Clergy Same-Sex Marriage: An Appealing Case?

Introduction and Summary

Jeremy Pemberton has been granted leave to appeal the employment tribunal judgment that last November dismissed his claims which arose from failing to secure a chaplaincy post following his same-sex marriage.  This news makes clear that the case will hit the headlines again later in the year although it is reported by the BBC that “the appeal will only consider legal arguments about the case and no new evidence will be heard”.   The original proceedings led to various comments (a helpful summary was provided by Law and Religion UK  and there were various reflections (eg from Savi Hensman, Simon Sarmiento, David Ould, Peter Sanlon, Peter Ould and Ian Paul) as well as a TV discussion with Ian Paul).

My aim here is to look at the theological foundation of Canon Pemberton’s case (part 1) and show how he misinterprets Article 32 which is about whether a priest can marry at all not about who a priest can marry. Then (part 2) I examine an area that has not gained much attention – what he appears to be seeking through pursuing his appeal: an overturning by a secular court of the bishops’ statement of the church’s doctrine of marriage with the result that bishops will not be able to refuse to licence those in same-sex marriages.  This latter raises much wider issues of ecclesiology and the relationship of church and state than the already important issues concerning same-sex marriage.

1. What is Jeremy Pemberton’s Theological Defence? Article 32

At the heart of Canon Pemberton’s argument is an appeal to the 39 Articles, in particular Article 32.  His view is that, as he put it in his discussion with Ian Paul on BBC2, “in our rules we have an Article which says priests can marry who they want to marry”.  The judgment quotes his more formal statement:

I think the 39 Articles are still valid, and Article 32 makes quite clear that “it is lawful for them (i.e. the clergy), as for all other Christian men, to marry at their own discretion, as they shall judge the same to serve better to godliness”.  The judgment is that of the individual clergyperson, not that of any other person. That the Articles were never written to address this current situation is neither here nor there. There are many things in our Church’s life and discipline that the Articles support but which they were never written to address (para 163).

The judgment goes on to note “That essentially is his position because otherwise he is of course floored by the clear statement of the doctrine in the Pastoral Guidance” (para 164).

On Ian Paul’s blog he added this comment:

I have had to affirm my faith set forth in the 39 Articles all through my ministry and have done so without reservation – the Articles allow of a very wide range of interpretation as we know from our 19C church history. I don’t think I was doing more than taking the plain sense of an article seriously, and in fact, interpreting it in the purposive sense for which it was written, in other words to protect the clerical right to marry without interference. So I was not twisting its meaning to make it do something obscure. And, and this is a new bit of information for you all, when I put this to various bishops at the critical meetings and correspondance in the first half of 2014 I did not get any response to this. They were not able to explain to me why my understanding was defective, nor did they explain why the Article could not or should not be interpreted in the way I was interpreting it. You might have wished them to have rebutted my claim in all kinds of ways, but as a matter of fact, they either could not or did not.

This is perhaps why Jeremy has persisted in appealing the judgment despite its clear rejection of his view:

That article has to be seen in the then historical context.  Homosexuality was of course punishable by death. It was therefore inconceivable (as was eventually conceded before us by the Bishop of Buckingham) that the authors of the 39 Articles would have had in their contemplation that this provision permitted same sex marriages (para 167)

An argument could of course be made that although same sex marriage would not have been in the contemplation of the authors of the Articles, their theological principles can be extended to same-sex marriage once we can contemplate it.  This seems to be Jeremy’s point at the end of the statement quoted above from para 163.  Certainly if the Articles taught that priests could marry anyone they wanted if the law of the land permitted such marriage then he would have a case of sorts given the recent change in law and his clear desire to marry his partner. It is, therefore, important to see what the article is teaching.  It reads:

XXXII. OF THE MARRIAGE OF PRIESTS

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, as for all other Christian men, to marry at their own discretion, as they shall judge the same to serve better to godliness.

1a.          Not who priests can marry but whether priests can marry at all

Jeremy Pemberton sees the question being answered in this article as “Are priests free to marry who they want?” and the “it is lawful” to be permission which he is being denied by the bishops in violation of the Articles.

But both the original context and the wording of the article itself make clear that this is not the question being addressed.  It is not about who priests can marry but whether priests can marry at all.  It is a rejection of the Roman Catholic requirement of priestly celibacy.  But it is also a rejection of any argument that priests must marry.  Whether or not they marry is “at their own discretion”.  What “is lawful for them” is for them to marry (or not) “as they shall judge” but nothing is said here that means “priests can marry who they want to marry”.

1b.          Five reasons why the argument is defective

That this permission to marry cannot be read as further entailing an authorisation to “marry who they want to marry” is shown by a number of factors of which five, focussed on the Articles, in particular stand out.

First, the criterion by which what is lawful is determined is “God’s Law” not what the priest wants: “it is lawful for them at their own discretion” is the conclusion (it is preceded by “therefore”) based on “Bishops. Priests and Deacons are not commanded by God’s Law…to abstain from marriage”.  The Articles are, of course, quite clear that humans can want things that God’s Law prohibits as is most evident in Article 9:

Original Sin standeth not in the following of Adam, (as the Pelagians do vainly talk;) but it is the fault and corruption of the Nature of every man, that naturally is ingendered of the offspring of Adam; whereby man is very far gone from original righteousness, and is of his own nature inclined to evil, so that the flesh lusteth always contrary to the spirit; and therefore in every person born into this world, it deserveth God's wrath and damnation. And this infection of nature doth remain, yea in them that are regenerated; whereby the lust of the flesh, called in the Greek, "Phronema Sarkos", which some do expound the wisdom, some sensuality, some the affection, some the desire, of the flesh, is not subject to the Law of God. And although there is no condemnation for them that believe and are baptized, yet the Apostle doth confess, that concupiscence and lust hath of itself the nature of sin.

Second, Article 25 on the sacraments confirms that the authority for its teaching about marriage is God’s Law as it appears clear that matrimony is there described as a “state of life allowed in the Scriptures”.

Third, Article 35 (the only other Article to refer to matrimony) lists the Homily “Of the State of Matrimony” as one which contains “a godly and wholesome Doctrine, and necessary for these times” and so “to be read in Churches by the Ministers, diligently and distinctly, that they may be understanded of the people”.  This begins:

THE word of Almightie GOD doth testifie and declare, whence the originall beginning of Matrimony commeth, and why it is ordained.  It is instituted of GOD, to the intent that man and woman should liue lawfully in a perpetuall friendship, to bring foorth fruite, and to auoide Fornication.  By which meane a good conscience might bee preserued on both parties, in brideling the corrupt inclinations of the flesh, within the limites of honestie.  For GOD hath straitly forbidden all whoredome and vncleannesse, and hath from time to time taken grieuous punishment of this inordinate lust, as all stories and ages haue declared.

This teaching is, of course, that found in the opening words of the marriage liturgy in the Book of Common Prayer and the Book of Common Prayer is canonically a recognised authoritative source of Church of England doctrine, which is ultimately grounded in Holy Scripture (Canons A3 and A5), and all clergy recognise this in affirming the Declaration of Assent.  Similar words are found in the earlier 16^th century Books of Common Prayer which pre-date the Articles and so make clear what they meant when they refer to matrimony.

Fourth, this all confirms what is implied in the Article’s reference to “God’s Law” i.e. that marriage is not to be defined by the state (as Jeremy implies by simply saying “You can’t marry people if it is not legal to marry them but it was legal for me to marry”) but by God.  What marriage is and therefore whom any person can marry is not, in church teaching, simply a matter of human law but of divine law.

Fifth, this is further confirmed by the fact that the Book of Common Prayer includes, after the Articles, “a table of kindred and affinity wherein whosoever are related are forbidden by the Church of England to marry together” (also found in canon B31).  This makes clear that the Article cannot be allowing a priest to “marry who they want to marry” as what the priest is granted here is what is lawful “for all other Christian men” and no Christian man is able to “marry who they want to marry” given the prohibitions here which are of course based on divine law in Old Testament Scripture.  In other words, even within the definition of marriage as between a man and a woman no Christian is then free to “marry who they want to marry”.

1c.          Summary: Flawed Foundations

It is, therefore, clear that the very Articles to which Jeremy Pemberton appeals as “our rules” against the bishops’ pastoral guidance make his interpretation of them highly idiosyncratic and implausible.  To further claim this reading as not just possible but central to the church’s doctrine of marriage is without foundation.  Even were there to be some plausibility in his argument about Article 32 to undermine the foundations of the church’s case faces the further hurdle that in defining doctrine as he does he is privileging his novel reading of this one Article as fundamental in the face of all the clear definitions of marriage found (and cited by the bishops) in the Church of England’s authoritative sources, and claimed to be revealed in Scripture, including most clearly canon B30.

2. What is Jeremy Pemberton seeking?

Canon Pemberton presents himself as someone who has been unjustly punished and discriminated against by the refusal of a bishop to provide him with a licence and, as a result, his inability to be appointed to a post he was otherwise suited for because such a licence was required by the employer for him to take up the job.  There is no doubt that this is a painful and distressing situation for him and others.  It is one in which, by appearing to be a victim of prejudice and the imposition of others’ beliefs to his detriment, he has gained much sympathy and support.

2a.          The outcome if Jeremy Pemberton succeeds

But what Jeremy Pemberton is seeking will have a similar effect on others.  He is asking the court to require any bishop not to refuse him a licence to minister on the grounds he has entered a same-sex marriage.  It was quite clear that one major reason Bishop Inwood did not issue a licence was because of his understanding of the church’s teaching and his own ordination vow to uphold this (his words are quoted at para 203 of the judgment where he speaks of “my own Oath of Obedience and requirement to uphold the doctrine of the Church”).  That doctrine was clearly set out by the bishops based on numerous authoritative sources.  Jeremy, along with others, does not believe what they said is true in relation to marriage nor does he believe that it is, in fact, church doctrine.  But this question of the doctrine of marriage is not all that is at stake.  There is also the question of who determines and defines doctrine and on what basis.

What Jeremy is asking is for a secular court to tell bishops that they are wrong in their definition of the church’s doctrine.  Furthermore, they should state that as the bishops’ error leads them to discriminate in the eyes of the law they must therefore not apply what they believe to be doctrine in the exercise of their office of bishop within the church of God.  In other words, were he to win his appeal, two major consequences would follow, particularly given the appeal judgment will have wider application than his own specific case:

1. A secular court would have determined the church’s doctrine and reading of Scripture over the heads of, and in contradiction of, the bishops of the church
2. Nobody would (unless what is currently held to be the doctrine was restated clearly by the church or the ruling over-turned by higher court) be able to continue to minister as a bishop, or be appointed as a bishop, if their conscientious understanding of their role and the Bible’s and the church’s teaching required them to refuse a licence to someone who was in a same-sex marriage.

The level of state control of the church that this represents is something that I have not heard anybody defend.  Yet it must be defended as it seems to be the incontrovertible consequence of Jeremy’s appeal succeeding and thus what he – and those who support him in pursuing his case - must desire or at least be willing to accept as an outcome.   What is astonishing is that it seems many Christians who present themselves as “liberal” and “inclusive” and “post-Christendom” or “anti-Christendom” are either blind to or unconcerned about these implications of their pursuit of “justice” by the means Jeremy is pursuing it.

2b.          Two paths to this end

There are two possible and significantly distinct routes to this outcome.  First, that the judges rule that the church has no doctrine of marriage and/or that it does in Article 32 have a doctrine that clergy “can marry who they want to marry” which trumps any doctrine of marriage that restricts it to opposite-sex unions.  Here the court determines that the bishops have mis-stated doctrine (in their defence of a doctrine of marriage) and/or violated it (in penalising Jeremy Pemberton for his decision to marry his same-sex partner).  This would presumably be a judgment that the claims critiqued above are not flawed but represent the foundation of the church’s teaching about marriage.

The theological defence for seeking this ruling would be that the bishops need to be called to account by a secular court for these errors in interpreting and applying church doctrine as they have harmed Jeremy.  The seeking of redress before a secular court still needs theological justification, especially given the two serious consequences noted above and the failure to seek redress within the church, but this effectively takes the form of appealing outside the church on the basis that the church itself has failed to follow its own rules and teaching.

At times, though, the rhetoric has been that of the injustice of the church’s current teaching and the need for it to be corrected by the law and the courts.  This represents a much more serious state intrusion into the church’s life and one which thankfully is unlikely to succeed.  The state seems still to accept that the church (and other religious bodies) should not be told what their doctrine must be or have their reading of the Scriptures judged by the state.  Nor does the state seek to tell church leaders they must, in the ordering of the church, be forced to follow state decisions against the teaching of the church.

The reality is that the state – both in the legislature (through the clear exemptions granted the church in this area) and the judiciary – realises that interfering in the definition of doctrine or preventing a church from following its doctrine would be to take actions normally associated in modern times with totalitarian regimes.  The judgment therefore is clear that “if there is a doctrine that precludes same sex marriage, then unless and until it is changed by the constitutional processes of the Church, it remains the doctrine” (para 169) and the court is not the place to determine what the teaching of Christ is in the face of disagreements over this within the church:

we are not theologians, and without wishing to dismiss these clearly deeply felt and well reasoned arguments, they do not engage before us if there is a doctrine.  This is because of course (and reminding ourselves of the Amicus judgment) it is not then the function of this tribunal to seek to reconstruct the doctrines.  So, the be all and the end all of the issue at this stage is whether or not there is one (para 170).

There are, of course, possible theological defences for seeking such state control over and against church authorities.  After all, the English Reformation occurred over who had the right to define marriage and the legitimacy of a marriage – the Pope or the King.  I suspect though that few advocates of Jeremy Pemberton’s position (despite their occasional rhetoric) are likely to support such a reversion to high Erastianism which would be unprecedented in the recent history of the church and overturn the gradual recognition of the need for greater church freedom from state control.

2c.          Conclusion

The question then is what exactly Jeremy Pemberton is seeking and how it can be justified.  If the argument is that the church’s doctrine is in error or that the bishops are in error in their statements and applications of that doctrine then there are means within the church to rectify those errors.  To seek for the state to correct the church’s alleged errors – by judging that the bishops are mis-stating its own doctrine or that the substance of that doctrine must be abandoned - is a step which needs to be defended.  Yet I have seen no serious defence of this approach.  The decision of Canon Pemberton and his supporters to continue to press their case through the courts means they must address this issue of their chosen means to secure their desired end and clarify what they are wanting the court to decide in terms of directing the church in relation to its doctrine and requirements of ministers.

3. Can we not just “agree to differ”?

Finally, looking ahead as we draw near the end of the Shared Conversations, this case highlights the difficulty of implementing what some call for under the title of “good disagreement”.  If the case is lost then it has been established that the church has a doctrine of marriage which bishops are right to uphold by refusing to issue a licence to someone in a same-sex marriage.  The judgment is clear that canonical obedience is “a core part of the qualifying of a priest for ministry within the Church” (para 120) and that Canon Pemberton is obliged to undertake to pay true and Canonical Obedience to the Lord Bishop but that (given its conclusion as to church doctrine), “Self-evidently he is not going to be able to fulfil that obligation or has not done so….and therefore objectively he cannot be issued with his licence” (para 121).  Any bishop who therefore issued a licence to someone in a same-sex marriage would therefore be open to legal challenge.  Any attempt to allow clergy to enter same-sex marriages would, it appears, need first to redefine the church’s doctrine of marriage.  If, however, Jeremy wins his case then, as noted above, no bishop could refuse a licence on the grounds of the priest being in a same-sex marriage.

In other words, if the church keeps it current doctrine of marriage then it will be very difficult to justify licensing clergy in same-sex marriages but if it changes it or somehow declares it has no fixed doctrine of marriage then it will be very difficult to justify refusing a licence to clergy in same-sex marriages given equality legislation.  So, even if it were considered desirable, it is therefore hard to see how, given the law, the church could “agree to differ” on this subject in a way that both enabled same-sex married clergy to be licensed and also protected those unable in good conscience to license clergy in same-sex marriages.

Andrew Goddard

Andrew Goddard served on the Leadership Team of Fulcrum from its launch in 2003 until 2020. He currently teaches Christian ethics at Westminster Theological Centre and Ridley Hall, Cambridge and is Assistant Minister at St James the Less, Pimlico where his wife, Lis, is Vicar. He has previously taught at Wycliffe Hall, Oxford and Trinity College, Bristol and been an Adjunct Professor at Fuller Theological Seminary, Pasadena, California. He has served for a number of years on the Church of England Evangelical Council (CEEC) and was on the Co-Ordinating Group of the Living in Love and Faith project. He is author of a number of books, including Rowan Williams: His Legacy (Lion, 2013) and co-editor with Andrew Atherstone of Good Disagreeement? Grace and Truth in a Divided Church (Lion, 2015).