I came across something recently I had not heard for a very long time, and indeed had not expected to hear again, ever. I was having a cup of coffee in a Dublin city centre cafe, and at the table next to me were two middle aged ladies (you know, young compared with me these days). I don’t want to give the impression that I eavesdrop, but then again, maybe I do sometimes: I have to get material for my blog, after all. And here’s what they were saying.
Lady 1: ‘Do you remember Sarah [name changed], you know the red haired one that Jimmy was going out with?’
Lady 2: ’Yes. Too many opinions, if I remember rightly.’
Lady 1: ‘That’s the one. Well, she and Jimmy are getting married.’
Lady 2: ‘Really? I didn’t think Jimmy was, shall we say, the marrying kind.’
Lady 1: ‘Yes, I thought that. But they are. But do you know, Sarah is going to continue working in the travel agency, you know the one Louise was working in until they let her go.’
Lady 2: ‘I hate that. Another married woman taking up a job that could go to someone who needs it.’
Lady 1: ‘Yes, just thinking of herself instead of others at this time when good people are losing jobs.’
I suspect the two ladies themselves were not unduly burdened with jobs – they looked more like the shopping-and-lunching kind – but even then I was aghast at the conversation and was sorely tempted to interject. Such an exchange would not have been untypical in, say, the early 1960s, but in the new millennium?
Well, even if the spirit of the age is against them, the law is not. Because here is what the Irish Constitution (Bunreacht na hÉireann) has to say on the matter, in article 41(2) (in the context of constitutional protection for the family).
’1° 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.
2° 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.’
Before we get too anguished at all this, it is worth remembering that the Constitution was adopted in 1937, and it is full of social and political commentary that is typical of the age in which it was written, which in Europe generally was the age of corporatism, fascism and conservative social values. It is a document of its time. All in all, it has been interpreted in case law in a more modern, liberal manner (the effect of that being that the Constitution does not mean what it says, but what the judges say it means). So I am not aware of any case in which article 41 has been used to restrict women’s rights in employment, or anything similar (though an attempt was made to use it in a case on the tax code).
But still it is there, and is capable of being quoted. More than that, the lead-in to article 41, in referring to the rights of the family, says that the family is ‘a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law.’ This latter phrase could suggest that the ‘special’ status of women – what you and I might consider discrimination against women – cannot even be revoked by law, not even by constitutional law.
Anyway, Senator Ivana Bacik has now called for a referendum to remove article 41 and its provisions from the Constitution. I would go along with this proposal, as a method by which we as a country may secure closure to an age in which society victimised some of its members, including women, and in which inequality was the norm. It’s time to move on. I might merely suggest – and I’ll return to this – that we don’t restrict our discussions to article 41, but might look more broadly at the possibility of adopting a completely new constitution.