I previously reported on the Employment Tribunal case of Jeremy Pemberton versus Richard Inwood, retired Acting Bishop of Southwell and Nottingham, and the debate on BBC 2’s Victoria Derbyshire show between Jeremy and myself. Jeremy has been gracious enough to comment on the blog from his perspective, and a couple of days ago his partner, Laurence Cunnington, notified me that Jeremy has been granted leave to appeal the case.
There are various interests at play here. For Jeremy, I am sure there is a sense of having nothing to lose. I was curious that he said he was not surprised to have lost the tribunal itself (and the decision was extremely clear in law and definitive in its conclusion) so perhaps he won’t be surprised if the appeal is also lost—but perhaps there is some slim chance of a different perspective? Any organisation interested in the broader question of gay rights will want to see this process pushed to its furthest possible conclusion, including any legal team pushing a gay rights agenda. And, curiously, the Church of England also has an interest in the appeal, since an employment tribunal sets no precedent, but an Employment Appeal Tribunal ruling does set a precedent in law. If the EAT upholds the original verdict, then this gives those supporting the Church’s current teaching significant legal security—though there is then the question of whether Jeremy would take his appeal to the next level.
Andrew Goddard has just published a detailed piece on the case on the Fulcrum website. In the first half, he looks at Jeremy’s argument that Article XXXII On the Marriage of Priests allows him to marry whom he chooses. Andrew points out five main problems with Jeremy’s argument here: the article is about whether priests can marry, not whom they may marry; it is circumscribed very clearly by both Scripture and the doctrine of the Church; and it is directed against Roman teaching on clerical celibacy. In its historical context, it is hard to see it offering the support that Jeremy wishes to draw from it. Andrew concludes:
It is, therefore, clear that the very Articles to which Jeremy Pemberton appeals as “our rules” against the bishops’ pastoral guidance make his interpretation of them highly idiosyncratic and implausible. To further claim this reading as not just possible but central to the church’s doctrine of marriage is without foundation. Even were there to be some plausibility in his argument about Article 32 to undermine the foundations of the church’s case faces the further hurdle that in defining doctrine as he does he is privileging his novel reading of this one Article as fundamental in the face of all the clear definitions of marriage found (and cited by the bishops) in the Church of England’s authoritative sources, and claimed to be revealed in Scripture, including most clearly canon B30.
In the second half of his article, which I reproduce here with permission, Andrew explores the wider implications of the possible result of the appeal, which is perhaps another reason why there are multiple interests in the process.
Canon Pemberton presents himself as someone who has been unjustly punished and discriminated against by the refusal of a bishop to provide him with a licence and, as a result, his inability to be appointed to a post he was otherwise suited for because such a licence was required by the employer for him to take up the job. There is no doubt that this is a painful and distressing situation for him and others. It is one in which, by appearing to be a victim of prejudice and the imposition of others’ beliefs to his detriment, he has gained much sympathy and support.
The outcome if Jeremy Pemberton succeeds
But what Jeremy Pemberton is seeking will have a similar effect on others. He is asking the court to require any bishop not to refuse him a licence to minister on the grounds he has entered a same-sex marriage. It was quite clear that one major reason Bishop Inwood did not issue a licence was because of his understanding of the church’s teaching and his own ordination vow to uphold this (his words are quoted at para 203 of the judgment where he speaks of “my own Oath of Obedience and requirement to uphold the doctrine of the Church”). That doctrine was clearly set out by the bishops based on numerous authoritative sources. Jeremy, along with others, does not believe what they said is true in relation to marriage nor does he believe that it is, in fact, church doctrine. But this question of the doctrine of marriage is not all that is at stake. There is also the question of who determines and defines doctrine and on what basis.
What Jeremy is asking is for a secular court to tell bishops that they are wrong in their definition of the church’s doctrine. Furthermore, they should state that as the bishops’ error leads them to discriminate in the eyes of the law they must therefore not apply what they believe to be doctrine in the exercise of their office of bishop within the church of God. In other words, were he to win his appeal, two major consequences would follow, particularly given the appeal judgment will have wider application than his own specific case:
- A secular court would have determined the church’s doctrine and reading of Scripture over the heads of, and in contradiction of, the bishops of the church
- Nobody would (unless what is currently held to be the doctrine was restated clearly by the church or the ruling over-turned by higher court) be able to continue to minister as a bishop, or be appointed as a bishop, if their conscientious understanding of their role and the Bible’s and the church’s teaching required them to refuse a licence to someone who was in a same-sex marriage.
The level of state control of the church that this represents is something that I have not heard anybody defend. Yet it must be defended as it seems to be the incontrovertible consequence of Jeremy’s appeal succeeding and thus what he – and those who support him in pursuing his case – must desire or at least be willing to accept as an outcome. What is astonishing is that it seems many Christians who present themselves as “liberal” and “inclusive” and “post-Christendom” or “anti-Christendom” are either blind to or unconcerned about these implications of their pursuit of “justice” by the means Jeremy is pursuing it.
Two paths to this end
There are two possible and significantly distinct routes to this outcome. First, that the judges rule that the church has no doctrine of marriage and/or that it does in Article 32 have a doctrine that clergy “can marry who they want to marry” which trumps any doctrine of marriage that restricts it to opposite-sex unions. Here the court determines that the bishops have mis-stated doctrine (in their defence of a doctrine of marriage) and/or violated it (in penalising Jeremy Pemberton for his decision to marry his same-sex partner). This would presumably be a judgment that the claims critiqued above are not flawed but represent the foundation of the church’s teaching about marriage.
The theological defence for seeking this ruling would be that the bishops need to be called to account by a secular court for these errors in interpreting and applying church doctrine as they have harmed Jeremy. The seeking of redress before a secular court still needs theological justification, especially given the two serious consequences noted above and the failure to seek redress within the church, but this effectively takes the form of appealing outside the church on the basis that the church itself has failed to follow its own rules and teaching.
At times, though, the rhetoric has been that of the injustice of the church’s current teaching and the need for it to be corrected by the law and the courts. This represents a much more serious state intrusion into the church’s life and one which thankfully is unlikely to succeed. The state seems still to accept that the church (and other religious bodies) should not be told what their doctrine must be or have their reading of the Scriptures judged by the state. Nor does the state seek to tell church leaders they must, in the ordering of the church, be forced to follow state decisions against the teaching of the church.
The reality is that the state – both in the legislature (through the clear exemptions granted the church in this area) and the judiciary – realises that interfering in the definition of doctrine or preventing a church from following its doctrine would be to take actions normally associated in modern times with totalitarian regimes. The judgment therefore is clear that “if there is a doctrine that precludes same sex marriage, then unless and until it is changed by the constitutional processes of the Church, it remains the doctrine” (para 169) and the court is not the place to determine what the teaching of Christ is in the face of disagreements over this within the church:
we are not theologians, and without wishing to dismiss these clearly deeply felt and well reasoned arguments, they do not engage before us if there is a doctrine. This is because of course (and reminding ourselves of the Amicus judgment) it is not then the function of this tribunal to seek to reconstruct the doctrines. So, the be all and the end all of the issue at this stage is whether or not there is one (para 170).
There are, of course, possible theological defences for seeking such state control over and against church authorities. After all, the English Reformation occurred over who had the right to define marriage and the legitimacy of a marriage – the Pope or the King. I suspect though that few advocates of Jeremy Pemberton’s position (despite their occasional rhetoric) are likely to support such a reversion to high Erastianism which would be unprecedented in the recent history of the church and overturn the gradual recognition of the need for greater church freedom from state control.
The question then is what exactly Jeremy Pemberton is seeking and how it can be justified. If the argument is that the church’s doctrine is in error or that the bishops are in error in their statements and applications of that doctrine then there are means within the church to rectify those errors. To seek for the state to correct the church’s alleged errors—by judging that the bishops are mis-stating its own doctrine or that the substance of that doctrine must be abandoned—is a step which needs to be defended. Yet I have seen no serious defence of this approach. The decision of Canon Pemberton and his supporters to continue to press their case through the courts means they must address this issue of their chosen means to secure their desired end and clarify what they are wanting the court to decide in terms of directing the church in relation to its doctrine and requirements of ministers.
Can we not just “agree to differ”?
Finally, looking ahead as we draw near the end of the Shared Conversations, this case highlights the difficulty of implementing what some call for under the title of “good disagreement”. If the case is lost then it has been established that the church has a doctrine of marriage which bishops are right to uphold by refusing to issue a licence to someone in a same-sex marriage. The judgment is clear that canonical obedience is “a core part of the qualifying of a priest for ministry within the Church” (para 120) and that Canon Pemberton is obliged to undertake to pay true and Canonical Obedience to the Lord Bishop but that (given its conclusion as to church doctrine), “Self-evidently he is not going to be able to fulfil that obligation or has not done so….and therefore objectively he cannot be issued with his licence” (para 121). Any bishop who therefore issued a licence to someone in a same-sex marriage would therefore be open to legal challenge. Any attempt to allow clergy to enter same-sex marriages would, it appears, need first to redefine the church’s doctrine of marriage. If, however, Jeremy wins his case then, as noted above, no bishop could refuse a licence on the grounds of the priest being in a same-sex marriage.
In other words, if the church keeps it current doctrine of marriage then it will be very difficult to justify licensing clergy in same-sex marriages but if it changes it or somehow declares it has no fixed doctrine of marriage then it will be very difficult to justify refusing a licence to clergy in same-sex marriages given equality legislation. So, even if it were considered desirable, it is therefore hard to see how, given the law, the church could “agree to differ” on this subject in a way that both enabled same-sex married clergy to be licensed and also protected those unable in good conscience to license clergy in same-sex marriages.
Follow me on Twitter @psephizo
Much of my work is done on a freelance basis. If you have valued this post, would you consider donating £1.20 a month to support the production of this blog?