Courts deciding who's a Jew

jewsfreeschoolI 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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