Even the Supreme Court is doubtful about meaning of ‘durable relationships’

The Supreme Court has handed down its judgement in the case of John O’Meara & Ors. (Applicants/Appellants) v The Minister for Social Protection, Ireland and the Attorney General. For the purpose of this blog, I shall confine myself to just one point, but a very important one, which has to do with the meaning of ‘durable relationships’, a new term the Government wants us to insert into the Constitution. But first some scene-setting is in order.

The facts of the case: Mr O’Meara was part of a couple who had lived together for some 20 years until his partner’s death in 2021. They had three children together. During their long relationship they neither married nor entered into a civil relationship although it would appear that there was no impediment to their so doing.  Mr O’Meara made an application for Widow’s, Widower’s or Surviving Civil Partner’s (Contributory) Pension (“WCP”) payable under the Social Welfare Consolidation Act, 2005. Mr O’Meara’s application was rejected by the Department of Social Protection and in subsequent legal actions.

The Supreme Court, on the other hand, unanimously found in Mr O’Meara’s favour. It should be noted, however, that the Chief Justice did not declare that s. 124 of the relevant Act was unconstitutional as a whole, but rather that “s. 124 of the 2005 Act is inconsistent with the Constitution insofar as it does not extend to Mr O’Meara as a parent of the second, third, and fourth appellants.” [italics added]

The timing of the delivery the Judgement in the O’Meara case seems serendipitous, given that there are two referendums on the horizon, one of them dealing with changes to Article 41 of the Constitution. The current wording of Article 41 is: The State recognises the Family as the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law.

The proposed wording is: The State recognises the Family whether founded on marriage or on other durable relationships as the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law.

As you can see, the significant proposed change is the introduction of the term ‘durable relationships’. You are probably confused about what the phrase ‘durable relationships’ might mean, and it would seem the Supreme Court is also confused.

Having refrained from recognising the O’Meara family as one protected by the Constitution, the judgement then goes on to say (in §156) what might happen if it did the opposite. It reads: “The principle underpinning a determination that the appellants, and perhaps other unit groups constituted a Family for the purposes of Article 41 irrespective of marital status, must necessarily be that the constitutional protection of the Family must extend beyond the marital family, and to—it must be hypothesised—any unit or grouping that can be said to provide some or all of the benefits which marriage and the marital family have been understood to provide to the members themselves, and society as a whole. If so, and quite apart from the problem of line drawing and definition already discussed, it would be difficult to be confident that any judicially developed principle could, or should, be confined to cases of relatively lengthy and stable couple pairing arrangements like that of the O’Meara’s in this case.” [italics added]

The Chief Justice appears to believe that one could not be confident that a judicially developed principle either could or should (please note the ‘should’) be limited only to relationships that are lengthy or stable. Moreover, the lack of confidence to which the Chief Justice adverts is not just to any principle from any source, but to a judicially-developed principle. The Supreme Court seems to prefer that working out what benefits belong to which relationships should be left up to the legislature and not it.

Here, then, at last, is my point: In connection with the upcoming Referendum on the family, the inability to be confident expressed by the Chief Justice of producing an appropriate judicially developed principle is especially relevant, since the determination of the meaning of ‘durable relationship’ will ultimately fall to be determined by the Court, and the Court, as per the statement of the Chief Justice, is doubtful as to whether any such principle either could, or, more importantly, should be limited to such criteria as length and stability. That being so, there would seem to be no judicial impediment to the Court’s considering as a ‘durable relationship’, a relationship that is neither lengthy nor stable.

This throws into further doubt the wisdom of inserting this concept into the Constitution.

Dr Gerard Casey is the former head of the Department of Philosophy at UCD.