The Church of England did not unlawfully discriminate against a priest by refusing to grant a licence after he entered a same-sex marriage, London’s Court of Appeal said today. The Revd Jeremy Pemberton married his same-sex partner, Laurence Cunnington, in 2014, shortly after same-sex civil marriages were legalised in England and Wales. But the move was contrary to the C of E’s doctrine of marriage and as a result, the acting bishop of Southwell and Nottingham, Richard Inwood, revoked his Permission to Officiate and denied a licence for him to take up a role as an Anglican hospital chaplain. Pemberton challenged the decision in the Employment Tribunal, the Employment Appeal Tribunal and finally the Court of Appeal. All three ruled that the bishop had acted lawfully.

The decision to withhold a licence under the Extra-Parochial Places Ministry Measure 1967, was taken by Bishop Richard on the grounds that by marrying his same-sex partner, Pemberton could not be considered to be in good standing because he had acted contrary to the House of Bishops’ pastoral guidance which had banned same-sex marriages among the clergy.

Mr Pemberton had argued that the Church of England should not be able to rely on exemptions in the UK’s Equalities Act because as a hospital chaplain, his employer would have been a National Health Service (NHS) Trust, rather than the Church. But this argument was rejected by the Employment Tribunal, which ruled that although the NHS Trust would have been the employer, and had “set the job description and conducted the interviews and made the appointment, it was an integral part of what the Trust wanted that the Claimant be able to minister as a Church of England priest and thus be licensed to do so. . .

“There are the non-doctrinal aspects of the job not needing him to be held out as acting . . . as a Church of England authorised priest. But there are those elements of the role where that is essential. There are obvious examples: giving the last rites as requested by the dying or their family within the faith of the Church; conducting on occasion a baptism for a critically ill baby within the ceremony of the Church as desired by the parents; perhaps conducting a wedding ceremony, as requested as per the ceremonies of the Church, in the hospital chaplain. In each of those respects, if the patient (or the member of the public) so wanted, then it was essential that the service be conducted by the authorised minister of that religion.”

The Tribunal also rejected attempts to consider whether the Church’s doctrine on marriage was something the courts could adjudicate on. “If there is a clear doctrine relating to the nature of marriage and which excludes same sex marriage for the purposes of the Church, rather than the State, and that doctrine requires obedience from the Priest by way of the Canons, then that is the end of the matter for our purposes,” the Employment Tribunal judgment said. “It matters not what we think about the appropriateness of the doctrines to current times. It is not for us to reconstruct the Church’s doctrines. . . There is the distinction between the Church and State. The constitutional convention means that the State cannot impose same sex marriage upon the Church.”

The Employment Appeal Tribunal upheld that decision in 2016. And today, the Court of Appeal also ruled in favour of Bishop Richard. Pemberton could have taken his case to the UK’s Supreme Court, but in a statement today he said that he had reached a settlement with the C of E whereby he would not pursue his case any further, and the Church would not apply for costs against him.

“The Church of England has established through this process that it can continue to discriminate legally against LGBT people in relation to their employment, even where that employment is not within the boundaries of the church’s jurisdiction,” he said in his statement. “This will seem to most people in the UK today an extraordinary result, and not one that will help commend the claims of Christ to the nation.

“An official position that regards the loves and commitments of LGBT people, including clergy, as sinful is years overdue for thorough-going revision. The need for a revolution in attitudes and practices in the Church towards this minority is still acute – we continue to wait for real change.”

Commenting on today’s judgment, a Southwell and Nottingham diocesan spokesperson said: “We are pleased that the court has upheld the decision made with regards to the employment tribunal. We recognise that this has been a long and difficult process for many of those concerned, and we hold them in our thoughts and prayers.”

Giving the lead judgment, Lady Justice Asplin said that the Employment Tribunal had “found that there had been lengthy discussions with the Bishop and others in relation to [Pemberton’s] intention to marry his same sex partner and their opposing positions were clear. Therefore, the consequences in relation to his standing cannot have been much of a surprise.”