Monday, 15 June 2015

Same-sex Marriage and CofE Clergy

Updated yet again Wednesday afternoon

The BBC reports on the employment tribunal case that is being heard this week in Nottingham: Gay canon Jeremy Pemberton in Church discrimination tribunal.

A clergyman barred from working because he married his partner has denied going against the Church’s teachings, an employment tribunal heard.
Canon Jeremy Pemberton was refused a licence to work as a hospital chaplain by the then acting bishop of Southwell and Nottingham.
He brought a discrimination case which started on Monday.
The Rt Revd Richard Inwood argued the marriage was against the Church of England’s teachings.
Although Mr Pemberton was employed by the NHS, he needed a licence from the diocese to work at King’s Mill Hospital in Mansfield which was refused.
Canon Jeremy Pemberton was appointed Head of Chaplaincy and Bereavement Services in the Sherwood Forest Hospitals NHS Foundation Trust but the Church declined a licence.
At the opening of the hearing at Nottingham Justice Centre earlier, his lawyer said “equality has reached the door of the church. Where that boundary lies is for you to decide”.
Lawyers representing the Church suggested that Mr Pemberton had gone against the Church’s teachings.
He replied: “No, because I have had a civil marriage. I believe that was the moral thing to do…”

Also at the BBC Caroline Wyatt has this which includes a 2 minute video report. She interviews Malcolm Brown and Andrew Symes as well as Peter Tatchell.

Earlier, she published this detailed analysis of the case: Will the Church ever accept same-sex marriage? which should be read in full. Here is an excerpt:

…The Church acknowledged that its teachings now diverged for the first time from the general understanding and definition of marriage by Parliament.
However, the Church of England says that it nonetheless values theological debate, and allows clergy to argue for a change in its teaching on marriage and human sexuality, while making clear that they should not marry someone of the same sex.
At the same time, it has no wish to be seen as homophobic, and has also issued guidance to say that the Church welcomes gay and lesbian clergy and laity and considers homophobia unacceptable.
But can it hold those two positions at the same time for much longer, especially as social mores around the Church continue to change rapidly, with younger generations in the UK far more likely than their elders to accept same-sex marriage as a given?
The Church may well see its position in this case as clear: that those who serve as clergy must live up to all the teachings of the Church, whether they agree with them or not.
However, campaigners for change in its current position on same-sex marriage will argue with equal vigour that the Church’s doctrine has adapted in the past to accommodate changing social mores, and - if it wanted to - the Church of England could do so again.

Other media reports so far:

Updates

Nottingham Post Tribunal hears first day of gay clergyman discrimination case

…Today, Thomas Linden, representing the respondent, cross-examined Pemberton on a several issues including his claim for harassment, the background prior to the wedding as well as the ‘media storm’ that followed his marriage.

At one point Pemberton broke down in tears in front of the tribunal as he recounted how he felt after his PTO was revoked.

He said: “PTOs are (only) really revoked if someone has done something serious, they’re criminally involved, is involved in an affair or has lost their capacity.”

Mr Linden, representing the church claimed that following the revocation, Pemberton could have continued to perform for the choir and carry on in parish life.

Pemberton replied: “Not as a priest.”

Pemberton also defended claims he was ‘surprised’ by the publicity he received on his wedding day and in the weeks that followed.

A spokesman for the C of E said: “The Church of England supports gay men and women who serve as clergy in its parishes, dioceses and institutions. Jeremy Pemberton is one of many who currently serve and received that support.

“The Church of England has no truck with homophobia and supports clergy who are in civil partnerships.

“The Church of England’s doctrine on marriage is clear. The Church quite reasonably expects its clergy to honour their commitment to model and live up to the teachings of the Church. Clergy not have the option of treating the teachings of the Church as an a la carte menu and only modelling those with which they personally agree.

“The Church is currently involved in a process of shared conversation about a range of issues on sexuality in regions across the country. It is regrettable that this case risks undermining that process by invoking legislation which does not even apply to this situation.”

Both the Telegraph and the Guardian have reports on Tuesday morning:

And here are two reports of what happened on the second day of the hearing:

Update Wednesday afternoon

The following has now appeared on the Church of England website: Statement on Nottingham Employment Tribunal. This appears to be the same statement quoted in several media reports yesterday, and not related directly to the developments in the case at today’s hearing.

Posted by Simon Sarmiento on Monday, 15 June 2015 at 1:47pm BST | TrackBack
You can make a Permalink to this if you like
Categorised as: Church of England | equality legislation
Comments

'those who serve as clergy must live up to all the teachings of the Church.' If I were looking at this issue for the first time (e.g. a jury person with no prior knowledge) I would think that already the church accepts divorced clergy, apparently going against the 'teachings of the Church'. I might think if the church can choose to set aside the divorce teaching, then it can choose to set aside other aspects of its teaching. Our Lord condemns very little, but always hypocrisy and pretence, both of which are found in the Church in all sorts of manifestations.

Posted by: Fr William on Monday, 15 June 2015 at 3:47pm BST

It was good seeing Laurence, and Jeremy with Erika going into court.

Fellowship and support know no bounds, in all circumstances.

'Let right be done'.

(Terence Rattigan).

The Church of England has no moral case behind it, and no gospel case.

On another note, The 'minister' speaking (apparently) 'for' 'the Church of england' sported the uncanonical shirt and tie, while espousing those very Canons. While the chap from 'anglican Mainstream' said 'the Church won't change its teaching'. But seemed unaware of the contested nature, in this and many contexts, both of who the Church is or may be, let alone of the nature and provenance of Christian hope / 'teaching'.

Odd for an avowed Protestant.

As if we were to leave all our Bible reading and applying to him and AM ! Or perhaps, the 'Church of England spokesperson.'


No way.

Posted by: Laurence Roberts on Monday, 15 June 2015 at 4:46pm BST

If a PCC representing its parishioners... or an NHS Trust representing its employers and taxpayers under UK equalities law... are happy to employ a married priest who happens to be gay or lesbian... then that conscience should be respected.

The actual members of the Church of England are increasingly supporting gay sex and gay marriage as acts of love that deserve respect, and freedom from discrimination.

Society is changing. The Church of England is out of step, even with many of its own members.

There is no uniform position on this issue. The church is divided, pretty much down the middle. PCC's (and the local church communities behind them)who want to welcome and accept gay priests should not have their consciences (and generosity of spirit, and love) trampled over.

This is a conscience issue.

It also seems extraordinary that an NHS Trust should allow discrimination on grounds of sexual orientation in this day and age, and under the law of the land.

Posted by: Susannah Clark on Monday, 15 June 2015 at 5:47pm BST

'Let the good prevail' (Aeschylus).

Great post from Father William. it's not true that (some) 'liberals' and (some) 'traditionalists' don't think the same about some important things.

Posted by: John on Monday, 15 June 2015 at 8:27pm BST

The Church of England is keeping the Employment Bar in pocket these days, but this case will make Reaney v Hereford DBF (sexual orientation of a youth worker) and Sharpe v Worcester DBF (do clergy have contracts of employment for unfair dismissal purposes?) look like a tea party. The case as I understand it is against the Archbishop of York and the Acting Bishop of Southwell and Nottingham. Although the NHS Trust is not entirely an innocent bystander, they were entitled to request a copy of the bishop's license to the effect that Jeremy Pemberton was a priest in good standing etc. The alleged discrimination is not therefore against the NHS Trust but against the CofE who refused to grant a license. It may be germane to the case that Jeremy continues to hold the bishop's license in the neighbouring diocese for his other work, but that predated his marriage. There may be an element of unequal bargaining here in that the bishops have the deepest pockets and have secured the services of leading Counsel, Thomas Linden QC. I think they are going to need him. The House of Bishops' 'prohibition' on clergy entering into same sex marriages is contained in the February 2014 Pastoral Guidance etc. When it comes to stating that it would not be 'appropriate conduct' for a priest to enter into a same sex marriage, the bishops need to rely on the Declaration of Assent (vague on the point to say the least), Canon C26 (fashioning life according to the doctrine of Christ - can't wait to see the lawyers arguing over that one) and Issues in Human Sexuality (1991), which still gets trotted out as if it were law. And underlying all this of course is people's lives which are being messed with. I think the CofE starts this case love-30 down (we are after all entering the Wimbledon season) but the likelihood is that whatever the decision of the tribunal the case will go to appeal.

Posted by: Anthony Archer on Monday, 15 June 2015 at 9:26pm BST

Susannah makes a very important point.

Really makes sense.

Posted by: Laurence Roberts on Monday, 15 June 2015 at 9:31pm BST

Fr Pemberton appears to be arguing that he hasn’t broken the teachings of the CoE because he has a civil marriage and not a religious/church marriage.

Posted by: Bro David on Monday, 15 June 2015 at 9:48pm BST

The Archbishop of York is no longer a party to this case.

Posted by: Simon Sarmiento on Monday, 15 June 2015 at 9:55pm BST

"PCC's (and the local church communities behind them)who want to welcome and accept gay priests should not have their consciences (and generosity of spirit, and love) trampled over."

They shouldn't, Susannah, but they will, until the Church of England changes how it's governed. Personal views aside, the diocesan bishops *unanimously* support the current position. On this, there are no progressives. Not a one.

Any change from below will be resisted furiously. These are hard men of power, who view justice as a platitude that melts when, as they believe, the future of the church is at stake. Patricians born to rule, they view justice as the naïve dream of the little people, of no concern to Nietzschean over-men like them. Even if, by some miracle, two-thirds majorities were found in the houses of laity and clergy in the teeth of episcopal coercion, the bishops would simply veto any change.

That being so, for change to happen, there first needs to be radical changes in how bishops are appointed, and how collective responsibility is applied to the group. Nothing will get better until the current bossmen are done.

Posted by: James Byron on Monday, 15 June 2015 at 10:44pm BST

It seems appropriate that the opening day of the tribunal coincides with the 800th anniversary of the signing of the Magna Carta, which confirmed that even a monarch isn't above the law. If only that applied to our bishops.

Posted by: Andrew on Monday, 15 June 2015 at 10:46pm BST

My sympathy is with the bishop. The Church of England teaches that the only valid marriage is heterosexual marriage, and some one who steps out of that discipline cannot possibly be in good standing,and indeed could be endangering their soul. As I have stated that is not going to change in the Church of England for the foreseeable future, due to the conservative evangelical block.

As with divorce..it is up to the gay lobby to change the Church's stance in a democratic way.That is one of the reasons why I left Anglicanism. I can't believe God's teaching can be changed by whim of democracy.Jesus Christ, the same yesterday, today and forever.

Posted by: robert ian williams on Monday, 15 June 2015 at 11:05pm BST

"At one point Pemberton broke down in tears in front of the tribunal as he recounted how he felt after his PTO was revoked. He said: “PTOs are (only) really revoked if someone has done something serious, they’re criminally involved, is involved in an affair or has lost their capacity.”

Proud of yourself, CofE?

Posted by: JCF on Tuesday, 16 June 2015 at 4:23am BST

Is the reason for this known, Simon?

Posted by: David Beadle on Tuesday, 16 June 2015 at 4:24am BST

Didn't Magna Carta establish the principle that the crown (state) should not interfere in the Church..granted it was a different church at the time.

Posted by: robert ian williams on Tuesday, 16 June 2015 at 8:19am BST

Call me a kill-joy, but I can't see Pemberton winning this case. The exemptions in the Equality Act are really clear, there is no legal obligation for the NHS Trust to require a Church of England licence and the very idea that a court can tell the CofE who they can and can't authorise for ministry is a notion that will be opposed all the way up to the Supreme Court and beyond. Sadly, Pemberton's on a hiding to nothing here.

Posted by: Peter Ould on Tuesday, 16 June 2015 at 8:54am BST

There is an analysis of the case by Peter Ould, published at Psephizo

http://www.psephizo.com/sexuality-2/briefing-the-jeremy-pemberton-employment-tribunal-case/

Posted by: Simon Sarmiento on Tuesday, 16 June 2015 at 9:54am BST

I sincerely hope Peter Ould is wrong. I think the behaviour of both bishop and archbishop has been disgraceful and that whatever happens this thing will bring deep disgrace upon them.

Posted by: John on Tuesday, 16 June 2015 at 1:11pm BST

"It is regrettable that this case risks undermining that process by invoking legislation which does not even apply to this situation."

I'd say this statement assumes what the CofE is trying to prove.

Canon Pemberton is right to emphasize that he did only what was lawful--what Parliament has allowed him to do.

Peter Ould describes the case as about a court telling the CofE who they can and can't authorise for ministry. But one can easily flip that and say that the case is about the CofE trying to tell its clergy whom they may lawfully, *civilly* marry. Outside of church.

And look at the very fine line that the CofE is trying to maintain here. How can it both support civil partnerships and at the same time discriminate against someone in a civil marriage?

Posted by: Jeremy (non Pemberton) on Tuesday, 16 June 2015 at 1:54pm BST

It pains me to say it, but I think Peter Ould's analysis may be right. Jeremy Pemberton is bringing suit against the wrong people.

The NHS Trust involved could grant employment tomorrow morning, by simply ignoring the requirement (which is completely self-imposed) of obtaining a PTO. Other people are employed as chaplains without such documents when, for example, they represent a religion which doesn't have the same concept of "official" office (for example, a Muslim chaplain will be appointed based on a fairly ad hoc collection of criteria). If I advertised a job which required that someone, inter alia, were a member in good standing of an all-male golf club, I wouldn't be able to escape a discrimination action by a woman by arguing that it was up to the golf club to change its rules. But the woman's action (in employment law, at least) would be against me, not against the golf club.

The church is almost certainly legally able to refuse to grant a PTO to someone who is a man married to another man. If they aren't, it isn't employment law. Similarly, golf clubs have been allowed to continue as all-male enclaves, and if they aren't, it again isn't employment law. The CofE isn't the employer, so their refusal to grant a document isn't an employment matter, even if it causes a third party to rescind a job offer.

The fact that the ET is sitting at all implies they think they do have jurisdiction. However, were I a betting man, I would accept fairly short odds that the inevitable EAT will disagree.

Posted by: Interested Observer on Tuesday, 16 June 2015 at 2:45pm BST

I agree that the odds are against Jeremy Pemberton. But the breadth of the religious exemptions in the Equality Act is arguably in breach of European law, which takes precedence.

This is such an extreme case that it could well surprise us if it reaches (as it has the potential to) the Supreme Court or the Court of Justice of the European Union, both of which will disapply domestic law if it conflicts with EU law and both of which have the confidence and the policy motive to do so in a case of grave prejudice, irrationality and injustice, such as this one.

The Employment Tribunal also has this power (as EU law is supreme in every Court and Tribunal) but might be less confident in doing so.

Also, I do not know if this sort of argument is even being run; it would be interesting to know.

Posted by: badman on Tuesday, 16 June 2015 at 3:40pm BST

Whatever the outcome (and I'm with Jeremy P every step of the way here) this whole episode will simply tell Jo(e) Public that Christianity - and the C of E in particular - is a toxic brand. Richard Inwood (and John Sentamu) were absolutely stupid and stubborn to let things get to this point. I doubt that many people out there will 'get' the religious opt outs in the equality legislation. This will certainly do the long-term future of C of E chaplains in the NHS no good at all.

Perhaps +Sentamu and +Inwood could tell us how this very damaging public spectacle is promoting growth in the Church? This is just another example of how the conservative bandwagon can only speak the internal jargon and only appeals to those who are signed up to their tribal obsessions.

Posted by: James A on Tuesday, 16 June 2015 at 4:03pm BST

James: "These are hard men of power, who view justice as a platitude that melts when, as they believe, the future of the church is at stake. Patricians born to rule, they view justice as the naïve dream of the little people, of no concern to Nietzschean over-men like them."

James, my cousin is a bishop, and your definition bears no resemblance to the gentle, generous-hearted, spiritually astute man I know.

I believe the bishops, en-masse, have made a mess of this business... but I don't want to denigrate their personalities.

Let the one without sin... first stone... etc.

I just believe that local churches that refuse to discriminate over who they welcome in marriage should have their conscience protected - because it is truly a matter of conscience.

The other way is authoritarianism (and that went well with the Covenant, didn't it?).

Posted by: Susannah Clark on Tuesday, 16 June 2015 at 4:33pm BST

How is it that his Employment Tribunal case is against the bishop who was not involved in employing him? What am I missing?

Posted by: Joseph Golightly on Tuesday, 16 June 2015 at 4:57pm BST

Well, rather than speculate about how easy the case is to win on either side, let's wait for the lawyers, who know what the real legal arguments are, and see what they make of it. I'm guessing that the key legal point will not be one of the headline points flagged by amateurs or pressure groups - it very rarely is.

Posted by: Mark Bennet on Tuesday, 16 June 2015 at 4:59pm BST

"the very idea that a court can tell the CofE who they can and can't authorise for ministry is a notion that will be opposed all the way up to the Supreme Court and beyond"

Well up to a point, Father. The state decides in each individual case who is to exercise the episcopal ministry. No mandate, no consecration. And with few exceptions the state has decided that only those willing to take the Oath of Allegiance can exercise ministry in the C of E.

Posted by: american piskie on Tuesday, 16 June 2015 at 6:16pm BST

I also think it is likely that Jeremy Pemberton will lose in the short term. Here in the states, we see that gay people can be fired from their jobs in Roman Catholic institutions with no recourse.

But the CofE ought to consider the consequence of a victory here, which promises to be Pyrrhic. Marriage equality is strongly accepted in the UK, and the CofE will be seen to be (even more) unjust, cruel, and completely out of touch.

Posted by: IT on Tuesday, 16 June 2015 at 6:28pm BST

Whatever happened to Article XXXII, eh? "it is lawful for [priests] ... to marry at their own discretion"

Posted by: DBD on Tuesday, 16 June 2015 at 7:16pm BST

If they cite doctrine he only needs to point out that he's a divorcee along with many other clerics in the CofE. If they argue that it was to 'avoid conflicting with the strongly held convictions of a significant number of the religion's followers' then surely the relevant test is to compare the convictions of patients and their families in Southwell and Lincoln dioceses. How many object to Jeremy's chaplaincy services on grounds of his marital status? If they counter this by saying that it is legitimate for bishops in neighbouring dioceses to take different approaches, then it doesn't seem fair. The loss of PTO is normally triggered by a serious offence such as adultery. If it had been adultery, then Lincoln wouldn't have treated it as a minor misdemeanour, which he has done in Jeremy's case. It would be a full CDM hearing.

Crucially, the respondent must show that it is 'a proportionate means of achieving a legitimate aim', which to a layman's eyes does not appear to be the case. It's profoundly unjust. The lower tribunal seems to be applying the notion of employment contract more broadly as he wasn't technically employed by Southwell. Clearly he would have been employed by the NHS which is where the Equality Act is most applicable. The bishop's actions caused an unlawful breach. So it's likely to go to appeal whichever side prevails.

Posted by: Andrew on Tuesday, 16 June 2015 at 7:36pm BST

"I can't believe God's teaching can be changed by whim of democracy.Jesus Christ, the same yesterday, today and forever." -- An interesting statement; I had not realized that God cannot work through the democratic process, or that Jesus' teaching contained any reference to homosexuality or same-sex marriage. And yet I have the feeling that Jesus' compassion and inclusiveness - as well as his recorded feelings about those who judge and condemn - really is yesterday, today and forever.

Posted by: Nathaniel Brown on Tuesday, 16 June 2015 at 7:49pm BST

Despite Ould trying to appear open-minded in his blog article, it is clear from his comment above he already knows what the tribunal's decision will be. It would be such a terrible disappointment for Ould if they ruled in Canon Pemberton's favour.

Posted by: FrDavidH on Tuesday, 16 June 2015 at 8:12pm BST

Susannah, I wasn't referring to all bishops by any means, just Church of England diocesans, and even there, I was generalizing. These men are different in kind to bishops in other Anglican churches: they're not only unelected, they're, in general, drawn from a very narrow social circle.

I'm not resting on moral authority, merely giving an opinion on the scope and scale of the problem, and the possible solutions.

Posted by: James Byron on Tuesday, 16 June 2015 at 9:25pm BST

Further to my previous comment, this is a case in a tribunal. There is all sorts of commentary on what the case is and what the outcome should be, but I haven't seen any mention of the precise legal basis on which the claim is being argued. To answer Joseph Golightly in part, for example, the Equality Act 2010 gives the Employment Tribunal jurisdiction over certain of the provisions of that act, and some of those provisions involve parties who are not employers. Presumably the case is being brought under such a provision (perhaps even a similar provision under another Act).

Nor are all the material facts properly listed - well we can't be sure of that, because without a specific legal basis we can't know which facts are material and which are not. For example, I think I remember reading that Jeremy Pemberton had permissions to officiate in at least two dioceses - there is mention in the reports of PTO being revoked, but that doesn't necessarily mean that every permission has been revoked - it simply isn't clear. And if the PTO were in place after his marriage and were withdrawn only when the bishop received notice of a job offer or a request for a reference, that might be a material fact. But then again, it might not.

Posted by: Mark Bennet on Tuesday, 16 June 2015 at 10:15pm BST

Myriad legal issues to be debated which is the reason the ET has scheduled five days for the case. I am not sure how relevant the PTO/license issue/refusal/revocation is. That is merely the outworking of the alleged discrimination. The fact is that Jeremy applied for a job and is arguing that he has been unfairly discriminated against and but for the discrimination he would have secured the job. Nor does it matter that the NHS is not a party to this. The discrimination, if there was such, was by the bishop, hence he is respondent. The putative employer (NHS) made an offer of employment conditional on the requisite license/permission being given, basically its usual due diligence. Marriage is a protected characteristic and the church will need to establish that it is covered by an exemption in this case. As I mentioned above, I think the bishop (and his leading Counsel Thomas Linden QC - they don't come better) has his work cut out here. But the CofE can sustain this case far longer than Jeremy, with the Church Commissioners paying the fees. This will go to an EAT, but query how much further.

Posted by: Anthony Archer on Tuesday, 16 June 2015 at 11:23pm BST

"for example, the Equality Act 2010 gives the Employment Tribunal jurisdiction over certain of the provisions of that act, and some of those provisions involve parties who are not employers"


I suspect that the basic legal theory of the action against the CofE be that the CofE is guilty of one of the S.111(1) through S.111(3) offences (Instructing, causing or inducing contraventions). The NHS trust is the employer (and therefore a party under S.120(5)(a), which makes it something of a mystery as to why they are not) but the CofE is a third party guilty of instructing, causing or inducing the offenceand therefore a party under S.111.

We'll see how it works out, but that theory does seem tenuous. One would have thought a far better strategy would be to bring an action against the NHS and the CofE jointly and severally, and let the tribunal sort out who's actually responsible.

"But the CofE ought to consider the consequence of a victory here"

Indeed. We're now in a position where Tory ministers are marrying their partners, and the general mood is one of the gaiety of the nation being enhanced, even in the Daily Mail. It may be that in the bubble of Archbishops there is still a sense that the general public is nervous or tentative about same-sex marriage, and they can therefore appeal to a "silent majority" with actions like this, but in reality there is no such zeitgeist. You would have thought that the referendum result in Ireland would have told them just how much the world has changed in the last ten years.

Posted by: Interested Observer on Tuesday, 16 June 2015 at 11:38pm BST

@Susannah Clark, please don't put words into my mouth - especially words I have not written or intended. All I was doing was highlighting a damaging public spectacle for the Church in relation to the inconsistent way that same Church has handled Jeremy's situation (e.g. Licence in Lincoln but not Southwell & Nottingham). Whatever the legal outcome, the millions who have decided that this same Church is an irrelevance at best, will have their suspicions confirmed that, for those seeking God in a spirit of truthful freedom, the Church of England is no place of safety because of the determined actions of a theologically conservative archbishop and bishop whose primary interests are their own constituency.

Posted by: James A on Wednesday, 17 June 2015 at 7:17am BST

"Nor does it matter that the NHS is not a party to this"

I really don't see this, which is why (as you say) it's going to end up at an EAT or, alternatively, in a court to debate jurisdiction. The Equality Act is very clear when it talks about the jurisdiction of employment tribunals to hear discrimination cases, S.120(5):

(5)In proceedings before an employment tribunal on a complaint relating to a breach of a non-discrimination rule, the employer—
(a)is to be treated as a party, and
(b)is accordingly entitled to appear and be heard.

Whether the NHS Trust chooses to take up its S.120(5)(b) right is its decision ("entitled to appear" doesn't mean "can be compelled to appear"), and I have a suspicion that this clause is really intended to be invoked when the topic at hand is occupational pension schemes and someone tries to put a wedge between the scheme trustees and the employer's covenant.

But S.120(5)(a) says "is to be treated as a party", which doesn't leave any wiggle-room. It's an open question as to whether the ET can order a church to issue a permission to officiate which is not linked to a job with the church. It's a much less open question (in jurisdictional terms, at least) as to whether the ET can instruct the NHS trust to employ Rev. Pemberton irrespective of the PTO: it is definitely within the ET's power to hold that insisting on the issue of the PTO is indirect discrimination.

But if the trust isn't a party, instructing the trust isn't an option open to the ET.

We haven't heard the church's case yet. My guess is they will simply say that they are not an employer in this case, so the ET has no jurisdiction, or in the alternative are jointly liable with the employer, who are not present. They can then invite Rev. Pemberton to either pursue the employer in an ET or to find an appropriate venue (it is not their problem to suggest which) to pursue the church on other grounds. Those other grounds would probably be that refusing to issue a PTO is discrimination in its own terms, irrespective of its role in employment.

Posted by: Interested Observer on Wednesday, 17 June 2015 at 7:22am BST

This is a very painful case. Although I wish Jeremy all the best and I hope he succeeds, I do wish he hadn't felt it necessary to bring this matter before a secular court (1 Cor 6: 1-8 is a passage that deserves at least as much careful scrutiny as the following verse gets). I have very little sympathy with the acting bishop or the ABY in this case, they have both acted scandalously and I won't be sorry if the court throws the book at them. But the real loser will be church, regardless of what the court decides. Sentamu will sail off into retirement soon and Jeremy will (no doubt) find a position where his many talents are valued, but the damage this story is doing to perceptions of the Church of England won't go away in a hurry.

Posted by: rjb on Wednesday, 17 June 2015 at 1:23pm BST

Jeremy Pemberton, along with all clergy serving in the Church of England, is fully aware of the current understanding attributed to marriage in that Church and was therefore ill advised to embark upon this pointless lawsuit. It will be surprising if he is successful. Furthermore, when will Liberals get it?! To say that marriage should be between a man and woman is not the same as condemning homosexuality. Indeed, some of my own Christian homosexual friends are opposed to the marriage of gays themselves, simply because they are unable to accept that the sacrament of marriage can be tinkered around with in this way.

Posted by: Benedict on Wednesday, 17 June 2015 at 1:53pm BST

I know it's not an equivalency since we're talking about being licensed to administer the sacraments and such like; but are cathedrals and abbeys technically allowed by canon to employ same-sex married persons in their bookstalls and sandwich shops? Would they be violating civil law if they fired such persons? How about choral directors and choristers? Could a homophobic dean wipe out his stipendiary music staff if they married their boyfriends? Even more interesting, If Jeffrey John got married, could he be kicked out of St Albans?

Posted by: Daniel Berry, NYC on Wednesday, 17 June 2015 at 3:03pm BST

@James A: I was quoting James B, in an exchange I was having with him in this thread.

There was no intended allusion to your comments.

I should have distinguished between A and B!

Posted by: Susannah Clark on Wednesday, 17 June 2015 at 5:10pm BST

Instead of working up to the expected EAT, as several lawyers do above, let's work down from the European Court of Human Rights, where this may well end up (even if the proposed repeal of the Human Rights act goes ahead). The closely parallel cases are Obst and Schüth v. Germany, here http://hudoc.echr.coe.int/sites/eng-press/pages/search.aspx?i=003-3272505-3650095#{"itemid":["003-3272505-3650095"]}

Both men had admitted adultery against the rules of their churches. Obst was sacked as regional director of the Mormons; Schüth as a RC church organist. At the ECtHR, Obst lost and Schüth won, on very similar facts. But a relevant difference was that Obst was at the top of his church and Schüth was a rank-and-file member of his; another, that Obst had other employment opportunities, Schüth didn't (he couldn't be organist of a Lutheran church).
Jeremy’s case is closer to Schüth on both counts.

Even if this case doesn’t go to Strasbourg, the UK Court of Appeal and Supreme Court will take Schüth into account.

Posted by: Iain McLean on Wednesday, 17 June 2015 at 5:47pm BST

Benedict...

Until Valentine's Day 2014 the Church of England had no position on same-sex clergy marriage, because it wasn't possible till that point to contract one. So this was not something those gay clergy, many who have dedicated decades of their lives to the C of E, could have known when they signed up: it's a bit rich for the Bishops to hurriedly invent a position, rush it out and then expect those they are kicking in the teeth to just roll over without complaint. This is not about abstract doctrine, it's about real people's lives.

And yes, one can always find a gay person who doesn't agree with marriage (just as there are heterosexuals who don't wish to get married); the vast majority do. A handful of turkeys voting for Xmas doesn't make it a fowl's favourite festival!

It's the argument of oppressors everywhere: the slaves don't *want* freedom.

Posted by: Fr Andrew on Wednesday, 17 June 2015 at 6:00pm BST

Iain,

The parallel is with Obst, not Schüth. Apart from that I agree.

Posted by: Peter Ould on Wednesday, 17 June 2015 at 6:27pm BST

The Valentine's Day statement, as we now know, was approved by barely half the bishops but issued as if the unanimous view of them all.

Posted by: Richard Ashby on Wednesday, 17 June 2015 at 7:45pm BST

Peter: why?

Posted by: Iain mclean on Wednesday, 17 June 2015 at 8:00pm BST

My response to Father Andrew's comment would be to say that if Jeremy Pemberton was fully aware of the Church's teaching on gay marriage, and he didn't agree with it, he should have resigned. We are where we are, in the Church, however unpalatable you may find it, so we either have to put up or shut up. Surely that would have been Father Andrew's response to those opposing, for example, the ordination of women to the episcopate?

Posted by: Benedict on Wednesday, 17 June 2015 at 10:53pm BST

Interesting, Richard Ashby. What's the source for that?

If half the diocesan bishops of England disapproved, they were free to say so, issue a dissenting statement, and guarantee not to discipline clergy in their dioceses. That they didn't shows their "disapproval" to be so toothless it might as well not exist.

These are not vulnerable people; they're men at the top of the church's hierarchy, with job security that'd make a Supreme Court justice envious. If they dissent from a policy, we can reasonably expect more than private hand-wringing. Much more.

Posted by: James Byron on Wednesday, 17 June 2015 at 11:59pm BST

"To say that marriage should be between a man and woman is not the same as condemning homosexuality."

"should {only} be"/(should not be): well, there are all sorts of marriages that I, personally, don't think "should be." But it's not really any of my business to try to stop them. Benedict, were I to think that you'd never spoke out against or acted (inc voted) in any way to prevent same-sex marriages, I might feel differently about your argument.

"some of my own Christian homosexual friends are opposed to the marriage of gays themselves": these are partnered, physically-intimate "Christian homosexual friends"? In my community, we have the expression, "Pics, or it didn't happen." Pardon if I have a similar scepticism here.

Posted by: JCF on Thursday, 18 June 2015 at 5:54am BST

James, I can't give you a source, but it has definitely been stated either here or elsewhere.

Posted by: Richard Ashby on Thursday, 18 June 2015 at 9:30am BST

Iain,

Because Pemberton was (is) a clerk in holy orders so assumes a representative position for the Church in a way that a church organist does not. The ordinal and canons make this clear.

Posted by: Peter Ould on Thursday, 18 June 2015 at 9:58am BST

JCF, they are indeed partnered, physically intimate friends, as you describe their relationship, but not married, either by the state or a church, because they simply don't believe that marriage can take place between two men or two women. You may find that difficult to get your head round, but their understanding of marriage means that it would be out of the question for them.

Posted by: Benedict on Thursday, 18 June 2015 at 10:09am BST

Peter: that distinction was not relevant in Schuth, which turned on the violation of his right to family life under Article 8 ECHR.

From the summary judgment (English version):

No violation of Article 8 (right to respect for private and family life) of the European Convention on Human Rights in the case of Obst.
Violation of Article 8 in the case of Schüth.

I could say much more, but not in 400 words. Ball is in your court.

Posted by: Iain McLean on Thursday, 18 June 2015 at 11:06am BST

Well, rather than speculate about how easy the case is to win on either side, let's wait for the lawyers, who know what the real legal arguments are, and see what they make of it. I'm guessing that the key legal point will not be one of the headline points flagged by amateurs or pressure groups - it very rarely is.

Posted by: Mark Bennet on Thursday, 18 June 2015 at 11:17pm BST
Post a comment









Remember personal info?

Please note that comments are limited to 400 words. Comments that are longer than 400 words will not be approved.

Cookies are used to remember your personal information between visits to the site. This information is stored on your computer and used to refill the text boxes on your next visit. Any cookie is deleted if you select 'No'. By ticking 'Yes' you agree to this use of a cookie by this site. No third-party cookies are used, and cookies are not used for analytical, advertising, or other purposes.