.1) which is “The State recognises that the provision of care by members of a family to one another by reason of the bonds that exist among them, gives to Society a support without which the common good cannot be achieved, and shall strive to support such provision.”.
Now since we have no definition of what a family is, until the Supreme Court tell us in a decade or so, that sounds like a license for every lobby group, socialist, charity and chancer to try to assert their right to a handout and generally access services and supports that they shouldn't be entitled to. There's absolutely no way I'd vote in favour of that.
This is hyperbole in my view. The family is far more defined than an "unknown entity".
Say the family referendum does not pass. Then it will be continue to be founded on (not defined by) marriage. If the referendum does pass, those families founded on (not defined by) marriage will continue to be recognised in addition to those who have been determined to be founded on a durable relationship, which already have 'parameters' but whose boundaries (for want of a better word) have yet to be fully tested.
Interestingly, this change is more significant than has been discussed. The provision changes the wording from The State "shall endeavor..." to the State "shall strive...", why? Strive is a stronger word in my view. It implies that the State has to do more than its currently doing?
One question I have on this. if one of the changes here is to change the definition of family to remove marriage (and replace it with durable relationship), what was the point of the last referendum to allow gay marriage?
It sounds like a yes vote dilutes the importance of a marriage or else I'm missing something.
The State recognises the Family, whether founded on marriage or on other durable relationships
Marriage is not being replaced or diluted. Parity of esteem is not dilution, in the way that gay marriage is not a dilution of "marriage". You may not like the definition but that's subjective.
Family will be continue to be founded on marriage but there will now be another family structure that will be founded on a durable relationship. The institution of marriage will continue to have special status in the constitution.
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