Equality by the backdoor or let the meandering river flow? O’Meara and ors v Minister For Social Protection and ors

Introduction

This judgment, on a provision denying pension rights to an unmarried surviving partner, is a primer on the immovable object that has been Article 41.3’s “the institution of Marriage, on which the Family is founded” versus the unstoppable force that is Article 40’s equality protections. This may all become a footnote to history if the “family” referendum passes, but the principles remain: to pragmatically look beyond these tensions, as O’Donnell CJ says we have successfully been doing, or to follow Hogan J in interpreting those tensions away, allowing Article 40 spread equality throughout the Constitution?

Background: Challenging Exclusion on Constitutional Grounds

The Social Welfare Consolidation Act 2005 provides for a Widow’s, Widower’s or Surviving Civil Partner’s (Contributory) Pension, dependent on PRSI payments, with increases for dependant children, limiting recipients to widow(er)s (even if divorced), or civil partners, excluding those who have remarried or are now cohabiting. When John O’Meara’s partner of almost twenty years and mother of their three children died in 2021, he was refused eligibility, although both partners had made sufficient payments, because they were unmarried and not civil partners.

He challenged that decision on constitutional-equality and ECHR grounds.

The Decision: Rationality of Distinctions

Judges Dunne, O’Malley, Murray, and Collins concurred with O’Donnell CJ. Hogan and Woulfe JJ differed only on the interpretation of Article 41.3. The decision itself was straightforward. The test was that of Donnelly v. Ireland [2022] IESC 31:

The challenge can only succeed if the legislative exclusion is grounded upon some constitutionally illegitimate consideration, and thus draws an irrational distinction resulting in some people being treated as inferior for no justifiable reason.

O’Donnell CJ found numerous irrational distinctions within the provisions:

1. The payment follows an event causing a recognised need for support, not as a consequence of a status deliberately chosen.

2. This is a contributory benefit, but made dependent on marital status.

3. The costs associated with dependent children, and the loss arising from a parent’s death, do not differ with the parents’ marital status.

4. Given the Constitutional equality of children, the differential treatment requires particular justification.

5. That divorcees were once married does not justify treatment different from that of an unmarried couple who were together at the time of the death of one partner.

6. The ineligibility of a surviving partner now cohabiting recognises the support cohabitants give each other: it treats remarriage and subsequent cohabitation as essentially similar, but only negatively, recognising the similarity when denying eligibility, but not when granting it.

When is a family not a “Family”?

While concurring in all this, Hogan J held that the case raised the question of whether the couple constituted a “Family” for Article 41 purposes and found that the provisions effect an overbroad automatic exclusion of a family with appreciable Article 41 family rights. Thus, so that Article 41 protections no longer be denied to unmarried families like John O’Meara and his family, the decision in State (Nicolaou) v An Bord Uchtála [1966] I.R. 567, limiting the “Family” to the marital family, should be overruled. O’Donnell CJ thought this an unnecessary detour, but responded to Hogan J.

Hogan J examined Article 41.3, which does not make “Family” synonymous with “marriage,” which O’Donnell J accepted in the abstract, but did not accept that the interpretation of Article 41.3 as excluding a non-marital unit from the Article 41 Family was clearly mistaken. Nicolaou, though wrong in excluding natural fathers from involvement in an adoption but including many others, was not wrong on the “Family” question.

Hogan J then showed how provisions regarding women, mothers, parents, and children in Articles 42 and 44 imply that the “Family” in Article 41 is not only the marital family. O’Donnell J generally conceded this, admitting the tension between the dogma expressed in Article 41 regarding the Family and the breadth of the guarantees in Article 42. And the response of the Irish courts was to recognise Article 42 as extending to all parents and children, relying upon the Constitution’s recognition of children’s natural rights, disregarding the limitation of “Family” to the marital family in their assessment of the rights and duties of non-marital children and parents.

Hogan J then held that Article 42A, in addressing specifically non-marital parents, clearly the same parents referred to in Article 42, and who therefore compose the “Family” of Article 41, means that Article 41.3 can no longer mean that only marriage creates families. O’Donnell CJ’s response? The text of Article 42A, in recognising the natural and imprescriptible rights of all children but not changing Article 41, sought to put beyond doubt in the text of the Constitution what the case law had said, that children’s rights were the same irrespective of their parents’ marital status, while leaving Article 41 as it stood and had been understood. Article 42A endorsed looking beyond the tension between Article 41.3 and the rights recognised elsewhere.

O’B v S and the Meandering River

So, Article 41.3 stays as it is, and we circumvent it using Article 40, but Woulfe J bemoaned this judicial “backdoor” approach, whereby the discriminatory effects of Article 41.3 are softened by judicial decisions recognising non-marital parents’ and children’s natural rights through unenumerated rights pursuant to Article 40.3 (or, as here, equality via Article 40.1), and questioned the legitimacy of the courts, if the Nicolaou decision stands, finding such rights notwithstanding the deliberate choice to confine Articles 41 and 42 rights to marital families.

A case that looked the problem in the eye, but then blinked, was O’B v S [1984] IR 316. The Supreme Court there upheld provisions of the Succession Act 1965, whereby, in intestate succession, non-marital children would not stand in the line of succession, the key being that a law designed to maintain the primacy of the married family was immune from scrutiny on Article 40.1 equality grounds. For Hogan J, decisions like O’B v S drained Article 40.1 of meaning:

A provision intended to operate as a meandering river which would gently fertilise the banks of constitutional law by ensuring that the fundamental principle of equality before the law in a democratic society was upheld was instead allowed virtually to run dry.

So, if Article 41.3 is not to dam the meandering river, O’B v S’s veto on applying Article 40.1 to families must be removed. O’Donnell CJ’s response? The approach in O’B v S has long been superseded by Donnelly and its forebears; we have looked beyond the tension that O’B v S highlighted, and the backdoor is working fine.

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The views expressed above are the author’s own and do not reflect the views of The Bar of Ireland.

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