John Bingham and John Ross – Telegraph.co.uk Jan 25, 2013
The Education Secretary issued formal reassurances that teachers and other staff who hold traditional views on marriage should not be punished for refusing to promote same-sex marriage at work.
But a senior source in Mr Gove’s department said the UK was not “in control” and that the ultimate decision might “inevitably” be taken at the European Court of Human Rights in Strasbourg.
It comes as the Coalition prepares to publish a bill to allow same-sex couples to marry.
David Cameron believes that gay marriage is a fundamental issue of equality and is determined to make it law.
But he is facing a backlash from within his own party and churches who believe it would undermine the institution of marriage by redefining it.
Government lawyers have devised a so-called “quadruple lock” of legal protections which they believe will prevent religious groups which do not wish to carry out such weddings being forced to do so.
But opponents claim that individual workers – such as teachers, hospital chaplains or other officials – could be dismissed legally from their jobs if they take what they consider to be a stand on grounds of conscience over the issue.
In a formal legal opinion commissioned by the Coalition for Marriage campaign group, the human rights barrister Aidan O’Neill QC concluded schools could be within their rights to dismiss staff who wilfully fail to use stories or textbooks promoting same-sex weddings.
He added that parents who object to it being taught would also have no right to withdraw their children from lessons.
It is understood that legal advice supplied to the equalities minister Maria Miller has offered reassurances that staff would be protected and that no one should be forced to “promote or endorse” gay marriage against their beliefs.
Last night a spokesman for the Department for Education added: “Teachers will not be forced to teach views about gay marriage which are against their conscience.
“Schools will not acquire a power to dismiss teachers who refuse to teach views about gay marriage which are against their conscience.”
Aides added that while Mr Gove is in favour of the reform he also “strongly supports” the right of teachers to disagree.
But a senior source said that, despite the reassurances, the final decision on such questions might ultimately be taken by the court in Strasbourg.
“We have had legal advice, the problem is that there is this inherent uncertainty about such matters,” he said.
“These are all under the control of nine guys in Strasbourg, it is just fundamentally uncertain because Britain isn’t in control of this.”
The admission comes days after the ECHR ruled that a local council was within its rights to require Lillian Ladele, a Christian registrar, to formalise civil partnerships even though she said it amounted to forcing her out of her job.
Mr Gove is expected to tell schools that they do not have the power to “attack” teachers for their views on marriage and that the Government would oppose any council which tried to discipline a teacher over the issue.
But sources said that they could not rule out “some extreme local authority trying something” and that councils would be able to “go all the way to Europe” in search of support.
Miss Ladele challenged her treatment by Islington Council at an employment tribunal in Britain and won arguing that she was objecting on grounds of conscience.
But the council overturned the decision on appeal in a ruling which was then upheld in Strasbourg last week.
Speaking in the Commons yesterday, the Tory MP Sir Tony Baldry, who speaks for the Church of England in parliament, insisted that the established Church had not sought “special” provisions making it illegal for it to carry out gay weddings.
“The Church of England isn’t asking for any special treatment or protection under this legislation, the issue is simply that the Bill should be drafted to ensure that the Church of England has the same freedoms as all other churches and denominations to decide these matters for itself.,” he said.
“Of course that has to reflect the somewhat unique legal position of the Church of England.”