Referendum(s)
A sweeping run through the backstory to the 1937 Constitution of Ireland and the infamous Article 41.2
“Is it true that Ireland’s constitution defines women as wives and mothers?”
Nearly a decade ago a friend and peer on the PhD programme I had just embarked on asked me this.
“Ummm, yes I think there’s something like that in there”, I fumbled in response.
I’d never read Bunreacht na hÉireann —The Constitution of Ireland. I had no idea what exactly she was referring to. Just vague knowledge that ‘there was something like that in there’ picked up from the odd newspaper article I’d come across. But it wasn’t something I’d given much heed to. She realised that pretty quickly. Proceeding to give me a quick lesson in the dangers of such wording for women’s equal citizenship.
I was floored. Stunned. I’d learned more about the Irish statute book — and the whole theoretical, ideological and political system that upheld it — in a 20-minute conversation with a woman from Greece than I had the entire 25 years I had spent being raised and living in Ireland. She was a Marxist Economist applying feminist theory in her PhD, so it was kind of in her wheelhouse, but all the same!
It was a moment that awakened me to how long I had been asleep. To how little I knew of what it meant to be a Woman of Ireland.
The element of the Constitution she was talking about are (as many will have guessed) Articles 41.2.1 and 41.2.2 which state, respectively:
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.
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.
On March 8th 2024, people of Ireland are being asked to vote in a Referendum to decide whether or not both articles should be deleted and replaced with the following (to be named Article 42B):
The State recognises that the provision of care, by members of a family to one another by reason of the bonds that exist among them, gives to Society a support without which the common good cannot be achieved, and shall strive to support such provision.
For many, it’s a Referendum that is long overdue. Ever since its inclusion and creation under the 1937 Fianna Fáil government of De Valera, Article 41.2 has been contentious for its perpetuation of gender stereotypes which restrict women’s role in society to that of the domestic realm. It’s been controversial since day one.
Prominent activist, politician and feminist Hanna Sheehy-Skeffington, writing in 1938, described the then new Constitution as being based on a:
“Fascist model, in which women would be relegated to permanent inferiority, their avocations and choice of callings limited because of an implied invalidism as the weaker sex”
Hanna Sheehy-Skeffington (Irish Independent, 11 May 1938)
On many counts, the Constitution which came into force on 29 December 1937 —following a public vote in July of that year with 685,105 voting in favour and 526,176 against it— ‘could have been worse’ were women were concerned. It would have been worse if it was not for the campaigning of the women’s movement at the time and some key female representatives in the Dáil and the Seanad.
Of some of the things in the ‘could have been worse’ category included the original version of Article 45, where De Valera insisted on the inclusion of the phrase ‘the inadequate strength of women’1. However, those opposed to this managed some success in it being modified to state; “citizens shall not be forced by economic necessity to enter avocations unsuited to their sex, age or strength”.
Early drafts of the 1937 Constitution also excluded the phrase ‘without distinction of sex’ which had been included in the original 1922 Constitution created on the foundation of the Irish Free State. DeValera claimed that it was superfluous and ‘altogether unnecessary’. However, this retraction on the earlier 1922 constitutional guarantee of not distinguishing citizens on the basis of sex seemed to upset enough people that DeValera was forced to keep it in (including it in Article 16).
I am referring to Eamon DeValera a lot here as, in so many ways, the 1937 constitution is seen as his constitution. Ireland already had a constitution when he and Fianna Fáil entered government in 1932. But it was the 1922 constitution of Cumann na nGaedheal (his opposition party, and the party associated with the Pro-Treaty side of the Civil War and the signing of the Anglo-Irish Treaty which gave the 26-county Irish Free State ‘dominion’ status from Britain). While DeValera did not immediately seek to create a new constitution, over time certain clauses of the 1922 constitution, which irked him and his party, led to a full re-draft.
DeValera’s personal views on women are no secret: “As everyone knows there is little chance of having a home . . . if there is no woman in it, the woman is really the home-maker” he said in a Dáil debate. However, that was a view shared by most of the people of Ireland at the time and, indeed, most of Europe. The inter-war period across Europe was typified by a re-emphasising of traditional gender roles in the belief that it underpinned social stability and order, and the sentiments expressed about women’s role in the 1937 Irish constitution was not a European outlier.
Yet, I’ve often wondered whether DeValera’s apparent commitment to the ideals of a conservative Catholic state and an Arcadian vision of Ireland was an outcome of his own upbringing and childhood wounds. Was his staunch belief that a ‘home could not be a home without a woman in it’ reflective of the lack of a mother in his own upbringing? A child whose ‘legitimacy’ had always been questioned (rumours that his Irish-born, American-living mother never married his Spanish father haunted him throughout his life) and who grew up permanently separated from his mother when sent to live with relatives in Limerick at the age of two. I find it hard to separate the political agenda and policies from the man, his lived reality, anxieties and likely childhood trauma.
DeValera’s upbringing aside, the influence of the Catholic Church in the writing of the 1937 Constitution can also, of course, not be overlooked or understated. The Jesuit priest Edward Cahill — who penned that line I so often quote: “Woman’s natural sphere is the home; and her primary social duties are those of wife and mother”2 — and the infamous Archbishop and pseudo-statesman John Charles McQuaid were heavily involved.
McQuaid, in particular, closely contributed to the formation of Articles 40 to 45 which relate to the family, private property, religion, education and personal rights (if you want to know more about the extent of his influence, this is a great article). The sentiment of Article 41.2 and the Papal Encyclical “Quadragesimo Anno”(1931) — which states “mothers will above all devote their work to the home and the things connected with it” — are so similar as to be bordering on a lazy ‘copy and paste’ job.
Regardless of who wrote it or what informed it, the 1937 Constitution (compared to the 1922 Constitution) has long been seen as the moment when Ireland, having taken tentative steps towards liberalism during the Revolutionary years took two steps back to conservativism; to becoming the theocratic, Catholic state Ireland became known as in the 20th century. In clearly defining women’s citizenship according to conservative, traditional ideals of womanhood and distinguishing citizens on the basis of their sex, it — and Article 41.2 in particular — is repeatedly viewed as the moment things began to go very wrong for women in the Irish State.
Yet, as historian Margaret Ward has argued, the wording of Article 41.2 was the culmination rather than the catalyst of a process which sought to remove women from the public sphere and re-establish traditional gender roles following the establishment of the Irish Free State in 19223.
The 1937 Constitution did not create a particular ideal of womanhood, rather it was reflective of what already existed. It was a tangible expression of pre-existing cultural attitudes on women’s roles which permeated every level of Irish society, from public policy right down to the social norms that governed everyday interactions between people.
Women, following the establishment of the Irish Free State in 1922, were caught in a perfect storm —between a rock and a hard place— of the strict gender traditions of Irish nationalism, the social instability caused by the Civil War, the wide reaching influence of Catholic teaching and a struggling economy.
Irish nationalism, since early in the 1800s, identified ‘Irishness’ with the traditional family unit; man as paterfamilias and woman as the dutiful wife and mother, devoting her life to the home and family and acting as the moral guardian of the nation. While the Revolutionary Years had seen a blurring of these gender divisions, the bitter Civil War that followed independence created fears over the future of the nation and social stability. Needing something to unite political (and recently warring) factions, women were made the scape-goats4 — they, with their defiance of the natural order of things when they had stepped out of the home and into the public sphere, were pointed at as the root cause of the social instability facing the nation.
Re-asserting traditional gender roles — getting women back into the domestic sphere— thus became a central concern of Ireland’s state-building efforts. It also handily (for the men in power) killed many birds with one stone. Not only did it speak to traditional notions of ‘Irishness’ and Catholic teaching, it also addressed the fractious economic climate, where women (in an era of increased mechanisation in some industries) were resented for ‘taking men’s jobs’ and married women for working jobs that single people (who had no husband to support them) ‘should have’.
The 1922 Constitution had granted equal suffrage to women but, in many ways, this was included in honour of the ethos of the 1916 Proclamation read out by Patrick Pearse on the steps of the GPO during the Easter Rising. As Thomas Mohr explains in the Irish Jurist, “The promise of equal suffrage in this hallowed document ensured that the extension of the franchise [to the 1922 Constitution] was widely anticipated by the press”5.
That the ideals of equal suffrage and equal citizenship were included in the 1922 Constitution for reasons of expectation rather than for reasons of accepted belief soon became clear in the near immediate actions of the Cumann na nGaedheal government (who, overseen by Michael Collins, wrote the 1922 Constitution).
To reassert traditional gender roles and restore ‘social order’ it passed a number of Bills which eroded and curtailed women’s citizenship. The following table from a paper by Rob Kitchin and Una Crowley details the outcome of such Bills in the number of Acts —introduced by the Cumann na nGaedheal government between 1922 and 1932 and the Fianna Fáil government between 1932 and 1937— directly affecting women in this period and the amount of Reports investigating the private realm of Irish citizens:
Ireland in the 20th century was a tough place to be a woman. They were denied opportunities to serve on juries (they had to apply to be included on the register and until 1973 only three, three (!) women had served on a jury in Ireland). They were limited from employment in certain industries, couldn’t continue a career in the Civil Service once married (and many private companies followed suit); a married woman’s earnings were considered her husbands for tax purposes; contraception, abortion and divorce were illegal; marital rape was not recognised by law until 1990; a married woman experiencing domestic violence could not bar her husband from the home, and prior to the 1965 Succession Act a husband could legally disinherit his wife and leave her homeless.
These are just some (not all) of a whole suite of different laws brought into being in Ireland — starting pretty much from the get-go of the state in 1922 well up until the 1970s — which discriminated on the basis of sex. For roughly the first six decades of the Irish State “The Oireachtas in its legislation continued to assume that the normal vocation of women was in marriage, motherhood and the home”.6
When looking at it like that —in seeing the predominant attitude towards women and their role that prevailed within Ireland throughout the 20th century— I would say it’s likely that Article 41.2. or not, women’s citizenship would still have been judged on the basis of the ideals of ‘wife and mother’. It was an Article born of a prevailing social and cultural attitude that, to some extent, still exists.
However, Article 41.2 has had a direct impact in both bolstering discriminatory legislation and achieving improvements to women’s rights. Notably (and tellingly) the use of it to shore up and justify discriminatory legislation (e.g. that a married woman’s earnings be aggregated with her husbands for tax purposes) came from the State while any use of Article 41.2 (or other Constitutional Articles) to reform legislation or improve rights for women came through the court system — from individual women challenging the laws which discriminated against them.
If Article 41.2 can be interpreted in one of two ways — either as a tribute and safe-guarding of women as mothers and the work they do in the home, or as a defining of women’s role in society to be only that of wife and mother— then history makes clear that the State, for much of the 20th century, interpreted it according to the latter.
“While the courts in their interpretation of the Constitution were prepared, when given the opportunity, to respond fairly positively in favour of women’s rights, the same cannot be said of the legislature. There has admittedly been a great deal of legislation on family law and equal rights for women since 1970 but…. it is difficult to identify any major piece of legislation relevant to the rights of women that was not forced on our representatives by the courts, the women’s movement or the EC”
Yvonne Scannell, The Constitution and the Role of Women
The legislative discrimination of women in Ireland did not slow down until the 1970s. And then moves to improve the rights of women were driven by pressure from the Women’s Movement in Ireland and by Ireland’s entry into the European Economic Community (now the EU) in 1973. The cultural and social attitude of woman as wife and mother, which informed the writing of Article 41.2, has had a long-standing impact on legislation in Ireland.
Since its inception in 1937, there have been 39 constitutional referendums (Ireland is in the top four of West European states with this number)7 — we seem to love a referendum in Ireland. Well, need might be a better word than love. At the Constitutional level Ireland continues to live with the legacy of a conservative Catholic ideology. And it’s this ideology, and how it was incorporated into Irish state-making, that many of the referendums have been trying to undo — to bring Ireland into the 21st century or as Elkink et al., in their paper on “The Death of Conservative Ireland?”, put it, “bringing the country’s 1937 Constitution into the present day”8.
“The largest number of referendums [in Ireland] have been concerned with both moulding and reflecting what might be termed social change and transition in Irish society over the last 40 years in particular”
Gavin Barret, “The use of referendums in Ireland: an analysis”
Referendums have been the primary means various Irish governments have sought to bring the Constitution up to date with social change in Ireland and to socially signal to those who haven’t yet got there that attitudes are changing at the collective. One of the beliefs of referendums — as a social tool for attitudinal change — is that they “legitimise the outcome as the new [social] norm and increase acceptance of the outcome”9. However, the jury (i.e. the research) on this is still out; referendums may and may not change people’s attitudes or increase their acceptance of a new norm.
Considering how Article 41.2 was an outcome of a pre-existing (very strong!) social norm and cultural attitude to women — and call me cynical if you will — I am not convinced that changing the wording of the Constitution is enough to address the underlying attitude that exists in Ireland about women’s roles. A view which that Article is a tangible manifestation of. I do subscribe to the view that changing the wording is long overdue (it’s a relic of a different Ireland) and much needed but, for me, it’s just the tip of the iceberg.
I can’t help but feel that while improvements at the constitutional and legislative level are essential and important, the real work, and the real change, happens with the attitudes we choose to live by and who we bring with us on that journey. As one of the Women of Ireland Project participants said, “we have come so far, [women in Ireland]…. we have been promised gender equality, we’ve been promised equality in terms of our pensions…. we’ve reached somewhat a positive in terms of our body autonomy, our reproductive rights… but in some ways, those were the obvious ones”.
Policy and constitutional change are somewhat easy, it’s top-level and ticks a box, but the deep deep cultural change — the rewiring and unlearning of our norms and behaviours— is harder. So much harder. And it’s where successive Irish governments have always stopped short, not translating ideology into reality. But like anything hard, it’s where the real change begins to happen.
It’s where we transform.
P.S. For a legal and human rights analysis of the proposed changes to the wording of the Constituion (which this article definitely is not!!) I would direct you to the FLAC website.
Clancy, M. (1989). Aspects of Women’s Contribution to the Oireachtas Debate in the Irish Free State, 1922-37. In Women Surviving: Studies in Irish Women’s History in the 19th and 20th centuries. Poolbeg Press.
Cahill, E. (1924). Notes on Christian Sociology. VI: The Social Status of Women. (A) the Christian Woman (Continued). The Irish Monthly, 52(617), 597–602.
Ward, M. (1996). Irish women and nationalism. Irish Studies Review, 5(17), 8–14. https://doi.org/10.1080/09670889608455553
Valiulis, M. G. (2019). The making of inequality in the Irish Free State, 1922–37: Women, power and gender ideology (None edition). Four Courts Press.
Mohr, T. (2006). The Rights of Women Under the Constitution of the Irish Free State. Irish Jurist (1966-), 41, 20–59.
Scannell, Y. (1988). The Constitution and the Role of Women. In De Valera’s Constitution and Ours (pp. 123–136). Gill & Macmillan. https://www.academia.edu/14514756/The_Constitution_and_the_Role_of_Women
Barrett, G. (2017). The use of referendums in Ireland: An analysis. The Journal of Legislative Studies, 23(1), 71–92. https://doi.org/10.1080/13572334.2017.1282744
Elkink, J. A., Farrell, D. M., Marien, S., Reidy, T., & Suiter, J. (2020). The death of conservative Ireland? The 2018 abortion referendum. Electoral Studies, 65, 102142. https://doi.org/10.1016/j.electstud.2020.102142
Jung, J.-H., & Tavits, M. (2021). Do referendum results change norm perceptions and personal opinions? Electoral Studies, 71, 102307. https://doi.org/10.1016/j.electstud.2021.102307
Hi Belinda, thank you for this really powerful article. Though, I was surprised to get to the end of it and not see any mention of the economic implications of 41.2.2 and this referendum. I would agree with a lot of what you have said but find the removal of the "shall not be obliged by economic necessity" element deeply important and something that cannot be overlooked. I would love to see your thoughts on this in light of this whole article you have written.
Thanks Belinda for this very interesting run-through of how things have developed. I didn't understand the process of how the 1922 Constitution morphed in the 1937 version. I totally agree with your conclusion that the real challenge lies in shifting the often unspoken daily practice of gendered behaviour. So little of that is written down or discussed or even realised that it is a very tricky issue. Until we realise that all this stuff creates a prison not just for women but also for men, then it's going to be hard to make major change and we are stuck with the frustrating incrementalism of each new generation and all the lost opportunities that spring from the slowness of implementing more dramatic change.