Britain Decides ‘Who is a Jew’

It is one of the defining principles of a classically liberal society that the state should not interfere with the internal workings of minority faiths or cultures. But as a result of a case decided last December in the United Kingdom Supreme Court, the British state is now dictating to the Jewish community how to define a Jew for the purposes of state-funded education.

The case centered around the JFS (originally called the Jews’ Free School), an Orthodox Jewish state-funded secondary school in London. Controversy arose when a boy was refused admission on the grounds that his mother had converted to Judaism under the auspices of the Masorti movement (akin to the Conservative movement in the United States), a conversion that is not recognized by the Orthodox Jewish authorities who govern the JFS.

The five judges in the majority stated that JFS directly discriminated against “M,” the unnamed boy, on grounds of his ethnic origins because it should have taken only religious observance into account. The ruling prevents Orthodox Jews from selecting children for admission to their schools on the basis of their own criteria of Jewish identity. More than that, it means the principle that Jewish identity is defined by maternal descent, accepted by both Orthodox and progressive denominations, is in that context inoperative and must be replaced instead by a test of religious observance.

Just how did this illiberal, ignorant and idiotic state of affairs come about in Britain of all places, the historic cradle of liberty, toleration of minorities and the separation of religion and state? To answer this, it is necessary first to understand that in Britain there are state-funded Christian, Jewish and Muslim schools, which have to meet certain government requirements but are free to teach the principles of their religion. These schools are immensely popular with parents because their standards of education or discipline tend to be higher than at other state-funded schools.

Like many other faith schools, the JFS, whose origins date to the 18th century, is heavily over-subscribed. The key point of the ruling was that, where children are competing for places, it violates anti-discrimination law to give preference to a child who is Jewish by descent or whose parents have converted through the Orthodox route over children who do not satisfy these criteria. This is because such schools are discriminating against Jews—defined by the judges as a racial or ethnic group. So, the reasoning goes, schools can only make such choices on the basis of religion, which is not covered by anti-discrimination law in this way.
Those scratching their heads over this will doubtless marvel still further at the tortuous reasoning by which the learned judges concluded that Jewish identity was defined by race or ethnicity for the purposes of anti-discrimination law, but by religion alone for school admissions. As one of the dissenting judges, Lord Brown, observed, the ruling prevents Orthodox Jews from giving preference in their schools to Orthodox-recognized Jewish children. Yet, more obnoxiously, the ruling tells Jews that the state will not accept their own decision about who is or is not a member of their own community and stigmatizes them alone among minorities for that decision.

The judges understood well enough that Judaism embodies a unique conflation of ethnicity and religion. What those in the majority failed to acknowledge, however, was that the “descent” route, by which Judaism is transmitted through a Jewish mother, itself depends on the Jewishness of that mother’s line being defined by religious, not ethnic or racial, criteria. They missed the point that religion was central to Jewish identity and thus to the JFS admissions criteria. As Chief Rabbi Jonathan Sacks of the United Hebrew Congregations of the Commonwealth wrote in Britain’s Jewish Chronicle about the Court of Appeals ruling that the Supreme Court upheld, “An English court has declared this rule racist, and since this is an essential element of Jewish law, it is in effect declaring Judaism racist. To be told now that Judaism is racist is distressing. To confuse religion and race is a mistake.”

How can the British judicial establishment, obsessed as it is with “human rights” and avoiding prejudice, have arrived at a ruling that uniquely penalizes Jews in this way? It is a deep irony that the Race Relations Act 1976, which was designed to stamp out discrimination on grounds of race, has now been used against the Jewish community—because it is held to be discriminating on grounds of race. One reason is that it is precisely because the British parliament and courts are obsessed with stamping out discrimination in the interests of “equality,” by which they really mean identical outcomes. Another reason is the chronic absence of understanding displayed by Britain’s aggressively secular establishment about religious belief in general. As a result, it is in a constant muddle over where to draw the line between the rights of religious communities to practice their religious precepts and the limits that should be placed on a religious ideology that seeks to undermine the democratic principle of “one law for all.”

The JFS case has had a severe impact on Britain’s tiny, 280,000-strong identifying Jewish community. It has served to increase the community’s growing sense of beleaguerment caused by dwindling numbers and political influence and, in particular, by the frenzied anti-Israel feeling dominating public discourse. Small wonder, therefore, that last year the number of British Jews emigrating to Israel rose by approximately one sixth. The JFS case is making them think still further that Britain is no longer a hospitable place in which to bring up Jewish children—in whichever schools they are being educated.

Melanie Phillips is a columnist for London’s Daily Mail and author of The World Turned Upside Down: The Global Battle Over God, Truth and Power, due out in April.