The Gorry/ABM v Minister for Justice judgment last September tells the State that it has to stay out of family behaviour, UCD constitutional law lecturer Dr Eoin Carolan SC told a college webinar yesterday (22 March).

“The State needs to recognise that the family has a zone within which it is paramount, and entitled to take its own decisions,” Dr Carolan explained at the UCD Sutherland School of Law constitutional law update.

The judgment says that the State cannot make decisions on what could be termed family matters, because the family is seen and protected as a unit and an institution.

This zone of decision-making primacy applies most notably in the education of children, under Article 42, or how many children the parents might want to have, as in the McGee v AG case.

Horizontal and vertical limits

These decisions have both horizontal and vertical limits, however, and are not absolute, according to the judgment.   

The Constitution expressly provides that the State may require basic standards of education.

The more these decisions have public implications, the less likely they are to come within the Article 41 zone, Dr Carolan noted, though there are a range of matters outside the realm of constitutional protection.

Individual rights, and the rights of individual family members, to do certain things or take certain decisions, are most likely to be recognised under Article 40.3, Dr Carolan said.  

Married family

However, while Article 41.3 is the only constitutional reference to a married family, the judgment expressly does not recognise a constitutional right to cohabit, or to protection of cohabitation arrangements, he said.

Also, the “woman in the home” clause in Article 41.2 has never been perceived as applying solely to mothers in married families, he said.

So, while the married family is protected for the benefit of society, any relationship of some permanence which treats itself, and is regarded by others, as a unit, has social value.

Social order

“It would be wrong and inconsistent with the social order envisaged by the Constitution to disregard it or to treat that unit as being of no value simply because they are not founded on marriage,” the judgment says.

This is a signal that the Supreme Court is unsure about the traditional conception of Article 41.3, Dr Carolan said.

There may be a willingness on the part of the Supreme Court to broaden the recognition of the family, or certainly to recognise that non-married families have a level of constitutional protection that is similar, if not identical.