The Supreme Court has ruled in favor of a man who was denied access to his widower’s pension on the grounds that he was not married to his long-term partner. The decision comes just months before a major constitutional referendum on the family, scheduled for 8 March 2024.
John O’Meara, a man from the Tipperary region of Ireland, was refused payment of his widower’s pension after the death of his partner of almost 20 years and mother of his children, Michelle Batey. The reason? A Social protection legislation which stipulates that a third party can only receive a widow’s/widower’s pension if both parties were married or in a civil partnership. Mrs Batey died in 2021 after contracting Covid-19 while recovering from breast cancer.
Mr O’Meara challenged the constitutionality of this welfare legislation in front of the seven-judge Supreme Court, which overturned the denial of the benefit on Monday, ruling that the decision was invalid under the Constitution.
The ruling comes just a few months before a referendum is to take place to amend Article 41 of the Irish Constitution. Last December, the government approved draft wording for amendments that would broaden the definition and concept of ‘family’ in the widest sense. The passages subject to amendment concern in particular Article 41.3.1: “The State undertakes to guard with particular care the institution of marriage, on which the family is founded, and to protect it against any attack.”
Marriage or “other lasting relationships”
The general scheme of the Thirty-ninth Amendment to the Constitution Bill proposes to insert the words “whether based on marriage or other lasting relationships” to define “the family” in the general sense of the term. The current protection afforded to families under the Constitution, as currently drafted, extends only to married families.
The referendum, to be held on International Women’s Day, 8 March 2024, “will reinforce the fact that Ireland is a modern and inclusive nation that strives to treat and care for all its people equally,” said Irish Prime Minister Leo Varadkar at the time, as reported by the BBC.
The Free Legal Advice Center (FLAC), an Irish human rights organization that promotes equal access to justice and also Mr. O’Meara’s representative, said in a statement that the ruling in this case strengthens the case for the referendum, arguing that the case was decided on the basis of “equality and justice,” and not on the basis that the O’Mearas were a “family” within the meaning of Article 41 of the Constitution.
In his judgment, Chief Judge Donal O’Donnell said: “For my part, I find neither attractive nor admirable the exclusive concept of family contained in section 41 of the 1937 Constitution, nor well suited to a contemporary society. It is up to the people to decide how this provision should be amended.”
The judge told the court that the distinction in the legislation between a married couple and an unmarried couple was “arbitrary and capricious.” Speaking after the hearing, Mr O’Meara said he was delighted with the decision, stressing that it would help many other families in similar situations.
“The judge’s decision confirms that the constitutional protection of the family under section 41 is limited to the conjugal family. FLAC supports constitutional reform to extend existing protections to diverse families,” commented FLAC Executive Director Eilis Barry, also calling for the detailed publication of the bill outlining the changes that the proposed “family” amendment would bring
Women “not obliged to work to the detriment of their domestic duties”
Other passages of Article 41 subject to change concern the definition of a woman’s role in the home. Article 41.2.1 states that “the State recognizes that through her life in the home, woman provides support to the State without which the common good cannot be achieved,” and Article 41.2.2 that “the State will therefore endeavor to ensure that mothers are not obliged to work, by economic necessity, to the detriment of their domestic duties.”
Ireland has steadily moved away from the conservative Catholic view of the country by amending its constitution several times. First in 1973 by removing its statement on “the peculiar position of the Holy Roman and Apostolic Catholic Church”; then in 2015 by becoming the first nation in the world to vote to legalize same-sex marriage, and most recently in 2018, by legalizing abortion and removing “blasphemy” from the lists of crimes.
One of the proposed amendments will replace the clause limiting the place of women in the home with a new commitment by the State to value the work of “all family carers.”
At the time of the announcement, the Minister for Integration and Equality, Roderic O’Gorman, said in a statement published on his party’s website that “A woman’s place is where she wants it to be. The archaic reference to a woman’s place in the home has not been beneficial to the lives of women in this country. The most important thing is that women choose the roles they play in our society.”
However, contrary to the recommendations of the all-party committee examining the issue, the government decided not to attempt to add a new “gender equality” provision to the Constitution, partly because it risked turning a simple “yes” campaign into a “toxic battle over transgender rights.” Varadkar said at the time that the three-party coalition had decided that the constitution already contained “a comprehensive commitment to equality” and should not elaborate further.
“We believe that by elevating one particular category, for example gender discrimination, it could unintentionally devalue others, such as those relating to disability, race or ethnic origin”, he said at the time.
