Jeremy Pemberton loses employment appeal

_76182996_tpjeremy3It was announced yesterday that Jeremy Pemberton has lost all appeals at the Employment Appeal Tribunal (EAT) that he brought in relation to his Employment Tribunal (ET) case brought against Richard Inwood, Acting Bishop of Southwell and Nottingham. At one level there is not much to say on this, since the EAT has confirmed in the clearest terms the ruling of the ET. But there continue to be inaccuracies in reporting on this and its significance, so it is worth being clear what has been said.

Jeremy had entered a same-sex marriage, against the teaching position of the Church, and as a result he had received a formal rebuke from the Bishop of Lincoln, whose licence he had as a hospital chaplain, and had had his Permission to Officiate in Southwell and Nottingham, where he lived, revoked. (Neither of these requires any legal process.) He then applied for and was appointed to a post as a Chaplain in Southwell and Nottingham, but was not granted a new licence by the bishop here, and so could not take up the post, since the hospital trust required that he had a licence as a priest ‘in good standing’ in order to conduct Anglican worship in the chapel. Jeremy initiated the ET case, claiming discrimination under the Equality Act 2010 and harassment in light of the distress the process caused him.

The initial judgement ruled that the Church had a clear exemption under paragraph 2 of schedule 9 of the Equality Act, and the EAT ruling confirmed this in the clearest terms.

The ET had correctly held that the EPML [the licence] was a relevant qualification (and the Respondent thus a qualifications body) for the purposes of sections 53 and 54 EqA; the Respondent’s cross-appeal against this finding was dismissed. Equally, however, the ET had been entitled to find that the PTO was not a relevant qualification: it would not have “facilitated” the grant of the EPML on the facts of this case; it was the Claimant’s lack of “good standing” within the Church of England that underpinned the Respondent’s decision in respect of both.

It is heartening that both judgements are clear about the important difference between PTO and a licence, something that is consistently misreported. In fact, the initial ET judgement offered an impressive, careful and detailed reading of the Church’s own documents, and drew on them extensively.

On Jeremy’s second claim, that of harassment, the EAT also confirmed that the ET had ruled correctly.

As for the harassment claim, although the Claimant was caused distress by the Respondent’s conduct, which he found humiliating and degrading, this did not amount to harassment. Context was everything. The Claimant would not have experienced that (admittedly, unwanted) conduct if he had not defied the doctrine of the Church. Moreover, the Respondent had acted lawfully pursuant to schedule 9; it would be an affront to justice if his conduct was found to constitute harassment.

It had been noted in the ET that, at every stage, both the Bishop of Lincoln and the Acting Bishop of Southwell and Nottingham had made clear the significance of Jeremy’s action and what the consequences would be.

One question which hovered over the initial ET judgment was in relation to the doctrine of the Church in relation to marriage. I was startled when, under cross-examination, Richard Inwood had agreed that the doctrine of the Church ‘was a busted flush’. But both the ET and the EAT have ruled that, in the context of employment law, the Church’s doctrine of marriage is both clear and enforceable, and that clergy can reasonably be expected to conform to it.

As for the doctrines of the Church, this referred to the teachings and beliefs of the religion and the ET had been entitled to find these were as stated by Canon B30 (“marriage is … a union … of one man with one woman …”), evidenced, in particular, by the House of Bishops’ Pastoral Guidance on Same Sex Marriage. The Respondent had applied a requirement that the Claimant not be in a same sex marriage so as to comply with the doctrines of the Church; it was not fatal to the ET’s conclusion in that regard that a different Bishop might not have done the same.

That final comment seems to me to be highly significant. Even if the Church’s doctrine has been applied inconsistently in the past, and elsewhere in the Church, then that does not undermine the action of a bishop who acts on it. In other words, if the collegial support for this doctrine in the House of Bishops collapses, and some bishops decide to declare UDI and ignore the doctrine, then other bishops are still secure in law in enacting discipline based on this doctrine.

(Someone has suggested to me that this might appear to undermine collegiality, and open the door for such dissenting behaviour. But it is worth noting that questions of discipline within the Church are dealt with Church processes, and in particular the Clergy Discipline Measure, and not the context of employment law which is in view here.)

In risk analysis terms for the Church, the appeal (along with the initial complaint) were never likely to be granted, so that rated as a 1 in terms of likelihood. But the consequences would have been in the ‘catastrophic’ category at a big old 5, which is why the case has continued to be of wider interest. As Andrew Goddard previously noted:

Were he to win his appeal, two major consequences would follow, particularly given that the appeal judgment will have wider application than his own specific case:

  1. 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
  2. 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.

Reaction to the judgement has been fairly muted, but for those who have expressed regret to me, I have asked: Are you really saying that you would like the courts, and indirectly the Government, to determine what the Church might believe? Have you thought that through? Are the courts really the way to settle this issue?

Some have even complained about the Church money that has been wasted on this—to which the only reasonable response is: is was Jeremy’s bringing of the case which has led to the expense for the Church Commissioners, money which could have been put to much better use. If Jeremy’s supporters don’t want any more money wasted, then they need to encourage him not to appeal again. Leave to appeal has been granted—but quite clearly not because there is any chance of the verdict being overturned, but simply because it establishes the case in law. The initial ruling of the ET did not contribute to case law that sets precedent; the ruling of the EAT does, and in that regard the Church’s position is now secure. Jeremy’s costs have been borne by his legal team, who are committed to campaigning on LGBTI rights, and the Church has so far borne its own costs as a gesture of good will—but they are unlikely to do so any further, and will appeal for costs at the next stage.

It is time to move on to other things—as indeed Jeremy has, having some months ago resigned his licence as a priest in Lincoln Diocese.

(You can find the detailed analysis of the case, the initial judgement and the appeal process in the linked posts below.)

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31 thoughts on “Jeremy Pemberton loses employment appeal”

  1. One thought,

    A few people have suggested to me that this ruling makes the position of Andrew Foreshew-Cain (vicar in London) more precarious. I would argue not.

    The Pemberton ruling applies chiefly to those clergy who rely upon receiving a licence (and its withdrawal) from an extra parochial appointment and where this licence operates as a “qualification” for a job. The same principles that are at stake in the case would apply to school chaplains, prison chaplains, industrial chaplains etc. For an incumbent in a parish the position is slightly different. To remove someone in situ with a licence would involve formal disciplinary action via the Clergy Discipline Measure and this would most likely end in a CDM Tribunal.

    A CDM Tribunal would be asked to consider matters that the court skirted around (and that fundamentally destroyed Pemberton’s position). In the ET and the EAT the ruling parties judged that the CofE’s doctrine of marriage was clear AND that the Bishop had every right to not grant a licence because Pemberton’s actions violated that doctrine. A CDM Tribunal on the other hand would have scope to explore that understanding (that the CofE’s doctrine here is clear AND the right of Bishops to enforce it in clergy) and its validity in much greater detail.

    I would argue that whilst the notion of a Human Rights based defence to the “sacking” of a vicar in a same-sex marriage is much much less likely given the outcome of the Pemberton EAT, the CofE establishment still has to consider the risk of losing at the CDM Tribunal stage AND the negative publicity around such a case, regardless of the outcome.

    For the time being, Andrew Foreshew-Cain can sleep easy.

    • I don’t quite see how a CDM tribunal could really conclude that the church’s doctrine is not clear or the bishops don’t have the right to enforce it. How could entering into a same-sex marriage not constitute at least one of the following:

      (a) doing any act in contravention of the laws ecclesiastical;
      (b) failing to do any act required by the laws ecclesiastical;
      (c) neglect or inefficiency in the performance of the duties of his office;
      (d) conduct unbecoming or inappropriate to the office and work of a clerk in Holy Orders.

      Open and shut surely?

  2. “the Church has so far borne its own costs as a gesture of good will”

    A correction, if I may. Costs are not awarded to either side in ET and EAT hearings. Costs are always borne by the respective parties to the action, irrespective of the outcome, so it is not a question of goodwill on the Church’s part.

    • If I may clarify.

      Costs in an ET or an EAT are awarded as an exception. My understanding is that the CofE has not at any point asked for an exception to be made. However, were the case to go to the Court of Appeal then at that point costs can be awarded and my understanding is that the CofE would be of a mind to ask for its costs to be borne by the complainant in the event of the ET and EAT rulings being upheld.

      So I am correct in what I said. Out of goodwill the CofE has not sought to ask for an exception re costs. That position would likely change if the case went higher.

  3. A note, if I may, about my legal team. You describe them as “committed to campaigning on LGBT! rights” which is true as far as it goes. What your readers may not know is that all of them are committed and practising Christians, whose motivation for supporting my case is religious and whose politics is deeply informed by their faith. I would not want the two sides characterised as the fighters for religious freedoms opposed by liberal hordes of gay activists intent on the destruction of Christianity. Nothing could be further from the truth.

    • Hi Jeremy,

      Additionally, you might not want the two sides characterised as committed liberal Christians soldiering on bravely against legalised homophobia opposed by well-funded conservative bigots (as those supporting the Respondent are portrayed by commenters on the Thinking Anglicans blog).

    • Jeremy, it sounds innocent, but the reality is not innocent. I have been censored and banned from both Thinking Anglicans and Changing Attitude, but if you trawl through the archives you will see that I did nothing but truth-seeking from beginning to end.

    • Well said, Jeremy.

      Your courage in bringing this claim, and the strength you’ve shown throughout this fight, are humbling. It’s unjust that you were ever placed in this position, an injustice compounded by the ruling (whatever its technical merits), but it’s a moral victory that’ll spur others to action. This will be overcome, and the church will one day celebrate your bravery with the same strength of feeling that it’ll rue its current teaching.

      • Hi James,

        If ever there was a more moving paean to ersatz martyrdom, I’ve not heard it.

        No doubt some sort of liberal beatification beckons! I mean, look at the Pink News headline: ‘This man was denied a job for marrying another man, and it’s completely legal in England

        Put more accurately, it might read: ‘Man denied religion-sponsored job for marrying another man, and it’s completely legal in England’

        Oh, but that’s not nearly as sensational, is it?

  4. In regards the closing comments regarding finance, I remain confused.

    In your post of March 16th this year (“Jeremy Pemberton Appeals the Tribunal Case”) I put the question/hypothetical to you and Jeremy in the comments that should he appeal the initial ruling, he might pay the costs himself?

    Others had made this point elsewhere and I was simply repeating it; the assumption I had been under from much of the reporting on this issue was that the church was paying all of (or at least the majority of) the legal costs involved in these cases, and for both sides.

    The response was unanimously that I was misinformed. Yourself, Jeremy and then shortly after, Laurence, were explicit in your corrections:

    Quoting Ian: “My understanding was that the legal team that supported him are a practice that are committed to gay rights so they took the case on mostly at their own cost.”

    Quoting Jeremy: “This (My comment) is completely incorrect. The case was funded by Direct Line through our own household insurance. The legal team come from different chambers and solicitors.”

    Quoting Laurence: “The Church of England paid its own costs but had no responsibility for Jeremy’s. Jeremy’s cost were covered by a combination of a very substantial payment by Direct Line Insurance and by some of the work being done by his team on a pro bono basis.”

    So perhaps I am misunderstanding, but what money, if any, is being ‘wasted’ here, if the church is only paying to defend itself, and how are church commissioners involved in the process? Are you able to be more specific?

    I do not hold it against Jeremy, or consider it a judgement on his character/intent in the slightest for bringing the cases (even if I did think him naive), and so I do not consider the church to be wasting money defending itself robustly either. In fact, given some of the wording in the judges reports/statements, it could be argued that this process (and associated costs) have done more to strengthen the traditionalist position than any letters from GAFCON ever will.

    We (traditionalists) cannot have it both ways, criticising JP for bringing the case and costing the church resources, while being triumphalist about the result.


    • The thing is, Mat, that in a perfect world none of us would have to pay out of our own pockets for justice – presumably the state would bear all the costs, which means spreading it over all taxpayers (as with the NHS). But this is not a perfect world; with such a system of funding one could imagine the number of court cases (and their cost) ballooning to vast numbers (if everything were free). So litigants have to stump up themselves however unfair that may be for one side or another.

      But the Church of England is a Christian organisation within which one would hope legal action is not pursued, not least because of the costs involved (and how much has TEC famously blown in the courts?). Is the widow’s mite well used as a contribution to legal costs, especially in cases that are speculative between Christians? It’s not a great way to spend precious funds is it?

      In this case, although many of us may be relieved that the CofE has won thus far, I’m not sure that anyone is being ‘triumphalist’; if money has to be spent in this way it’s quite reasonable to be pleased that you’ve won the case.

  5. Hi All,

    In contrast with this post’s focus on the failure of Jeremy Pemberton’s appeal, the failure of the Respondent’s cross-appeal is telling.

    It signifies that the Church was contending (erroneously) that the EPML does not confer ‘an authorisation, recognition, registration, enrolment, approval or certification which is needed for, or facilitates engagement in, a particular trade or profession’.

    The cross-appeal was clearly an exercise in damage limitation. After all, some will note that discrimination exempted no religious grounds is discrimination nonetheless.

    Ergo, in the light of the failed cross-appeal, the Armed Forces, NHS, Prison Service and Education Sector may well review their eligibility criteria, definition of ‘spiritual care’ and drop the liturgical/sacramental provision of the role which makes it a requirement for chaplains to hold the appropriate licence as a qualification.

    In am Anglican chaplaincy context, here’s the scope of liturgical provision which would requires such a licence:
    1. Baptism (although laity may administer in emergency).
    2. Eucharist (for consecration); although laity can administer as licensed by the diocesan bishop.
    3. Reconciliation of a penitent.
    4. Anointing of the sick
    5. Matrimony.

    While I wonder how often these rites are required by NHS patients, apparently, in Jeremy Pemberton’s case, it was the defined requirement for CofE chaplains perform these duties which meant that his lack of ‘good standing’ had such an impact on his livelihood.


    • “In am Anglican chaplaincy context, here’s the scope of liturgical provision which would requires such a licence:
      1. Baptism (although laity may administer in emergency).
      2. Eucharist (for consecration); although laity can administer as licensed by the diocesan bishop.
      3. Reconciliation of a penitent.
      4. Anointing of the sick
      5. Matrimony.”

      If I may go off on a tangent… Apart from 5, where the cleric acts as a Surrogate for the civil Registrar (and I suspect only applies to parish clergy, not chaplains), can anyone explain to me where, when and how the first four functions became locked up in a clerical closed shop? I can find no biblical justification for this, rather the opposite. Matthew 28:18-20 is clearly a recursive command; having been made a disciple, I am clearly enjoined to go and make, baptise and teach more disciples. It’s my job to baptise those I bring to faith. (E.g. Acts 8:38, 9:18). By my logic, the Great Commission also makes me responsible for obeying 1 Corinthians 11:24,25. As for 3 and 4, James 5 mentions “the elders of the church” (plural) to pray and anoint (5:14), while reconciliation seems to be the office of all (5:19,20). Ironically, a lay minister can preach but not read a Eucharistic Prayers; surely one can do more damage with a badly scripted sermon than can ever be done by reciting a set prayer?

      • H Anthony,

        I absolutely agree with you. Ian has written a post on this:

        Simon Oliver countered this with a response contrary to Ian’s position (see post on July 4th, 2016)

        In the comment thread, I wrote:
        ‘At first glance, though, your quote from The laws of Ecclesiastical Polity stood out. As a rule, whenever I read an excerpt which begins with the word, therefore, I read the paragraphs prior to it to understand it’s foregoing premises. On that basis, here are the paragraphs which precede your quote from Hooker (emphasis mine)

        The ministry of things divine is a function which, as God did himself institute, so neither may men undertake the same but by authority and power given them in lawful manner, that God (which [sic] is in no way deficient or wanting unto man in necessaries, and hath therefore given us the light of his heavenly truth, because without that inestimable benefit we must needs have wandered in darkness to one endless perdition and woe) hath in the like abundance of mercy ordained certain to attend upon the due execution of the requisite parts and offices therein prescribed for the good of the whole world, which men thereunto do hold their authority from him whether they be such as himself immediately or as the Church in his name invests it is neither possible for all nor for every man without distinction to take upon him a charge of so great importance.

        So, Hooker established that, while some men do hold their authority from God as the Church invests them in his name, others hold such authority from himself directly.

        Examples of the latter include all of the apostles, including St.Paul, St. Stephen, who was ordained a deacon by men, but clearly ordained by God to the office of evangelist.

        In the gospels, we have the example of Christ correcting Peter and John for forbidding an exorcist driving out demons through the power of Jesus’ name: ‘Teacher,” said John, “we saw someone driving out demons in your name and we told him to stop, because he was not one of us.” “Do not stop him,” Jesus said. “For no one who does a miracle in my name can in the next moment say anything bad about me, for whoever is not against us is for us. Truly I tell you, anyone who gives you a cup of water in my name because you belong to the Messiah will certainly not lose their reward. (Mark 8:38 – 41)

        This scripture highlights the real issues that some have with certain notions of ordination by ecclesial authority alone: that, instead of extending the right hands of fellowship (as the apostles did) to those who, like St. Paul, so clearly hold their holy office ‘such as himself immediately’, the clericalist tendency is to recognise only those invested by the Church in his name.

  6. Surely the question a CDM Tribunal would have to consider primarily is whether this is or is not matter of doctrine. If it decided it were a matter of doctrine, Section 7 would apply. The matter would then have to be referred to the Court of Ecclesiastical Causes reserved under the law that regulates doctrine in the Church of England.

    • That’s a silly argument.

      A CDM complaint in this matter would be conduct unbecoming. The Bishops have made it very clear that entering a same-sex marriage is conduct unbecoming so the complaint would be on that basis. There is NO question that same-sex marriage is contrary to the doctrine of the Church of England. This very issue was raised at the original Employment Tribunal and rejected by the court. It was *not* raised at appeal meaning that Pemberton’s lawyers accepted the dismissal of the point.

      And yet here you are still making it….

    • Hi Alan,

      Three years ago, we all had a similar exchange on Peter’s blog:

      While I agree with Peter that this not a matter of worship and doctrine, but discipline, I disagree with his continued belief that simply entering a same-sex marriage per se would be the complaint under CDM.

      I would refer you both again to Philip Jones’ Ecclesiastical Law blog post explained:
      ‘Homosexual acts may be capable of constituting misconduct under s.8(1). This is clear both from the plain wording of s.8(1) and its legislative history. However, it does not follow from this that entering into a same sex marriage would contravene s.8(1). Modern ecclesiastical legislation makes clear that the clergy cannot justify their immoral behaviour merely because such behaviour is no longer illegal. The law has permitted or tolerated homosexual acts for many years now. However, as a result of the Marriage (Same Sex Couples) Act, same sex marriage is not merely an act that the law permits or tolerates. It is a status that is positively conferred by law.

      It is therefore hard to argue that the law should regard as immoral, or even as unbecoming and inappropriate, the acquisition of a status that the law itself confers.

      In an earlier comment, Peter mentioned ‘the CofE establishment still has to consider the risk of losing at the CDM Tribunal stage.

      So, while ‘the Bishops have made it very clear that entering a same-sex marriage is conduct unbecoming, so the complaint would be on that basis’, what remains unclear is whether such a complaint under CDM would succeed. And even if it did, should penalizing same-sex married clergy prove unpopular among parishioners, there is episcopal precedent for reinstatement.

      For example, when the Bishop of Norwich reinstated the PTO of thrice-married Rev. Kit Chalcraft, Jan McFarlane (Norwich’s former Diocesan Communications Officer) explained: ‘The bishop certainly agrees with the ideal that marriage should be for life and divorce is something we wish did not happen.

      ‘But we live in the real world and we recognise that it does happen. The Church is now recognising that divorce does happen more and more often. Things have certainly moved on in the last seven years.

      • This is a specious argument. The church is free to regard under its own doctrine what is conduct unbecoming regardless of statuses that secular law might choose to confer. The suggestion seems to be that because the CofE is governed by law then its ecclesiastical laws must agree with secular laws (there isn’t any suggestion, for example, that religious bodies not governed by law, such as the Catholic Church, must harmonise their clerical requirements with secular law). But if that is the case what is the point in having ecclesiastical law? To take an obvious example, the law confers (or recognises) the status of being a woman, yet no one would have argued that therefore ecclesiastical law may not forbid a woman from being a bishop or priest. You might as well argue that monastic orders must accept married members because the law confers married status. The very idea that statuses that secular law recognises or confers may not, for that reason, be the subject of restrictions under ecclesiastical law is entirely novel and has no standing whatsoever. Where before has anyone ever argued that ecclesiastical law and rules governing clerical conduct must harmonise with secular law? Isn’t that the point of the freedom of the church?

        • Hi Will,

          I am not disputing whether the State can prevent the Church’s freedom to decide what constitutes conduct unbecoming.

          Nevertheless, the Church’s exercise of discipline must demonstrate consistency in harmonising with its own ecclesiastical statutes and precedents.

          Philip Jones highlights this in explaining the Court of the Arches decision in Banister vs. Thompson (1908) Probate 362:

          The decision, like the House of Bishops’ pastoral guidance, concerned a marriage that was valid in English law but contrary to the Church’s teaching, in that case marriage to a deceased wife’s sister. Canon Thompson refused to give Holy Communion to a parishioner, Mr. Banister, who had made such a marriage. When disciplined for this, he relied on the ecclesiastical jurisdiction to refuse the Sacrament to an ‘open and notorious evil liver’.

          The Court did not deny that Mr Banister’s marriage contradicted the Church’s teaching. It even admitted the difficulty: ‘the recent Act [legalising marriage to a deceased wife’s sister] seems to recognise a distinction between the civil and ecclesiastical aspects of marriage, and to alter the law as to the one without purporting to affect the law as to the other … This … creates some difficulty for those who are concerned with its administration’ (p.389).

          ‘Nevertheless, the Court firmly rejected Canon Thompson’s defence and upheld Mr Banister’s right to receive Holy Communion. It was ‘impossible to say that these persons [Mr and Mrs Banister], lawfully married … can … be so described [as open and notorious evil livers] merely because they are living together as man and wife’ (p.390). The Church’s teaching per se was not sufficient to justify the legal sanction.’

          As the following argument shows the scripture which the Church relied upon in rejecting deceased wife’s sister marriage as a type of incest:
          God says to man—
          1. Thou shalt not marry thy father’s sister.
          Reason: She is thy father’s near kins-woman, i.e. she is thy aunt by kinship.
          2. Thou shalt not marry thy father’s brother’s wife.
          Reason: She is thy aunt (by marriage), i.e. it is thy uncle’s nakedness, and he is related by blood to thee.

          But before your uncle was married to her, she was not related to you at all. Now, by marriage, she is your aunt, and as such, like your father’s sister, in No. 1, forbidden to be married to you.

          Surely, now, these are the same for the woman, She cannot marry her uncle, either by blood or affinity. Her aunt’s husband is as much her uncle by marriage as her father or mother’s brother is by blood.

          We see, then, that by marriage affinity is established equal in God’s sight to blood relationship.

          Therefore, as the husband of your aunt becomes your uncle, so the husband of your sister becomes your brother. But a woman may not marry her brother, therefore she may not marry her sister’s husband, who, by his marriage with her sister, has become the same relation to her as her sister is, only in the male line, viz. her brother. Consequently, a man may not marry his deceased wife’s sister.

          We may argue the same point again from verse 8.

          There we see that the man is forbidden to marry his father’s wife’s daughter who was born before his father married, say, his second wife.

          Now, before his father’s second marriage, the son by the father’s first was no relation by blood or affinity to the daughter of the widow whom his father afterwards married. But after his father’s marriage with the widow, the widow’s daughter becomes the widower’s son’s sister, God distinctly says, “She is thy sister.”

          Here again we see kinship and affinity considered alike in God’s sight.

          It is very important to notice in this particular instance that there is no blood relationship between son and daughter before the marriage of the widower and widow, and therefore, i.e. according to the present theory of physiologists, there can be none after. It can, according to them, only be between the widower and widow, by consanguinity in the commencement of off-spring. Yet God says that by the marriage they are brother and sister, so that they cannot marry.

          • Thanks David. Can you clarify why it was deemed ‘impossible to say’? What was the point in doubt? And what did the court consider itself to be doing in making this judgment? Was it drawing a distinction between the church’s teaching on marriage and what constitutes being an open and notorious evil liver? Is this because the church had not previously clearly affirmed that to make an illegitimate marriage under church law could be so described?

            I would have thought that the House of Bishops having made clear that entering a same-sex marriage is conduct unbecoming, it would be perverse for a church court to determine otherwise. This attempt to introduce doubt on this point feels like it is intended to put fear into the bishops so they will shrink from acting on their guidance. Or am I being unduly cynical?

          • Hi Will,

            In respect of Banister vs. Thompson, Canon Thompson’s justification for withholding Holy Communion was taken from the 1662 BCP:

            ‘And if any of those be an open and notorious evil liver, or have done any wrong to his neighbours by word or deed, so that the Congregation be hereby offended; the Curate, having knowledge thereof, shall call him, and advertise him, that in any wise he presume not to come to the Lord’s Table, until he hath openly declared himself to have truly repented and amended his former naughty life, that the Congregation may thereby be satisfied, which before were offended; and that he hath recompensed the parties, to whom he hath done wrong; or at least declare himself to be in full purpose for to do, as soon as he conveniently may.

            The detailed transcript of Sir Lewis Dibdin’s judgement would probably require a trip to Lambeth Palace. However, Thompson’s appeal ended up before the House of Lords and in that judgement, Lord Loreburn declared at page 540:

            “It is inconceivable that any Court of law should allow as lawful cause [for refusing the Sacrament] the cohabitation of two persons whose union is directly sanctioned by Act of Parliament and is as valid as any other marriage within the realm.”

            Again, Lord Ashbourne at page 543: “The effect of [the 1907 Act] was to make such a marriage lawful for all purposes, entitled to be recognized as such within the realm or without, and without stint or qualification. I am unable to see any room for doubt that the direct effect of s.1 was to remove such marriages from the class of marriages prohibited by the statutes of Henry VIII, and to make the description of ‘open and notorious evil livers’ entirely inappropriate to those who came within its provisions. Such a marriage of unimpeachable legality could not be a ‘lawful cause’ under the statute of Edward VI.”

            You also wrote: I would have thought that the House of Bishops having made clear that entering a same-sex marriage is conduct unbecoming, it would be perverse for a church court to determine otherwise

            A CDM acquittal wouldn’t be perverse, since a key purpose of CDM 2003 was to limit the judicial discretion of bishops over licensed clergy.

            Before CDM, in contrast with beneficed clergy, licensed clergy could have their licence revoked by the bishop without reference to the courts. The bishop was both prosecutor and judge.

            Ultimately, what I’m saying is that we are in uncharted territory. There is no guarantee that a CDM Tribunal will agree with the HoB. That’s why, three years ago, I stated on Peter’s blog:
            Ignore Pemberton. The best discipline is routine denial of preferment for those who reject canonical obedience. A complaint of such a person being overlooked for ecclesiastical office is far beyond secular jurisdiction.

            That recommendation holds true to this day.

          • Thanks David. You’ve obviously researched this thoroughly!

            I note that Lord Loreburn said:
            The effect of [the 1907 Act] was to make such a marriage lawful for all purposes, entitled to be recognized as such within the realm or without, and without stint or qualification.

            I wonder how much difference will be made that, in contrast to the 1907 Act, the 2013 Act did expressly make ‘stints and qualifications’ regarding the scope of the Act in relation to the church. Since the Act by clear intention declined to apply its provisions to church marriage, how could a similar argument be made in this case?

          • Hi Will,

            As stated above, I am not disputing whether the State can prevent the Church’s freedom to decide what constitutes conduct unbecoming. The amended (second lock) exemption
            in the Equalities Act clearly protect religious organisation from claims of discrimination relating to same-sex marriage.

            However, that exemption doesn’t mean that the Church of England can ignore its own jurisprudence and impose sanctions upon same-sex married clergy, while turning a blind eye towards, say, serially re-married clergy, like Kit Chalcraft.

          • Surely it is well established that remarriage after divorce is not in any way analogous or comparable to same sex marriage? I won’t rehearse all the reasons here, but I would hope an ecclesiastical court is well versed in them. The very different treatment of the issues by the House of Bishops illustrates the difference well. I maintain it would be perverse for an ecclesiastical court to set this aside.

            The claim that the church needs to be consistent on these issues is also a different claim to the earlier one that church law needs to agree with secular law.

          • Hi Will,

            ‘Surely it is well established that remarriage after divorce is not in any way analogous or comparable to same sex marriage.

            What is well established is the argument that the basis for the specific pastoral accommodation of re-marriage in church after divorce cannot be the basis for a pastoral accommodation of same-sex marriage.

            The CofE accommodation is that ‘there are exceptional circumstances in which a divorced person may re-marry in church., while admitting that divorce is a breach of God’s will.

            That accommodation cannot be the basis for treating serial re-married clergy more leniently than same-sex married clergy.

            The accommodation requires exceptional circumstances. The Church hasn’t abandoned the belief that that anyone who is serially given to putting away without a cause is committing adultery. So why would church discipline view serial heterosexual adultery as a lesser sin that same-sex sexual relationships?

          • I don’t think it should. But if a justification for this has to be provided, to avoid one indulgence cascading into others (a clearly undesirable state of affairs), then the fact that a marriage is otherwise sound is very significant. A remarried divorcee is, the divorce aside, in a well-constituted marriage. A same-sex couple, on the other hand, cannot be in a well-constituted marriage (under church teaching) in any circumstances. This is not an inconsequential distinction. It is precisely why the church tolerates remarriage after divorce insofar as it does, but does not recognise same-sex marriage.

            No analogies should be drawn between these issues, and strategies which rely on such analogies should be dismissed. Each issue should be considered on its own merits.

          • Hi Will,

            I’ll call time on our exchange and give you the last word. However, the Matthean and Pauline exceptions (Matt. 19:9; 1 Cor. 7:15,16) provide a scriptural trajectory towards the CofE’s pastoral accommodation of re-marrying the divorced in church in exceptional circumstances. In contrast, there is no clear scriptural trajectory for the Church to follow in reversing its position on same-sex sexual relationships in order to affirm them as marriage.

            Nonetheless, we wander into hypocritical and borderline homophobic territory when we generally distinguish couples which do not meet the ‘one man with one woman’ marriage criterion (due to same-sex coupling) from those which do not meet the other criterion: ‘to the exclusion of all others on either side’ (due to earlier divorce), by claiming that the latter are otherwise sound and well-constituted.

            Apart from exceptional circumstances and the acknowledgement that divorce is a breach of God’s will, church teaching does not sanction re-marriage any more than it approves of same-sex sexual relationships.

          • I am not in any way trying to defend divorce after remarriage. But the claim of equivalence between the two ‘marriage criteria’ as you call them is spurious, and plays right into revisionist hands. There isn’t a list a criteria of equal weight in our consideration of what constitutes a well-constituted marriage, so that if we flex on one then, for consistency (and to avoid being ‘homophobic’) we must flex equally on the others also. That is simply not the right way to understand what marriage is. The fact that marriage is between a man and a woman is so basic to marriage that it isn’t even the same concept if that feature is gone, just as coitus is not coitus if it is not between a man and a woman. There are other features of marriage which are part of church teaching on marriage but which are not so basic to the concept as to mean their absence would make it not marriage (even if we would not call it Christian marriage) – such as being monogamous, exclusive, and between consenting adults. The OT recognised marriage as including polygamous and non-exclusive arrangements (e.g. with concubines) but the NT happily does not bring those within the scope of Christian marriage. Even so, it is quite proper to recognise that marriage is of its essence between a man and a woman, in a manner much more basic than that it is between those who have not been previously divorced. Thus the claim that to provide pastoral accommodation on the latter requires equivalent accommodation on the former fails.

          • Others will make what they will of your contrast that marriage is between a man and a woman is so basic to marriage byu comparison with to the exclusion of all others on either side..

            I have only reversed my decision to end our exchange in order to correct your ‘straw man’ refutation:
            ‘the claim that to provide pastoral accommodation on the latter requires equivalent accommodation on the former fails.

            Perhaps, you can point reader to where I made this claim, since I wrote earlier: ‘a scriptural trajectory towards the CofE’s pastoral accommodation of re-marrying the divorced in church in exceptional circumstances. In contrast, there is no clear scriptural trajectory for the Church to follow in reversing its position on same-sex sexual relationships in order to affirm them as marriage.

            What I did state was: The CofE accommodation is that ‘there are exceptional circumstances in which a divorced person may re-marry in church., while admitting that divorce is a breach of God’s will.

            That accommodation cannot be the basis for treating serial re-married clergy more leniently than same-sex married clergy

            So, perhaps, you can address that instead.

          • Sorry David, I didn’t mean to imply that you had been arguing that. I was just responding to that argument which you had mentioned people make.

            I don’t think serial divorcees should be treated leniently. But if, regrettably, they are it still doesn’t follow that therefore we must treat some other category of error equally leniently. That just doesn’t follow. The chief reason in this case is that lenient treatment of serial divorcees is a relaxing of current accommodation for divorcees , whereas same sex marriage is a whole new category of error. And indeed, it is a category error.

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