IT’S NOW ONE month until Irish citizens vote in the first referendums to be held here in almost five years.

On 8 March, voters will decide on the proposed 39th and 40th Amendments to the Constitution, which if passed will provide for a wider concept of family and change wording around the role of women in the home respectively.

There has been a lot of speculation about the possible impact of both amendments. Misinformation about the possible or likely impacts of the two referendums has also begun to circulate.

Other falsehoods have spread about how the Government is promoting the referendums and why it is choosing to hold them.

Let’s take a look at the main narratives and claims we’ve seen so far.

Fact-checking the referendum

It is normal during referendum campaigns for both Yes and No sides to reflect on the historic impact of Articles in the Constitution or to warn about what could happen if they are changed.

Certain referendum campaigns are further complicated because it can be impossible to know how changes could be interpreted by a judge during a challenge in the Supreme Court, which can give rise to scaremongering and political spin by advocates on either side.

Some have suggested during this campaign that future predictions based on the outcome of referendums, or historical analyses based on the current wording, are misinformation.

However, this is not the case: they are merely opinions or academic interpretations.

Legal scholars and historians dedicate decades of their careers to making arguments about the impact of Irish laws and aspects of our Constitution, and it is not the role of fact-checkers to analyse claims like this for which the truth is not measurable.

For the purposes of this article, the misinformation we have identified refers specifically to measurable falsehoods that have been made about the referendums, the impact of a vote either way being carried, or anything else about the campaigns themselves.

This includes claims that the Government intends to use the referendums to bring in a policy which it hasn’t said it will introduce, or that something will immediately become legal if an amendment passes.

Women in the home

The majority of misinformation we’ve seen so far around the upcoming referendums deals with the proposed 40th Amendment.

If passed, the amendment would replace text referring to a woman’s role in the home – currently contained in Article 41 of the Constitution – with non-gender specific language that would instead recognise care within the home.

The misinformation we’ve spotted around the amendment includes claims that a Yes vote will negatively affect mothers or that it will “erase” women from Irish society.

In recent weeks, one claim has circulated suggesting that a Yes vote would remove references to women from the Constitution.

A similar claim shared recently on social media suggests that “the Irish Government wants to [...] remove as many references to women as possible [from the Constitution]“.

The Journal fact-checked this claim in January and found this claim is false; there are two other references to women in other sections of the Irish Constitution.

Other claims have suggested that the Government is holding the referendum because it wants to make women do more work or remove benefits from them.

Members advocating for a No vote have suggested that changing the Constitution will remove a protection for women that is enshrined within it, which prevents them from being forced by economic necessity to seek work outside the home against their wishes.

Dr Laura Cahillane, an Associate Professor of Law at the University of Limerick who is an expert in the Irish Constitution, recently wrote that the provision in Article 41 has never actually given women the right to remain in the home to provide care, or imposed any economic duty on the State to provide for them should they wish to do so.

However, misinformation about the referendum has claimed that a Yes vote will remove women’s Constitutional ability to remain at home to provide care, including by taking away social welfare payments.

Versions of this claim include suggestions that the Government plans to use the amendment to take away child benefit, that the passage of the referendum will make it impossible for women to stay at home or that it will force stay-at-home mothers out of the home.

However, The Journal could find no evidence of any member of Government saying any of these things in relation to the referendum.

No minister or TD has claimed they want to reduce social welfare payments – including Child Benefit – in any discussion on the referendum, either in the media or in the Dáil.

Green Party Minister Roderic O’Gorman suggested last week that he has “an open mind” about creating new welfare payments for stay-at-home parents.

Likewise, there have been no claims by any TD or minster that they want to see the referendum pass in order to get women to work more or to force those who provide childcare at home to work.

The Government has instead said that it is holding the referendum because it believes the language about women in Article 41.2 is outdated and that they want to make it more gender neutral, as well as referencing the role of care.

The proposal follows recommendations by a Constitutional Convention a decade ago and the subsequent Citizens’ Assembly on Gender Equality, which was held between 2020 and 2021.

When listing its final recommendations, the Citizens’ Assembly specifically said that:

Article 41.2 of the Constitution should be deleted and replaced with language that is not gender specific and obliges the State to take reasonable measures to support care within the home and wider community.

The assembly never said anything about removing “as many references to women as possible” or taking away welfare payments when it proposed that the referendum should be held and decided on its recommended wording.

Another claim has suggested that removing Article 41.2 would allow future governments to remove a supposed rule that Child Benefit is automatically paid to mothers.

That claim was shared yesterday by the far-right social media group Lawyers for Justice, who has previously targeted transgender people and shared anti-lockdown claims.

However, there is no specific rule that Child Benefit is automatically paid to mothers in Ireland and the passage of the 40th Amendment would therefore not change the Government’s ability to alter this.

The Department of Social Welfare application form for the payment specifically states that the payment can be paid to a child’s father or step-father if the child lives with them.

Definition of family

Misinformation has also been shared on the upcoming referendum about the proposed 39th Amendment.

If passed, this amendment will change Article 41 of the Constitution to provide for a wider concept of family, by deleting a reference to marriage being the institution “on which the family is founded” and instead saying “whether founded on marriage or on other durable relationships”.

The latter part of this new wording – the section to do with “durable relationships” – is the section about which most misinformation has spread.

The most contentious claims centre on warnings from advocates for a No vote that the amendment could impact migration or inadvertently legalise polygamous relationships, which are illegal under Irish law.

The immigration issue first came to light when The Irish Independent reported last year that ministers were warned that changing the definition of family could potentially bring about an increase in people seeking to reunite with relations who had emigrated here.

However, the newspaper reported that the memo said this was not a guarantee and that it may only lead to more people seeking to be reunited with families, rather than that actually happening.

“This does not necessarily mean that there would be an equivalent increase in the number of persons to whom the minister must grant permission to enter or reside in the State or refrain from deporting,” the memo was reported to have said.

The memo also explained that the amendment, if passed, would only provide an additional layer of decision-making when reunification was being considered.

It added: “The State can continue to define ‘family’ for immigration purposes, but there would likely need to be an additional layer of consideration of Article 41 constitutional family right in immigration decision making.”

The issue of polygamy was raised in a Dáil debate between Clare TD Michael McNamara and Roderic O’Gorman, who was asked about the potential for such a relationship to become legal in Ireland if a Yes vote passes.

O’Gorman clarified that such an outcome from a Yes vote was not possible, and that the Government was “clear that such a relationship is not covered with the concept of durability”.

“A polygamous relationship is not one that represents a fundamental group of society and it is not one that represents a moral institution in Irish law,” he said.

“And it is not one that represents as durable.”

Others have pointed out that the claims would ultimately be for the courts to decide if the referendums become law.

The definition of a ‘durable relationship’ could be challenged in a civil case if the Government makes a decision on someone’s relationship that a person doesn’t agree with, and a judge would then rule on whether the relationship is legally valid.

However, unless the court overrules current law based on the Constitutional amendment, polygamy will still be illegal.

In this sense, claims about what could come to pass are not fact-checkable.

Ireland’s courts have ruled against polygamous relationships – including for the purposes of family reunification – in recent years.

The Supreme Court ruled in 2017 that recognition of an “actually” polygamous marriage would be contrary to the fundamental constitutional principle of equality, and legally recognising polygamy would “give legal effect to discrimination and subordination in a relationship where the principle of equality should hold sway”.

In 2020, the Court of Appeal similarly ruled that an Afghan refugee was not entitled to family reunification in Ireland with his third wife because she was not defined as a “spouse” under Irish law, because the marriage was polygamous when it was entered into.

Legal experts have also suggested that the proposed changes in both amendments will have little impact on Irish laws. 

The Free Legal Advice Centre has advised that the proposed changes in both referendums, as currently worded, are “symbolic” and “will not deliver meaningful enforceable rights and stronger constitutional protection for women, families and carers”.

If you have spotted any claims around the referendums that you’d like us to check or potentially include in a future version of this piece, email factcheck@thejournal.ie.