Peter Ould comments: The Employment Tribunal hearing the case of Jeremy Pemberton against Bishop Richard Inwood has delivered its verdict, dismissing all the claims made. The case revolved around the refusal of a licence to Jeremy Pemberton for a new hospital chaplaincy job on the grounds that he had entered a same-sex marriage. Pemberton claimed for discrimination and harassment.
The Tribunal judgement makes a number of precise observations:
1. It is very clear that the doctrine of the Church of England is that marriage is between a man and a woman and not between two people of the same sex. Notions from Pemberton’s team that the meaning of marriage changes over time were dismissed. The idea that, since Canon B30 doesn’t explicitly forbid same-sex marriage, Pemberton wasn’t breaking it was ruled a nonsense by the Tribunal. The Tribunal pointed out very clearly that at the time of the framing of B30 homosexuality was illegal, so it was ridiculous to assert that the framers of that Canon would have had a positive view of it, given half a chance (para 188).
2. The majority of the case rested on whether the Church of England had an exemption under Schedule 9, Section 2 of the Equality Act 2010. The Tribunal ruled very clearly that such an exemption clearly operated in this case. As para 151 of the ruling says:
The point being that if there is a clear doctrine relating to the nature of marriage and which excludes same sex marriage for the purposes of the Church, rather than the State, and that doctrine requires obedience from the Priest by way of Canons, then that is an end of the matter for our purposes.
3. The Church of England (and Bishop Inwood) was found to have been consistent in the way they handled the matter and that the process was not arbitrary.
4. The claim for harassment was dismissed on the basis that the Church carried out the processes it went through with no malice. Certainly the Church made no effort to create any publicity around the case (unlike the claimant whose husband make several public statements) and any distress that Pemberton felt was not actionable because the Church kept well within what it was permitted to do by law.
The judgement is worth reading in its entirety as it explores in detail all the legal issues raised far beyond what we have space here to describe.
What next? It is possible that Pemberton will appeal, but it’s not clear on what grounds. With such a clear ruling, Pemberton’s legal team would have to strike a fatal blow at the Schedule 9, Section 2 exemption in the Equality Act that the Church of England has. Such a blow would have far reaching consequences for the Church of England and is likely to be vigorously defended. Sources within the Church of England hierarchy have told me that the case has been quite expensive for the Church so far and whilst they may be willing to bear that cost themselves given the importance of the need for such a test case to be heard and to offer a sign of grace to Pemberton, it’s very likely that they would insist that any appeal costs should be borne by Pemberton if he loses again.
One thing is for sure. Based on this judgement no Church of England priest or deacon who entered a same sex marriage could expect to receive a licence or PTO for any post they applied for after they contracted their marriage. If Pemberton appeals and loses, that appeal would then form a clear legal precedent (at the moment it is just an observable case) further strengthening the position of the Church of England.
The ruling yesterday is one more component of the ongoing discussion around sexuality in the Church of England. It tells us that there are no legal obstacles in the Church of England holding on to its current doctrine of marriage and it shows that the very clear guidelines the House of Bishops have agreed around same sex marriage and the clergy are legal and enforceable.
My own reflections on reading the judgement:
In reading the judgement yesterday, I was impressed with the degree to which the judge had engaged with documents and discussion in the Church—a discussion which some within the Church are finding hard to follow. There were some small mistakes (at one point calling Synod ‘Senate’, and suggesting that clergy can ‘bless’ civil partnerships), but there was extensive citation from canon law, from the House of Bishops’ statements, and from discussion documents including the Pilling Report. There is always a danger that too much weight is given to ‘reports’—which have in fact no formal status within the Church unless something else happens to them. But the conclusion of the judge was striking: the Church is in the process of a debate about these issues, but that debate notwithstanding, the Church does have a position on same-sex marriage, and that position is both clear and consistent.
The second interesting feature was the extent to which the judge explored the correspondence between Pemberton and the two relevant bishops—Richard Inwood, Acting Bishop of Southwell and Nottingham, and Christopher Lowson, Bishop of Lincoln. The fact that Pemberton continues to hold a licence in Lincoln was interpreted by many as indicating that Lowson took a more lenient view of Pemberton’s marriage than Inwood, and that in turn undermined any sense of coherence in the Church’s position. In fact, the opposite appears to have been the case; the judge cites the rebuke from Lowson as supporting evidence of the Church’s coherent and consistent position.
The correspondence also demonstrated that the actions of both bishops could not be construed as vindictive in any way, and that was significant in dismissing the claim of harassment. It was also pertinent that Inwood was new to the post; this might have seemed like a fatal disadvantage, but in fact the judge interpreted this as demonstrating that there was no long-standing or personal animosity motivating him. Pemberton’s suggestion that the Church teaching which Inwood was following ‘was of doubtful legality’ appears to have counted against him.
I was very concerned at the time of the tribunal about Inwood’s concession (under cross-examination) that the Church’s doctrine was a ‘busted flush’. But it was striking that this specific issue is revisited in the judgement, and the judge in effect contradicts Inwood’s own comment; the doctrine on this matter appears consistent, and has quite clearly shaped bishops’ actions.
Also striking was the dismissal of historical arguments from Alan Wilson, that Canon B30 did not know of same-sex marriage and so could not be appealed to. The judge dismissed this as patent nonsense based on fairly straightforward understanding of the historical context. (There is of course a parallel here with arguments that ‘If only St Paul had known about faithful same-sex relations, he would have approved of them.’)
On the question of whether the tribunal could rule in this case, given that the Respondent was a bishop who was not, in any sense, an ’employer’, the judge offers a clear exploration of the dynamics of the relationships. Although the NHS Trust is the employer, a chaplain is being employed to act, for at least part of the time, as a Church of England priest in good standing with the diocese. To the extent that the tribunal can speak to this is the extent to which the Church is then exempt from the Equalities Act in regard of this role.
The judgement portrays Pemberton as fully aware of all of this throughout the process. Not only is the Church’s teaching clearly and consistently expressed in its own documents, this teaching was communicated to Pemberton by both bishops, and the consequences of his action was clearly spelled out at each stage. There are some important lessons in good communication to hold on to here!
Expressed as it is, this judgement feels to me like a breath of fresh air bringing clarity to the situation (which is the best that the bishops concerned and the Church could have hoped for). The Church has a doctrine. In law, it is free to believe this. In the light of canonical oaths of obedience, clergy are obliged to honour this. I don’t think there is any sense in which this will initiate a ‘witch hunt’ against clergy in same-sex relationships. But bishops will feel confirmed in freedom—nay, obligation—to refuse a licence to anyone who does not conform to this teaching.
Not surprisingly, Pemberton has said that he will appeal. But it is worth pausing to reflect on the implications of this. Although the presenting issue is same-sex relationships, what the Tribunal was actually about is whether or not the Church has freedom to define its own doctrine. If this is overturned, then we would be entering a period where the State dictates to the Church what it may or may not say and believe. It is also worth thinking about the money involved. I suspect Pemberton has some wealthy supporters who have an ideological goal to pursue and are prepared to invest heavily in this. For the Church, the money comes from the Church Commissioners. Money spent on legal fees is money that will not be available to support ministry in dioceses. On neither grounds does an appeal seem like a good way to go.
Previous posts on this case:
Is wrong doctrine harmful? (June 2015)
Law suits and same-sex marriage (Sept 2014)
The end of ‘Don’t ask, don’t tell’ (May 2014)