Two weeks ago the National Women’s Council launched its campaign for a YesYes vote in the upcoming referendums. On the Six One News that evening the state broadcaster was eager to help and rarin' to go. The first person interviewed in the report was a lone mother - My son came home from school and said to me "Mam do you know we're not a family in the Constitution" and I asked him why and he said "Because you weren't married" and I just think it's heartbreaking for him and so many children.
Child after child is going to be pushed on us over the next month. Children of single parents. Children with unmarried parents. All asking "Why are they saying we're not a family". Expect case after case on RTE from now until we vote.
If the referendum on "widening the definition of the family" is passed that's the line that will win it. It's going to be hard to defeat this thing unless that's addressed and neutralised. Hard cases win referendums. They trump every rational counter argument.
I spoke to a solicitor yesterday who didn't know what the referendums were about or when they were on. I've spoken to plenty who were surprised to hear there is to be a referendum. The heated online discussion we're having is not at all representative. Four weeks out this is still below the radar for most people. And when they’re eventually presented with a gut level argument like the children of lone parents looking for recognition for their families that's all people will need to hear. Unless we get that 800 pound gorilla of an argument off the table very few are going to be listening to anything from the No side.
The "Repeal the 8th" referendum in 2018 came down to a battle over hard cases, a battle which we lost. It wasn't until a few days before the vote that we finally seemed to appreciate this was the battle that mattered. At that late stage we began to focus on the one good strategy we had for countering the hard cases - a strategy we can use this time too - but by then it was way too late.
The right strategy was to lean in to the hard cases, not to minimise them or talk past them, but to admit they were deal breakers for most people. In the Repeal referendum it meant accepting that the hard cases of rape and incest should be dealt with constitutionally in the future. And once we accepted that, we were free to say that the actual question being put to the people went way too far - it allowed for almost unlimited abortion. We had found the right approach - have another referendum if you want, one that deals with the hard cases, but turn down the way too extreme option being offered in this one. But we came up with it too late.
Adopting the same approach this time means accepting there should be a referendum in the future that recognises there are families that are not defined by marriage. While pointing out that the current proposal with its "durable relationships", whatever they are, undermines families of every kind and goes way too far.
The 39th amendment (The Family) that we are being asked to vote on, proposes not one but two changes.
It proposes changing Article 41.3.1. to remove the statement that the family is based on marriage.
And changing Article 41.1.1, that recognises the importance of the family, to instead recognise any kind of "durable relationship".
Taking care of the hard cases would mean offering a future referendum that either simply removed the idea that family is based on marriage or else added a broader but still sensible definition of family, for example a family as a single household united by marriage, birth or adoption - the most popular legal definition in the US. We tell voters that we agree we should have this other referendum in the future, people should be given a chance to recognise there are families based on single parents or cohabiting parents, but vote No to this one with its "durable relationships".
Which would allow us to focus on how over the top this proposed amendment is.
The second change we're being asked to accept in the Family referendum seeks to widen the protections of the constitution to include any "durable relationship". Michael McDowell has done a good job describing the legal consequences, as we'll see below. But it's worse than that: including "durable relationships" also undermines the special status of genuine families - the very status that those children in the hard cases find so desirable and want for themselves.
We agree that those children are hard cases. We agree the country should have a chance to decide if they want the constitution to recognise that those children are in families. There should indeed be a referendum on removing the idea that the family is based only on marriage if that's what people want. But what this current referendum proposes goes much further. It goes to extremes. It seems to satisfy only those who want to attack the idea of family. It undermines everyone who places a value on families - ourselves and the children in those hard cases. Vote No.
The Lessons of the Repeal Referendum
During the Repeal campaign the pro-life side made the fatal mistake of tackling the hard cases using rational counter arguments. They pointed to the shrinkingly small numbers of cases of rape and incest, the difficulty of establishing within a practical time frame that a rape had occurred, the nonsense that Savita died because of our abortion laws rather than a failure to diagnose sepsis. These counter arguments were all correct and also completely the wrong approach to take - as the result showed. None of them dealt with the emotional impact of the hard cases, the pro-life side fought the wrong battle and were trounced.
This time we again have the superior arguments. Michael McDowell on his website sums up well the consequences of widening the definition of family to include "durable relationships".
Are we talking about households with one male cohabiting with two women or vice versa? Or polygamous relations recognised abroad? Are we confining the term to households at all? Are all such relationships to constitute the “natural, primary and fundamental unit groups of society” from now on, as the amendment proposes? Is a family to include relationships where one party to the relationship is by agreement in a durable relationship with another. What are the implications for family law, immigration law, tax law, citizenship and nationality law,[ succession law, criminal law, pensions law ] and inheritance law, to name but a few?
Could anyone in future be party to two “durable” family relationships at the same time? Would a man who is married be incapable of forming a “durable relationship” giving rise to family status with someone else while his marriage remained in being and undissolved by court-ordered divorce? What would the family status of any children be in relation to a man in this position? Would it continue somehow to be a family relationship recognised in the Constitution?
https://www.michaelmcdowell.ie/referendum-debate-should-not-be-based-on-misinformation.html
An excellent, pithy and comprehensive account of the legal rírá agus ruaille buaille that would follow dropping the landmine of "durable relationships" in to the Constitution. But none of it addresses the emotional punch of the child asking "Why can't my family be recognised". Until that is dealt with people won't be ready to listen to arguments about legal ramifications.
Which brings us back to the chorus: We agree we should have another referendum to recognise the hard cases, if that's what people want, but the "durable relationships" in this one goes too far.
The other referendum
The other referendum we're being asked to decide on in March also has its hard cases - this time it's the carer in the family who will be looking for acknowledgement in the Constitution. Again there will be parade of family carers on Joe Duffy and Six One and Prime Time. But with all due respect to these carers and the work they do, this time the emotional appeal doesn’t appear as strong or as likely to be effective. It doesn't seem to require that we offer a future referendum in place of the present one. While we all honour carers in the home it's not obvious that needs to be done in the Constitution.
When you add in that honouring them will come at the expense of explicitly recognising mothers, it should prove too much for most people.
The idea that the special status we give to mothers - not just what they do but their very existence - should be deleted and we should give the same recognition to any family member providing care instead, is something that appeals to ideologues in NGOs and the health services. Normal people don't look at mothers and see them as unqualified, unregulated home care assistants.
It's not entirely impossible that some carer brought on the radio to beg for recognition in the Constitution is asked if they think its worth expunging mothers in order to do that... and gives an honest answer.
How many people providing care to someone in the home think they are interchangeable with the person’s mother? This Referendum proposal just goes too far, way too far.
Who leads us?
It could well be that there is so much resentment being felt towards the government and the elites who run the country that this Referendum is defeated without needing to bother about any of the above. Still it would be foolish not to put the counter argument out there to the only good point the government side has.
The pro life side in the Repeal referendum had leaders. The leaders made mistakes. As well as the failure to effectively counter the hard cases there was also their plan to spend heavily on social media in the last few weeks of the campaign. This plan was advertised widely in advance and when the social media companies refused to take the advertising there was no plan B.
The leaders this time will be many of the same people. Prominent people in Gript, the excellent Maria Steen, a few Senators, Aontú. They have funding and access to old media and its dwindling audience.
A couple are already pushing for the same strategy being talked about here.
Aontú "does not intend to spend any money, print any posters or leaflets or canvass" but its position sounds familiar: "Aontú would have supported a change to the wording of the Constitution, but we cannot support these changes... poorly written... unclear, confused and offers no material help or rights to families or carers,"
Who’s who? The Yes and No camps in the March 8th family and care referendums
Declan Ganley: Saying ‘No’... to yet more changes to the constitution... is the calm & prudent vote. There will be time enough in future to make more changes if there is a pressing need.
https://twitter.com/declanganley/status/1755373633180958849
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But it's fair to say that even the most prominent of those high profile individuals will be no more influential than the whole lot of ours taken together. Mick O'Keefe, Gearoid, Toby, Off Grid, Irish Inquiry, Last True Gael, Catholic Arena, Saints and Scholars, Late Stage Ireland, the Burkean, Gript, the two Delaneys, Tracey, theLiberal.ie, Countess, LFJ, Jana, Gavin and on and on.
Together we have the cabinet at sixes and sevens. We have defined the main political issue of the day. We have the state and the state media in crisis management mode. We own the internet. A campaign under these conditions is a brand new experience in Ireland. With so many of us trying so many angles we'll get the messaging right this time.
Scaoil amach an bobailín.
Let her rip.
Update Feb 18th:
Brenda Power on "Today with Claire Byrne" Feb 14. In response to
Orla O'Connor of the National Womens Council: "We're being asked to.. see that not all families are based on marriage. It's really important to lone parents and unmarried couples... It's insulting to all those unmarried couples and parents who are asking for that recognition for them and their children."
Brenda Power: "I dont think anyone would have had a difficulty if this proposal was simply to take out the words "on which the family is based". It's the durable relationships, the unnecessary word salad that is being stuffed in there, that nobody seems to know what it means and that can have any number of interpreations in the future."
Starts 9.20 https://www.rte.ie/radio/radio1/clips/22355941/ )
Update Feb 25th:
Peadar Toibin on Upfront with Katie Hannon. Feb 19th.
We would have accepted and welcomed an update to the language… but the difficulty that we have is that the update that the government is proposing means nothing… I think people would welcome an update to the language… I accept that there is a need for an update to the language, but I don’t accept that we put something in that is worse because of the immense potential consequences that undefined terms like “durable relationships” can have in the future.
https://twitter.com/RTEUpfront/status/1759711958301909114
Sinead Ryan in the Irish Independent. Feb 21st.
So, my No vote is a protest. Not whataboutery of Government failings on housing or crime – which have nothing to do with this – but rather try again.
It’s a “No, not yet”, and an urge to do better with words. If they matter anywhere, surely they are most vital in our Constitution.
I’ll be voting No in the referendums as a protest – but not for the reasons you might think
John McGuirk in Gript. March 4th
The “No” side, meanwhile, should enter the final week with confidence, and a simple message: If you’re not sure about these changes, you need not rush into making them. We can always change the constitution in future, after all, if it needs changing. “Send them back to Brussels to get it right” was a compelling message that we on the “No” side used in the last week of Lisbon one. “Send them back to get it right” might well be a compelling message in the last week of these two referendums, as well.
The only recourse No has, in my view, is to radically reframe the campaign into a debate where the weight of public opinion is with them and against the Government. The Government have very wisely positioned the debate as continuing to undo the legacy of De Valera and McQuaid, and judging from the votes on gay marriage, Repeal and blasphemy, they have a baked in and reliable two-thirds majority that won't yield.
The winning formula is making it a referendum on immigration and the asylum crisis and aggressively and almost singularly focusing on "durable relationships" within the context of immigration law. That is to say they must convince the voter that the 39th Amendment is actually asking them whether they want more refugees (because it is what they're asking). That Neale Richmond clip on the Tonight Show should be played over and over again and the No campaign should be saying "immigration referendum" ceaselessly for the next month.
You could reduce it to several key points:
A "Yes" vote for "durable relationships" in the Constitution will override existing asylum law limiting family reunification to spouses and children.
A "Yes" vote will lead to unprecedented numbers of asylum seekers entering the State.
A "Yes" vote will make Irish cities, towns and villages less safe.
A "Yes" vote will create a constitutional loophole similar to that of birthright citizenship.
That is an argument the Government cannot win. Worth noting also that the least informed voters when it came to the referendum (Connacht-Ulster, SF, rural, over-65s, 18-35s) were almost invariably the most staunchly anti-immigration constituencies.
Either No fights another pitched battle with the Government on their terms and is routed once more or it leads the Government into an ambush and hits them relentlessly until they're smashed into pieces.