In April 2014, Canon Jeremy Pemberton became the first priest in England to enter into a same-sex marriage. In September 2014 he filed a discrimination claim with an employment tribunal after he had been blocked from taking up a position as an NHS chaplain in Nottinghamshire because of his marriage.
The case is obviously personally difficult for Jeremy Pemberton and his husband, Laurence Cunnington. But for a historian it also offers some fascinating comparisons and contrasts with earlier church practice, and in particular how clergy have been disciplined over prohibited sexual behaviour. Legally, it is a relative novelty that Canon Pemberton is able to take his case to a secular employment tribunal at all. His case is complicated because of the question of whether he is employed by the NHS or by the diocese of Southwell and Nottingham (whose bishop removed his permission to officiate, which he needed for the NHS post). But employment tribunals have increasingly become willing to accept that in some circumstances ministers of religion do count as employees and thus have employment rights, although the Church of England still argues that their clergy are not employees. Secular jurisdiction over priests has historically been something that individual clerics have tried to avoid, seeking the ‘benefit of clergy’. Now, however, some of them are actively seeking it.
Canon Pemberton’s case shows more historical continuity in other respects, however. Partly this is because it raises interesting jurisdictional questions. His previous position as an NHS chaplain, which had not been threatened, was in the diocese of Lincoln, in the archdiocese of Canterbury. His new job would have been in the archdiocese of York. The implication is that different bishops and archbishops have chosen to enforce the Church disciplinary rules prohibiting same-sex marriage in very different ways. Such episcopal leeway would have seemed very familiar in the Middle Ages, where the zealous (or overzealous) enforcement of priestly good conduct by some bishops might be ignored by their successors or fellow-bishops.
And the case also displays the perennial difficulty for any Church on sexual matters: how far should it intrude into the bedroom? Sexual behaviour is by its nature private and the Church of England has stated that clergy can legitimately be in civil partnerships (and can even theoretically become bishops) provided that their relationship with their partner is celibate. There are intriguing parallels with priests in the pre-eleventh Catholic church, who could theoretically be married, though not sexually active within such a marriage.
Canon Pemberton’s offence, therefore, is not strictly speaking a sexual one, unless the bishop of Southwell and Nottingham has evidence to the contrary. Instead, it is a breach of the Church of England’s rules prohibiting clerics from entering same-sex marriages. The justification for this prohibition is taken from a canon that talks of the need for clerics and their families to be ‘wholesome examples and patterns to the flock of Christ’.
Such language concerning reputations would have been familiar to an early medieval bishop like Hincmar, Archbishop of Rheims (845-882). He wrote numerous episcopal statutes setting out how the priests and laity of his archdiocese should behave and the means for ensuring correct behaviour. His second episcopal statute from 852 gave instructions for archdeacons and rural deans as to how they should run regular investigations into priests’ behaviour. A long section is devoted to the need for priests to avoid too close contact with women, such as allowing unrelated women to live in the priest’s house.
Hincmar, however, was not concerned only with illicit sexual activity by such priests. Almost as important was the ‘evil reputation’ (mala fama) that such priests might gain within the community. As c. 21 (p. 56) of the statute points out, Hincmar’s concern is that such behaviour by priests ‘may damage the conscience of the weak by evil suspicion’ (mala suspicione infirmorum conscientias maculent). His statute details the procedure by which such priests could be removed from office if sufficient of their congregation were prepared to testify against them. Such witnesses did not have to prove immoral conduct by their priest. They had to swear only that they had seen or knew certainly that ‘women had such access or frequenting or cohabitation with that priest, from which there could be evil suspicion and an evil reputation could get out’ (c. 21, p. 58: si vidisti aut pro certo scis talem accessum vel frequentiam aut cohabitationem feminas habere cum isto presbitero , unde mala suspicio esse possit et mala fama possit exire).
In the modern Anglican church, similar principles seem to be at work, but on a much wider canvas. Public opinion and rumours about gay priests and sexuality more generally now extend not through a small rural parish, but across the globe. The archbishop of Canterbury, Justin Welby, claims that the Church of England accepting gay marriage may lead to attacks on African Christians, while another bishop reports that he was once asked in Central Africa why you now had to be gay to be ordained in the Church of England. Yet at the same time, the most common reason for people in Great Britain to have a negative view of the Church of England is that it is too prejudiced against women and gay people (as Linda Woodhead found in a recent survey). How can ‘scandal’ be avoided when different audiences are scandalised by diametrically different actions?
The Church of England may well be legally successful in Canon Pemberton’s employment tribunal. While exemptions from the law of the land for churches and their ministers are now far narrower than in the days of benefit of clergy, such exemptions are well-established and not under serious threat from secular politicians. But in an era of rapid global communication, it is far harder to ensure that either individual clerics or the Anglican church itself does not end up having ‘an evil reputation’ among many laypeople.