I always appreciate when I have the opportunity to point out a reporter getting religion. The New York Times recently gave us one such example. But first, a little background and a bit of self reference.
Jews aren’t exactly in agreement on what a Jew makes. Is it based on religious, cultural, ethnic identities or all the above? Does the heritage pass down the mother’s side or the father’s? Is there any minimum level of religious observance? And who gets to decide?
As I told The Forward shortly after I joined The Jewish Journal: “this is a thousands-year-old problem, the question of who is a Jew. I don’t anticipate being the answer.”
Now for the bit of good reporting. This story has been under the surface since a judge ruled in June that the policy of the Jews’ Free School in London, founded nearly three centuries ago, was illegal because it discriminated against applicants who didn’t fit the Orthodox requirements. In the case of “M,” the 12-year-old boy had a Jewish father but his mother was a convert to Judaism — and not an Orthodox conversion.
The ruling was appealed to Britain’s Supreme Court, which heard arguments last month and is expected to issue a ruling by year’s end. The NYT picks up on the broad implications of the June ruling:
In an explosive decision, the court concluded that basing school admissions on a classic test of Judaism — whether one’s mother is Jewish — was by definition discriminatory. Whether the rationale was “benign or malignant, theological or supremacist,” the court wrote, “makes it no less and no more unlawful.”
The case rested on whether the school’s test of Jewishness was based on religion, which would be legal, or on race or ethnicity, which would not. The court ruled that it was an ethnic test because it concerned the status of M’s mother rather than whether M considered himself Jewish and practiced Judaism.
“The requirement that if a pupil is to qualify for admission his mother must be Jewish, whether by descent or conversion, is a test of ethnicity which contravenes the Race Relations Act,” the court said. It added that while it was fair that Jewish schools should give preference to Jewish children, the admissions criteria must depend not on family ties, but “on faith, however defined.”
The same reasoning would apply to a Christian school that “refused to admit a child on the ground that, albeit practicing Christians, the child’s family were of Jewish origin,” the court said.
It was nice to see the Times reporter really wrestle with the bigger issues of religious exclusivity and self-selection, and to do so without condemning the practice as prejudicial, which strikes me as the knee-jerk response.
My only complaint was that this story didn’t really explore what such a ruling, if affirmed, could mean for religious schools in the United States. (To be honest, I’m not really sure to what extent American religious schools are currently allowed to discriminate on the basis of religious beliefs.) Our law no longer comes from England, but there’s no reason this case couldn’t be used for persuade our courts to adopt the same standard.
Obviously, I’m in favor of broadening the term “Jew,” or at least “Jewish.” But not everyone is. Nor should they need to be. It’s nice to see the NYT reflecting this perspective accurately and sensitively.
PHOTO: The Jews’ Free School
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Comments (11) |
November 13, 2009, at 2:24 pm
The article really revealed the tension caused by a law that highly separates faith and ethnicity and a religion that does not.
One question that I didn’t find answered in the article: Is the mother’s Jewishness only a factor in the school’s decision because the child isn’t practicing or is a member of a progressive group not recognized by the school? Or was the school’s decision that no matter how much one adheres to the Orthodox Jewish faith, a convert who isn’t ethnically Jewish is somehow less than fully Jewish?
November 13, 2009, at 2:54 pm
My understanding is that a convert who isn’t ethnically Jewish is no less fully Jewish than someone who is ethnically Jewish. In this case the boy’s mother’s conversion wasn’t an Orthodox conversion, so to the Orthodox she wasn’t a convert at all, and thus by the school’s standards his mother wasn’t Jewish and so neither was he.
There’s a rabbi quoted saying that adherence to the faith isn’t what makes someone Jewish (“So little does observance matter, in fact, that “having a ham sandwich on the afternoon of Yom Kippur doesn’t make you less Jewish,” Rabbi Yitzchak Schochet… said.”) which seems to be what caused the conflict with the courts, and is why the school is now instituting a “points system” so that prospective students get points for “things like going to synagogue and doing charitable work” so the school can decide who to admit.
November 13, 2009, at 3:28 pm
Right. But what’s the mother’s Jewishness matter if the boy is a practicing Orthodox Jew? The article only mentions the faith of the parents, but not the boy. Isn’t that an important bit of information? Or at age 12 is the boy not old enough by the school’s standards to be considered practicing in his own right, therefore it’s the faith of his mother that makes him Jewish?
I understand the concept of once you’re in, you’re in. And I understand why the boy isn’t “in” on the basis of his mother’s faith. But I don’t understand why he isn’t “in” on the basis of his own faith. Has he never been a practicing Jew? Is he practicing his mother’s progressive Judaism rather than the Orthodox Jewish faith of his father? Is he practicing his father’s faith but not old enough to have gone through the rituals necessary for him to be considered an Orthodox Jew in his own right? To me, this bit of information seems very important for understanding both the school’s and the courts’ decisions.
November 13, 2009, at 4:31 pm
What I find interesting and disturbing in this story is not the issue of “who is a Jew” — I’m not and have always assumed that the question can only be argued about by those who believe they are — but rather, the role of the British government/judiciary in trying to make this determination. The Times story might have gone a little deeper in explaining the role of the government here. Is it simply because religious schools, as the article notes, receive some public funding and thus have to answer to the government? But that left me wondering whether they can “opt out” of such funding and still function as schools?
November 13, 2009, at 4:31 pm
OK, I found it in the actual court documents:
It states that the boy isn’t an Orthodox Jew and is not following a course of conversion (and implies that if he were he would be accepted).
Now that I understand that part, I don’t understand the court’s decision. I could see how it might make sense if the kid was a practicing Orthodox Jew but was turned away because of his mother. But the court admits off the bat that the kid doesn’t profess to be an Orthodox Jew - so if the school is only allowed to look a the kid’s faith and not his parents, wasn’t the it still within it’s rights to deny the kid admission?
The link to the court document is: http://www.bailii.org/ew/cases/EWCA/Civ/2009/626.html
November 13, 2009, at 4:45 pm
I wonder if the same decision would have been made by the school if the boy was 13 presuming he had had his Bar Mitzvah?
November 13, 2009, at 5:59 pm
I understand the concept of once you’re in, you’re in. And I understand why the boy isn’t “in” on the basis of his mother’s faith. But I don’t understand why he isn’t “in” on the basis of his own faith.
Basically, it’s because there are two generally accepted way that someone can be Jewish — they can be born Jewish, or they can convert. In this case, Progressive Judaism says he was born Jewish, but Orthodox Judaism says he was not. Someone who was not born Jewish cannot just become Jewish by following the religion — there needs to be an official conversion, where the person studies Judaism for a while and talks to rabbis who determine that the person is sincere in wanting to become a Jew. And the Orthodox rabbinate does not accept the decision of non-Orthodox rabbis as to whether someone is sincere or not, which is why they don’t recognize the boy’s mother as Jewish.
As for the boy converting, one article I read said that his father looked into that, but the school said they wouldn’t accept him until he’d been studying for conversion for several years.
November 14, 2009, at 2:17 am
Such a decision is a bit disturbing for a number of reasons. There are many angles to this that do not translate directly to the United States (e.g., that the church-state separation doctrines have never been so clearly defined in the UK as here), but it still comes down to the fact that we are seeing a level of judicial (that is, government) involvement with a religious organization which I’m not sure we have seen much at all in any Western, “liberal” democracy.
I try not to be alarmist when I say this (mostly because I don’t think there is genuine cause for alarm) but it is important to remember that legislatures, unlike courts, do not have to carry things to their logical conclusion. The slippery slope does matter in the judiciary in a way that it does not in a legislative body; for a judiciary which (like our own) relies almost solely on common law precedent when making decisions, it is a fairly short trip from doing what the court has done here to other kinds of unsavory governmental interference with the prerogatives of religious organizations.
So, I guess I find a decision of this nature troubling by dint of the precedent it could set for a changed nature of government-church interaction. While I am unsurprised that this was not discussed in any depth in the article, it would be nice to see a well-done speculative piece on the matter.
November 14, 2009, at 8:49 pm
This decision would never happen in the United States. Even religious schools that may receive some government funds (usually in the form of vouchers) cannot be ordered to set aside their religious beliefs. The First Amendment protects them. The government may decide not to give any funding to a school that discriminates in admissions (e.g., Bob Jones University students could not receive federal financial aid for a very long time due to BJU’s racially discriminator policies), but the government may not interfere with an institution’s sincerely held religious beliefs.
November 15, 2009, at 11:47 am
What’s interesting in this case is that the law permitted discrimination on religious grounds, but not on ethnic or racial grounds. The court decided that the school’s policy was not religion related, since (in the Court’s view) the boy was Jewish. It seems to me that in effect this was saying that a religion does not have the right to set the rules governing who is a member of its religion. While the applicant may have belonged to a different Jewish group, each group clearly has its own established principles and religious practices.
November 15, 2009, at 8:55 pm
Here is my take of this. I am both a British and American citizen. I am Jewish by ethnicity.
1. According to Orthodox interpretation, in order for the child to be Jewish, the mother MUST be Jewish. No if, and, or buts. If the Mother has not undergone a halachic conversion she is not Jewish.
2. Even IF the child is admitted to school, the child will be ostracized by the other students, and to be frank, probably disdained by his instructors. The child will NOT be a able to touch the Torah, and many prayer books, and will certainly have a hard time in school. No court ruling will make the orthodox accept him. The mental health of the child must assume a prime priority.
3. Even if the Mother were to undergo a lightening fast conversion now (it can be done), the child will STILL not be Jewish. I do not know what the Orthodox conversion court will allow, but the child will still need to undegoe SOME sort of conversion, including in all likelihood a symbolic (with blood being drawn under anesthetic)conversion. Orthodox take no prisoners when it comes to following Halacha.
Saying all this, isn’t there a liberal Jewish school that be be found for this kid? Or SOME other solution? Are there Chabad in the UK that can help this poor kid? It just seems so sad.