Is Judaism a race or a religion?
Now the courts begin to decide
On the face of it, yesterday's verdict by the UK Supreme Court that JFS (formerly the Jewish Free School) in north London was guilty of illegal discrimination in refusing entry to pupils whose mothers it did not consider to be "properly" Jewish seems a good one. As I wrote before about this case, the decision hinged on whether the Chief Rabbi's office recognised a potential pupil's mother as Jewish -- which means, specifically, Orthodox Jewish. Doesn't it seem immediately fair that those whose mothers are Reform, Liberal or Progressive Jews should be able to go to this very well-regarded institution as well?
Those who dislike the idea of faith schools altogether have also taken cheer from this ruling, on the grounds that they find any kind of religious entrance criteria to be odious and discriminatory. But we do now find ourselves in the curious situation that Muslim and Catholic schools might have a greater ability to determine eligibility than JFS does in future. No one expects Catholic schools, for instance, to give equal priority to the children of churchgoing Anglicans. But this decision certainly seems to force JFS -- an Orthodox school -- to be more open to other branches of Judaism.
A further complication is that the case was fought on the basis of ethnic, not religious, discrimination (which is why I don't take seriously Ed Balls's suggestion that this ruling may threaten the admissions criteria of all faith schools, which is how the Telegraph and the Mail rather alarmistly chose to report the news of the decision). JFS, it is said, excluded children it did not consider ethnically Jewish, because, according to Halachic law, that status belongs only to those with Orthodox Jewish mothers.
As the New York Times put it, in its much less hysterical report:
"One thing is clear about the matrilineal test; it is a test of ethnic origin," Lord Phillips, president of the court, said in his majority opinion. Under the law, he said, "By definition, discrimination that is based upon that test is discrimination on racial grounds."
The Catholic Education Service has already hit back at the ruling, saying:
What constitutes membership of a faith group or a religious denomination should be a matter for that faith or denomination to determine. That any other authority should deem to do this in place of the faith group, or for a body outside the faith group to claim that its decision as to what constitutes membership has priority, is a sad and undermining state of affairs.
But it also adds: "It is important, whilst noting our sympathy for our Jewish brothers and sisters, to remind that the judgment should not impact on Catholic schools. This is because the definition of being Catholic is clearly based on baptism and not on any ethnic or other factors."
Note those last few words, "ethnic or other factors". The argument that Jews constitute an ethnic group under the Race Relations Act 1976 and the Public Order Act 1986 was an important factor in a trial in Leeds this year, in which two men were convicted of inciting racial hatred against Jews. (I should add that while the anti-Semitic nature of the material they published is not in question, they are appealing the convictions on other grounds.)
An expert witness called to make that case, Professor Dan Cohn-Sherbok, is a liberal-minded man, a distinguished academic and a Reform rabbi. It is not in his nature to want to discriminate against anybody, still less to act in any way contrary to the preservation and good health of the Jewish community. Nonetheless, it seems to me that if a body of case law builds up, suggesting that Jewishness should be considered a matter of ethnicity, there might come to be a problem with having any Jewish schools at all.
The New York Times also quoted David Lightman, a JFS old boy whose family has been affected by the school's admissions policy. " 'God can work it out,' Lightman said. 'He's a big boy; he's been around for a long time. He can decide who's Jewish and who isn't.' " Much as one might wish to agree with him, the Supreme Court ruling means that it is no longer just up to God or the Chief Rabbi. The law is now having its say in this question, too -- and that is something everyone involved, ultimately, may rue.