Blocking married gay chaplain probably lawful, though pointless

By Savi Hensman

December 15, 2016

The Church of England did not break the law by blocking a hospital chaplain from a job for being gay and married, the Employment Appeal Tribunal has ruled. However Jeremy Pemberton’s case makes clear how weak is the rationale for the church’s policy.

In 2014 Pemberton was prevented from taking up a senior post in Sherwood Forest Hospitals trust. This was because the acting Bishop, Richard Inwood, refused him a license after he married Laurence Cunnington.

While other clergy have been reprimanded for marrying when this became legally possible, most have stayed in their positions. The case was also unusual since the post Pemberton was stopped from taking was with an equal opportunities employer.

Faith groups can discriminate on grounds of sexual orientation and gender when a job is for the purposes of organised religion. But NHS organisations are expected to treat everyone justly and humanely, whether patients or staff.

Pemberton took the case to an Employment Tribunal. But, in 2015, it ruled in the bishop’s favour. In December 2016, the Employment Appeal Tribunal has upheld that decision. Though he found his treatment distressing and humiliating – as do many victims of discrimination – it was apparently not unlawful.

It is just possible that there will be further legal action and the finding will be overturned. If not, it would appear that a religious organisation lawfully stopped a public body from taking on a member of staff with outstanding skills in providing emotional and spiritual support to sick, scared, dying and bereaved people.

The House of Bishops did indeed warn priests against marrying same-sex partners in February 2014 in ‘Pastoral Guidance on Same Sex Marriage’. This indicated that the church’s current position was that “marriage is in its nature a union permanent and lifelong, for better for worse, till death them do part, of one man with one woman” and that everyone nor called to this should be sexually abstinent.

This is however confusing. While marriage breakdown is regarded as sad and to be avoided if possible, second marriages after divorce are treated as authentic: indeed there are services of prayer and dedication and even church weddings.

And by that time, only about a fifth of Anglicans in Britain believed that same-sex sexual relationships were always wrong. Since the 1940s, numerous Church of England and other theologians have made the case that faithful, self-giving partnerships are morally acceptable. Indeed from the 1970s, several official church reports have set out the arguments persuasively, though senior clergy have been reluctant to offend those most strongly opposed.

Some Christians prefer terms other than ‘marriage’ for such partnerships. But a survey in 2016 suggests that more Church of England members are for, than against, marriage of same-sex couples.

Overall, many would like the church to be more consistent in welcoming their relatives and friends who are lesbian, gay, bisexual, transgender or intersex (LGBTI), even if heterosexual themselves.

It is also questionable how practical, let alone desirable, it is for those not called to celibacy to steer clear of physically intimate committed partnerships for life. One of the founding principles when the Church of England broke away from the authority of Rome was that “Bishops, Priests, and Deacons, are not commanded by God's Law, either to vow the estate of single life, or to abstain from marriage: therefore it is lawful for them... to marry at their own discretion, as they shall judge the same to serve better to godliness.”

The House of Bishops already recognises that laypeople may, in good conscience, decide to marry same-sex partners. ‘Shared conversations’ on sexuality have been taking place to increase mutual understanding. It is expected that the bishops will bring proposals to Synod which try to take on board the views of those in favour of greater inclusion, not just opponents.

The Pemberton case has already damaged the Church of England’s relationship with the NHS, which would not usually fund posts involving discrimination on grounds of sexual orientation or gender identity. It would make sense to take this opportunity to agree that a license should not be withheld in such cases.

Indeed, it would be sensible to give greater leeway to congregations which agree that marriage, as well as celibacy, can assist godliness, whether or not people are LGBTI.

It may have been lawful for a Church of England bishop to stop an NHS trust from employing the best candidate to care for patients and staff, leaving him distressed and humiliated. But this does not make it wise or right.

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© Savitri Hensman is an Ekklesia associate and respected commentator on welfare and other issues. She is author of the book Sexuality, struggle and saintliness: same-sex love and the church (Ekklesia, 2016): http://www.ekklesia.co.uk/node/22613 and has been involved in seeking greater inclusion.