Pemberton v Inwood: judgement day

_76182996_tpjeremy3Peter 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.

new-peterThe 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:

Jeremy Pemberton v (Acting) Bishop of Southwell and Nottingham (Sept 2015)

What is at stake for the church and same-sex marriage (July 2015)

Is wrong doctrine harmful? (June 2015)

Briefing: the Jeremy Pemberton Employment Tribunal Case (June 2015)

Law suits and same-sex marriage (Sept 2014)

The end of ‘Don’t ask, don’t tell’ (May 2014)

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58 thoughts on “Pemberton v Inwood: judgement day”

  1. Peter,

    Thanks for your really helpful analysis and summary. It serves as the basis for reflecting on one of the momentous decisions in the Church’s legal history.

    In 2013, during the Committee Stage of the then Same-sex marriage bill, my memorandum to the committee quoted Professor Ian Leigh of Durham University.

    I wrote: ’12. If, as the EHRC submits, Clause 2 must be amended in line with the European Convention on Human Rights to do no more than protect clergy and authorised persons from the legal compulsion of the couple alone, it is because the EHRC believes that there is no prospect of successfully protecting individual ministers from the compulsion of the religious organisation that opts in to same-sex marriage.’

    13. Professor Ian Leigh of Durham University wrote in Balancing Religious Autonomy and Other Human Rights under the European Convention – Oxford Journal of Law and Religion ( ):

    ‘It might be thought that domestic courts are free to grant additional constitutional protection against non-governmental bodies where Strasbourg would not do so but even this raises potential difficulties. Religious organizations have Convention rights of their own and to tip the balance too far in favour of the individual at the domestic level could leave the state open to challenge by the organization at the Strasbourg level.’

    The tribunal’s decision also shows that the converse is also true: there is no prospect of successfully protecting individual ministers from the compulsion of their religious organisations that opt *out* of same-sex marriage.

    Should the Church’s doctrine be revised to accommodate a gender-neutral understanding of Holy Matrimony, the law as it stands cannot protect individual dissenting ministers from the compulsion of the Church.

    The judgement itself reminds me of Gallio dismissing the case against St. Paul: ‘Just as Paul was about to speak, Gallio said to them, “If you Jews were making a complaint about some misdemeanor or serious crime, it would be reasonable for me to listen to you. But since it involves questions about words and names and your own law—settle the matter yourselves. I will not be a judge of such things.” So he drove them off.’ Acts 18:14 – 16

    • Karen,

      As far as I’ve been able to ascertain, the ordination of the re-married is by faculty of the bishop. Through the Clergy Ordination Measure (1990), amending Canon 9 amended Canon C4 with the following sections:

      ‘3. Subject to paragraph 3A of this Canon no person shall be admitted into holy orders who has remarried and, the other party to that marriage being alive, has a former spouse still living; or who is married to a person who has been previously married and whose former spouse is still living.’

      ‘3A. The archbishop of the province, on an application made to him by the bishop of a diocese on behalf of a person who by reason of paragraph 3 of this Canon could not otherwise be admitted into holy orders, may grant a faculty for the removal of the impediment imposed by that paragraph to the admission of that person into holy orders, and any request made to a bishop for an application to be made on his behalf
      under this paragraph shall be made and considered, and any application made by the bishop to the archbishop shall be made and determined, in accordance with directions given from time to time by the Archbishops of Canterbury and York acting jointly.”

    • The practice is that it is still regarded as a serious impediment to ministry. Candidates for ordination have to undergo a pastorally painful process of scrutiny and the granting of a special licence. The Church has not changed its position that marriage is for life, and that divorce is a failure and a serious breach of this—and is often criticised for doing so.

      However, being divorced is not a denial of canonical vows of obedience—so I wonder why you think it is of relevance here?

      • I have a lot of US friends who constantly – and rightly, IMO – raise the question of why their churches happily swallow remarriage after divorce but balk (much more savagely than ours) at same-sex marriage. The Romans, of course, are admirably impartial in denying marriage of any sort to clergy, full stop.

        I have never to my knowledge (it’s not the first thing you ask) personally met a CoE minister who was a remarried-divorcee-with-first-still-living, but the next Supreme Governor of the CoE is in that position, and I have met a remarried member of the congregation who claimed to have been Bishoped elsewhere. It simply struck me as an opportunity to find out what the English practice and legal position actually is with regard to the ministry, and how the two similar ?impediments compare. It’s rather amusing to this mere sheep to find that it requires a “faculty” – the same thing you need to take out the pews or put in a kitchen 😀

        One wonders whether the “faculty” get-out could also be used for gays – although it looks to me as though the backers of this action wouldn’t be satisfied with that.

  2. I would give 2 cheers for this result. The absence of the third cheer is for 2 reasons:

    1) While Peter’s clear summary gives a picture of a judge who is able to be objective and is capable of investigating the peculiarities of Church law and practice for himself, one cannot assume that this will always be the case. The ‘gay cake’ judgement in Northern Ireland was an example of a judge who badly failed the test of objectivity. Moreover, experience in the USA is now regularly very much worse in this area of judgement and I would not hold my breath expecting that the British judiciary will not follow that trend.

    2) The CofE could well undermine its own legal protection if it ever voted (for example) to allow blessings of gay couples at the discretion of local vicars. This would immediately destroy the argument that the Church’s position is unambiguously and universally clear and would therefore render a local vicar who refused to give such a blessing as open to the charge of discrimination for reasons of personal prejudice. Who could guarantee that members of the judiciary would therefore rule in favour of the vicar? In the light of current equalities legislation ‘good disagreement’ can only advantage one side and we all know which side that would be.

    However, at this point our church has not lost its protection. It is therefore an ideal moment, and possibly the final moment, for our two Archbishops to spell out their position (as leaders) in defence of the orthodox and Biblical position on same sex relationships and to warn of the irreversible consequences for the church if it should proceed to undermine that position in any way.

    • Thanks Don. I think you are broadly right. However:

      1. The US judiciary is appointed politically, whereas in the UK the relationship is different.

      2. Many people thought that the retention of a licence in Lincoln would prove to be a fatal inconsistency, and it is interesting that it wasn’t.

      3. Few people seem to realise the massive consequences if canon law no longer stands as having independent legal status in the UK. In places where the church has to submit to the whims of the state we call that totalitarianism…

  3. Ian, I haven’t really followed this in detail. I found it curious that Jeremy Pemberton is still licensed in Lincoln diocese. What’s the story behind that?

    • The story is that it is very easy to withhold the granting of a licence when there is a clear breach of behaviour—but it is very difficult to remove a licence which had previously been granted. The only route is for someone to initiate a complaint under the Clergy Disciple Measure (CDM). This was originally designed to be a simpler process than going through the Ecclesiastical Courts, but it has not proved so.

      The Bishop of Lincoln rebuked Pemberton but did not initiate CDM, as the judge notes in the judgement. Doing so *might* have looked like a vendetta… Does that help?

  4. No-one wins. Institutional hypocrisy and ‘don’t ask, don’t tell’ are reinforced as the preferred position. Cohabitation is preferred to marriage.

    • Have you been aware of instances of dissembling Jonathan? If you were, what should have been done about it?

      Surely, whatever cost there may be to an individual personally, simple integrity requires that someone who proposes to devote his or her life to God by being ordained starts out that life honestly or not at all. Is that much not also expected of the lowliest perspective employee in the secular world?

      • In this case the bishops and many others were aware that Jeremy was already in a same sex relationship (I believe evidence to this effect was submitted). However, this did not cause any type of rebuke. On marriage becoming a legal option, Jeremy married his partner. This was the occasion of the removal of PTO and refusal to grant a licence. Jeremy has been open throughout. The clear message to others is that the hierarchy would prefer you to live with your partner or be in a civil relationship with your partner to your being married. Tell me this isn’t hypocrisy. The organisation punishes honesty.

        • That’s nonsense and I think you know it Jonathan.

          ‘However, this did not cause any type of rebuke.’ Indeed; conservatives were unhappy with that, but this lack of action demonstrated very clearly to the judge that there had been no discrimination against Jeremy because he is gay.

          The problem with granting a licence was that he had knowingly, after clear warning, disregarded his oath of obedience to his bishop. It’s not honesty, but dishonesty and failure to abide by the church’s teaching that has been ‘punished’–if that is the word for appropriate discipline.

          • Ian, can I ask you to withdraw the term ‘dishonest’ regarding Jeremy’s actions. It is reasonably clear from the tribunal that he thought that the bishops had no legal right to ask him not to marry (hence the citation of the 39 articles) and that he was not therefore being disobedient to his oath. The tribunal disagreed, but this does not make him dishonest (which implies deliberate deception).

            There is (I understand, I am not a lawyer) a whole set of case law around canonical obedience that the tribunal did not consider. It is even possible that this may be part of the grounds for the appeal.

            You are at liberty to call him wrong, foolish, etc (time and the appeal will tell), but dishonest is a slur on someone who has been utterly open about his situation throughout.

            Incidentally, the lack of action wasn’t just over Jeremy being gay, the lack of action was over Jeremy being gay and being in a committed, long term relationship. If Jeremy and Laurence had chosen a civil partnership, Jeremy would be a chaplain in Southwell diocese and none of this would have happened. Please tell me in what way this is not utter hypocrisy (I am not blaming the individual bishop here – I think it is an indictment of the whole of the Church of England, myself included).

          • Jonathan,

            An interjection.

            By the same token as yours, the bishop thought he had a legal right to withdraw a PTO as a part of consistently upholding the Church’s stated doctrine of marriage and maintaining the discipline of holy orders.

            The tribunal agreed, but it does not make the CofE ‘punitive’ in permitting the withdrawal of a PTO on the above basis.

            It is not hypocrisy to oppose the gender-neutralisation of the marriage institution (the canon law, previous statute and case law of which unambiguously connote an opposite sex sexual relationship), while admitting that there is no shared social meaning by which the Church could infer the existence of a same-sex sexual relationship from the mere fact that a couple is civil-partnered.

            It’s therefore an unfair slur to charge the church with being hypocritical and punitive. You should withdraw it.

            Since the Equality Act 2010 was passed, in every sexual orientation discrimination case, there has been exhaustive judicial scrutiny of whether the defendant acted fairly and consistently.

            This is one of very few cases in which the defendant’s behaviour, as measured by the judge’s understanding of the Equality Act and related case law, has been completely exonerated. That fact alone speaks volumes.

          • You can ask. If I say to my kids ‘You shall do thus and thus’ and they say to me ‘You are no good as a Dad; you don’t have any right to say anything; we think you are stupid, and we are not going to do what you say’, they might be being ‘honest’ about their feelings and convictions, but this can hardly be characterised as an ‘honest response’. Still less should we celebrate this as virtuous.

            ‘If Jeremy and Laurence had chosen a civil partnership, Jeremy would be a chaplain in Southwell diocese and none of this would have happened.’ So can you explain to me why he didn’t?

          • The law regarding canonical obedience (as I understand it) is: ‘canonical obedience does not mean that the clergyman will obey all the commands of the Bishop against which there is no law, but that he will obey all such commands as the Bishop by law is authorised to impose’.

            Jeremy clearly believes that the bishop does not have authority in law to command him not to legally marry. I repeat, this is an entirely honest position.

            If you say to your daughter “you shall not marry so-and-so” and she disregards you (assuming your daughter is over 18) then it is a different matter from saying “you’re stupid”.

            I don’t know why Jeremy and Laurence chose marriage over a civil partnership. I seem to recollect that it was planned before the bishops issued their guidance. But you would have to ask them that, and I don’t see how it alters the point that the church’s stance is in practice deeply hypocritical.

  5. Absolutely Jonathan. Presumably people like Ian and Peter would prefer other people to live lives of hypocrisy and shame rather than have a proper debate about the place of legally married people in the Church of England.
    Increasingly the C of E position is unsustainable. As we now marvel that women in Switzerland only got the vote in 1971, we will marvel in 40 years time at this ruling which has prevented, for the time being, legally married people in the Church of England being ordained.
    The parallel with divorce has been made in comments here. It’s interesting to note that it was quite a ‘traditional’ Archbishop – Michael Ramsey – who led the campaign to stop homosexuality being regarded as a crime in law. He also supported ‘ no fault ‘ divorce.

    • No it WASN’T 1971 –
      You have made the profound and clear mistake of calling Switzerland one country when it most certainly is not, even now.

      By your measure the first country in Europe to give women the vote was Switzerland (Geneva and Basle) and the last country in Europe to given the vote in Europe was Switzerland (Appenzell / Inner Rhoden). It makes quite a good pub quiz question.

      Unfortunately it is mired in the real complexity of “votes for what” as every country in Europe is. Nonetheless Switzerland is NOT a single country but a federation of countries (if you were to live in Switzerland then in some languages they are called cantons). If one accepts that votes had restrictions for everyone then the first country in Europe to give limited votes to women was Geneva and the last country in Europe to give women the vote was Inner Rhoden (in the region of Appenzell).

      Your 1971 date only ever referred to Inner Rhoden and never ever to Switzerland.

      It is much more complicated when you ask which countries gave women the full vote because none of them did with their first reform, anywhere in Europe.

      • Clive: the point is that it now looks ridiculous – completely ridiculous – that women were ever denied the vote, anywhere, anytime. Or that they were sacked for getting married, or not allowed to graduate simply because they were women. The same will be true in this case, looking back. Completely ridiculous.

        • Men were denied the vote as well, only the nobility had votes, the whole thing developed over a long time so it is really time that you got a proper perspective on it all.

        • No, it doesn’t – I wonder if you have studied the history of ‘democracy’? Democracy in ancient Athens wasn’t accorded even to every man: slaves and metics were excluded. And in Britain in the 19th century, women property owners actually had the vote in local elections (until this was taken away under ‘reform’ acts) while men without property didn’t. However strange it may look to us in our day of 97%+ literacy, most ages have always considered there had to be some minimal qualification for voting: citizenship, property, minimal education or minimum age, not to mention some moral qualification (mental stability, not being a felon etc). The current push to reduce the voting age to sixteen – to children – bewilders many of us. Power without responsibility? The very argument of the Suffragists was that women were better educated and more economically active than in the past and could not now be refused the vote.

          • Of course it all developed over time Brian and Clive. The point is that in retrospect we see that gender and class should not have been a bar to education or voting rights. The same will be true in this case.

      • For those interested the most important government unit in Switzerland is the Gemeinde which is the town or village council. The secondary unit of government is the country’s or canton’s parliament. The lowest and least important government unit is the federal parliament in Bern or Berne. It’s upside down to the rest of Europe.

        Geneva was the first to give women the vote in the Gemeinde but Basel-stadt gave both the Gemeinde and cantonal vote to women at the same time so they have a claim to be first. But Basel is itself a half-canton and Basel-land, the other half of the canton, came later. Basel-Land didn’t follow Basel-Stadt until 1968. At a cantonal level Vaud came earlier than Geneva for the french speaking cantons for giving the women the vote in both the Gemeinde and Cantonal parliaments.

        The federal parliament giving women the vote left several cantons in the odd position that women had the vote for the least important federal parliament but neither for the Gemeinde nor for the Cantonal government. The very last to give women the vote was Inner Rhoden in Appenzell.

        If one considers voting properly then we discover that even men didn’t get the vote universally in many European countries until after the second world war.

        • Clive – quite so. Andrew doesn’t grasp the actual historical complexity of issues such as suffrage and the *very tortuous evolution of democracy and property rights and reduces them to simplistic binaries or ‘right’ and ‘wrong’. Nobody doubted the authority of a woman when Good Queen Bess sat on the throne!

          Andrew’s naïve Hegelianism – ‘the triumph of progress’ – has nothing to do with Christianity, which is posited *entirely on the words and works of our Lord Jesus Christ. Andrew KNOWS that Jesus, who for creedal Christians is the infallible incarnate Son of God, would NEVER have countenanced a homoerotic relationship (of which there were very many in Greco-Roman world – trust me, I teach Classics!) as being anything less than gravely sinful in the eyes of God. So liberals in their bespoke religion ignore what Jesus said and did and deal in vapid abstractions about ‘the march of history’ and so on. We have seen this march often enough and the boots it frequently wears. Andrew: read the words of Christ and His Apostles if you want your thinking to be authentically *Christian”.

    • Andrew, you would like to ‘have a proper debate about the place of legally married people in the Church of England’? Great. That is happening; it is called the Shared Conversations.

      This legal action sought to drive a coach and horses through the proper process in the Church—as I suspect you are well aware.

      What i really dislike is the hypocrisy of comments like this, and those made by Alan Wilson—’the church is a laughing stock, this is a colossal waste of money.’

      If he believed both those things, and had a shred of integrity or genuine concern, he would not have contributed to this media circus.

      • I have said for years that the problem was caused by the Church of England allowing its clergy to enter civil partnerships in the first place. The failure to draw a line at this allowed a ‘grey area’ to develop. The Church was badly let down by Rowan Williams. It should have imposed its own clergy discipline measure on this. The Christian faith and the Church of Christ are rarely well served by connivance in ambiguity and in a state of affairs never entertained by the Apostolic Church, the Church of the Fathers or the Reformers – the claimed spiritual antecedents of Anglicanism. Instead, under Williams, it capitulated to infidelity – advised by lawyers, of course.

      • Ian: the point of the shared conversations, as I think you are well aware, is not to have the debate but to encourage mutual respect and listening that will lead to good disagreement. They were put in place so that we could avoid the debate.

  6. I feel similar to many above, but nonetheless remain caught between two competing emotions.

    On the one hand I am both pleased and optimistic that the judge’s verdict has been objective and thorough, considering a wide pool of evidence from a variety of sources and that the tribunal have supported this decision in full. I am especially pleased that (for now at least) the church’s, for want of a better word, “sovereignty” has been upheld and that while it cannot be considered a precedent yet, I am confident that, following an unlikely appeal, it will become so. I am doubly pleased that the so often-attacked integrity of the bishops has been vindicated in a very public way.

    However, I am very cynical.

    While I can be confident and pleased in this result, I sincerely doubt that every other judge an issue such as this comes before will think and act with like manner. I am also wary of the pressure certain groups can levy onto the debate, as Ian rightly says this could become almost an issue of resources, one that church infrastructure alone is unlikely to win. Could it be that conservative interest groups could thrown their financial weight in? Possibly, but it’s the legal equivalent of sticking your head above the trenches.

    Great article though, thanks.

  7. Andrew Godsall may think he will be around in 40 years’ time to welcome his brave new world, but I am pretty sure I won’t. But if I was, I am sure I would find the C of E had largely disappeared from the land, while Islam had ensconced itself as the majority in numerous areas.
    Germany will be further down the road on this.
    If Andrew thinks this is ridiculous, it’s only because he doesn’t show much sign of understanding demography. Put simply: people without kids get old, die, disappear.
    As for Michael Ramsey: he was a disaster for the Church who hailed the rise of communism in Africa and Asia but had no understanding of what the world was becoming – or that his church was on the path to extinction.

    • Highly unlikely I will be around in 40 years time Brian. But I hate to point out that you already live in the brave new world: Gay and Lesbian people CAN get legally married now. Did you miss that? And C of E clergy CAN live together in civil partnerships. Did you miss that too?
      And strangely, people WITH kids get old, die and disappear. Or had you missed that biological fact too?

  8. Andrew, do you think I really care – sub specie aeternitatis – that two men or two women can go through a ceremony can call it “marriage”? I know that it is not and never can be Christian marriage, marriage as my Lord Jesus Christ ordained it: ‘For this reason a man shall leave his parents and cleave to his wife and they shall become one flesh.’
    You can make up any bespoke beliefs you like – but they are not the teaching of Jesus Christ and His Apostles.
    That’s all that matters to me. I am not interested in man-made religion, though I expect to be troubled by man-made persecution. Jeremy Pemberton should have been suspended from Holy Orders for his disobedience first to his marriage vows, then for entering a same-sex relationship.
    If you have studied Church History in any depth, then you will know that apostasy has happened in every age from the Apostles to the present – although no apostate ever things that he or she is one; only that he or she is more enlightened about the truth than others. That’s the essence of Liberalism.
    And I’m sure you understood my point: that those who have children AND pass that faith on are likely to pass on a church that will live. But look around at the grey heads in most Anglican churches – and cathedrals – and calculate how long before foreclosure happens. It is already very advanced in TEC. But I suspect you knew that already.

  9. The judgment is interesting as it contains finding of fact (beginning at section 25) and refers to the oaths made at ordination which are in sections 33 and 34 of the judgment.

    It shows that a minister of the Church should believe in the doctrines of the Church, should believe in Scripture and should believe in the creeds and the quoted section is in the name of the Claimant. It shows that the Claimant accepted the Book of Common Prayer and the XXXIX articles of the Church of England in writing.

    The judgment found that the Claimant does not accept the Book of Common Prayer’s marriage service or the Doctrines of the Church as both refer to marriage as only between a man and a woman for the creation of a natural family. Similarly Canon B30 makes clear that marriage (between a man and woman) is our Lord’s teaching which is a direct reference to Scripture.

    Interestingly the Judgment also clarifies for those who have not taken account of it that Canon Law is the law of the land. So when Parliament created Same-Sex Marriage they knowingly left Canon Law of the Church saying that marriage is only between a man and a woman. It is Parliament that has messed up very badly by rushing this through and it is Parliament that has created this gigantic mess blithely expecting the Courts to sort it out for them.

    I share Peter Ould’s concern only because those with money can use the Courts and judiciary to sort out the very mess that Parliament has created. Because Parliament doesn’t care. Any Court judgment is the beginning of a very long, hurtful and awful process.

    Right now the Bishop of Buckingham’s position is untenable because the judgment rules that his evidence was not accepted and yet he spoke against the Church and he also is supposed to uphold the doctrines of the Church and the Scriptures and the XXXIX articles and the Bishop of Buckingham made clear that he doesn’t agree with any of them.

  10. As I said over at Thinking Anglicans, this judgment puts the letter of the law over the spirit of the law, artificially narrowing its scope to absolve the Church of England; and by focusing on one man, it refuses to see the pattern of harassment in the church, as it refuses to see the denial of fair due process.

    Due process isn’t going through the motions; it’s treating people fairly and consistently. It must be substantive or it’s nothing.

    In this tribunal, Lady Justice is blind to injustice, dumb to it in her ruling, and her scales are trampled underfoot as she walks away from her sword, left sheathed and grown dusty, not to be visited on wrongdoers who she’s acquitted on a technicality.

    Jeremy’s hopes lie with an appeal, but so too do hers.

    • Great poetry James—but lousy logic.

      You seem to think the job of the tribunal was to make lofty, generalised statements about the unjust lot of gay clergy. It wasn’t.

      It was there to judge on the particulars of one case. And in that case, the Church had a position, it had communicated it clearly, its bishops had acted on it consistently, and the complainant had ignored this position wilfully. (I am not here making a judgement, simply summarising what the judge concluded.)

      One key question was whether the Church’s exemption to the Equality Act applied, and to the extent that the Church was an employer, it did.

      All that is not merely ‘technicality’ as you wishfully think; it is the substance of the case.

      • Thanks for the complement on style, Ian, but logic’s just rosy also.

        The grounds for the ruling were due process: whether the Church of England’s treatment of Jeremy was a proportionate and reasonable means of enforcing agreed doctrine; and not only whether it failed in that aim, but whether it failed so egregiously that it amounted to harassment.

        Jeremy was denied due process. His treatment was arbitrary, varying from one diocese to another; it was needlessly harsh; and church doctrine isn’t at all clear, resting as it does on a Synod vote from the late ’80s, and the bishops inventing policy on the fly. The dishonest acceptance of civil partnerships as “friendships,” and the widespread turning of blind-eyes to gay relationships, just drive home the point that theory is at-odds with practice, that hypocrisy and realpolitik rule the day, with arbitrariness their poisoned fruits.

        Setting the question of harassment to one side for now, on due process grounds alone, the tribunal could, and should, have upheld Jeremy’s claim.

        • James you said:
          “Jeremy was denied due process. His treatment was arbitrary, varying from one diocese to another; it was needlessly harsh; and church doctrine isn’t at all clear, resting as it does on a Synod vote from the late ’80s, and the bishops inventing policy on the fly. The dishonest acceptance of civil partnerships as “friendships,” and the widespread turning of blind-eyes to gay relationships, just drive home the point that theory is at-odds with practice, that hypocrisy and realpolitik rule the day, with arbitrariness their poisoned fruits.”

          … but that is entirely your view and is not supported by the tribunal at all who examined all of the evidence extensively. The certainly don’t accept that Canon Pemberton was denied due process at all.

        • The word is ‘compliment’. No, your statement is complete nonsense. Jeremy Pemberton chose to disobey a clear episcopal instruction, then he brought the vexatious action against Richard Inwood, who had no contract of employment with him.

          This has nothing to do with a ‘pattern of harassment’ or any other phrase you toss about.

          The Church doctrine of marriage is VERY clear; it is in the Book of Common Prayer. Those who now repudiate that doctrine which they swore to uphold (as Pemberton did when he was ordained and when he was married to his wife and the mother of his children) should resign their orders form the Church of England, instead of hypocritically pretending to maintain it.

          • Brian, please can I ask you to withdraw the term ‘vexatious’ which has a particular legal meaning.

            The tribunal clearly found that Jeremy did have the right to bring an action against the bishop, as the bishop was, for these purposes, a qualifying body, and thus entirely within the scope of employment tribunals. The lack of a contract of employment has nothing to do with it.

          • Brian, you may not like the fact that I brought an action against Richard Inwood, but whatever it was it was not – despite a number of correspondents on Ian’s blog claiming it was – vexatious.

            If it was it would have been thrown out. Several of the usual suspects pontificated that it would be – it wasn’t. Then people opined that it would never get to court – it did. The ET has ruled against me on the heads of claim, but my lawyers are preparing grounds of appeal. You will tell me that there is no chance that an appeal will be heard. We will see.

            But withdraw the work vexatious – it is inappropriate and insulting.

          • Jeremy,

            Tell you what: why don’t I join you in asking Brian to withdraw the wholly inappropriate characterisation of your case as vexatious?

            But that’s on one condition: that you join me here in also urging James Byron to withdraw the accusation that the Employment Tribunal denied you due process and was arbitrary.

            It’s way cheaper than either of them being threatened with a potential lawsuit for defamation of character.

        • “Jeremy was denied due process. His treatment was arbitrary, varying from one diocese to another; it was needlessly harsh; and church doctrine isn’t at all clear”

          The Tribunal disagreed with you on every single one of these points.

          What is your case here?

        • James, your assertions are factually in error at every point.

          ‘His treatment was arbitrary, varying from one diocese to another;’ No it wasn’t, and the judge drew attention to this. Both bishops said clearly that his action was in contravention of church teaching and canonical obedience. Refusing a licence is not symmetrical with removing a licence, as most clergy here know very well, so the difference here is not a difference of treatment.

          ‘ it was needlessly harsh;’ Not at all. The judge noted the care with which the process happened, and that Inwood had little choice but to implement recently stated policy.

          and church doctrine isn’t at all clear, resting as it does on a Synod vote from the late ’80s,’ That is amazing nonsense, as the judge noted. The material cited was mostly Canon law and its citation. It depends not a whit on any Synod motion.

          ‘ and the bishops inventing policy on the fly.’ Not in regard to SSM. The Feb 2014 statement was carefully crafted to cite all previous documents.

          ‘ The dishonest acceptance of civil partnerships as “friendships,” and the widespread turning of blind-eyes to gay relationships, just drive home the point that theory is at-odds with practice, that hypocrisy and realpolitik rule the day, with arbitrariness their poisoned fruits.’

          This is the one point where I might agree with you—but this was at the behest of liberals, not conservatives.

          • Peter, of course I disagree with the tribunal; just as, I suspect, most everyone else here disagrees with the judgment of a near-unanimous federal bench on the constitutionality of same-sex marriage. I’ve given my reasons, on which I elaborate below.

            Ian, the tribunal took most of what the bishops said at face-value, didn’t show an in-depth appreciation of how Anglican doctrine is formed, and when it comes to equivalence between granting and denying a license, were weak.

            Yes, denying and withdrawing a license are different things, but as penalties for misconduct, they’re not unconnected: if a priest were, say, caught stealing church funds, we’d expect the CDM to be invoked. That it hasn’t been here indicates that Jeremy’s conduct is seen by at least one bishop as a minor infraction. The tribunal’s explanation for why Inwood didn’t simply rebuke Jeremy is, well, there isn’t one, really. It just mentioned that the bishops had set out a position (a position that has little if any force under canon law). Throughout, it fails to assess the reasonableness of the church’s actions.

            If Jeremy’s appeal fails, an alternative course would be to ask a court to strike down … sorry, “disapply” the relevant sections of the Equality Act, for failing to properly implement the relevant EU directive.

          • “If Jeremy’s appeal fails, an alternative course would be to ask a court to strike down … sorry, “disapply” the relevant sections of the Equality Act, for failing to properly implement the relevant EU directive.”

            Which would be a HUGE constitutional issue in England and Wales.

          • James,

            Forget the ‘appropriate EU directive’ angle, The ECtHR case law on this is clear and demonstrates that any attempt to ‘disaaply’ the Equality Act’s religious exemptions would be an interference with the Article 9 rights of a religious organisation..

            There’s also a margin of appreciation that the ECtHR would appliy. So that other ship has long sailed too.

  11. Paragraph 180 of the Judgment shows by quotation that clergy should strive to embody … the teaching of the Church.

    Paragraph 183 then quotes Canon B30 that “The Church of England affirms, according to our Lord’s teaching, that marriage is in its nature a union permanent and lifelong, for better or worse, till death them do part, between one man and one woman.”

    Paragraph 184 then quotes the Book of Common Prayer stating that “Dearly Beloved, we are gathered here in the sight of God, and in the face of this congregation to join together this man and this woman in Holy matrimony…” and paragraph 185 goes on using the same Book of Common Prayer to say that the “…man and woman become one flesh”.

    With reference to the importance of Scripture Paragraph 185 also references the Lambeth declaration in brief quoting that “ view of the teaching of Scripture, upholds faithfulness in marriage between a man and a woman.”

    Parliament clearly left all this in place and even in the changed marriage legislation continues to accept Book of Common Prayer marriages as valid even though the “BCP” says precisely what marriage is. Parliament really has messed up very badly. So why are people blaming the Church when it is Parliament that has behaved so badly?

  12. “entering a period where the State dictates to the Church what it may or may not say and believe”

    I think you’ll find that period began in 1534!

    • I don’t think you will.
      If you study the history of that period (1534) I think that you’ll find that group that included Cranmer et al were not dictated to by Henry VIII but were engaged in a compromise between protestantism and the established catholicism.
      You will also find that the Church in England already existed before St Augustine came to England because even the Venerable Bede records that one of the first things St Augustine was to meet the Bishops. Any intelligent person asks themselves that if St Augustine brought Christianity to England then what were these Bishops already in the UK for, and then of course you find St Patrick predates St Augustine. He was a Christian who probably came from northern England and got taken to Ireland.

  13. In 2010, three key House of Lords amendments (98, 99 and 100) to the then Equality Bill 2010 prevented it from narrowing the scope of exemptions that were previously provided by the Employment Equality (Sexual Orientation) Regulations 2003.

    Amendment 98:
    Leave out ‘application is a proportionate means of complying’ and insert ‘requirement is applied so as to comply’
    Amendment 99:
    Leave out ‘application is a proportionate means of avoiding conflict’ and insert ‘requirement is applied so as to avoid conflicting'”.

    These amendments were passed, favouring existing religious exemptions over explicit proportionality tests inferred from the European Commission’s Framework Directive for Equal Treatment in Employment.

    Amendment 100 was also passed and removed the Equality Bill’s far more restrictive exemption: ‘for the purposes of an organised religion”. This contrasted sharply with the broader exemption ‘for the purposes of a religious organisation’ in the 2003 Regulations.

    Amendment 99A, which was defeated, was introduced by the Government in seeking to comply with the European Commission’s Reasoned Opinion that the 2003 Regulations and case law interpretations significantly diverged from its Framework Directive. The amendment read:

    Employment is for the purposes of an organised religion only if the employment wholly or mainly involves—
    (a) leading or assisting in the observation of liturgical or ritualistic practices of the religion, or
    (b) promoting or explaining the doctrine of the religion whether to followers of the religion or to others.

    In particular, it was the rejection of this amendment that shaped the enacted exemptions in the Equality Act 2010. If amendment 99A had been carried, the Employment Tribunal would most certainly have ruled in Jeremy Pemberton’s favour.

  14. Readers of this blog may be interested to learn that, following submission of an appeal application to the Employment Appeal Tribunal, the grounds of appeal have been found to be of sufficient merit for the case to be listed for a full hearing by the EAT.


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