Jeremy Pemberton was married to Carrie and they had five children. They were then divorced and Jeremy later entered into a relationship with another man, Laurence Cunnington. When the Equality Act (Same Sex Marriage) came into law in 2013, Jeremy and Laurence married, even though the Church of England had explicitly stated that this was not an acceptable course of action for those who are ordained. Jeremy resided in Southwell and Nottingham Diocese, where he had Permission to Officiate (PTO) but worked as a hospital chaplain in the Diocese of Lincoln, where he had a licence from the bishop (which is a legally more secure arrangement than PTO). The Bishop of Lincoln, Christopher Lowson, issued a formal rebuke, and the acting Bishop of Southwell and Nottingham, Richard Inwood, removed Jeremy’s PTO—which is easily done, since (unlike a licence) the PTO is in the gift of the bishop and needs no legal process for its removal. Jeremy then applied and was interviewed for a post as hospital chaplain within Southwell and Nottingham Diocese, for which (as he well knew) he would need a licence from the bishop who had just removed his PTO. Such a licence was not forthcoming, so he could not take up the job. Jeremy took the bishop to an Employment Tribunal (ET), who found for the bishop; Jeremy then appealed to the Employment Appeal Tribunal (EAT) whose ruling (unlike the ET) establishes a case in law, and which also found for the bishop; Jeremy then took the case to the Court of Appeal, whose ruling was issue last week. Jeremy has since resigned his licence.
(I reported on the start of the case, the process of the tribunal, the reasons for it and the possible outcomes, the unlikelihood of Pemberton winning, the very secure outcome of the tribunal, my debate with Jeremy on BBC2 about the case, Jeremy’s appeal to the EAT, and the very secure rejection of his appeal there. At the end of the last post, I commented that this really ought to be the end of the matter; I am glad to report that it now is.)
You can read the judgement from the Court of Appeal online here. There are several obviously striking things about it, but there are also some other issues worth noting which will continue to be of importance.
The first, and most notable, feature of the judgement, is the number of times that the ruling by Justices Gloster, Underhill and Asplin rehearse and confirm the previous judgements by the ET and the EAT. In neither case was Pemberton refused leave to appeal, but in the first case this was surely because the ET does not establish principles in law, whilst the EAT does, and I understand it is relatively exceptional to refuse leave to appeal even if the judgment is very secure. Most commentators thought it was unlikely that the judgments would be overturned; Pemberton’s case looked unpersuasive on any account, given the clarity of the way it had been handled, but it was perhaps surprising how comprehensive has been the confirmation at each stage. In the Court of Appeal ruling, there is the repeated reiteration of the previous judgments at both ET and EAT, followed by ‘I agree…’ and ‘There has been no error in law…’. It is not clear that Pemberton had any reasonable grounds for appeal, and the case only got this far because of his backing from powerful lobbyists; the law firm representing him offered their services pro bono as part of their campaign against institutions they perceive as ‘homophobic’.
The second notable feature (which has been true at every stage) is the seriousness with which the legal process has considered the statements of doctrine of the Church of England. Despite Richard Inwood making the odd statement that ‘the doctrine of the Church of England is a busted flush’ (I think meaning that it is not consistently observed), the ruling here confirms the previous two judgements in taking the Church’s doctrine seriously, and noting its consistency. Paragraph 17 notes both the disputed nature of doctrine by Pemberton, but its coherence both as presented and as reinforced by recent statements.
Although the status of the various sources of teaching of the Church of England were the subject of some debate before us, and Mr Jones QC and Mr Gau on behalf of the Canon submit that the “doctrine” of the Church of England is unclear, and at the same time restricted, ultimately it is accepted that the Church itself states that its doctrine is contained, in particular, in the Thirty-Nine Articles of Religion, the Book of Common Prayer and the Ordinal, the latter of which is concerned with the ordination of bishops, priests and deacons: Canon A5 of the Canons. It is also not in dispute that the Canons are part of the law of England and Wales and together with ecclesiastical common law and Measures (which are a form of legislation) form the body of Ecclesiastical law. The Canons can only be implemented if they are proposed and passed by the General Synod of the Church of England. Under Article 7 of the Constitution of the General Synod contained in Schedule 2 of the Synodical Government Measure 1969, any legislation “touching doctrinal formulae or the services or ceremonies of the Church of England” before being passed by the General Synod must have first been referred to the House of Bishops. It has the right to amend the legislation before it is placed before the General Synod for final approval.
The ruling then lists the relevant canons and statements for the avoidance of doubt. What is really interesting here is that the Court has, like the previous rulings, rejected Pemberton’s attempt to reinterpreted historic statements in order to make the doctrine of the Church either unclear, or mean what he wanted it to mean. You can see this in the debate I had with him on BBC2; he argues that the word ‘marriage’ has now changed its meaning, so that we need to read Article XXXII in a new way, and detached from the context of it when originally written, or the intention of the author at the time. Andrew Goddard has offered a thorough refutation of this approach, which in the study of hermeneutics is called a ‘reader response’ interpretation: what matters in this way of reading is not what the text says or what the author intends, but what the contemporary reader construes from it or how he or she reacts to it. Significantly, the Court rejected this approach, and agree that the historical statements do mean something, and mean what they have always been taken to mean, and are coherent. This is not surprising in the light of legal hermeneutics; if such an approach were put in place in relation to law, there would never be any hope for consistency or justice from one age to the next.
There are two other issues, not quite as central, but worth noting here. The first is the finding that, in law, the Church of England is not a single entity—it ‘has no legal personality’ according to para 16:
Further, it was the Bishop’s undisputed evidence that the Church of England has no legal personality. It is separated into two geographical provinces, being the province of Canterbury and the province of York and consists of forty-two dioceses each of which is headed by a bishop. The structure has many more sub-divisions which are not relevant for our purposes.
This means that the question to be adjudged was not whether Inwood had acted consistently with other bishops, but whether he had acted consistently with the Church’s stated doctrine and position (para 44):
I come to this conclusion despite the fact that the decision to grant an EPML is one for the individual bishop concerned based upon that individual’s assessment of the particular applicant. That is an inevitable consequence of the structure of the Church of England and the authority of individual bishops. It is not suggested that a decision of this kind is made upon a whim. In fact, we were referred to the undisputed evidence of the Bishop in relation to the grant of licences to priests from different diocese. It entails obtaining a “Clergy Current Status Letter” from the “sending bishop” which contains specific paragraphs about prescribed matters. Those matters are also the subject of detailed Guidance Notes. It seems to me, therefore, that the decision in relation to the grant of a licence is subject to objective criteria even if different bishops may reach different conclusions.
So a bishop acting in line with the Church’s doctrine is not undermined by others who do not. I hope that this will give bishops great confidence in affirming the Church’s teaching, regardless of what else is happening around them.
The second thing worth noting is the allies that Pemberton has drawn on. Helen Trotter, a member of the legal team, tweeted about the final ruling:
Devastated this didn't go our way, but HUGELY proud we fought the @c_of_e & their homophobia as hard as we cld. Conservative estimates suggest they spent half a million for the right to discriminate. It's been an honour to act for Jeremy & be led by the BRILLIANT @seanjonesqc. https://t.co/8HQW7ehSM7
— Helen Trotter (@helen_trotter) March 22, 2018
In order to press his case, he is happy to work with those who want to ‘fight against the Church of England’. Something similar appears to be going on when clergy win awards for secularism, and bishops praise the British Humanist Association. Again, claims of a ‘lack of compassion’ for Pemberton shown by the Church were stated as groundless in the ruling which, along with previous rulings, had noted how far the Church had gone in its detail explanations at every stage.
In any event, in this case, the ET found that there had been lengthy discussions with the Bishop and others in relation to the Canon’s intention to marry his same sex partner and their opposing positions were clear. Therefore, the consequences in relation to his standing cannot have been much of a surprise, despite the different approach adopted by the Bishop of Lincoln. In the circumstances, therefore, whether as a result of the statutory defence in relation to the same facts which amount to the unwanted conduct, or on the facts of this case, I agree with Mr Linden that it was not reasonable for the Canon to have reacted as the ET found that he did. Accordingly, I can find no error in Her Honour Judge Eady QC’s conclusion at  of her judgment and I would dismiss the appeal on this ground also. (para 76)
Applying that approach to the facts of the present case, it seems to me plain that the ET was entitled to find that the withdrawal of the PTO and the withholding of the EPML did not amount to harassment. I have no difficulty understanding how profoundly upsetting Canon Pemberton must find the Church of England’s official stance on same-sex marriage and its impact on him. But it does not follow that it was reasonable for him to regard his dignity as violated, or an “intimidating, hostile, degrading, humiliating or offensive” environment as having been created for him, by the Church applying its own sincerely-held beliefs in his case, in a way expressly permitted by Schedule 9 of the Act. If you belong to an institution with known, and lawful, rules, it implies no violation of dignity, and is not cause for reasonable offence, that those rules should be applied to you, however wrong you may believe them to be. Not all opposition of interests is hostile or offensive. It would be different if the Bishop had acted in some way which impacted on Canon Pemberton’s dignity, or created an adverse environment for him, beyond what was involved in communicating his decisions; but that was found by the ET not to be the case. (para 89)
The Church has spent around £500,000 on defending this case—as it had to—money which could have been put to very much better use had Pemberton accepted the initial ruling of the ET, which remains entirely unchanged by subsequent scrutiny.
One final observation is worth making about the implication for the Church of England’s own continued discussion of this issue. Andrew Goddard drew attention to the implications of the EAT at the time, and it still applies now that the Court of Appeal has confirmed and underscored the earlier ruling:
If the case is lost then it has been established that the church has a doctrine of marriage which bishops are right to uphold by refusing to issue a licence to someone in a same-sex marriage. The judgment is clear that canonical obedience is “a core part of the qualifying of a priest for ministry within the Church” (para 120) and that Canon Pemberton is obliged to undertake to pay true and Canonical Obedience to the Lord Bishop but that (given its conclusion as to church doctrine), “Self-evidently he is not going to be able to fulfil that obligation or has not done so….and therefore objectively he cannot be issued with his licence” (para 121). Any bishop who therefore issued a licence to someone in a same-sex marriage would therefore be open to legal challenge. Any attempt to allow clergy to enter same-sex marriages would, it appears, need first to redefine the church’s doctrine of marriage…
In other words, if the church keeps it current doctrine of marriage then it will be very difficult to justify licensing clergy in same-sex marriages but if it changes it or somehow declares it has no fixed doctrine of marriage then it will be very difficult to justify refusing a licence to clergy in same-sex marriages given equality legislation. So, even if it were considered desirable, it is therefore hard to see how, given the law, the church could “agree to differ” on this subject in a way that both enabled same-sex married clergy to be licensed and also protected those unable in good conscience to license clergy in same-sex marriages.
It is another reason why ‘agreeing to disagree’ is never going to be an option on this issue.
Come to the book launch for my new commentary on the Book of Revelation on Thursday April 19th.
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