Same-sex marriage and church law clash

Posted: 8th December 2016

Church of EnglandIn a landmark employment case that highlighted the continuing mismatch between the legalisation of same-sex marriage and Church of England doctrine, a tribunal ruled that a bishop was exempt from liability in respect of discrimination after he refused to license a gay cleric, Canon Jeremy Pemberton, who had tied the knot with another man.

After the cleric’s marriage, Bishop Inwood had refused to grant Pemberton an extra-parochial ministry licence. That had opposed his wish to take up a chaplaincy post with an NHS trust. He launched Employment Tribunal (ET) proceedings claiming, amongst other things, that he had been discriminated against due to his sexual orientation.

The ET found that the licence was a relevant qualification within the meaning of Section 54 of the Equality Act 2010 and that the bishop had refused to grant it because same-sex marriage was incompatible with Church of England doctrine. However, in citing the organised religion exemption contained within the Act, the ET ruled that the bishop was exempt from liability.

In dismissing the cleric’s challenge to that ruling, the Employment Appeal Tribunal agreed with the ET that the licence, as a qualification, was for the purposes of employment for the purposes of an organised religion, notwithstanding that the cleric’s prospective employer was the NHS trust, rather than the Church.

Canon Jeremy Pemberton had been aware that his marriage would damage his good standing within the Church and, in applying a requirement that he not be in a same-sex marriage, the Bishop had been faithful to Church doctrine. It did not matter that a different bishop may have taken a different view and the exemption applied.