Commentary

 

CHRISTIAN MAGISTRATE LOSES FREEDOM OF CONSCIENCE CASE

 

2nd March 2007

 

SUMMARY

 

Christian Magistrate Andrew McClintock has lost his case to have his freedom of conscience recognised when practising as a Justice of the Peace.  The Sheffield Employment Tribunal handed down their judgment on 28th February.

 

The decision of the court means that Mr McClintock, a committed Christian who became a Justice of the Peace in Sheffield in 1988, will not be able to serve on the Family Panel, even though the Tribunal recognised that “he has an unblemished record and is well regarded by fellow magistrates and by the Department of Constitutional Affairs”.

 

Difficulties first arose for Mr McClintock when he considered the implications of same-sex adoption, arising from the Civil Partnerships Act 2002. He became concerned that a tension existed between his Christian beliefs in the Biblical model of the family and his work as a Magistrate sitting on the Family Panel. In March 2004, Mr McClintock raised his difficulties with the Chairman of the Family Panel at Sheffield . Mr McClintock was not asking for a change in the law, rather he was requesting that his religious conscience should be accommodated, and that he should be “screened” from cases which might require him to adopt children in to same-sex households. He also expressed his concern that children could be put at risk by the untried social experiment of same-sex adoption, in which vulnerable children were being used as “guinea pigs”. 

 

The Employment Tribunal rejected Mr McClintock’s claim that he had been discriminated against because of his religious beliefs, and that his right to religious freedom was infringed.

 

Commenting on the judgment, Andrea Williams of the Lawyers Christian Fellowship said:

 

“This case is a clear picture of how Christian faith is becoming privatised in society.  It is yet another example of the repression of Christian conscience and signals the prevalence of a secular  ‘new morality’ and the erosion of Christian values at the expense of our children’s welfare.”

 

“Andrew McClintock believes that the best interests of the child are served by placing them in a situation where they would have both a mother and a father and therefore he could not agree to participate in gay adoption. Andrew McClintock’s case demonstrates what will happen as greater numbers of men and women of integrity (as the court described Mr McClintock) are forced to choose between applying a law which runs contrary to their fundamental Christian belief or obeying their conscience. The imposition of secular values in every aspect of our lives will force those who hold Christian beliefs out of jobs. It will be to the detriment of the whole of society.”

 

Andrew McClintock commented:-

 

"This ruling is going to make it harder for many conscientious people: whether they are JPs in the family court, or otherwise involved with children, or maybe with different matters of conscience. Anyone who holds seriously to the traditional morals and family values of Jews, Christians or Muslims will think twice before taking on such a job. It is like a re-imposition of a Test Act, such as that abolished in 1828, and will diminish the pool of people willing to do such work, both in numbers and diversity".

 

    "There will be more children now whom the courts remove from one kind of harm, but only to face another hazard. The expert witness in the case, Professor Byrd from the USA , said there was little research into the effect of same-sex nurture on children’s development, and that what had been established was worrying. This view of the scientific facts was unchallenged by the other side. So, more needy children will be fuelling this experiment in social science, and suffering what the experts call mother-hunger or father-hunger."

 

Link

 

·                     A press release about the judgment can be found at http://www.lawcf.org/index.asp?page=Christian+Magistrate+loses+freedom+of+conscience+case

 

·                     Coverage of the story in the Daily Mail, can be found at

http://www.lawcf.org/CMS/uploads/535/documents/McClintock%20Daily%20Mail%20%20%202nd%20March%202007.jpg

 

 

Further details about the case and the judgment

 

In 2004 Mr McClintock was told by judicial authorities that he must preside over cases that involved prospective gay parents, and as such his request to be “screened” from these cases was denied: he would not be given a choice on the matter. This placed Mr McClintock in an untenable position, and he chose to resign from his position on the family panel and ultimately sought legal recourse. As such, on 24th January 2006, Mr McClintock, taking a courageous stand for the freedom to exercise his Christian beliefs, brought a legal action against the Lord Chancellor and the Department of Constitutional Affairs.  In his Tribunal case, Mr McClintock sought to persuade the Court that he had been discriminated against, and that the Department of Constitutional Affairs should have allowed his request to be screened from cases under Regulation 10 of the Employment Equality (Religion or Belief) Regulations 2003. He also argued that he had been harassed under Regulation 5 of those regulations, on the grounds of his religion or belief. It was further argued that the Tribunal had to have regard to the European Convention on Human Rights in ensuring that the Employment Equality Regulations did not conflict with Human Rights Provisions.

 

Paul Diamond, acting on behalf of Mr McClintock, argued that Mr McClintock’s primary duty under the law was to protect the welfare of children when considering matters relating to adoption. A Judge’s duty was to act in the child’s best interests, and as such Mr McClintock has taken a “wholly rational” view in accordance with his Judicial Oath and had acted appropriately on a matter of principle. During the course of the three day hearing, the tribunal heard evidence in support of Mr McClintock’s case, and specifically heard from Professor Dean Byrd, an expert from the foremost research body in the USA on the subject matter of medical and social study of homosexuality. His evidence supported Mr McClintock’s contention that placing children with same-sex couples amounts to a dangerous social experiment. This evidence reinforced Mr McClintock’s religious conscience argument, an argument upon which his case was built. Mr Diamond submitted that the Department for Constitutional Affairs had failed to accommodate Mr McClintock, specifically with regards to his religious conscience.

 

In their judgment, the Tribunal took the view that Mr McClintock’s case was not based on a freedom of religious conscience argument, rather, it was based on the “untried social experiment” argument. This meant that they did not believe Mr McClintock could claim religious discrimination. Their analysis of the case appeared to show a misunderstanding of the fact that Mr McClintock’s decision was based squarely on his faith, albeit his faith was supported by scientific evidence.

 

Furthermore, the Tribunal found that even if Mr McClintock had been able to show he made his decision to resign based on his religious beliefs, they would not have found any case for direct discrimination. The Tribunal stated that ultimately the grounds on which the Department of Constitutional Affairs acted were not based on Mr McClintock’s religion or beliefs. This shows a narrow view of the decision: if Mr McClintock had not been a Christian, he would not have felt the compelling need to resign when told he could not be screened from gay adoption cases. In this sense then it was a decision relating to religion or belief.

 

The Tribunal also stated that there were no grounds for a harassment claim and concluded, “if a Judge personally has particular views on any subject, he or she must put those views to the back of his or her mind when applying the law of the land impartially as their judicial oaths of office require them to do.”