Alice-Mary Higgins (Independent) | Oireachtas source

I will pick up where Senator Sherlock left off. It is important to emphasise that there is no change to the definition of marriage in this proposal. It does nothing to change the definition of marriage. The language, that the State pledges itself to guard with special care the institution of marriage and to protect it against attack, will still be there. Regarding some of the language on marriage, we can lose sight of the key part of the referendum, which is about the family. Marriage is a commitment between two people. That is still there. It was not defined in the Constitution previously except in the sense that it is in legislation.

That still stands but what is key here is the family and recognition of the reality of families across Ireland and the reality that 40% of children are born to unmarried parents. They may be born to cohabiting couples or it may be a one-parent family. Households headed by one parent make up almost 20%, or one fifth, of households in the State. This is a huge number of families that I hope will be affected in a positive way by this referendum because they will be properly recognised as part of the State. Again, it is not simply a matter of what they might be entitled to. It is a recognition of what they bring - the family as a necessary basis of social order, that the family is contributing to the welfare of the nation and the State and that it is a unit group of society and a moral institution as well as having inalienable rights. I believe all those families are contributing to and are part of the building blocks of those units that make up our State. If our Constitution, which is meant to be our collective vision for ourselves and our collective hope, does not recognise almost one third of families, that is a problem and a gap. We have a sense that a lot of people are being told they are not part of that fundamental unit group of society. This is not a Constitution for the people of Ireland in the full sense that it should be so it needs to be changed.

We need to be clear about where the Constitution comes from. We will have some more discussion on that when we discuss the second referendum. The 1937 Constitution came from a place of conservatism. Some of the laws directly affecting the rights of women that were introduced in the 1930s moved us further away from that other founding document about which many of the people of Ireland feel strongly, namely, the Proclamation, which spoke about cherishing all children of the nation equally. That is core for many Irish people but sadly it has not been the case.

In particular, unmarried women who have had children or women who have become single parents have been treated in an unequal way. The State has had far more freedom to do that because Article 41 did not apply properly in the past when it came to the rights of households headed by one parent. We have seen that lone parents have been treated abysmally. We have heard how this has been argued in the courts. The State has argued in the courts that people who have lived their life as a family are not really a family.

That is also reflected across social policy. The O'Meara ruling is really important because it addresses one piece of an unequal social policy and the unequal structure of our social protection system that has been allowed to develop because not all families were recognised equally.There are also measures in respect of jobseeker's transitional payment, for example. I refer to what is required of one-parent families versus what is required of couples who are spouses in the context of acknowledging their caring contribution and the work they do in that regard. We will come to that again later.

There are many inequalities within our social protection system. We should not be in a situation whereby individuals have to fight all the way to the Supreme Court to get these things amended and fixed. The State needs to address issues relating to and bring forward equality. We have seen steps taken in that regard. I refer to the Children and Family Relationship Act, the purpose of which is to try to recognise relationships beyond simply those under marriage. We had the referendum on the rights of the child, the purpose of which was to try to acknowledge children's individual relationships rather than simply the marriage family of their parents being the only thing recognised.

It is clear that the ruling in the O'Meara case is based on the rights of the child and on those rights being placed against the interpretation that was offered in the High Court. The High Court chose not to grant the widower's pension on the basis of the article we are discussing here and Article 41. We have a tension between articles in the Constitution that offer a narrow version of what might be a family and in the context of recognising that all children should have the same rights and be cherished equally, that their parents' relationships should be recognised and that the relationships they have with family members should be recognised. Those tensions should not exist. The Constitution should work and flow in tandem with a situation where we have a recognition of all families and of the rights of the child and where the latter complement each other in positive decisions.

On the term "durable relationship", I preferred the wording offered by the Joint Committee on Gender Equality. However, it was the same principle, namely, that the concept of family should include but not be limited to the idea of the family based marriage. In the context of durable relationships, it is important that the Minister was strong in what he said earlier. I want it to be clear that the State is not going to wait for the courts to determine the outcome in each individual instance. It must be the case that the State will come forward with an interpretation of what constitutes a durable relationship which explicitly includes cohabiting couples and, crucially, one-parent families. Reference was made to what the State will do. The State must act on the interpretation to which I refer and reflect it in legislation, including legislation relating to social protection. I refer, in particular, to the social welfare Bill that will come before the Houses later this year. That Bill or an earlier Bill should contain concrete measures that audit all of the inequalities in how families are treated across the social welfare system and then address and repair them and restore equality.

We need a commitment that this will not simply be a tool in the Constitution that people may be able to use in court cases but that the State is going to drive matters. We also need a commitment to the effect that if narrow interpretations of what constitutes a durable relationship that seek to exclude one-parent families are brought forward, the State, in its engagement, will assert and fight for the wider definition to which I refer.

I return to the ruling in the O'Meara case. The latter recognises the rights of the children, but what of those who are there for 30 or 40 years with their life-long partners? There are brothers who have lived with their sisters and with mothers, for example. I refer to small families who have lived together for years. There are many families in Ireland. Some families have not had children. Some families are not able to have children. Are they any less as families because, when it comes to marriage, the State has indicated that if someone is a widower, they are a widower? Will we say that we do not recognise these kinds of families because they cannot lean on the constitutional provision laid down in Article 42A? This is why we need to ensure that the Constitution works for everybody. The phrase "durable relationship" is being used and defined within Europe. I do not believe that anything inhibits our State from having a wider definition than that used in Europe, but it is important we address that.

Lastly, it would be incredibly sad if this debate were to become about interesting hypotheticals or potentially scandalous or interesting situations around "throuples" or whatever else because it is not about that. We cannot afford to have a conversation that is about hundreds of thousands of real people in this State become a mini moral panic about a fear some persons may have about something else that somebody else might do. We need to be really clear that we are sending a signal to everyone in this State who is directly affected, who is out there and who is campaigning and calling on us to support them. I hope we will, and I hope the Minister can strengthen his clarity on the phrase "durable relationship" when he replies to us. Perhaps he could also comment on the O'Meara ruling and his perspective on it.