A case now standing before the Supreme Court of the United Kingdom bears with it the future of Britain’s relationship with its Jewish community, and the court has no attractive options.
The suit involves a religiously observant Jewish boy, M., who has been denied admission to the Jews’ Free School in London, on the grounds that he is not Jewish. And why is he not Jewish? Because, argues the school, his mother isn’t Jewish. His mother isn’t Jewish because she converted to Judaism under the aegis of the liberal Reform movement, so her conversion has not been recognized as valid by the more exacting Orthodox Chief Rabbinate. And according to Orthodox Judaism (which, in turn, decides the policy of the school’s board of directors), a person’s Judaism is defined by matrilineal descent — you are Jewish only if your mother is Jewish.
M. sued the school on grounds of ethnic and racial discrimination. His lawyers insist that any decision to admit someone based on their parents’ ethnic identities rather than their religious beliefs and practices violates Britain’s Race Relations Act of 1976. The suit was at first denied, but the England and Wales Court of Appeals overturned the lower court’s ruling this past summer, arguing that because “Jews constitute a racial group defined principally by ethnic origin,” it follows “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.”
This October, the case was argued in Britain’s Supreme Court. The 12 justices will hand down a decision before the end of the year.
But regardless of what they decide, the British judicial system has unknowingly (or, what would be scarier, knowingly) waded into a feud that is tearing apart the world of contemporary Judaism.
The Reform movement, along with other progressive Jewish denominations, has long held the traditional concept of “matrilineal descent” as the sole determinant of Judaism is a dangerous ethnicization of religion. Judaism, they say, ought to be a faith and should be dependant only on the beliefs and conscience of the free individual, not held in bonds to benighted notions of particularism and bloodline. Today’s Orthodox rabbis, who have the strictest formal criteria for determining who should be considered Jewish, have reacted by becoming more stringent. The ensuing melee has led to, on one hand, an Orthodox rabbinate that is increasingly paranoid, bureaucratic and contrary in its administration of essential services such as marriage and conversion and, on the other, scathing attacks on the power of Orthodox institutions by progressive Jews and non-Jews alike.
By asserting the power to determine the basis on which Jews’ Free School may admit students, the British government turned this mess into its own problem. If the Supreme Court overrules the appellate court’s decision, it will be making a move against the state’s own pluralistic and antidiscriminatory policies. If the Supreme Court instead upholds the decision, it may be upholding these ideals, but it will be simultaneously telling a religious establishment how it can and cannot implement the dictates of its own religion. Such a decision would undermine a faith community that is built on cohesive familial ties and reliance on the authority of its institutions. For the British state to insist that Judaism must conform to its version of what a religion ought to be would be, simply put, denying Jews full freedom of religion.
Freedom of religion, however, does not have to be the highest value in the state. The written decision of the appeals court points out, in good faith, that if the Dutch South African Reformed Church were still in the business of denying rights to blacks as part of their religion, then their practice would be deemed unlawful as well. Religions, say the court, are not allowed to be racist — even when racism is part of that religion.
Yet, religious schools in England are exempted from the laws banning religious discrimination, showing that, to a certain extent, the state does privilege religious freedom over universal equality. The mild schizophrenia of the British legal position on these issues only highlights the difficulty that it and any other secular, pluralistic state faces when confronting religious communities like the Orthodox one, with political teeth.
Orthodox Judaism, of course, will survive this crisis with little damage. Traditional Jews have historically found ways to educate their children in a traditional manner in the face of far greater governmental opposition. Instead, the secular state itself has reached a point of existential self-confrontation. Is it viable to create a society completely devoid of particularism and discrimination when particularism and discrimination make up some of the most treasured beliefs and values of the people at hand? The classic challenge to pluralism: “will you value and tolerate non-pluralistic beliefs and lifestyles?” comes into sharp relief.
Religions can be deeply, authentically political, and when the religiously tolerant secular state — the hallmark of modern, enlightened government — tries to arbitrate, it only makes its position more difficult to maintain. Put otherwise: British courts can hate on 5,000 years of Jewish ethnic self-definition all it wants, but at least Orthodox Judaism will remain internally consistent, which is more than can be said for the British state.
Yedidya Schwartz is a junior in Branford College.