1. Background

Canon Pemberton is not a “beneficed” clergyman with the care of a parish, but is an ordained priest in the Church of England, who married a same-sex partner in April 2014, after the commencement in the UK of the Marriage (Same Sex Couples) Act 2013. That Act contains very clear statements that the Church of England doctrine of marriage is not to be impacted by the change in “secular” law (see eg s 1(3) which explicitly preserves the operation of any Canons of church law providing that marriage should be between a man and a woman). In particular, Canon B30 of the Canons of Ecclesiastical Law provides as follows:

B 30 Of Holy Matrimony 1. The Church of England affirms, according to our Lord’s teaching, 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, to the exclusion of all others on either side, for the procreation and nurture of children, for the hallowing and right direction of the natural instincts and affections, and for the mutual society, help and comfort which the one ought to have of the other, both in prosperity and adversity.

The Church itself has been very clear in stating that it does not accept that marriage can be between two persons of the same sex. For example, the Court of Appeal at [19] quotes the Pastoral Guidance on Same Sex Marriagefrom the House of Bishops dated 15 February 2014, which includes the following statements:

12. When the Act comes into force in March it will continue not to be legally possible for two persons of the same sex to marry according to the rites of the Church of England. In addition the Act makes clear that any rights and duties which currently exist in relation to being married in church of England churches do not extend to same sex couples…

23. At ordination clergy make a declaration that they will endeavour to fashion their own life and that of their household ‘according to the way of Christ’that they may be ‘a pattern and example to Christ’s people’. A requirement as to the manner of life of the clergy is also directly imposed on the clergy by Canon C 26, which says that ‘at all times he shall be diligent to frame and fashion his life and that of his family according to the doctrine of Christ, and to make himself and them, as much as in him lies, wholesome examples and patterns to the flock of Christ.’
24.  The implications of this particular responsibility of clergy to teach and exemplify in their life the teachings of the Church have been explained as follows; ‘The Church is also bound to take care that the ideal is not misrepresented or obscured; and to this end the example of its ordained ministers is of crucial significance. This means that certain possibilities are not open to the clergy by comparison with the laity, something that in principle has always been accepted‘ (Issues in Human Sexuality, 1991, Section 5.13).
25. The Church of England will continue to place a high value on theological exploration and debate that is conducted with integrity. That is why Church of England clergy are able to argue for a change in its teaching on marriage and human sexuality, while at the same time being required to fashion their lives consistently with that teaching.
26. Getting married to someone of the same sex would, however, clearly be at variance with the teaching of the Church of England.  The declarations made by clergy and the canonical requirements as to their manner of life do have real significance and need to be honoured as a matter of integrity.
27. The House is not, therefore, willing for those who are in a same sex marriage to be ordained to any of the three orders of ministry. In addition, it considers that it would not be appropriate conduct for someone in holy orders to enter into a same sex marriage, given the need for clergy to model the Church’s teaching in their lives.
28. The Church of England has a long tradition of tolerating conscientious dissent and of seeking to avoid drawing lines too firmly, not least when an issue is one where the people of God are seeking to discern the mind of Christ in a fast changing context. Nevertheless at ordination clergy undertake to ‘accept and minister the discipline of this Church, and respect authority duly exercised within it.‘ We urge all clergy to act consistently with that undertaking.”

After discovering that Canon Pemberton had gone through a ceremony of same-sex marriage, Bishop Richard Inwood revoked the Canon’s “Permission to Officiate” (“PTO”) at services in the Diocese of Southwell and Nottingham. He also declined to grant the Canon an Extra Parochial Ministry Licence (“EPML”) which was a necessary requirement for the post of Chaplaincy and Bereavement Manager in the Faith Centre at the Kingsmill Hospital run by the Sherwood Hospitals NHS Trust within the Diocese.

2. The Claim

Canon Pemberton claimed that he had been unlawfully discriminated against on account of his sexual orientation, contrary to the Equality Act2010. He also claimed harassment under the same legislation. In this comment I will focus on the main issue, the claim of discrimination, which failed. The harassment claim was also dismissed.

3. The Ruling of the Court

It is fairly clear that in other circumstances, being removed from a position, and denied a job, on account of entry into a same-sex marriage, would usually be unlawful. Even though Canon Pemberton was not an “employee”, he successfully argued that he needed the license of the Bishop to be granted a paid chaplaincy position at the local hospital, and this meant that the Bishop was a “qualifications body” for the purposes of s 53 of the 2010 Act. Hence the refusal of the EPML was a denial of a “relevant qualification” under s 54. (The “PTO” was a license to conduct religious services which did not itself lead to remuneration, and at para [40] the Court said that it was not a relevant qualification. But since the EPML was needed for the paid chaplaincy position, it was.) But the amending legislation in the UK inserted specific provisions to deal with this type of situation, in Schedule 9, para 2 of the 2010 Act:

“2  (1) A person (A) does not contravene a provision mentioned in sub-paragraph (2) by applying in relation to employment a requirement to which sub-paragraph (4) applies if A shows that— (a)  the employment is for the purposes of an organised religion, (b)  the application of the requirement engages the compliance or non-conflict principle, and (c)  the person to whom A applies the requirement does not meet it (or A has reasonable grounds for not being satisfied that the person meets it)… (3)  A person does not contravene section 53(1) or (2)(a) or (b) by applying in relation to a relevant qualification (within the meaning of that section) a requirement to which sub-paragraph (4) applies if the person shows that—

• (a)  the qualification is for the purposes of employment mentioned in sub- paragraph (1)(a), and
• (b)  the application of the requirement engages the compliance or non-conflict principle.

(4)  This sub-paragraph applies to—… (ca)  a requirement not to be married to a person of the same sex… (5)  The application of a requirement engages the compliance principle if the requirement is applied so as to comply with the doctrines of the religion.”

The question then was this: was a requirement that a member of the clergy, to be in “good standing” in the church to allow the issue of a relevant licence, not be a party to a same sex marriage, one which was applied to comply with the “doctrines” of the Church of England? There was an argument put that the “doctrines” of the Church were to be found mainly in the Thirty-Nine Articles and the Book of Common Prayer- see para [17]. This would have excluded the Canons from being considered “doctrinal”. But the Court rejected this reading of the word. In an important passage Lady Justice Asplin (who wrote the main judgment in which the other judges concurred) said:

[62] [I]t seems to me that Her Honour Judge Eady QC was correct to conclude that “doctrines” for the purposes of paragraph 2(5) of Schedule 9 must be read more widely than what is considered strictly by a particular church or religious organisation to be “doctrine” by that organisation. As Mr Linden points out paragraph 2(5) uses the term “doctrines” and not “doctrine” and is intended to apply in relation to all religions. It seems to me that if one reads the sub-paragraph as a whole, in the context of the exception in paragraph 2 as a whole, it should be construed to mean the teachings and beliefs of the particular religious organisation which may be wider than what it itself labels “doctrine.”  Even if that were not the case, in this case, Canon A5 itself refers to the “doctrine of the Church of England” in wide terms and states merely that such doctrine is to be found “in particular” in the specific documents referred to. Accordingly, it seems to me that Her Honour Judge Eady QC was correct to conclude that the ET was entitled to find that the doctrines, as in teachings and beliefs of the Church of England, were as stated in Canon B30 with specific regard in relation to same sex marriages to the statement of Pastoral Guidance from the House of Bishops. She was quite right to note that the Court cannot be expected to enter into a theological debate in order to determine the doctrines itself: see [112]. Indeed, the Court ought not to do so. She was also right to find that the ET was entitled to find that the doctrines in relation to marriage were clear. (emphasis added) 

Of course, it may well have been possible to argue that, even if the only sources of “doctrines” were the Articles and the BCP, that the Book of Common Prayer in particular leaves no doubt that marriage for the Church of England (as historically for all branches of Christianity) means marriage between a man and a woman. But the decision to include the Canons was clearly correct, and puts the matter beyond doubt. As her Ladyship concluded:

[63] It was not necessary, as Mr Jones suggested, that there should be an express provision prohibiting a priest from entering into a same sex marriage and spelling out the consequences if he did. The teaching and in fact, the doctrine of the Church of England (in the sense in which the Church uses the term) is quite clearly spelt out in Canon B30. Paragraph 1 of that Canon makes clear that the Church of England considers marriage to be between one man and one woman. By its very terms it delimits the concept of marriage in accordance with the teachings and doctrine of the Church in a way which excludes same sex marriage. Furthermore, it is made clear in paragraph 3 that a priest is expected to uphold what is described expressly as “the Church’s doctrine of marriage.” As Mr Linden pointed out, Canon B30 does not state expressly that the Church of England’s doctrine of marriage does not include polygamy but it is quite clear that it does so. 

Hence her Ladyship concluded that the Bishop had made the decision he did to comply with the doctrines of the Church of England, and this meant that his decision fell within Sched 9, para 2 and was not unlawful discrimination. The other members of the Court agreed. In particular, Underhill LJ noted that the ecclesiastical law Canon B30 was in his view clearly part of the “doctrines” of the Church of England:

[83]… although Canon A5 identifies the fundamental sources from which the doctrine of the Church derives, part of the purpose of the Canons as a whole is to state such doctrines more clearly or succinctly than may appear in those sources – Canon B30 being a case in point. 

And in concluding remarks on the harassment issue, he summed this up well:

[89] 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. (emphasis added) 

4. How would this issue be decided in Australia?

Since Australia now recognises same-sex marriage, there is now the potential for a similar case to arise in this country. I commented on a similar issue in my earlier blog post, ‘More Australian same sex marriage implications- the “monitum” and “rogue priests”’ (Dec 7, 2017). But there the question was whether, despite the Anglican Church of Australia’s avowed official policy that marriage was to be between a man and a woman, a “rogue priest” might be able to solemnise a same-sex marriage. I concluded there that

a minister of religion authorised to solemnise marriages by a specific denomination, ought not to take it on themselves to solemnise a same sex marriage contrary to the forms and ceremonies of their denomination. If they do so they would be acting contrary to the intent of the Act, and exposing themselves to a possible criminal prosecution.

But suppose an Anglican priest were to enter a civil same-sex marriage? And further suppose that their bishop then applied a disciplinary sanction of some sort; would there be a possible claim for unlawful sexual orientation discrimination against the bishop? In the absence of a specific set of facts one would have to say “it all depends”! However, it seems unlikely. To take one piece of legislation, the Commonwealth Sex Discrimination Act 1984 (“SDA”) s 14 makes it unlawful for an “employer” to discriminate against an employee by, for example, subjecting the employee to a “detriment”, on the grounds of their sexual orientation. But long-standing cases establish that the relationship between a bishop and a member of the clergy is usually not an employer/employee relationship. So there is quite some doubt about whether there would even be a prima facie case for discrimination. Even if there were, however, in an unusual situation, an employment relationship, s 37(1) of the SDA provides that there is no discrimination under these provisions where the relevant decision involves:

(c)  the selection or appointment of persons to perform duties or functions for the purposes of or in connection with, or otherwise to participate in, any religious observance or practice; or (d)  any other act or practice of a body established for religious purposes, being an act or practice that conforms to the doctrines, tenets or beliefs of that religion or is necessary to avoid injury to the religious susceptibilities of adherents of that religion.

So where, as in the Pemberton case, the question arose as to a license to carry out religious services, para 37(1)(c) would seem to exempt a decision of that sort from being unlawful; and in other cases para 37(1)(d) would be relevant. (It seems fairly clear that the decision of a bishop to apply an internal disciplinary measure could be regarded as an “act” of a “body established for religious purposes”, the church acting through the bishop.) It is interesting to note that almost the same issue arises under that provision, as came up in the Pemberton case: whether the refusal to appoint someone “conforms to the doctrines, tenets or beliefs of that religion” (cf the UK provision in Sched 9 para 2(5), the “compliance” principle.) In this context the decision of the Pemberton court on the content of “doctrines” is a welcome recognition that the word extends beyond classical purely “theological” concerns about the nature and attributes of God, to also include matters dealing with how believers should live. In the Australian context there has been a marked divergence of approach on this issue between two of the key cases in this area over recent years. In Christian Youth Camps v Cobaw [2014] VSCA 75 the Victorian Court of Appeal by majority took the view that the “doctrines”of Christianity did not include views on sexual morality- see eg paras [276]-[277]. In contrast, in OV & OW v Members of the Board of the Wesley Mission Council [2010] NSWCA 155, the NSW Court of Appeal held that “doctrine” in a similar provision in NSW law was not to be simply confined to formal creeds, and extended to what the body currently teaches and believes, not just historical matters- see eg para [50]. As a result the belief of the Wesley Mission that marriage as between a man and a woman was the preferred context for child raising, was held to justify their declining to place a foster child with a same-sex couple: see the final resolution of the proceedings in OW & OV v Members of the Board of the Wesley Mission Council [2010] NSWADT 293 at [34]. The High Court of Australia sadly declined special leave to appeal in Cobaw; there is a real clash between these two superior Australian appellate courts on the interpretation of very similar pieces of legislation, which will eventually need to be resolved by that court. Until that formal resolution, the persuasive comments of the England and Wales Court of Appeal in Pemberton provide sound guidance on how provisions of this sort in discrimination law should be approached. As Lady Justice Asplin noted at [62], referring to the lower court decision in that case, it would not be a good idea to give the secular courts authority to determine what counts as “doctrines” for a particular religion:

the Court cannot be expected to enter into a theological debate in order to determine the doctrines itself: see [112]. Indeed, the Court ought not to do so.

Instead, it seems the right approach is to recognise the authority and religious freedom of religious bodies to determine who will be regarded as being able to represent the body. Where there is a different view taken by one member of the group as to a matter of behaviour flowing from religious belief, the ultimate remedy is that they may leave that group. Underhill LJ in Pemberton was correct to note that not all disagreement on these matters is based on hostility or a desire to offend.