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Ministers of Religion and Same Sex Marriage

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Thanks to Will Young of Outer Temple Chambers for preparing this case summary.

Can a Bishop (as a 'qualifications body') rely on the exemption in Schedule 9 of the Equality Act 2010 in refusing to grant a practising licence to an Anglican priest on account of his having entered into a same-sex marriage?

Yes, on the facts of this case, held the EAT in Revd Pemberton v Bishop of Southwell & Nottingham.

The Claimant was an ordained Church of England priest, who entered into a same-sex marriage. He later applied for a position as Chaplain at an NHS Trust, and was offered the post, subject to being given the necessary licence from the Respondent Bishop. This was refused by the Bishop on the grounds that the Claimant had entered into a same-sex marriage, which was inconsistent with the Church’s teaching on marriage.

The EAT firstly upheld the employment tribunal’s decision that the Bishop was a qualifications body within the meaning of the Act. It went on to confirm that the exemption in Schedule 9 of the Act applied, relating to qualifications for the purposes of employment for the purposes of organised religion, and therefore the Bishop’s refusal to grant the licence, did not contravene the Act. It held that the requirement not to be married to a person of the same sex had been applied to the Claimant so as to comply with the doctrines of the Church of England.

A court would not simply accept an assertion as to the doctrines of a religion, but equally it could not be expected to enter into theological debate to determine those doctrines for itself. The employment tribunal had been entitled to find that the doctrines of the Church of England were as stated in Canon law: that marriage for the purpose of the Church was between one man and one woman.

Permission has been granted to appeal to the Court of Appeal.