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.

Sholto Byrnes is a Contributing Editor to the New Statesman
Photo: Getty Images
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Autumn Statement 2015: How should Labour respond?

The government always gets a boost out of big setpieces. But elections are won over months not days. 

Three days in the political calendar are utterly frustrating for Her Majesty’s Loyal Opposition – the Queen’s Speech, the Budget and the Autumn Statement. No matter how unpopular the government is – and however good you are as an opposition - this day is theirs. The government will dominate the headlines. And played well they will carry the preceding with pre-briefed good news too. You just have to accept that, but without giving in or giving up.

It is a cliche that politics is a marathon not a sprint, but like most cliches that observation is founded in truth. So, how best to respond on the days you can’t win? Go to the fundamentals. And do the thing that oddly is far too little done in responses to budgets or autumn statements – follow the money.

No choices in politics are perfect - they are always trade offs. The art is in balancing compromises not abolishing them. The politics and the values are expressed in the choices that you make in prioritising. This is particularly true in budgets where resources are allocated across geographies - between towns, cities and regions, across time - short term or long term, and across the generations - between young and old. To govern is to choose. And the choices reveal. They show the kind of country the government want to create - and that should be the starting point for the opposition. What kind of Britain will we be in five, ten, fifteen years as these decisions have their ultimate, cumulative impact?

Well we know, we are already living in the early days of it. The Conservative government is creating a country in which there are wealthy pensioners living in large homes they won, while young people who are burdened with debts cannot afford to buy a home. One in which health spending is protected - albeit to a level a third below that of France or Germany – while social care, in an ageing society, is becoming residualised. One where under-regulated private landlords have to fill the gap in the rented market caused by the destruction of the social housing sector.

But description, though, is not sufficient. It is only the foundation of a critique - one that will succeed only if it describes not only the Britain the Tories are building but also the better one that Labour would deliver. Not prosaically in the form of a Labour programme, but inspirationally as the Labour promise.

All criticism of the government – big and little – has to return to this foundational narrative. It should connect everything. And it is on this story that you can anchor an effective response to George Osborne. Whatever the sparklers on the day or the details in the accompanying budgetary documentation, the trajectory is set. The government know where they are going. So do informed commentators. A smart opposition should too. The only people in the dark are the voters. They feel a pinch point here, a cut there, an unease and unfairness everywhere – but they can’t sum it up in words. That is the job of the party that wants to form a government – describing in crisp, consistent and understandable terms what is happening.

There are two traps on the day. The first is narrowcasting - telling the story that pleases you and your closest supporters. In that one the buzzwords are "privatisation" and "austerity". It is the opposite of persuasion aimed, as it is, at insiders. The second is to be dazzled by the big announcements of the day. Labour has fallen down here badly recently. It was obvious on Budget Day that a rise in the minimum wage could not compensate for £12bn of tax credit cuts. The IFS and the Resolution Foundation knew that. So did any adult who could do arithmetic and understood the distributional impact of the National Minimum Wage. It could and should have been Labour that led the charge, but frontbenchers and backbenchers alike were transfixed by the apparent appropriation of the Living Wage. A spot of cynicism always comes in handy. In politics as in life, if something seems to be too good to be true then … it is too good to be true.

The devil may be in the detail, but the error is in the principle – that can be nailed on the day. Not defeated or discredited immediately, but the seeds planted.  

And, if in doubt, take the government at their word. There is no fiercer metric against which to measure the Tories than their own rhetoric. How can the party of working people cut the incomes of those who have done the right thing? How can the party who promised to protect the health service deliver a decade of the lowest ever increases in spending? How can the party of home ownership banish young people to renting? The power in holding a government to account is one wielded forensically and eloquently for it is in the gap between rhetoric and reality that ordinary people’s lives fall.

The key fact for an opposition is that it can afford to lose the day if it is able to win the argument. That is Labour’s task.