Disorder in the Court

Since Oliver Cromwell allowed Jews to settle in England in 1656, Britain’s Jews have often suffered indignities, but have they ever undergone a legal assault on the practice of their religion within their own institutions?

Certainly they have now. On June 26, a British court of appeals labeled “racist” a founding premise of Judaism: the election of Abraham and his descendants and the determination of Jewish status by matrilineal descent. That the court’s decision is preposterous is the least of the matter. Not since the Middle Ages have Jews had to defend their religion before state authorities. And not since the Treaty of Westphalia have states claimed the right to compel changes in religious doctrine. For the first time in many years, a secular liberal state has arrogated to itself the right to determine the legality of millennia-old practices of a monotheistic religion.

Britain’s chief rabbi, Jonathan Sacks, was apoplectic, declaring, “An English court has declared [the religious definition of Jewish status] 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.” Despite their differences with Orthodox Jews, Reform and Conservative Jewish leaders in England joined Lord Sacks in denouncing the state’s interference.

Nor were the Jews alone. Oona Stannard, director of the Catholic Education Services of England and Wales announced, “We support our Jewish colleagues and feel that it is important that the right to determine who is a member of any religion ought to lie with the religious . . . . I am extremely dismayed that the ruling has so far gone against our Jewish colleagues/providers of schools with a religious character. I hope that their understandable tenacity in fighting their corner will eventually be repaid by common sense on the part of those to whom they are appealing.” England’s chief Catholic prelate”Vincent Nichols, the archbishop of Westminster”fully backs the CES statement, a spokesman for his office told First Things . The Church of England, by sad contrast, is dismally silent on the matter. A spokesman for Archbishop of Canterbury Rowan Williams said that no statement had been issued and that none was expected to be forthcoming.

The unkindest cut, however, came from the extreme left of British Jewry. Rabbi Danny Rich, chief executive of Liberal Judaism, hailed the ruling on the grounds that it “would help make Judaism more inclusive.”

The facts are straightforward. The Jewish Free School in London, Europe’s largest Orthodox Jewish school, prefers Jewish applicants and denied admission to the child of a Jewish father and a non-Jewish mother who converted at a progressive synagogue. JFS adheres to criteria set down by the Office of the Chief Rabbi and so does not recognize the conversion. Orthodox Jews consider conversion a solemn matter because it asks a human agency”a rabbinic court”to extend God’s covenant with Abraham and his descendants. The theologian Michael Wyschogrod explains that conversion requires a miracle in which the convert becomes a descendant of Abraham and Sarah and adds that miracles should not happen too frequently.

The child’s parents hired one of Britain’s priciest legal gunslingers and sued, claiming that the school’s admissions policy violated Great Britain’s civil-rights laws, which prohibit discrimination on the basis of race or ethnicity. After a strange inquisition into the nature of the Jewish religion, the London High Court rejected the complaint”only to see, from the appeals court, an even more grotesque proceeding that reversed the lower-court ruling almost without explanation.

JFS is a state school, one among seven thousand religious schools funded by the British government, but the ruling in the case applies equally to private schools. Justice Munby, presiding in the first case, opened his ruling with these words: “The content of a religious faith and the nature of its beliefs, observances, and practices is, for a secular court, a matter of fact to be proved in the usual way by evidence.” What was to be proved, in a practical matter, was whether the Jewish religion might be practiced in the United Kingdom.

Munby agreed with the school that the claim of racial or ethnic discrimination was unwarranted: A child with a Jewish maternal grandmother and three other grandparents of different races hardly can be called “ethnically” Jewish, but under religious law that child is as Jewish as the chief rabbi. By contrast, a child with three Jewish grandparents but a non-Jewish maternal grandmother is not a Jew under religious law.

That reduced to absurdity the charge that JFS engaged in racial discrimination. Munby’s ruling parsed every possibility in sixty-six pages of text. The transcript reads eerily like a fusion of medieval disputations and a Kafka tale. Even more redolent of Kafka was the subsequent contrary ruling of the appeals court, which overturned Munby’s decision with the brief, bland assertion that Jewish religious law was racist, equating the Jewish doctrine of matrilineal descent with South African apartheid: “If it were otherwise, a person who honestly believed, as the Dutch Reformed Church of South Africa until recently believed, that God had made black people inferior and had destined them to live separately from whites, would be able to discriminate openly without breaking the law.”

The court added, “It appears to us clear (a) that Jews constitute a racial group defined principally by ethnic origin and additionally by conversion, and (b) that to discriminate against a person on the ground that he or someone else either is or is not Jewish is therefore to discriminate against him on racial grounds. The motive for the discrimination, whether benign or malign, theological or supremacist, makes it no less and no more unlawful.”

The court seems to want Jewish schools to adopt criteria for belief rather than criteria of kinship. But the distinction fails when Jews believe first of all that God made a covenant with Abraham and his physical descendants. Christians believe this, too, for if God did not choose Abraham and his family, Christ would not have died on the cross to include Gentiles in the covenant of Israel. The appeals court thus doubly threatens Christians, first by setting a precedent for the state to dictate doctrine to religious authorities and second by denouncing as racist a fundamental tenet of Christian as well as Jewish religion.

If the ruling stands, the British government has warned, the country’s one hundred Jewish schools”of which two-thirds are private”will be at risk, and hundreds of other faith-based schools might have to abandon religious criteria for admissions. The government’s Secretary for Children, Ed Balls, offered these warnings in a brief to the Supreme Court supporting the Jewish Free School, the Evening Standard reported on October 28. The outcome may be that observant Jews will be unable to give their children a proper religious as well as secular education, even in privately funded schools.

The contemptuous curtness of the appeals court’s judgment is hard to fathom without taking into account the fragile position of England’s Jews. The nation has a strongly left-leaning elite and a Muslim population that has grown by half a million to two and a half million during the past four years. Together, the two have marginalized the small Jewish community.

In 2006, a parliamentary inquiry warned, “Anti-Jewish themes and remarks are gaining acceptability in some quarters in public and private discourse in Britain and there is a danger that this trend will become more and more mainstream. It is this phenomenon that has contributed to an atmosphere where Jews have become more anxious and more vulnerable to abuse and attack than at any other time for a generation or longer.” The journalist Melanie Phillips warns, “Anti-Semitism is rife within Britain’s Muslim community. Islamic bookshops sell copies of Hitler’s Mein Kampf and the notorious czarist forgery, The Protocols of the Elders of Zion .” Indeed, she adds, “Opinion polls show that nearly two-fifths of Britain’s Muslims believe that the Jewish community in Britain is a legitimate target ‘as part of the ongoing struggle for justice in the Middle East.’”

In other words, in Britain, it is proving a short leap from “Zionism is racism” to “Judaism is racism.” More than any other major Jewish population in the Diaspora, Britain’s Jewish community has attempted to steer clear of controversy”for example, by keeping its distance from the State of Israel (to the annoyance of Israeli officials). But much as Britain’s Jews have tried to avoid trouble, trouble has come looking for them.

David P. Goldman is senior editor of First Things .