Anglican Bishop’s refusal to consider gay man for ordination upheld by New Zealand Human Rights Review Tribunal

Professor Mark Hill QC, of Francis Taylor Building, Temple, London EC4 and the Centre for Law and Religion, Cardiff University, has kindly contributed the following guest post.

On 17 October the Human Rights Review Tribunal of New Zealand handed down a judgment which will be keenly studied both by religious organisations and by LGBT groups. The case of Gay and Lesbian Clergy Anti-Discrimination Society v Bishop of Auckland [2013] NZHRRT 36 concerned Mr Eugene Sisneros, who wished to undergo a period of discernment to test his call for ordained ministry. The Bishop of Auckland refused to allow him to do so because Mr Sisneros was in an unmarried relationship. Mr Sisneros brought proceedings on the basis of direct discrimination (on his marital status) and indirect discrimination (due to his sexual orientation).

Under New Zealand law, section 38 of the Human Rights Act 1993 makes it unlawful for employer organisations to discriminate on a number of prohibited grounds, one of which is sexual orientation. However, section 39 provides an exception in relation to a calling for the purposes of an organised religion. The substantive issue for the Tribunal was whether this statutory exception applied to the facts of the case.

The Tribunal made plain at the outset that it was not being asked to deliberate on what the doctrines or practice of the Church are or ought to be. It was conceded that the Bishop had complied with the doctrines of the Church. The tribunal cited Percy v Board of National Mission [2005] UKHL 73, in which Baroness Hale stated that ‘The Church is free to decide what its members should believe’. It might equally have made reference to the recent judgment of the England and Wales Court of Appeal in Khaira & Ors v Shergill & Ors [2012] EWCA Civ 983 which addressed the non-justiciability of doctrinal matters.

A person seeking to enter ordained ministry in the Anglican Church in Aotearoa, New Zealand and Polynesia must either be celibate or in a heterosexual marriage. Being gay or lesbian is not in itself a bar to ordination, but any candidate not in a marriage between a man and a woman must be celibate. Note that the Marriage (Definition of Marriage) Amendment Act 2013 expressly does not amend the doctrine of sacramental marriage as understood by any church.

In describing the Church’s teaching the Tribunal referred to its Constitution, its Canons and to rubrics from its Prayer Book. It stated:

“the doctrine of the Anglican Church [in New Zealand] is that Christian marriage is a physical and spiritual union of a man and a woman, entered into in the community of faith, by mutual consent if heart, mind and will, and with the intent that it be lifelong”.

In evidence to the Tribunal, Archbishop Philip Richardson explained that gays and lesbians can be ordained provided they elect to be celibate. His evidence continued: “If any such candidate is in a long term committed relationship he or she would not ‘be chaste’”.

The plaintiff Society raised a number of matters before the Tribunal. First it alleged that the practice described by Archbishop Richardson was not routinely followed and that there are already gay and lesbian clergy in non-celibate same-sex relationships exercising ministry in New Zealand and they continue to be re-licensed by bishops. The Tribunal rejected this “inconsistency argument”. The fact that the plaintiff could point to inconsistent practices did not undermine the doctrine.

Much of the plaintiff Society’s further argument was directed to a semantic dissection of the text of the statutory exception. However, as the Tribunal properly observed, the purpose of section 39 was (in this context) to preserve the institutional autonomy of organised religions in relation to their decisions concerning the appointment of clergy. Ministers are to be exemplars of the doctrine of the Church, living out the doctrine rather than merely ascribing to it. The recent decision of the United States’ Supreme Court on the so-called ‘ministerial exemption’ in Hosanna-Tabor Evangelical Lutheran Church v Equal Employment Opportunity Commission 565 US (2012) 181 L Ed 2d 650 provides support for this proposition by way of analogy.

The value of this decision as a judicial precedent is very limited due to the relative standing of the first instance Tribunal; and whether any principle can be exported for use outside the specific statutory framework in New Zealand is questionable. It is unlikely that a claimant in a similar position regarding training for priesthood in the Church of England would be advised to make so generous a concession as was done here regarding the doctrine of the Church. Indeed, the outcome in the Tribunal might have been different (or at least differently reasoned) had the plaintiff Society not conceded the scope of the doctrine. The case could have been argued on the basis that the instances of bishops licensing gay clergy represented an emergent duality of doctrine rather that a departure from it. Had the concession not been made, the “legitimacy argument” would have been a little more difficult for the Tribunal to brush aside.

It may well be, for example, that the established nature of the Church of England would make it easier to raise a legitimate expectation claim where the licensing of openly gay and lesbian clergy in the past is suggestive of porous doctrinal borders. In any event, Issues in Human Sexuality clearly distinguishes between orientation and practice. A candidate in a “long-term committed relationship” would only be considered not to be chaste if there were sexual intimacy within the relationship. In the United Kingdom, neither the statutory construct of a civil partnership nor that of a same-sex marriage presume physicality. Equally, it is possible to be in a long-term committed relationship and yet remain celibate. In each case, the individual would be compliant with both the doctrine of the Church of England and (on a proper reading) that of the Anglican Church in New Zealand. Perhaps there was a euphemistically enhanced meaning to Archbishop Richardson’s use of the term “relationship”. Elsewhere in the judgment, for example, the Tribunal records:

“it is conceded that the reason why Mr Sisneros could not be admitted into the discernment process was because he was not celibate, that is, he was in a long-term monogamous same sex relationship”

– suggesting that there may have been an admission of sexual intimacy.

Whilst the Tribunal’s judgment appears to evidence a flawed understanding of the terms “chaste” and “celibate” (animated perhaps by the plaintiff Society’s overly generous concession), it represents a clear articulation of the boundary between the jurisdiction of secular courts and tribunals and the autonomy of religions to adopt, interpret and apply their own doctrines and practices.