Could British teachers be sacked for opposing gay marriage? Probably, says QC

Michael Cook
11 Sep 2012
Reproduced with Permission

Teachers and chaplains who openly oppose the UK's Government's redefinition of marriage face being disciplined, or sacked for their views if the law is changed, warns a top legal expert. The detailed legal opinion from Aidan O'Neill, a senior QC and expert on civil liberties and human rights, commissioned by the Coalition for Marriage, concludes that legalising gay marriage will affect the lives of millions of ordinary people.

Mr O'Neill warns that the plans to tear up the centuries-old definition of marriage will have reaching far-reaching consequences, affecting schools, foster caring, adoption, the use of public buildings and even the careers of individuals. In the most alarming section of his assessment, he warns that teachers and chaplains who work in hospitals, or even the armed forces, could face being sacked under equalities legislation.

Asked about the affect of redefining marriage on schools, Mr O'Neill writes that if gay marriage became law in England and Wales, a school would be within its legal rights to dismiss a teacher if he, or she, refused to use material in the classroom that endorses gay marriage. This would include a teacher refusing, on the grounds of religious or philosophical conscience, to use a storybook about gay marriage called "King and King".

He also warns that parents who object to gay marriage being taught to their children across the curriculum will have no right to withdraw their child from lessons they disapprove of, for reasons of conscience.

Mr O'Neill also warned that Government promises to protect marriage celebrants, who object to the current definition of marriage being rewritten, are meaningless.

Asked if those conducting religious marriage ceremonies could be taken to court for refusing to carry out a gay wedding, Mr O'Neill replies "Yes". The QC, based at Matrix Chambers, states:

"If marriage is opened to allow two individuals, regardless of their gender or sex, to marry one another, then Article 12 ECHR will apply both to same sex and opposite sex marriage. Any attempt in law, then, to differentiate between same sex and opposite sex marriage would in principle be covered by the non-discrimination provisions of Article 14 ECHR and any differentiation in treatment between opposite sex and same sex marriage would be subject to particularly strict scrutiny by the Strasbourg Court and the offending State would have to show particularly convincing and weighty reasons to justify any such a difference in treatment."

And in a strongly worded section Mr O'Neill says that churches would be in a stronger legal position if they were to stop conducting weddings, bring to an end more than a thousand years of tradition.

"Churches might indeed better protect themselves against the possibility of any such litigation by deciding not to provide marriage services at all, since there could be no complaint then of discrimination in their provision of services as between same sex and opposite sex couples."

Controversially, Mr O'Neill also says that the Church of England would be in a stronger position to fight equality laws if it were 'disestablished'.

"And, in principle, the Church of England might be better protected under any such claim if it were disestablished in the sense that its clergy were no longer placed under formal legal obligations by the general law to solemnise the marriages of all and any person otherwise eligible to marry under the general law, since then it would be more able to claim the protection of Article 9 ECHR and the principle of religious liberty as against the requirements of the State rather than as present where, at least in matters of the solemnisation of marriage, the position of the established church appears closer to being an arm or department of the State."

The strength and clarity of the advice from Mr O'Neill, who has a strong track record of supporting gay rights, will shock many on both sides of the debate and reignite calls for the Government to publish its own legal advice.

Leaked communications between the Scottish law officers and their English counterparts have already highlighted concerns that Alex Salmond's administration has about the inability of the Scottish courts to protect clergy from legal challenge. Dr Sharon James, an expert on family policy and a Coalition for Marriage (C4M) spokesperson, described the legal picture as "a disaster waiting to happen" and a "lawyers' charter".

"Looking at the affect this change will have on children and parents, taking absolute control of a child's education from a parent and handing it to a local authority is an unprecedented assault on the rights of parents. This is a dangerous path to go down and one that should be resisted. Redefining marriage would also demand that social workers ask prospective foster carer applicants if they support the new definition - and could halt their application if they do not. Supporting civil partnerships, but not gay marriage, would almost certainly fail the equality and discrimination policies, and could prevent an individual from becoming a foster parent."

The legal advice from Mr O'Neill also says that problems could also arise if a church decided to hire a council-owned community centre each week for a youth club. If the church's website stated that it will only conduct opposite-sex marriages, the council would be within its legal rights to stop the church from hiring the community centre, as it would breach equality laws. Dr Sharon James continued:

"Mr O'Neill's expert summary is incontrovertible proof that legalising gay marriage is not only a legislative minefield but an unparalleled attack on the freedom of conscience Britons have under the law. The redefinition of marriage would ride roughshod over a person's right to support marriage as the exclusive union between one man and one woman, whether that person be a teacher, a parent, a foster carer or a marriage registrar.

"The only winners from a change in marriage law will be lawyers, who will make a fortune out of what would rapidly become a legal mess of untold proportions. I hope the irony is not lost on the Government that their misguided campaign to legalise gay marriage would create a society with fewer freedoms than before."