Comments: civil partnerships: a revised legal opinion

I'm interested to see Canon Belcher's argument (Para 26) that "Bishops can[not] be safe from immunity if they prosecute an unjustifiable case against one of their clerics". This is applicable to the functioning of the new Clergy Discipline Measure, in force since 1 January.

There are four grounds for a cleric to be disciplined - breach of ecclesiastical law, neglect of ecclesiastical law, conduct unbecoming, and inefficiency in ministry - none of which have been (deliberately?) defined, the first few cases will be dealing with making the case law, as well as disciplining the unfortunate cleric. At every stage in the process, the actions of the bishop, his registrar and the national Designated Officer could be subject to judicial review. As the ultimate court to determine on JR is Strasbourg, I hope the CofE (national and diocesan) has set aside some deep pockets to pay for it all.

Posted by Justin Lewis-Anthony at Friday, 13 January 2006 at 8:47am GMT

Might I point out that the "ultimate court" is not in Strasbourg. Why are so many people whinnying about the potential legal challenges to bishops who question their clergy? We appear to have forgotten that the church's default political stance is one of martyrdom because living as a Christian will inevitably invite persecution. Christians who experience same-sex attraction have for years known what it is like to be persecuted. If the boot is on the other foot for a while it will be no bad thing for evangelicals to remember that temporal ascendancy is not necessarily the norm for Christians.

Posted by Sean Doherty at Friday, 13 January 2006 at 9:31am GMT

I feel Mr Belcher is being too narrow in his reading of the House of Lords decision in the Aston Cantlow case. Whilst the specific matter was whether a PCC was a public authority my recollection is that their Lordships laid down what they felt were the hallmarks of a public authority for the purposes of the HRA. And that they did so in a form that would make it very difficult to apply that terminology to any C of E office holder.

The matter hinges not around appointment (by Crown or others) nor on the performance of some duties that could be deemed public (acting as registrars of marriages) but whether such duties lie at the heart of the office or are merely a small portion of it. As the vast majority of what any cleric (including bishop) does is not "public authority" business, the office as a whole fails the test.

Posted by David Walker at Friday, 13 January 2006 at 12:07pm GMT

I always felt that Behrens made too much of Resolution 1.10 in his first legal document, but Belcher’s opinion is clearly questionable in paragraph 9 here:

“9. Moreover Chancellor Behrens makes no mention of GS Resolution July 1997. This ‘opinion’ of Synod is important because it acknowledges that this was not the last word on homosexuality. Doctrine is not easily defined as evidenced by the broad approach of Canon A5 and the historical perspective on Doctrine given in GS 1554.5 Unlike GS Resolution of 11 November 1987 this ‘opinion’ involved separate voting by laity, clergy and bishops where there was unanimous support from the bishops. This ‘opinion’ therefore occupies greater status and therefore broadens the ‘opinion’ of GS Resolution 11 November 1987.6 Resolutions of Synod change and in this respect GS July 1997 clearly places ‘homosexuality’ in a process of discernment. It is not the last word.”

The 1987 and 1997 resolutions have absolutely nothing to do with each other. While 1987 is admittedly only an ‘opinion’ of the Church from that particular time and Synod it has not been superseded by anything since – so it remains ‘authoritative’ (a word which is used to describe it on the Church of England website). The 1997 resolution is not addressing identical issues at all. It commends the document ‘Issues in Human Sexuality, 1991’ for wider debate, while acknowledging that it is not ‘the last word on the subject’ (a direct quote from the foreword of the Bishops’ policy statement itself). The resolution only refers to the policy statement of the Bishops and not to the broader questions of homosexuality – so I cannot understand how Belcher comes to the conclusion that it places ‘homosexuality’ in a process of discernment. ‘Issues in Human Sexuality’ has never been binding, except by the collegial agreement of the House of Bishops itself. In 1997 in a statement released before the debate on the Archdeacon of Wandsworth’s resolution the House of Bishops referred to the 1987 resolution as the position of the Church of England, rather than their own policy document.

Posted by Andrew Carey at Friday, 13 January 2006 at 1:20pm GMT

The Aston Cantlow case did not really touch on individual rights at all, so it is difficult to apply it to these circumstances. Of more interest is a recent House of Lords decision, Helen Percy v. Church of Scotland, in December last year. It does away with the nonsense about "office-holders" and directly opens the way for clergy to go to employment tribunals.

Posted by Martyn Sandford at Friday, 13 January 2006 at 1:34pm GMT

I am a little surprised at the weight Belcher gives to the synod statement recognising Issues in Human Sexuality is 'not the last word.' I am sure it isn't, but no opinion, or even law is final this side of the eschaton.

Posted by Simon Cawdell at Friday, 13 January 2006 at 2:32pm GMT

The Percy case is of little value here. The judgement was decidedly narrow, depending both on the rather unusual nature of her duties and the particular wording of Sex Discrimination law which applies more widely than most other Employment law.

For C of E clergy the route to gaining the protections offered by Employment law lies in the passing of the "Common Tenure" Measure, which will also remove the anomaly of freehold.

Posted by David Walker at Friday, 13 January 2006 at 8:33pm GMT

Enough to make bishops grit their teeth and/or smile knowingly and turn a blind eye, isn't it?

Posted by Merseymike at Friday, 13 January 2006 at 9:32pm GMT

I think you need to read the Percy case. It overturns the notion that office-holders have no recourse to employment law and in particular the claim that clergy are somehow directly "employed by God". Of course it gives redress to Ms Percy in her own particular set of circumstances - on which she appealed. And it specifically acknowledges that being employed as a cleric is no bar to access to an employment tribunal. The new Measure is already obsolete.

Posted by Martyn Sandford at Friday, 13 January 2006 at 11:37pm GMT

Did Chancellor Behrens really use the phrase "genitally active"??? :-0

Just goes to show that those who make efforts to expose that which should, naturally, be left PRIVATE, can only embarrass *themselves*!

Posted by J. C. Fisher at Saturday, 14 January 2006 at 12:39am GMT

J C Fisher writes "Did Chancellor Behrens really use the phrase "genitally active"??? :-0

Just goes to show that those who make efforts to expose that which should, naturally, be left PRIVATE, can only embarrass *themselves*!"

I am sorry, but this post reminds me of all that can be wrong about a christian discussion of sexuality. Sex is a normal part of everyday life, so surely we can discuss it openly, rather than offer a blushing impression of a schoolboy shocked when his biology teacher mentions the word breast.

Those of us living in same-sex friendships within a christian context are told that our supportive friendship is wonderful, and we are offered relevant texts from the OT and NT and writers such as Aelred of Rievaulx to support the argument.

However if our wonderful same-sex partnership involves touching each other's dangly bits then the relationship immediately becomes sinful, and damaging, and worthy of censure, and possibly a disciplinary matter for an ordained person.

It is clear that for many commentators the dividing line between helpful and harmful is that very "genital activity", so why should Chancellor Behrens abstain from using such a phrase in his legal opinion?

More seriously, I believe strongly that this emphasis on discussing the rights and wrongs of privacy, rather than sexuality, is a damaging diversion, and not helpful to the cause of those of us arguing for an acceptance of homosexuality.

If supportive, healthy, sexually active same-sex partnerships are a good thing, then we should be pleased to say so. We should be willing to argue that case from our own honest, open experience.

If we react to questions by demanding privacy it gives the clear impression that we are ashamed of that sexuality, and have something to hide. That is not the best platfornm on which to build an argument.

Why shouldn't gay priests want to be be Out and Proud - and want to answer their bishops truthfully?

Simon

Posted by Simon Dawson at Saturday, 14 January 2006 at 4:29pm GMT

Simon D,

I don't disagree that all our "dangly bits" (if that's the best way of putting it: a little androcentric, perchance?) are made by God: they're good, the pleasure one can derive from them is good, and when one's Beloved Partner is providing loving touch is best of all . . .

That said, I don't why you're being quite so set-off by the concept of *privacy*. I don't want to know what het priests are doing in *their* bedrooms, and I don't imagine too many of them would want their bishops to inquire about it (as long as it's just w/ their spouse!). Why would it be any different w/ gay priests?

[Besides, when you detach it from the context of immediacy and relationship (thus making it abstract and/or clinical), isn't ALL SEX just a little bit ridiculous? Loses something "in translation" at the very least! ;-p]

The notion of privacy in sexual matters, isn't about shame (to me). It's about protecting one's covenanted relationship, from everyone else outside of it: "there are some things I talk about ONLY WITH MY SPOUSE, period."

Let's not confuse apples and oranges, OK? Honoring the partnerships of all priests (as w/ all Christians) isn't the same as raising the blinds, saying "Hey everybody: look what *we're* doing!"

Maybe in paradise things will be different, but here&now---Post Adam/Eve/apple---I think there's a proper place for those "aprons" . . . ;-)

Posted by J. C. Fisher at Saturday, 14 January 2006 at 7:34pm GMT

I must say that I don't think it is realistic to try to insist that people's sexual relationships are 100% "private", and anyway it makes no difference to clergy discipline.

The position of the church of England (as opposed to the Episcopal position) is that homosexual genital activity is sinful and that clergy must [try to] live up to the moral standards of the church. Whatever the temporal authorities say or legislate we have, as Sean pointed out, a Higher court than Strasbourg. I hope the + Newcastle, +Durham and ++York will act accordingly over the recent defiance.

Posted by Dave at Sunday, 15 January 2006 at 5:04pm GMT

David Walker writes "The Percy case is of little value here. The judgement was decidedly narrow, depending both on the rather unusual nature of her duties and the particular wording of Sex Discrimination law which applies more widely than most other Employment law."

In fact, sex discrimination law is no narrower than sexual orientation discrimination law - both use the same concepts and the same language. Furthermore, both are subject to European law, which tends to be applied generously rather than restrictively, especially by the European Court of Justice, which is the final court of appeal on these matters. Sexual orientation law is new, both at national and European level, and if I were part of the church hierarchy, I would want to watch it very closely and to consider its implications very seriously.

The Percy case removes what has historically been an exemption from this area of law by rejecting a number of key traditional arguments against jurisdiction.

I do not, therefore, agree that the Percy case is "of little value here". If that is the advice the Church is receiving, it is bad advice.

Posted by badman at Monday, 16 January 2006 at 2:12pm GMT

We were a little surprised when Mr William Fittall first mentioned the advice given to the Church of England which David Walker asserts above.

The Church of England is at least a hybrid authority and our advice was that their Lordships judgment did not allow such a wide interpretation as Mr Fittall claimed.

The House of Lords stressed that it was the nature of the function being performed that should determine whether a body was in a particular case a functional public authority(Hybrid).

While we agree that bishops are unlikely to be seen as liable authority while serving tea to reps of the Mothers Union they are likely to fall into that category when exercising the discipline of Ecclesiastical Law.

Posted by Martin Reynolds at Monday, 16 January 2006 at 3:03pm GMT

Badman is clearly correct, this is a fundamental change.

The Law here is developing - and at something of a pace! There are some first class lawyers who specialise in Canon Law, I cannot believe the CofE is getting this advice either.

I would really like to hear what Chancellor Mark Hill's view is on all of this, he has a very sharp mind and his opinion would be very much worth a read.

Posted by Martin Reynolds at Monday, 16 January 2006 at 5:14pm GMT

It is the most profound legal change for almost a century and achieves at a stroke almost all of the things the clergy union was campaigning for. Perhaps that is why the church authorities are reluctant to admit the significance of the Percy case?

Posted by Martyn Sandford at Monday, 16 January 2006 at 6:32pm GMT

Well if the effect of European HR law and the Percy ruling is that religions lose the right to express their own moral codes within their own organisational structures then European HR law is exposed to be totalitarian!

What freedom of religion is there if it only extends to those issues on which the secular law is silent? Isn't a religion allowed to be "wrong"? Next thing we know only state approved religions will be allowed.. just like the good old communist regimes - which also thought of religion and religious people as backward, enemies of the state and in need of reeducation.

Broad human rights concepts can in my view be a useful tool to define an outer line within which society's laws should remain. No more. Otherwise we end up in the ridiculous situation of using "finessed HR" to take away freedoms !

Posted by Dave at Monday, 16 January 2006 at 10:38pm GMT
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