Tuesday, 22 October 2013
Bishop of Auckland wins tribunal case
Professor Mark Hill QC has written a guest post at Law and Religion UK entitled Anglican Bishop’s refusal to consider gay man for ordination upheld by New Zealand Human Rights Review Tribunal.
On 17 October the Human Rights Review Tribunal of New Zealand handed down a judgment which will be keenly studied both by religious organisations and by LGBT groups. The case of Gay and Lesbian Clergy Anti-Discrimination Society v Bishop of Auckland  NZHRRT 36 concerned Mr Eugene Sisneros, who wished to undergo a period of discernment to test his call for ordained ministry. The Bishop of Auckland refused to allow him to do so because Mr Sisneros was in an unmarried relationship. Mr Sisneros brought proceedings on the basis of direct discrimination (on his marital status) and indirect discrimination (due to his sexual orientation).
Under New Zealand law, section 38 of the Human Rights Act 1993 makes it unlawful for employer organisations to discriminate on a number of prohibited grounds, one of which is sexual orientation. However, section 39 provides an exception in relation to a calling for the purposes of an organised religion. The substantive issue for the Tribunal was whether this statutory exception applied to the facts of the case…
Curiously that post does not (yet) contain a link to the full text of the decision, which is available as a PDF file, over here.
There is another discussion of this case (which does contain such a link) by Neil Addison at Religion Law Blog titled Gay and Lesbian Clergy v Bishop of Auckland.
Posted by Simon Sarmiento on
Tuesday, 22 October 2013 at 3:26pm BST
You can make a Permalink to this if you like
I may be naive, but if the bishop refuses to allow a discernment process - why have the process at all? What is it for?
This displays both an arrogance and a lack of trust in the process.
Another nail in the coffin of 'organised religion.'
What price do we pay for 'organisation' ?
"The Bishop of Auckland, refused to allow him to participate in the process of discernment because he was in an unmarried same-sex relationship and could not therefore be ordained into the ministry."
This quotation, from the documented evidence in the case here mentioned, puts the matter clearly and succinctly in its proper legal perspective.
At the moment, in ACANZP, the official line is as stated in the evidence supporting the Bishop's decision. When knowledge of the fact that the candidate, Eugene Sisneros, was living in a same-sex 'unmarried' relationship (a situation that would apply to both heterosexual and homosexual relationship where the partners are living together outside of marriage) - it would appear that, when challenged, the Bishop of Auckland, Ross Bay, had no alternative that to apply the rule of the Church.
One of the relevant points here, might be the fact that Eugene was a well-known advocate of LGBT persons in the Church to which he belongs, and his application for candidature in ministry was, therefore open to public scrutiny.
In the past, it is well-known that people whose
sexuality and personal relationships were not directly questioned by Bishops and Boards of Examination, under the hypocritical "Don't ask, don't tell" regime; there were candidates whose sexual lives - either heterosexual or homosexual in nature - remained undeclared, could have passed scrutiny for ordination training.
This is at the root of the hypocritical situation in the Church, where openness about one's sexual orientation and living arrangements - under the current rules of engagement - could result in turning down an otherwise acceptable candidate for ordination; as is the case in this instance.
Some of us are hopeful that, in the not too distant future, our province of the Church will agree that there is no barrier to faithfully-partnered gay candidates offering themselves for the ministry - where there is no other reason for rejecting their application.
The oddity in this particular case is that, the objection to Eugene's entering into discernment for ministry training is based on the fact that he is "in an unmarried same-sex relationship"
Could the Bishop's objection now be overturned by dint of Eugene legally marrying his partner - as is possible now under New Zealand law?
What Fr Ron calls 'hypocrisy' might more charitably be deigned 'flexibility'. Most bishops in ACANZP, including the Bishop of Auckland, don't make a particular issue of any candidate's sexual orientation or marital status if they can possibly avoid doing so. The majority of candidates (from what I've been told) do not share their sexual orientation with their bishop, and most bishops are perfectly willing to turn a blind eye. It is only in cases where it might be suspected that the candidate is deliberately trying to make a point, as would seem to be the case with Mr Sisneros, that the bishop will have recourse to citing those rules that are usually more honoured in the breach than in the observance.
Mr Sisneros might be quite justified in claiming that the ordination criteria of the Auckland diocese are inconsistently applied. It would be unfortunate if one of the consequences of his rather regrettable appeal to the secular courts were that in future they are applied more rigorously. As an Anglican, I'd prefer a bit of tolerant hypocrisy to unbending moral consistency any day.
@ Ron Smith: (a) he should just get his butt married, he's legal in New Zealand now, and then at least make them work to change the argument against him. (b) Victoria Matthews is Canadian and she's in the background to all this isn't she?
Could the Bishop's objection now be overturned by dint of Eugene legally marrying his partner - as is possible now under New Zealand law? asks Ron.
I don't think so, as the current canons of the ACANZP would not allow it, and section 38 0f the Gay marriage law exempts religious groups. I think it very unlikely the canons will change soon either, due to the strong cultural antipathy amongst Maori and Polynesians to homosexuality. Also remember whilst there are no C of E bishops at Gafcon, there is one from New zealand.
Since I was in NZ there is now a conservative Anglican theological college, and thriving evangelical congregations in every diocese, in marked contrast to the collapse of ageing liberal congregations.
It seems appropriate for me, as probably the only regular TA correspondent who is a priest of the Diocese of Auckland, to offer a few thoughts on this one. That is a bit difficult, as while I have some sympathy for the predicament that Bishop Ross Bay found himself in, I do disagree with his stand and have done so publicly.
It is important to note that the Diocesan Synod approved a resolution last year, supported by both our bishops, declaring that we “...see no barrier to the ordination of those in committed same-sex relationships”. In the context of debate, Bishop Bay expressed a willingness in principal to conduct such ordinations, and there are certainly a number of clergy in same sex relationships who hold his licence. The difficulty is that in the opinion of Bishop Bay, and also of Archbishop Philip Richardson and his predecessor David Moxon (but not of myself) our current canons do not allow such ordinations to take place. They argue that until our General Synod /Te Hinota Whanui makes explicit provision for them, any bishop who ordains someone known to be in a same-sex relationship would be acting outside of the canons. And if it is known that an ordination cannot take place, then the argument is that it would be unfair to admit someone into the discernment process.
+Ross and +Jim White have received much support from the diocese, right across the spectrum, as the tribunal’s processes have taken their course, and there is considerable relief on most fronts at the verdict, maintaining the principle that the secular courts are extremely reluctant to intervene in matters of doctrine.
Where I disagree with my bishop, and I am supported in this view by at least one diocesan chancellor, is that I believe an appropriate understanding of the key word in our canons “chaste” can indeed include the life of someone who is in a loving and committed same-sex relationship, and therefore a bishop is certainly in her/his rights to ordain such a person. I am aware of five or six clergy who were known at the time of their ordination to be in committed relationships, in addition to the larger number who were in a “don’t ask, don’t tell” situation, and a larger number still who came out as gay or lesbian subsequent to ordination. And bishops paint themselves into an ever tighter corner if they are willing to license GLB clergy who have already been ordained by someone else, but decline to do the ordinations themselves.
There will be very considerable pressure on the GS/THW to arrive at a clear position at their next session in May 2014.
In response to Robert's comments,which I see as I post this: You are certainly out of date on your generalisation about Maori and Polynesian "antipathy". One of the openly gay clergy I know of was ordained by a Tikanga Maori bishop, and a number of influential Tikanga Pasefika leaders are arguing openly for allowing GLB ordinations. Finding a way to accommodate evangelical objections is indeed a great challenge, but people of good will at both ends of the theological spectrum are trying to do just that.
Using the civil courts in this matter is a complete non-starter as it obviates the freedom of religion (however much I regret that).
Very odd and fuzzy understanding of the words relationship, celibate, chaste etc. Either that or the old bizarre CofE fiction that that it's an entirely reasonable thing to expect a couple to be together and not have sex is falling out of fashion (along the way we seem to have completely elided the discussion of what 'counts' as sex for these purposes. Perhaps it's better that way).
I think what Robert's seeing, Edward Prebble, is a social dynamic in Maori culture. The family and its continuation is extremely important. The objection (traditional objection) to homosexuality is not a moral objection, but practical - how can the family continue in a non-procreative relationship? It's a traditional view that is slowly integrating new information. It's not unusual in many societies - while tradition in Japan didn't frown on homosexual relationships (even when those married were in a heterosexual marriage), a common term for homosexual activity, YAOI, is an anagram for words indicating that the act is seen as useless, as in non-productive.
I can't help but think, given this, that Biblical strictures reflect a (very human) worldview in which infant mortality and ineffective medicine and food production made high reproductivity a necessity, rather than reflecting any actual Divine intent.
Sorry Edward, that is unconvincing spin.
Indeed the Bishop of Christchurch announced to her Synod that she doesn't want SSM even discussed in General Synod until 2018-20!
The only really thriving churches in her diocese are evangelical ones.
Mark Brunson is probably correct that some Maori people (and others from a very wide variety of cultural backgrounds) may see the arguments about sexuality in the sorts of social dynamics/family continuance terms that he describes. But that misses the point I was making to Robert. It is a matter of fact, not spin, that a very wide range of views can be found across all three Tikanga of the ACANZP. It is therefore unsafe to predict that Maori or Polynesian "antipathy" would automatically scupper any move to liberalise our canons at General synod next year.
Robert, I fail to see why you should characterise as "spin" my acknowledgement that accommodating the objections of the evangelicals is a greater challenge. Whether attempts by people of good will across the spectrum to find such an accommodation will be successful I do not know, but I can assure you that such attempts are being made.
Robert I. Williams. You appear to be speaking from your experience in New Zealand a decade ago. Things are different from when you opted out of Saint john's Theological College in Auckland. There is a new understanding here of gender and sexuality, consistent with modern science and sociological research, that, perhaps not surprisingly, seems not yet to have affected your own Catholic Church's view of humanity.
Edward and I are actually part of the ACANZP, and perhaps more qualified to 'read' our situation - even if from a specific viewpoint.