Big read: The referendum critics are wrong, says O’Gorman: ‘Marriage isn’t being usurped’​​​

But as Equality Minister, he is responsible for the family and care referendums — and has been earnestly knocking on doors, canvassing at train stations and participating in as many debates as he can, arguing for a Yes-Yes vote on March 8.

“The fact that there are two referendums on the same article, on issues that are distinct but linked, does involve a little bit of sitting down, a little bit of talking through the issues,” he admits.

The referendum on family proposes expanding the definition of family in Article 41 of the Constitution to recognise those based on “durable relationships”.

The referendum on care proposes to replace language in Article 41.2 around “duties” of women in the home with a new Article 42B, which will state that the State “shall strive to” support care within families.

‘The rights related to marriage are set out in great detail within statute’

Both proposals are supported by the main political parties, apart from Aontú — but there are high-profile No campaigners, including former attorney general and justice minister Michael McDowell who has criticised the family referendum proposal.

Last week the care referendum was criticised by the Free Legal Advice Centre (Flac) and the Irish Council for Civil Liberties (ICCL), while a group representing people with disabilities and their families, Equality Not Care, said it was “patronising politics”.

O’Gorman sat down with the Sunday Independent in his office last Friday evening to address these criticisms and answer other questions around the referendums.

Do you accept that Media Minister Catherine Martin was — as Electoral Commission chair Justice Marie Baker said — “wrong” to say the Constitution currently states a woman’s place is in the home?

Article 41.2 talks about a woman’s life in the home, and it talks about neglect of a mother’s duties in the home. I actually think the second expression is far worse, in terms of what it conveys. As long as this article has been spoken of, it has been colloquially referred to as the “woman in the home”.

But is it not wrong for Government ministers to be propagating incorrect information?

It has been colloquially spoken about as that for years, by everybody involved in this. There are two provisions there — woman’s life in the home and then neglect of the mother’s duties in the home.

‘We’re putting in an article about care, recognising care is a job for everyone’

Those aren’t concepts that match the understanding and reality of women’s lives today and that’s why we want those provisions taken out of the Constitution.

Some people ask why are you taking women out of the Constitution?

I think it’s very clear in terms of what Article 41.2 does now, ascribing a place for women in Irish society, which is in the home — whereas we’re putting in an article talking about care, recognising that care is a job for everyone, men and women, mams and dads. But importantly, putting that new obligation on the State to do more to support it.

What is a “durable relationship”?

It’s a relationship of strength, of stability, of commitment. It’s the type of relationships of people we know, like a one-parent family, or a co-habiting couple living together unmarried, whether they have kids or not.

These are relationships that give value to society. They’re important — but right now they’re not recognised in our Constitution, solely because they’re not based on marriage.

But there is no definition in law of a “durable relationship”.

When it comes to our Constitution, you deal in concepts, you don’t deal in lists.

But is the Government proposing legislation to define what a “durable relationship” is?

The Government is putting this term “durable relationship” into the Constitution. We’ve been very clear in terms of what we are encompassing — that idea of a one-parent family, the idea of co-habiting couples, whether they have children or not.

‘Our courts have interpreted our Constitution for all of our nation’s history’

Ultimately, the courts will have the final role in terms of interpreting this — and we trust the courts because our courts have interpreted our Constitution for all of our nation’s history and have done that in a very respectful and rational way.

So the proposition is to put this into the Constitution — then the courts will figure it out and the politicians will do nothing?

No… the clear policy intention of the Government here is to protect one-parent families — families that, as we know, have been marginalised for much of our nation’s history. And also to protect co-habiting couples and any children that they might have.

What new rights do one-parent families gain that they do not have now?

It’s a shield from the State intervening in decisions that are related to the family. It’s not often that Article 41 rights have to be exercised by families.

It’s often the most vulnerable families that actually have to seek to enjoy their Article 41 rights, but it is important that those rights are available to families outside of the marital family.

But many people are wondering what exactly will change for that one-parent family?

On the legal grounds, it’s that bundle of rights that are contained within Article 41 in terms of the internal decision-making of the family. But the recognition element is important.

I don’t know if you had a chance to listen to Senator Lynn Ruane and or Senator Róisín Garvey, two senators who are in one-parent families, and who spoke about what it meant to them and how they feel they’ve been treated in terms of one-parent families, the inferences that were made about them throughout their lives.

This referendum is not going to stop people making inferences.

But ultimately, our Constitution — if it shows that these families are just as valued a part of Irish society as a family based on marriage — will make a really important statement in terms of equality and in terms of recognition, in terms of ensuring that all children are treated equally.

Do you accept Michael McDowell’s proposition that this has huge implications for many areas — including tax law, social welfare law, family law, succession law, pensions law, and immigration and residence law?

No, he’s wrong on that. Because the very clear legal advice we’ve received throughout from the attorney general is that these items will not be impacted by what we’re proposing to amend in the Constitution.

The key reason is because the rights set out under all those areas are set out in primary legislation — and that doesn’t include a definition of “durable”, that doesn’t include “durable relationships” in terms of the families that benefit from those rights.

But importantly, the Constitution maintains the special protection of marriage, that’s not being changed by this proposal.

Can you be married to one person but be estranged from them, and be in a so-called “durable relationship” with another person — and would that person then have the same rights as the person to whom you are legally married?

Somebody in a “durable relationship” does not have the whole range of rights that a married couple has, because married couples have a whole range of rights set out in primary legislation that apply to married couples.

Right now, you are in a family with your parents, and you’re also in a family with your wife and kids. So you’re part of two families right now before this amendment ever takes place — and if, God forbid, you divorce your wife and remarry, you’d be part of a third Constitutional family.

‘The Constitution maintains the special protection of marriage, that’s not being changed’

What if I was still married to my wife but in a relationship with another person?

Depending on the magnitude of that relationship, you could be in a “durable relationship” with that person.

And that would then supersede the marriage?

No. It wouldn’t supersede it — because again the rights related to marriage are set out in great detail within statute.

Some on the No side contend you could be in multiple “durable relationships” and therefore all of the people in those relationships would have a claim to your estate?

Estate has nothing to do with this. Inheritance rights around succession are not impacted by this referendum.

In the care referendum, what legal basis does the word “strive” have? How enforceable is it?

The term within the Constitution is “shall strive”. “Shall” is a mandatory directive towards the State, and it’s not placed in a part of the Constitution that wouldn’t be justiciable, like Article 45 for example.

It’s being given its own article, it very clearly is justiciable — and the courts will be able to adjudicate on whether [a government] has met the requirements in terms of individual care situations.

Senator Tom Clonan is saying that by voting for this, wittingly or unwittingly, people are engaging in an act of individual and collective self-harm. That is an extraordinary thing for someone of his standing to say and he is not doing it lightly.

It is extraordinary, and it is entirely wrong — and I say that with respect to Tom, because I’ve listened to him and he talks very eloquently about his family and how his son has been let down by the system.

But he is wrong in terms of what he’s saying about this referendum.

‘When something’s in the Constitution, it helps you make the case for more resources’

This referendum is placing a care obligation on the State to support care, care in the disability context, care in the context of children, care in the context of the elderly, and a whole range of contexts.

It’s putting in place an obligation that doesn’t exist right now.

The Irish Council for Civil Liberties claims that the care amendment “will not provide meaningful legal protection” to carers.

I disagree. We are putting a clear obligation on the State, something that doesn’t currently exist in our Constitution — a clear requirement on the State that it shall strive to do more in terms of care.

That will be legally meaningful, and it will be politically meaningful as well — in that it’ll strengthen me and whoever’s in my department in future governments, whether it’s in cabinet discussions or whether it’s in budgetary negotiations.

I know that when something is in the Constitution, it strengthens your hand in terms of making the case for resources.

Another body making criticisms, the Free Legal Advice Centre, is saying that the amendment is “ineffective” and “implicitly sexist”. It calls it “a step backwards for rights-based constitutional reform”.

This amendment places a mandate on the State to support the infrastructure of care that supports families in terms of the work they do — and that can be respite, that can be residential services. It can be personal assistance hours, in terms of supporting independence.

It is about putting a greater focus on the State’s obligations to support families, and that can only be to the benefit of families, of persons with disabilities, of children, of elderly people.

Would you re-run one or both referendums if they fail?

We have to be realistic, we’re in the last year of this Government — so I think it’s very unlikely. I don’t believe that will happen.