Thinking Anglicans

magistrate loses appeal

A Christian magistrate who was told he could not opt out of homosexual adoption cases has lost his appeal.

Having lost an initial hearing at an employment tribunal in Sheffield earlier in 2007, Mr McClintock took his case against the Department for Constitutional Affairs to appeal in London.

However, the Employment Appeal Tribunal found that the Department for Constitutional Affairs had not acted unlawfully and that Mr McClintock had not suffered discrimination on grounds of his religious beliefs.

Mr McClintock intends to appeal this decision.

You can read the full judgement of the appeal tribunal as a PDF file. Here is the official summary:

The appellant was a Justice of the Peace. He sat on the Family Panel which, inter alia, places children for adoption. He objected to the possibility that he might be required to place a child with a same sex couple. The reason he gave was that he considered that there was insufficient evidence that this was in the child’s best interests and he felt that children should not be treated like guinea pigs in the name of politically correct legislation.

He asked to be relieved from hearing cases which might raise these issues. Representatives of the respondent refused to allow this and he resigned from the Family Panel. He complained that this was both direct and indirect discrimination and harassment, contrary to the Employment Equality (Religion or Belief) Regulations 2003.

The Tribunal found that on the facts there was no unlawful conduct of any kind. He had not indicated that his objections were rooted in any religious or philosophical belief. There was in fact no direct or indirect discrimination for religious or philosophical reasons, nor any evidence of harassment. Even if there were a criterion adversely impacting on the appellant, the respondent was justified in requiring him to carry out the full duties of the office in accordance with his judicial oath.

The EAT rejected the appeal. The case was dismissed largely on the facts, but in addition the Tribunal was fully entitled to find that any indirect discrimination was justified.

Press coverage of the decision:

BBC Gay couple adoption appeal lost

Daily Telegraph Jonathan Petre Magistrate loses gay adoption appeal

Religious Intelligence Nick McKenzie Christian Magistrate to appeal after losing tribunal case

The Christian Institute and the LCF-sponsored CCFON are both unhappy, see here and here.

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16 years ago

I note that even the courts suffer from a deficit in the Word formatting skills and that printing to a PDF can include the formatting information from the ‘Track Changes’ information. You would have thought that they would have had an automatic paragraph numbering style rather than having to number paragraphs manually. Anyhoo – from the appeal it would appear that his case was holed below the waterline before he started as he did not actually appeal on any religious or philosophical basis, merely that he believed that placing children in a same sex household would be worse than the… Read more »

Martin Reynolds
16 years ago

“It was no surprise to them that when the Civil Partnerships Act enabled same-sex couples to adopt and become foster carers, I was simply seeking some form of recusal from cases where I would be forced to act contrary to my conscience,” he said. My partner and I have been foster parents for 14 years and first considered adopting twelve years ago, we considered adopting again in 2002 after the passing of the Adoption and Children Act. If we had adopted before 2002 then just like unmarried heterosexual couples, though both of us would have been fully assessed by social… Read more »

16 years ago

I should think so too.

Magistrates cannot opt out from any part of the law, whether they agree with it or not.

David Wh.
David Wh.
16 years ago

Interestingly the Appeal Tribunal speculates that, perhaps, Mr McClintock did “not at the material time expressed adequately or
accurately the real basis of his objection (perhaps because of a reluctance, understandable in the current environment, of admitting to a fixed opposition to the notion of same sex couples)… if … the true basis of his objections was founded in his religious beliefs.”

Interesting because the judges appear to acknowledge that a harassing environment does currently exist…… towards people who express their traditional religious beliefs about same sex sex (assuming ‘couples’ means sexual partners).

Göran Koch-Swahne
16 years ago

Pray specify!

What in this is harassment?

That he wasn’t given carte blanche to do what and how he wanted?

Ford Elms
Ford Elms
16 years ago

“a harassing environment does currently exist”

Judges are appointed to judge in matters of law. They are not appointed to MAKE law. His job is to see that the laws of the land are being followed. If his religious convictions prevent him from doing his job, then he should not be in that job any more, and should say so. Requiring that he do his job is not harrassment! For the love of God! The right of a conservative to discriminate against someone he doesn’t like is more important than preserving the proper role of judges in a democracy?

16 years ago

Its interesting that the conservative evangelicals have lost every one of their cases so far. They aren’t happy, but it means they can play the martyr, which they love

Alan Harrison
Alan Harrison
16 years ago

Ford Elms wrote:
“Judges are appointed to judge in matters of law. They are not appointed to MAKE law.”

In practice, under England’s common law system, judicial decisions can effectively amount to “making” law.

That said, I’ve not got a huge amount of sympathy with Mr McClintock. His dilemma is pretty small beer compared with that facing barristers opposed to the death penalty who were appointed to the judiciary before its abolition.

Cheryl Va. Clough
16 years ago

I think Alan nicely highlights the underlying assumption, that the law is naturally just and good. In a society that has a respect for the individual and understands they need to cooperate with society and society in turn protect them, the laws tend to be quite worthy. Yet, societies can see (some) humans as chattel with diminished or no legal rights or some humans as “blessed” and thus entitled to undue privileges. Then there are other societies where the rule of law is more who has corruptly brought the police and state to act in their interests at the expense… Read more »

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