Mr McClintock’s strongly held view was that the question of allowing same sex couples to adopt children had not been sufficiently researched and tested and that by making it possible for same sex couples to adopt children were effectively being used as “guinea pigs” in a “social experiment”. When he asked to be excused from dealing with same sex adoptions he did not base his request on his religious or philosophical beliefs. Mr McClintock had not as a matter of principle rejected the possibility that single sex parents could ever be in a child’s best interests; he felt that the evidence to support this view was unconvincing but did not discount the possibility that further research might reconcile the conflict which he perceived to exist. Accordingly the treatment afforded to him was not on grounds of any such religious or philosophical belief and could not amount to discrimination on those grounds. Further, the DCA would have treated any person in equivalent circumstances similarly regardless of religious beliefs and so the treatment was not less favourable by reason of religion. The direct discrimination claim therefore failed, as did the harassment and indirect discrimination claims, primarily on the basis that the regulations were not even engaged.
The mere existence of the judicial oath of course is not in itself an answer to an indirect discrimination claim and to the extent that the tribunal had taken the view that the judicial oath was a complete answer to that element of the claim there was an error of law. However, the tribunal had correctly held that even if there were indirect discrimination it was eminently justifiable because of the importance of upholding the judicial oath – the regulations under which the DCA made its decision were a proportionate means of achieving a legitimate aim.