http://www.nationalpost.com/news/story.html?id=2366001&p=1
British Supreme Court ruling adds to debate on what it means to be Jewish
In one of its most controversial and divisive cases, Britain's Supreme Court has decided that a London Jewish school's policy of admitting students based on the nature of their mother's Jewish identity -- a classic test of Judaism -- constitutes racial discrimination.
The 5-4 decision, handed down last week after a protracted legal battle through the British courts, has worsened the already fractious relationship among Britain's 300,000 Anglo-Jews, who have long debated what it means to be Jewish. And now, the British judiciary has weighed in on that debate.
"One thing is clear about the matrilineal test; it is a test of ethnic origin," said Lord Phillips, president of the Supreme Court, in his majority decision. "By definition, discrimination that is based upon that test is discrimination on racial grounds."
The case centres on a 12-year-old boy's application to a prestigious, state-funded, North London Jewish school. The school, JFS (formerly known as Jews' Free School), denied admission to the boy because his mother, who was born an Italian Catholic, converted to Judaism in a Progressive synagogue in a ceremony not recognized by the United Synagogue, the largest association of Orthodox synagogues in the United Kingdom.
Since 1953, JFS has given priority to children recognized as Jewish under the religion's Orthodox definition.
The United Synagogue considered that the boy "lacked Jewish status," even though his parents are devout, practising Jews.
British law allows religious schools to discriminate on the basis of religion only when enrolment is oversubscribed, as JFS was at the time.
The family sued when the boy was not admitted. They lost the original case, but in June the Court of Appeal ruled that the school's policy amounted to direct racial discrimination. The school appealed that decision to the Supreme Court in October. In Wednesday's ruling, five of the nine judges upheld the Court of Appeal's decision, while two of the four dissenting judges agreed there was unlawful racial discrimination but characterized it as indirect. Only two presented full, dissenting opinions in which they said the school's policy was strictly religious and did not discriminate on an ethnic basis.
"The ruling represents a definitive end to six decades of exclusion of children who are devout in their Jewish faith, but considered by some to be not quite Jewish enough to enjoy the benefits of their community's leading faith school," said John Halford, one of the boy's lawyers.
As a result of the Court of Appeal ruling, JFS was forced to rewrite its admissions policy, whereby students must pass a "religious practice test" based on points accumulated for participating in Jewish activities such as attending synagogue. The Supreme Court ruling only added to the school's woes by shouldering it with much of the legal costs.
The school's chairman of governors, Russell Kett, said in a statement he was disappointed by the Supreme Court's ruling. "JFS School felt it had no alternative than to continue to press for its test of 'Jewishness' to be based solely on Orthodox Jewish religious law, rather than on a series of factors, which themselves have no relevance under Jewish law but which seem to support the notion of a test of Jewish practice required by the English legal system."
The ruling also spells trouble for about 50 other Jewish schools in the United Kingdom that have similar admissions policies to JFS, and may affect other religious schools. Children who were refused admission to other schools may now use the ruling to make an admissions appeal or a legal claim. There are almost 7,000 state-funded faith-based schools in Britain.
United Synagogue president Simon Hochhauser said the Supreme Court ruling interferes with the Torah-based imperative to educate Jewish children, regardless of their background.
"Practice tests are anathema to the United Synagogue, which for centuries has opened its institutions to all Jews, observant or not," Mr. Hochhauser said. "These practice tests have no relevance under Jewish law and serve only to support the notion of a test of religion in the eyes of the English legal system ... essentially we must now apply a 'non-Jewish definition of who is Jewish.' "
In his dissenting judgment, Lord Alan Rodger warned that the majority decision means in the future, there can be no Jewish faith schools that give preference to children because they are Jewish according to Jewish religious law and belief.
"Instead, Jewish schools will be forced to apply a concocted test for deciding who is to be admitted. That test might appeal to this secular court but it has no basis whatsoever in 3,500 years of Jewish law and teaching."
He added: "The majority's decision leads to such extraordinary results, and produces such manifest discrimination against Jewish schools in comparison with other faith schools, that one can't help feeling that something has gone wrong."
The crux of the court's decision rests with the fact that in deciding whether the boy should be admitted or not, the school relied on his parentage -- a biological link -- that the judges said amounted to a breach of the country's 1976 Race Relations Act. While they acknowledged that the school's Jewishness test was a legitimate religious test, it was nonetheless inconsistent with British law.
"The school's policy was formulated without considering the extent to which others professing the Jewish faith, but not in the Orthodox Jewish tradition, were separated by it from friends and from the general Jewish community by the school's admissions policy, or about the extent to which this might cause grief and bitterness in inter-or intracommunity relations," wrote Lord Jonathan Mance.
Leaders of Britain's non-Orthodox Jewish denominations warned the decision may not signal the end of the debate for the United Synagogue.
"Liberal Judaism has consistently argued that Jewish identity is primarily about thought and deed, rather than biology," said Rabbi Danny Rich, chief executive of Liberal Judaism. "We have consistently opposed the politically motivated admissions policy of JFS." He suggested the United Synagogue might seek amendments to the race legislation. Indeed, some Supreme Court judges mulled in their rulings whether JFS's concerns merited changes to legislation.
The case has implications for the broader Jewish community outside the United Kingdom, because of the questions raised by the United Synagogue's refusal to accept conversions performed outside the Orthodox religion.
"I'm a liberal Jew so it's very hurtful for one rabbi to say, 'My conversion is better than your conversion,' " said Stephen Wise, rabbi at Shaarei-Beth El Synagogue in Oakville, Ont.
"The problem with this case was that the United Synagogue wasn't giving a level of respect to this family. If the courts had agreed with the school, the implication would be that if you don't convert through an Orthodox synagogue, you're not Jewish. The impact would be felt around the world."
British Supreme Court ruling adds to debate on what it means to be Jewish
In one of its most controversial and divisive cases, Britain's Supreme Court has decided that a London Jewish school's policy of admitting students based on the nature of their mother's Jewish identity -- a classic test of Judaism -- constitutes racial discrimination.
The 5-4 decision, handed down last week after a protracted legal battle through the British courts, has worsened the already fractious relationship among Britain's 300,000 Anglo-Jews, who have long debated what it means to be Jewish. And now, the British judiciary has weighed in on that debate.
"One thing is clear about the matrilineal test; it is a test of ethnic origin," said Lord Phillips, president of the Supreme Court, in his majority decision. "By definition, discrimination that is based upon that test is discrimination on racial grounds."
The case centres on a 12-year-old boy's application to a prestigious, state-funded, North London Jewish school. The school, JFS (formerly known as Jews' Free School), denied admission to the boy because his mother, who was born an Italian Catholic, converted to Judaism in a Progressive synagogue in a ceremony not recognized by the United Synagogue, the largest association of Orthodox synagogues in the United Kingdom.
Since 1953, JFS has given priority to children recognized as Jewish under the religion's Orthodox definition.
The United Synagogue considered that the boy "lacked Jewish status," even though his parents are devout, practising Jews.
British law allows religious schools to discriminate on the basis of religion only when enrolment is oversubscribed, as JFS was at the time.
The family sued when the boy was not admitted. They lost the original case, but in June the Court of Appeal ruled that the school's policy amounted to direct racial discrimination. The school appealed that decision to the Supreme Court in October. In Wednesday's ruling, five of the nine judges upheld the Court of Appeal's decision, while two of the four dissenting judges agreed there was unlawful racial discrimination but characterized it as indirect. Only two presented full, dissenting opinions in which they said the school's policy was strictly religious and did not discriminate on an ethnic basis.
"The ruling represents a definitive end to six decades of exclusion of children who are devout in their Jewish faith, but considered by some to be not quite Jewish enough to enjoy the benefits of their community's leading faith school," said John Halford, one of the boy's lawyers.
As a result of the Court of Appeal ruling, JFS was forced to rewrite its admissions policy, whereby students must pass a "religious practice test" based on points accumulated for participating in Jewish activities such as attending synagogue. The Supreme Court ruling only added to the school's woes by shouldering it with much of the legal costs.
The school's chairman of governors, Russell Kett, said in a statement he was disappointed by the Supreme Court's ruling. "JFS School felt it had no alternative than to continue to press for its test of 'Jewishness' to be based solely on Orthodox Jewish religious law, rather than on a series of factors, which themselves have no relevance under Jewish law but which seem to support the notion of a test of Jewish practice required by the English legal system."
The ruling also spells trouble for about 50 other Jewish schools in the United Kingdom that have similar admissions policies to JFS, and may affect other religious schools. Children who were refused admission to other schools may now use the ruling to make an admissions appeal or a legal claim. There are almost 7,000 state-funded faith-based schools in Britain.
United Synagogue president Simon Hochhauser said the Supreme Court ruling interferes with the Torah-based imperative to educate Jewish children, regardless of their background.
"Practice tests are anathema to the United Synagogue, which for centuries has opened its institutions to all Jews, observant or not," Mr. Hochhauser said. "These practice tests have no relevance under Jewish law and serve only to support the notion of a test of religion in the eyes of the English legal system ... essentially we must now apply a 'non-Jewish definition of who is Jewish.' "
In his dissenting judgment, Lord Alan Rodger warned that the majority decision means in the future, there can be no Jewish faith schools that give preference to children because they are Jewish according to Jewish religious law and belief.
"Instead, Jewish schools will be forced to apply a concocted test for deciding who is to be admitted. That test might appeal to this secular court but it has no basis whatsoever in 3,500 years of Jewish law and teaching."
He added: "The majority's decision leads to such extraordinary results, and produces such manifest discrimination against Jewish schools in comparison with other faith schools, that one can't help feeling that something has gone wrong."
The crux of the court's decision rests with the fact that in deciding whether the boy should be admitted or not, the school relied on his parentage -- a biological link -- that the judges said amounted to a breach of the country's 1976 Race Relations Act. While they acknowledged that the school's Jewishness test was a legitimate religious test, it was nonetheless inconsistent with British law.
"The school's policy was formulated without considering the extent to which others professing the Jewish faith, but not in the Orthodox Jewish tradition, were separated by it from friends and from the general Jewish community by the school's admissions policy, or about the extent to which this might cause grief and bitterness in inter-or intracommunity relations," wrote Lord Jonathan Mance.
Leaders of Britain's non-Orthodox Jewish denominations warned the decision may not signal the end of the debate for the United Synagogue.
"Liberal Judaism has consistently argued that Jewish identity is primarily about thought and deed, rather than biology," said Rabbi Danny Rich, chief executive of Liberal Judaism. "We have consistently opposed the politically motivated admissions policy of JFS." He suggested the United Synagogue might seek amendments to the race legislation. Indeed, some Supreme Court judges mulled in their rulings whether JFS's concerns merited changes to legislation.
The case has implications for the broader Jewish community outside the United Kingdom, because of the questions raised by the United Synagogue's refusal to accept conversions performed outside the Orthodox religion.
"I'm a liberal Jew so it's very hurtful for one rabbi to say, 'My conversion is better than your conversion,' " said Stephen Wise, rabbi at Shaarei-Beth El Synagogue in Oakville, Ont.
"The problem with this case was that the United Synagogue wasn't giving a level of respect to this family. If the courts had agreed with the school, the implication would be that if you don't convert through an Orthodox synagogue, you're not Jewish. The impact would be felt around the world."
