Britain’s Supreme Court chose the fifth day of the Jewish Feast of Chanukkah to rule that Jewish religious law is “racist,” and that the British Courts rather than Jewish religious authorities have the right to determine who is a Jew.
The epigonoi of Alexander’s empire attempted to suppress the practice of Judaism in second-century Judea, and the Jews under the leadership of the Hasmonean family expelled them. The Supreme Court of Britain is not quite Antiochus IV of Syria, who compelled Jews to eat pork under pain of execution, but it nonetheless threatened the practice of the Jewish religion in Britain through a judgment in whicih “3,500 yeas of Jewish tradition are overturned,” in the words of the London Times ’ religion correspondent Ruth Glenhill.
“The state now decides who is a Jew,” commented Daily Telegraph religion editor Ed West.
I reviewed the earlier iterations of the case in the new issue of First Things . The Jewish Free School, the largest Orthodox Jewish day school in Europe, gives preferential admission to Jews, whose status is determined by Jewish law under the supervision of Britain’s chief rabbi (presently the estimable Rabbi Lord Sacks). The school denied admission to the child of a woman converted in a “progressive synagogue” that did not meet the school’s standards for conversion, and the parents sued the school on the grounds that Jewish law—which specifies matrilineal descent to determine Jewish status—is inherently racist. The Supreme Court upheld an Appeals Court decision stating that the Jewish Free School’s admission criteria constituted racial discrimination under Britain’s 1976 Race Relations Act. Although JFS is state-supported, the ruling applies equally to privately-funded Jewish schools.
As I explain in my essay, the charge not only is absurd, but was shown to be absurd in nearly 200 pages of testimony before a lower court that ruled in favor of the school authorities after demonstrating that Jewish status under religious law has nothing to do with race (a child with a Jewish maternal grandmother and three Inuit grandparents is Jewish by religious criteria). It is a short leap, I argue, from “Zionism is racism” to “Judaism is racism,” which is precisely what the Supreme Court so shamefully has concluded. There simply is no ambiguity in the evidence: the case simply provided a platform for the bitterly anti-Zionist sentiments of the British elite to turn into overt anti-Judaism.
Britain’s Roman Catholic authorities strongly supported the Jewish position (although not the Church of England, which remained smugly silent throughout). Writing in his blog, the Telegraph ‘s Ed West quotes Neil Addison of the Thomas More Legal Centre, which specializes in religious freedom:
What the decision means is that the historic Jewish definition of ‘who is a Jew’ is now illegal and Orthodox Jewish organisations and schools can no longer apply their own definitions of membership. As a lawyer I can understand the technical legal argument but as a human being I regard it as a profoundly dangerous extension of state power. On the basis of this judgment an adult who Orthodox Jews do not accept as Jewish can apply to become an Orthodox Rabbi and the Orthodox synagogue cannot say no.What next? Will the courts have the power to say ‘The Pope does not accept that you are a Catholic but we do and so you are entitled to become a Catholic Priest’? On the basis of this judgment that is a possibility because at its heart what the judgment of the Supreme Court does is to attack the right of organisations and religions to have their own personal identity. It is the most insidious form of totalitarianism.
Britain’s United Synagogue stated in a press release:
The UK Supreme Court today, by the narrowest of margins, held that the admissions criteria of JFS, which gave preference in the event of oversubscription to children who are Jewish according to Orthodox Jewish law (either by descent or conversion), were in the definition of the 1976 Race Relations Act, directly racially discriminatory.JFS lost the case by the narrowest of margins – with five Justices upholding the Court of Appeal’s earlier ruling and four dissenting. However, all of the Justices went out of their way to make it clear that JFS’s admission policy was not ‘racist’ and took great care to make it clear that the Chief Rabbi, the United Synagogue and the governors of JFS acted with great sincerity and are entirely free from moral blame, Lord Kerr describing their motives as ‘unimpeachable’.
The closeness of the Court’s decision underlines the inherent difficulty in applying the complex modern law of discrimination to an ancient religion, particularly where the UK law of direct discrimination does not allow any breach to be justified, however legitimate the motive.
A majority of the Justices expressed the view that the law may be wrong and Lady Hale signalled that an amendment to the Equality Bill should be investigated.
Nevertheless, notwithstanding the sympathy of the Court, the finding that applying the test of Jewish status is directly discriminatory will have a significant and profound effect on Jewish schools and the whole of the Jewish community. This is why the United Synagogue has supported the School’s case.
Lord Rodger in his dissenting judgment said, ‘The decision of the majority means that there can in future be no Jewish faith schools which 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 continued “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.’
Commenting on the decision, United Synagogue President Dr. Simon Hochhauser said, ‘The United Synagogue is extremely disappointed with the Supreme Court ruling which interferes with the Torah-based imperative on us 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. 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. As Lord Brown noted, essentially we must now apply a “non-Jewish definition of who is Jewish.’
Under the circumstances, Britain’s 270,000 Jews have little choice but to bite their lips and hope for some form of redress.
