Concerns about gay marriage and freedom of conscience
have largely centred on places of worship and ministers of
religion who conduct weddings. But the impact in the
workplace, in schools and in other areas of everyday life has
been overlooked.
Those details are contained in a legal opinion written by
leading human rights lawyer, Aidan O’Neill QC. Mr O’Neill was
asked to give his expert advice on a series of scenarios related
to legalising gay marriage.
NHS CHAPLAIN
A Church of England minister is also the chaplain at an NHS
hospital. While conducting a wedding service in his parish
church he preaches that marriage is only for one man and one
woman. His NHS bosses find out, and he is later disciplined for
breaching the NHS diversity policy.
Aidan O’Neill QC advises that under the Equality Act 2010 the
NHS managers would have proper grounds for justifying their
action, even if the chaplain was preaching in his own church
outside work time.
The situation would be the same for any chaplain employed
within the public sector, such as armed forces chaplains or
university chaplains.
TEACHER
A primary school teacher is asked to use a storybook about
gay marriage called “King & King”. It is recommended by the
local authority and by a gay rights charity. The teacher says
using the book would conflict with her religious beliefs about
marriage. She is told that she faces dismissal unless she
backs down.
O’Neill says “yes”, the school would be within its legal rights to
dismiss the teacher if she refuses to use the material.
PARENTS
Parents ask for their child to be withdrawn from school lessons
on the history of gay marriage, for deeply-held religious
reasons. The parents say they have a right to withdraw their
child under European Convention on Human Rights. But the
school refuses, saying it is under a legal duty to promote
equality.
O’Neill says the parents do not ultimately have a right to insist
that their child be withdrawn from such history lessons, and the
parents “will have little prospects of success in challenging the
schools insistence that their child attend” the lessons.
FAITH SCHOOLS
Aidan O’Neill was asked about the above scenario in relation
to faith schools or religious-ethos State schools.
He said: “If the school in question were a faith school or
otherwise one with a religious ethos within the State sector in
England and Wales this would make no difference to my
answer.”
FOSTER COUPLE
A couple applies to be foster carers. They tell social workers
they are motivated to care for children because of their
Christian faith. On hearing this, the social workers ask them
whether they support gay marriage. The couple says they do
not, and the social workers halt the application because of
equality and discrimination policies.
O’Neill says “yes”, a local authority fostering agency would
have legitimate legal grounds for acting this way.
PUBLIC FACILITIES
A church hires a council-owned community centre each week
for its youth club. The church website states that it will only
conduct opposite-sex marriages. Someone complains to the
council, and while the church can’t be forced to conduct gay
weddings, it is stopped from hiring the community centre.
Aidan O’Neill says “yes”, the council would be within its legal
rights to do this.
MARRIAGE REGISTRAR
A local authority decides to accommodate the religious beliefs
of one of its registrars by not designating her to be a ‘civil
partnership registrar’. Other registrars within the local
authority’s team are sufficient to provide the service to the
public.
Aidan O’Neill says that if gay marriage becomes law, “that kind
of adjustment to accommodate a registrar’s particular beliefs
would no longer be an option for any employing authority
because there would then be only be one system of marriage
(rather than, as at present, a distinct civil partnership regime
for same sex couples).”
RELIGIOUS GAY WEDDINGS
The O’Neill legal opinion also addresses whether religious
marriage celebrants could be forced to conduct gay weddings
against their will. The legal opinion suggests that an outright
ban on religious gay weddings could be overturned under
European human rights laws.
If a law is passed which allows religious gay weddings for
those who wish to conduct them, but doesn’t compel anyone to
act against their conscience, that could be challenged under
domestic equality laws. O’Neill says that churches, in general,
would be better protected from hostile litigation if they stopped
holding weddings altogether.
ESTABLISHED CHURCH
O’Neill advises on the position of the Church of England. As
the established church, it is under a legal obligation to marry
any persons who are eligible to marry in England and Wales.
Even if Parliament passes a law which allows (but does not
oblige) churches to host gay weddings, O’Neill advises that the
UK Government could be in breach of European human rights
laws if it allows the C of E to refuse gay weddings. This is
because of the C of E’s unique status as the established State
church. O’Neill says the church would be in a safer position if it
was disestablished.
SEX EDUCATION
The O’Neill opinion also considers the impact of redefining
marriage on teaching within schools. It says that the law will
require that children learn about gay marriage in sex education
lessons. This is because Section 403(1A)(a) of the Education
Act 1996 imposes a duty on the Secretary of State “to issue
guidance” ensuring that pupils “learn the nature of marriage
and its importance for family life and the bringing up of
children”. If gay marriage becomes law then “its importance for
family life and the bringing up of children” must be taught as
part of sex education.
