Is same-sex marriage a bar to a clergyman taking an NHS post?

In 2014 the Reverend Canon J C Pemberton married his long term partner, of the same sex, pursuant to the Marriage (Same Sex Couples) Act 2013. Reverend Pemberton had been ordained as a Church of England priest in 1982. In 2007 he resigned his parish and separated from his wife. They were subsequently divorced. He took up an appointment as a Community Chaplain in 2008. In due course he became the Deputy Senior Chaplain and Deputy Bereavement Services Manager for United Lincolnshire Hospitals NHS Trust. He met his now husband in 2008 and by the autumn of 2008 they were living together.

According to NHS practice, Church of England priests are not appointed as chaplains without a licence from the Church, normally in the form of authorisation from the Bishop of the Diocese. In the period from 2008 to 2011 Reverend Pemberton. He was issued with an Extra Parochial Ministry Licence (EPML) by the Suffragan Bishop of Grantham and a Permission to Officiate (PTO) by the Bishop of Southwell and Nottingham.

In July 2013 Reverend Pemberton and his partner became engaged and on 12 April 2014 they were married. the wedding attracted press interest, including from the Mail on Sunday. Coverage from the same paper on 22 June 2014 asserted that “the first clergyman to enter into a gay marriage in defiance of the Church of England [had] been ‘sacked’ by his bishop”. Prior to his marriage the Bishop of Lincoln had written to and met with Reverend Pemberton. In March he wrote to Reverend Pemberton and stated:
… it would not be appropriate conduct for someone in holy orders to enter into a same sex marriage … Like every clergyperson, at your ordination you undertook to ‘accept and minister the discipline of this Church, and respect authority duly exercised within it …
Following the marriage he issued a rebuke to Reverend Pemberton because he had:
… chosen to marry, knowing that for an ordained priest to enter into a same-sex marriage is contrary to the teachings of the Church of England and the clear, recent statement of the House of Bishops…[which was]…inconsistent with your ordination vows and your canonical duty to live in accordance with the teachings of the Church of England.
In May 2014 Reverend Pemberton applied for a salaried post at Sherwood Forest NHS Trust. He was offered the job, subject to the usual requirement to obtain C of E consent. Instead of granting permission, in early June 2014 the Bishop of Southwell and Nottingham revoked his PTO. the job description issued by the NHS Trust included a “requirement to meet the requirements of the Church of England…in the provision of a chaplaincy service throughout the Trust”. It was also a requirement for the post holder to have “authorisation by the relevant faith community”. On 7 July the Bishop refused to grant the required EPML, explaining that:
In its pastoral guidance on same sex marriage, the Church of England House of Bishops reaffirmed that a same-sex marriage is inconsistent with the Church’s teaching on marriage. Entering into such a marriage involves the cleric acting in a way which is inconsistent with both his or her ordination vows and the canonical duty of all clergy to model the Church’s teaching in their lives. As Canon Pemberton recently contracted such a marriage, I revoked his Permission to Officiate in the Diocese of Southwell and Nottingham.
In the light of this, it would be inconsistent if I were to issue a licence to Canon Pemberton at this time.

By letter dated 30 July the Bishop confirmed that, without an EPML, Reverend Pemberton would not be able to officiate as a Priest of the Church within the Trust.
Reverend Pemberton commenced employment tribunal proceedings against the Bishop in September 2014, alleging that there had been unlawful direct discrimination because of sexual orientation and/or marital status and/or unlawful harassment related to sexual orientation.

Judgment published in “gay cake” appeal

In May 2015 I reported the decision of District Judge Brownlie, sitting in the Northern Ireland County Court in Lee v Ashers Baking Co Ltd and others, otherwise known as the “gay cake case”. I pointed out at the time that the District Judge was given a very tough call in essentially being asked to rule whether, in terms of “competing discriminations” religious belief prevailed over sexual orientation.

In brief, Gareth Lee, a gay man associated with an organisation called Queerspace made an enquiry with Ashers Bakery about them making a cake with a logo on it. He was told that if he brought in a picture of the logo it could be scanned and placed on the cake. A few days later Mr Lee returned to the shop with an A4 sheet of paper showing a picture of Bert and Ernie from Sesame Street (the logo for Queerspace) with a message below which read “Support Gay Marriage”. About four days later one of the bakery owners, Karen McArthur phoned Mr Lee and told him that they could not fulfil the order because the bakery was “a Christian business”. The business owners confirmed that they considered gay marriage to be sinful. Mr Lee was refunded and went elsewhere for his cake.

In the County Court Judge Brownlie found that the bakery owners understood that Mr Lee was gay and associated with others who were gay. However, what Mr Lee wanted them to do would not require them to support or promote gay marriage. They cancelled the order for a reason that was inextricably linked to sexual orientation and Mr Lee did not share their particular religious and political opinion which confined marriage to heterosexuals. Accordingly there was direct discrimination. The Judge also found that, particularly in the prevailing political climate (concerning whether the Northern Ireland Assembly should vote on same-sex marriage) Mr Lee’s support for gay marriage was a political opinion. Since the bakery owners refused to provide the service requested they had treated Mr Lee less favourably on this basis and this also amounted to direct discrimination.

At the time I observed:
Although the judgment has led to a good deal of debate and statements by some that they will continue to act in the same way as did the Bakery in this case, this is in fact a very well reasoned judgment which reaches what has to be the correct conclusion under the law as it stands. As the judge correctly points out, if that is not what society wants then that is a question for the lawmakers rather than those who apply the law.
The bakery owners immediately announced their intention to appeal and the appeal judgment was published on 24 October.

Priority of discrimination protection – religion, sexual orientation and political belief

I expect that most readers will have seen some of the widespread media coverage concerning the Northern Irish case of Lee v Ashers Baking Co Ltd and others. I have pointed out for some time that, particularly in the context of protection from discrimination relating to religion or philosophical belief, there is an obvious risk that such protection will at times collide with the protection from discrimination on other grounds, an obvious example being sexual orientation. Which one is to prevail? An almost impossible question for a court to rule on you might think, and so it has turned out. Unsurprisingly the Bakery announced on 28 May that it intends to appeal the decision.

District Judge Brownlie, sitting in the County Court in Northern Ireland, had the unenviable task of deciding whether the rights of a gay man who wanted a cake decorated with a pro-gay message should take precedence over the objections of a bakery which objected on religious grounds. Although it is not an employment case, the relevance for employment disputes concerning competing and conflicting claims for protection from discrimination is obvious.

I think that it is fair to say that the parties were at opposite ends of the relevant spectrum. Mr Lee is associated with an organisation called Queerspace which “seeks to increase visibility of the [LBGT] community in a positive manner and to counteract the disregard and negative images presented to the general public over the past centuries”. On the other hand the bakery business derived its name from Genesis, Chapter 49:20 which says “Bread from Asher shall be rich, and he shall yield royal dainties”. In many respects the details of the judgment are fairly unimportant and, of course, as a decision of the County Court in Northern Ireland it is not binding on any other courts. The judge found as facts that the Bakery cancelled the order because of Mr Lee’s support of a political campaign for gay marriage and the primary reason for doing so was as a result of genuine and strongly held religious beliefs, including a belief that the business should be run in accordance with God’s wishes. As put by their solicitors:
In fulfilling your client’s order, our client would have been acting so as to promote and support your client’s political campaign for a change in the law of Northern Ireland so as to enable same sex marriage which objective is directly contrary to our client’s religious faith and conscience. Our client is entitled to refuse to create a polemical message which conflicts with their religious belief and conscience.
Judge Brownlie pointed out that the crucial question in any case of alleged discrimination is to ask why the claimant received less favourable treatment.

civil partners denied hotel accommodation – not as clear cut a case as you might think

This long running case (Bull & Anor v Hall & Anotherr) hit the headlines this month when the Supreme Court gave its judgment on whether it was unlawful discrimination for Christian hotel owners to refuse a double room to civil partners, under a stated policy that they would only provide double beds to heterosexual married couples (which they had accidentally omitted to mention when taking a booking over the phone).
The Court held that it was indeed unlawful sexual orientation discrimination, although there was a split as to whether it was both direct and indirect discrimination, or just the latter. The court was unanimous, however, that while there had been a breach of the hotel owners’ right to manifest their religion that was justified for the protection of the rights and freedoms of others. According to Lady Hale human rights law:
requires “very weighty reasons” to justify discrimination on grounds of sexual orientation. It is for that reason that we should be slow to accept that prohibiting hotel keepers from discriminating against homosexuals is a disproportionate limitation on their right to manifest their religion.
There was no dispute that restricting the availability of double beds to the married was indirect discrimination – the hotel owners, Mr & Mrs Bull, were undoubtedly imposing a requirement that only heterosexual married couples could take a room with a double bed. Their argument failed that this was justified because they should be permitted to run their business in a way compatible with their belief that to permit unmarried couples to share a bed would be to facilitate what they regarded as a sin.
It was emphasised that civil partnership had been created to recognise (and encourage) stable, committed, long term relationships and accord equality of respect and esteem to same sex couples. Specific exceptions had been carved out for ministers of religion and religious organisations – which indicates that there was no intention to allow individuals to opt out of the prohibition of sexual orientation discrimination on the grounds of their religious views in any other circumstances.
Where the Supreme Court split was over whether the treatment was direct discrimination with the dissenting minority taking the view that civil partnership could not be equated with marriage and therefore did not turn the indirect discrimination into direct discrimination. However, Lady Hale, giving the leading judgment, made clear that, in her view, the status of marriage and civil partnership were “indissociable” from the sexual orientation of the parties entering into each type of contract. The denial of a double bed to one group whilst allowing to the other was, in the majority’s view, direct discrimination.