The question as to whether it would be right for the Pastoral Guidance to change the current teaching and discipline of the Church of England in relation to clergy (and in some places licensed lay ministers) is one of the challenging questions still left unresolved. The latest paper for General Synod (GS 2346) considers this in some detail in Annex B in relation to allowing clergy to enter same-sex civil marriage and makes clear how limited the options are for the bishops, particularly given their commitment not to change the doctrine of marriage.
Despite this, the draft proposed commitments include “we commit to exploring the process for clergy and lay ministers to enter same-sex civil marriages” (Commitment 8). What follows sets out the various options to show how difficult it is to proceed without a change in doctrine, either the doctrine of marriage or the doctrine concerning what is expected of those who are ordained. Appendix A below this article collects together key elements of the 2014 House of Bishops pastoral statement; Appendix B summarises key statements from the past; Appendix C contains the key paragraphs from the judgement in the 2018 Pemberton case.
1. The current situation is as set out in the 2014 HOB Pastoral Guidance on Same-Sex Marriage where the key points on clergy and ordinands are in paras 22-28 at the end (see Appendix A below). Any change from these as regards clergy discipline and its rationale would need to be explained and defended theologically and legally, particularly in the light of the successful defence of its argument in the 2018 Pemberton case (Court of Appeal decision, note, in particular, paras 63 and 64; see Appendix C below).
2. The underlying principles for this bar on clergy entering same-sex marriage are based on Scripture, Tradition and the doctrine of the Church of England as set out in the Book of Common Prayer and Ordinal and are thus themselves part of the doctrine of the church. In his 2007 paper (so when all bishops were male) relating to whether divorced priests could become bishops Oliver O’Donovan summarised this in these terms:
1.3.1 Why should the appointment of Bishops present a special problem in this context? The question is parallel to that of why the conduct of clergy should be considered as a special question apart from the conduct of the laity. The functions of ordained leaders include “being examples to the flock” (1 Peter 5:3). The BCP Ordinal asks would-be deacons, priests and bishops to promise to frame themselves and their families to be “wholesome examples”. In this respect Christian leadership within the church differs from most other paradigms of leadership current in secular society, which tend to concentrate on certain technical competences and bracket out the wider life-context. The seriousness with which the church maintains its understanding of priesthood and episcopacy will be judged on its readiness to maintain this, albeit unfashionable, aspect of its historic understanding of Holy Orders.
In order to fulfil episcopal functions a man must be a “good example” in the most general terms—i.e. a good example of the Christian life. This example is not confined to, but includes, the conduct of family life, a point drawn out in Scripture (1 Tim. 3:12) and in the Ordinals. Relevant to the exercise of the function is the candidate’s conduct before being appointed to it (1 Tim. 3:10), the reputation for which will give Christian people confidence in his or her ministry. In keeping with this understanding of Christian leadership the Clergy (Ordination) Measure 1990 (No.1) stipulated that a candidate for ordination who had married twice and whose former spouse was still living, or who was married to a person with a former spouse still living, required a faculty from the Metropolitan. This was to ensure adequate pastoral examination of the circumstances.
3. In relation to questions concerning same-sex relationships and sexual behaviour, the matter of clergy discipline has been regularly addressed in reports and pastoral statements in line with these basic principles. See Appendix B for summaries of the key relevant past discussions.
4. The Bishops have been clear that the doctrine of marriage remains unchanged as stated in the Pastoral Guidance:
The Church of England teaches that Holy Matrimony is a lifelong covenant between one man and one woman, blessed by God in creation and pointing to the love between Christ and the Church; a way of life which Christ makes holy. It is within marriage that sexual intimacy finds its proper place (p. 1).
5. Given the Church’s marriage doctrine, there are therefore two distinct (but in some situations combined) scenarios in relation to those in or seeking Holy Orders. It is important that both of these are considered and treated in the same way unless some justification can be offered for treating them differently:
5.1 being married to a person of the same sex (usually a civil marriage but may also be a marriage entered into in a Christian church which marries same-sex couples) and
5.2 being in a sexually intimate relationship (same-sex or opposite-sex) other than Holy Matrimony.
6. The key questions concerning the effect of the Church’s doctrine in relation to each of these situations for those in Holy Orders are
(a) is this way of life compatible with the doctrine, incompatible with it, or its compatibility dependent on particular circumstances?
(b) if it is incompatible (either universally or in some but not all cases) what follows in relation to the discipline expected of those in Holy Orders? and
(c) is to permit something incompatible itself a change in doctrine concerning Holy Orders?
This leads to the following 5 broad options:
(6.1) this pattern of life is incompatible with the Church’s doctrine and so not a way of life acceptable for those in Holy Orders (the current position in both situations);
(6.2) this pattern of life is incompatible with the Church’s doctrine but may be acceptable within Holy Orders in certain circumstances (which circumstances would need to be defined and defended on the basis of different criteria from those set out in the Church’s doctrine);
(6.3) this pattern of life is incompatible with the Church’s doctrine but acceptable for those in Holy Orders (raising the questions as to why it is acceptable, whether any patterns of marital and sexual relationships are unacceptable and if so on what basis given that basis is not the Church’s doctrine; would that basis not become de facto the new doctrine?);
(6.4) this pattern of life raises questions in relation to the Church’s doctrine so requires careful scrutiny of each case guided by the doctrine (this is the current position on marriage where a former spouse is still living, although this could be construed as closer to (2) in terms of legal compatibility given wording of canon C4.4,5); or
(6.5) this pattern of life is compatible with the Church’s doctrine and so acceptable for those in Holy Orders (the current position in relation to celibate civil partnerships).
7. Concerning opening the episcopacy to divorced clergy, O’Donovan’s 2007 paper suggests three approaches:
1.4.1 To focus the discussion it may be helpful to distinguish in advance three kinds of judgment one could reach about a candidate who has been divorced, remarried or married to a divorced person.
(i) The marital history presents no significant problem, and the candidacy may be considered without reference to it.
(ii) The marital history is such as to constitute a bar; further consideration of the candidacy would be inadvisable, at least at this point.
(iii) The marital history is a significant problem, but not necessarily decisive. It must be weighed alongside the range of other evidence for the candidate’s temperament and character.
8. In relation to each of the two situations set out in (5) these 3 options can be connected to the 5 approaches set out in (6) above:
8.1 Being in a civil same-sex marriage/non-marital sexual relationship “presents no significant problem, and the candidacy may be considered without reference to it” either because it is compatible with the Church’s doctrine (6.5 above) or incompatible but not relevant despite the requirements on godly living (6.3 above).
8.2 Being in a same-sex marriage/non-marital sexual relationship “is such as to constitute a bar; further consideration of the candidacy would be inadvisable, at least at this point” (ie 6.1 above and current position).
8.3 Being in a same-sex marriage/non-marital sexual relationship “is a significant problem, but not necessarily decisive” (ie 6.2 above or 6.4 above requiring some process and criteria for making distinctions between cases).
9. If we were to move away from the current position of 8.2 then one option would be to revisit the question of the Church’s marriage doctrine but the bishops appear to have ruled this out. There appears to be no serious consideration being given to 8.3 but if this were to be considered it would need to be clear as to whether the path being taken was 6.2 or 6.4 and the rationale and legal and administrative process for discriminating judgments between different scenarios clearly set out. The goal for the majority of bishops seems to be to move to 8.1. However, if the doctrine is unchanged and as stated in 4 above this creates significant challenges for each of the two scenarios set out in 5 (both same-sex marriage and non-marital sexual unions) whether one follows a compatibility (6.5) or incompatibility (6.3) track.
10. In relation to 5.1 (civil same-sex marriage) a serious attempt has been made to follow the compatibility track (6.5) by separating civil marriage from Holy Matrimony but this now faces major legal and theological challenges although GS 2346 makes clear (p. 15) that on 9th October the Bishops voted by 20-15 with 2 abstentions that ‘this House agree that same sex marriage is distinct from Holy Matrimony such that same sex marriage is not seen as impinging on Holy Matrimony in a way that contradicts the Church’s doctrine.’ Unless this vote is upheld and applied, it appears necessary to accept the incompatibility of clergy in same-sex marriages with the church’s doctrine.
To proceed in this situation is to break with all past arguments about what is required in being “diligent to frame and fashion his life and that of his family according to the doctrine of Christ” (especially as Canon B30 claims to be based on the teaching of Christ). This is in itself arguably a change of doctrine concerning holy orders. The still unanswered crucial issue here remains that Bishops need to come to a view on what a same-sex couple are considered by the Church to be doing when they contract a civil marriage (as distinct from a civil partnership) and if this is something that the Church can approve given its doctrine of marriage.
11. In relation to 5.2 (non-martial sexual relationships) now that the attempt to detach a sexual ethic from the doctrine of marriage has been abandoned and the doctrine restated to include that “It is within marriage that sexual intimacy finds its proper place” the compatibility track (6.5) again appears impossible. The only option is again to detach the discipline expected of clergy from the doctrine of the church, perhaps by an appeal to conscience and private judgment in matters of sexual conduct being extended from being granted as “pastoral provision in a time of uncertainty” or a pastoral accommodation to the laity. This though raises the question as to why clergy who are meant to live godly lives should be able to reject the church’s moral teaching here?
12. The change away from the current position that being in a same-sex marriage/non-marital sexual relationship “is such as to constitute a bar; further consideration of the candidacy would be inadvisable, at least at this point” (8.2) to acceptance of clergy in same-sex civil marriage and/or sexual relationships other than marriage therefore requires a case for the discipline expected of those in Holy Orders to be able to be incompatible with the church’s marriage doctrine. This case has never been made, itself represents a fundamental change in the church’s teaching and practice (see 2 above and Appendix B), and amounts either to a de facto change in marriage doctrine or a change to our doctrine concerning holy orders (as yet without legal or theological justification).
Revd Dr Andrew Goddard is Assistant Minister, St James the Less, Pimlico, Tutor in Christian Ethics, Westminster Theological Centre (WTC) and Tutor in Ethics at Ridley Hall, Cambridge. He is a member of the Church of England Evangelical Council (CEEC) and was a member of the Co-Ordinating Group of LLF and the subgroup looking at Pastoral Guidance.
Appendix A: Key paragraphs of 2014 House of Bishops Pastoral Guidance on Same-Sex Marriage
22. The preface to the Declaration of Assent, which all clergy have to make when ordained and reaffirm when they take up a new appointment, notes that the Church of England ‘professes the faith uniquely revealed in the Holy Scriptures and set forth in the catholic creeds, which faith the Church is called upon to proclaim afresh in each generation.’ This tension between the givennness of the faith and the challenge to proclaim it afresh in each generation, as the Spirit continues to lead the Church into all truth, stands at the heart of current debates about human sexuality and of what constitutes leading a life that is according to the way of Christ.
23. At ordination clergy make a declaration that they will endeavour to fashion their own life and that of their household ‘according to the way of Christ’ that they may be ‘a pattern and example to Christ’s people’. A requirement as to the manner of life of the clergy is also directly imposed on the clergy by Canon C 26, which says that ‘at all times he shall be diligent to frame and fashion his life and that of his family according to the doctrine of Christ, and to make himself and them, as much as in him lies, wholesome examples and patterns to the flock of Christ.’
24. The implications of this particular responsibility of clergy to teach and exemplify in their life the teachings of the Church have been explained as follows; ‘The Church is also bound to take care that the ideal is not misrepresented or obscured; and to this end the example of its ordained ministers is of crucial significance. This means that certain possibilities are not open to the clergy by comparison with the laity, something that in principle has always been accepted ‘(Issues in Human Sexuality, 1991, Section 5.13).
25. The Church of England will continue to place a high value on theological exploration and debate that is conducted with integrity. That is why Church of England clergy are able to argue for a change in its teaching on marriage and human sexuality, while at the same time being required to fashion their lives consistently with that teaching.
26. Getting married to someone of the same sex would, however, clearly be at variance with the teaching of the Church of England. The declarations made by clergy and the canonical requirements as to their manner of life do have real significance and need to be honoured as a matter of integrity.
27. The House is not, therefore, willing for those who are in a same sex marriage to be ordained to any of the three orders of ministry. In addition it considers that it would not be appropriate conduct for someone in holy orders to enter into a same sex marriage, given the need for clergy to model the Church’s teaching in their lives.
28. The Church of England has a long tradition of tolerating conscientious dissent and of seeking to avoid drawing lines too firmly, not least when an issue is one where the people of God are seeking to discern the mind of Christ in a fast changing context. Neverthless at ordination clergy undertake to ‘accept and minister the discipline of this Church, and respect authority duly exercised within it.‘ We urge all clergy to act consistently with that undertaking.
Appendix B: Some Key Statements from the Past
B1. The Ordinal is clearly crucial here. It requires that that those who are ordained should be affirmed as persons of ‘godly conversation,’ ie way of life. The Epistle in The Ordering of Deacons is 1 Tim 3:8. The bishop calls on candidates to
so endeavour yourselves from time to time to sanctify the lives of you and yours, and to fashion them after the rule and doctrine of Christ, that ye may be wholesome and godly examples and patterns for the people to follow.
These statements in this source of doctrine in turn shape canon law e.g. Canon C4.2 states
Every bishop shall take care that he admit no person into holy orders but such as he knows either by himself, or by sufficient testimony….to be of virtuous conversation and good repute and such as to be a wholesome example and pattern to the flock of Christ…
and Canon C26 that any Clerk in Holy Orders
shall be diligent to frame and fashion his life and that of his family according to the doctrine of Christ, and to make himself and them, as much as in him lies, wholesome examples and patterns to the flock of Christ.
In the modern ordination service all this is reflected in the question:
Will you endeavour to fashion your own life and that of your household according to the way of Christ, that you may be a pattern and example to Christ’s people?
B2. The Gloucester Report 1979 after concluding “there are circumstances in which individuals may justifiably choose to enter into a homosexual relationship with the hope of enjoying a companionship and physical expression of sexual love similar to that which is to be found in marriage” (para 168, p. 52) and recognising clergy have a proper expectation for “reasonable privacy in their private and domestic lives and a ‘presumption of innocence’ in all matters concerning their personal behaviour” (para 254, p. 76) stated,
Nevertheless, the clergy must accept the fact that their domestic affairs, insofar as they are common knowledge, inevitably affect their standing as leaders of the congregation and examples to the flock of Christ. This is especially true of the parish priest, living amongst the people of the parish. We have already come to the conclusion that the only sexual union to which the Church can give public recognition in the lives of her members is marriage. A homosexual priest who has ‘come out’ and openly acknowledges that he is living in a sexual union with another man should not expect the Church to accept him on the same conditions as if he were married (para 255, p.76).
It concluded that
a priest in this position ought to offer his resignation to the bishop of the diocese, so that he as the minister bearing responsibility for the Church in the locality could with the pastoral care appropriate to his office decide whether it should be accepted or not (para 256, p.77)
B3. The 1987 General Synod motion (reproduced here, p.2) both reaffirmed the traditional teaching of the church and stated that “all Christians are called to be exemplary in all spheres of morality, including sexual morality; and that holiness of life is particularly required of Christian leaders”.
B4. The 1989 Osborne Report has a whole chapter (Chpt 10) devoted to “The Exercise of Pastoral Responsibility” (pp. 107-124) which explores a number of areas and options in some detail (and includes a shocking account of how to handle clergy in sexual relations with a minor).
B5. Issues in Human Sexuality from 1991 discusses the matter in its final chapter (5.11-5.24) where it is clear that
From the time of the New Testament onwards it has been expected of those appointed to the ministry of authority in the Church that they shall not only preach but also live the Gospel….People not only inside the Church but outside it believe rightly that in the way of life of an ordained minister they ought to be able to see a pattern which the Church commends (5.13).
[Although] the Church should be free in its pastoral discretion to accommodate a God-given ideal to human need….the Church is also bound to take care that the ideal itself is not misrepresented or obscured; and to this end the example of its ordained ministers is of crucial significance. This means that certain possibilities are not open to the clergy by comparison with the laity, something that in principle has always been accepted (5.13).
Those who disagree with “the mind of the Church on matters of faith and life” are free to argue for change but not “to go against that mind in their own practice” (5.15). As a result
the clergy cannot claim the liberty to enter into sexually active homophile relationships. Because of the distinctive nature of their calling, status and consecration, to allow such a claim on their part would be seen as placing that way of life in all respects on a par with heterosexual marriage as reflection of God’s purposes in creation (5.17).
Because of their “duty to affirm the whole pattern of Christian teaching on sexuality…and to uphold the requirements for conduct which will best witness to it” the authors “call upon all clergy to live lives that respect the Church’s teaching” (5.21) and state that “candidates for ordination also must be prepared to abide by the same standards” (5.22). Given the importance of this document since 1991 and the presentation of the Pastoral Guidance as a replacement for it the argument here would need to be addressed if this policy were to change.
B6. Some Issues in Human Sexuality (2003) discussed these questions arguing that it would be difficult for the Church of England
to abandon a requirement that the clergy should refrain from sexually active homosexual relationships while still upholding its traditional teaching about the nature of marriage and its role as the proper locus for human sexual activity (8.4.26, p. 267).
It set out the arguments for this in 8.4.28:
the Church could not call upon its clergy to act as teachers and exemplars of the Christian way of life, and yet say that they are free to live in ways that are contrary to that way of life as this is understood by the Church..
through to 8.4.34:
What the clergy are expected to model is the Christian way of life. At present the Church of England continues to affirm the traditional Christian teaching of sexual relationships within marriage and abstinence outside it and therefore this is what the clergy are called upon to model. If the Church were to present openly practising homosexual clergy as role models this would contradict its own teaching…
with reference to Scripture (1 Tim 3.2 and Titus 1.6 are cited in 8.4.30) and the question in the BCP ordinal (8.4.31).
B7. This logic was applied in relation to Civil Partnerships in the 2005 Pastoral Statement (paras 19-22) and that of 2019 (paras 22-28) which reiterated both the freedom of clergy to enter a same-sex civil partnership
provided the person concerned is willing to give assurances to his or her bishop that the relationship—whether same sex or opposite sex—is consistent with the standards for the clergy set out in Issues in Human Sexuality (para 22)
and that
it would be inconsistent with the teaching of the Church for the public character of the commitment expressed in a civil partnership to be regarded as of no consequence in relation to someone in—or seeking to enter—the ordained ministry (para 24).
They warned as in 2005 that
Because of the ambiguities surrounding the character and public nature of civil partnerships, the House of Bishops advise clergy to weigh carefully the perceptions and assumptions which would inevitably accompany a decision to register such a relationship (para 25).
In relation to the new opposite-sex civil partnerships it was also stated that
clergy and candidates for ordination wishing to enter an Opposite Sex Civil Partnership should expect to be asked to explain their understanding of the theological and social meanings of their decision (para 26).
Any change from the principles set out here in the most recent (2019) statement from the House of Bishops (and also in the Handbook for DDOs) would need to be clearly explained and justified.
B8. The Pilling Report’s 2013 recommendations noted:
The Church’s present rules impose different disciplines on clergy and laity in relation to sexually active same relationships. In the facilitated conversations it will be important to reflect on the extent to which the laity and clergy should continue to observe such different disciplines (Recommendation 15, referencing paras 371-3)
and
whether someone is married, single or in a civil partnership should have no bearing on the nature of the assurances sought from them that they intend to order their lives consistently with the teaching of the Church on sexual conduct. Intrusive questioning should be avoided (Recommendation 18, referencing paras 400-14).
Para 404 stated that
The questions asked of candidates for ministry should reflect the agreed teaching of the House of Bishops” and set out how this might work in a relational context which “gives scope for considerable variance in practice and questioning between dioceses.
After citing the existing advice it made clear that
Those of us in the group are agreed that a vocation to ordained ministry involves the willingness to live in an exemplary fashion, striving to embody Christian morality and the teaching of the Church…What is demanded of candidates for ministry is not a promise that they will never fall short but an indication that they understand the implications of the Church’s teaching for their lives and will strive to exemplify it (para 409).
They concluded that
all candidates for ministry should be treated in the same way regarding their sexual conduct: that is, they should be reminded that they are called to chastity and fidelity in their relationships and to order their lives according to the will of the Church on matters of sexual conduct, and that they should be asked to give an assurance that they will seek to live by that standard (para 411).
Appendix C: Key paragraphs from the 2018 judgement in the case Pemberton v Inward (EAT)
63. It was not necessary, as Mr Jones suggested, that there should be an express provision prohibiting a priest from entering into a same sex marriage and spelling out the consequences if he did. The teaching and in fact, the doctrine of the Church of England (in the sense in which the Church uses the term) is quite clearly spelt out in Canon B30. Paragraph 1 of that Canon makes clear that the Church of England considers marriage to be between one man and one woman. By its very terms it delimits the concept of marriage in accordance with the teachings and doctrine of the Church in a way which excludes same sex marriage. Furthermore, it is made clear in paragraph 3 that a priest is expected to uphold what is described expressly as “the Church’s doctrine of marriage.” As Mr Linden pointed out, Canon B30 does not state expressly that the Church of England’s doctrine of marriage does not include polygamy but it is quite clear that it does so.
64. Although the Marriage (Same Sex Couples) Act 2013 has extended the meaning of marriage, the position of the Church of England is carefully preserved in sections 1(3), (4) and 11. Mr Jones conceded that the Church of England does not accept same sex marriage as “marriage” for its purposes at all. As the statement of Pastoral Guidance from the House of Bishops made clear at paragraph 9, since the 2013 Act, there has been a divergence between the general understanding and definition of marriage in law and the “doctrine of marriage held by the Church of England and reflected in the Canons and the Book of Common Prayer.” A clear statement on marriage and same sex marriage is contained at paragraphs 9, 11, 12, 26, 27 and 28 of that document, including the need to obey the Church on these issues. Paragraph 26 states expressly that marrying someone of the same sex would be at variance with the teachings of the Church of England. Paragraphs 27 and 28 leave little to the imagination in relation to the effect upon a clergyman’s ‘good standing’ of entering into a same sex marriage. This is all the more so when coupled with the form of the Preface to the Declaration of Assent and the Declaration itself contained at C15 of the Canons and the requirement to exemplify the teachings of the Church contained at C26, to which reference is also made in paragraphs 23 and 26 of the statement of Pastoral Guidance.
