Who Is a Jew? Court Ruling in Britain Raises Question

“This is potentially the biggest case in the British Jewish community’s modern history.”

Who Is a Jew? Court Ruling in Britain Raises Question
By SARAH LYALL • New York Times

LONDON — The questions before the judges in Courtroom No. 1 of Britain’s Supreme Court were as ancient and as complex as Judaism itself.

Who is a Jew? And who gets to decide?

On the surface, the court was considering a straightforward challenge to the admissions policy of a Jewish high school in London. But the case, in which arguments concluded Oct. 30, has potential repercussions for thousands of other parochial schools across Britain. And in addressing issues at the heart of Jewish identity, it has exposed bitter divisions in Britain’s community of 300,000 or so Jews, pitting members of various Jewish denominations against one another.

“This is potentially the biggest case in the British Jewish community’s modern history,” said Stephen Pollard, editor of the Jewish Chronicle newspaper here. “It speaks directly to the right of the state to intervene in how a religion operates.”

The case began when a 12-year-old boy, an observant Jew whose father is Jewish and whose mother is a Jewish convert, applied to the school, JFS. Founded in 1732 as the Jews’ Free School, it is a centerpiece of North London’s Jewish community. It has around 1,900 students, but it gets far more applicants than it accepts.

Britain has nearly 7,000 publicly financed religious schools, representing Judaism as well as the Church of England, Catholicism and Islam, among others. Under a 2006 law, the schools can in busy years give preference to applicants within their own faiths, using criteria laid down by a designated religious authority.

By many standards, the JFS applicant, identified in court papers as “M,” is Jewish. But not in the eyes of the school, which defines Judaism under the Orthodox definition set out by Jonathan Sacks, chief rabbi of the United Hebrew Congregations of the Commonwealth. Because M’s mother converted in a progressive, not an Orthodox, synagogue, the school said, she was not a Jew — nor was her son. It turned down his application.

That would have been the end of it. But M’s family sued, saying that the school had discriminated against him. They lost, but the ruling was overturned by the Court of Appeal this summer.

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.

The school appealed to the Supreme Court, which is likely to rule sometime before the end of the year.

The case’s importance was driven home by the sheer number of lawyers in the courtroom last week, representing not just M’s family and the school, but also the British government, the Equalities and Human Rights Commission, the United Synagogue, the British Humanist Association and the Board of Deputies of British Jews.

Meanwhile, the Court of Appeal ruling threw the school into a panicked scramble to put together a new admissions policy. [Please see below.] It introduced a “religious practice test,” in which prospective students amass points for things like going to synagogue and doing charitable work.

That has led to all sorts of awkward practical issues, said Jon Benjamin, chief executive of the Board of Deputies of British Jews, because Orthodox Judaism forbids writing or using a computer on the Sabbath. That means that children who go to synagogue can’t “sign in,” but have to use methods like dropping prewritten postcards into boxes.

It is unclear what effect the ruling, if it is upheld, will have on other religious schools. Some Catholic schools, accustomed to using baptism as a baseline admissions criterion, are worried that they will have to adopt similar practice tests.

The case has stirred up long-simmering resentments among the leaders of different Jewish denominations, who, for starters, disagree vehemently on the definition of Jewishness. They also disagree on the issue of whether an Orthodox leader is entitled to speak for the entire community.

“Whatever happens in this case, there must be some resolution sorted out between different denominations,” Mr. Benjamin said in an interview. “That the community has failed to grasp this has had the very unfortunate result of having a judgment foisted on it by a civil court.”

Orthodox Jews, of course, sympathize with the school, saying that observance is no test of Jewishness, and that all that matters is whether one’s mother is 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, chairman of the Rabbinical Council of the United Synagogue, said recently.

Lauren Lesin-Davis, chairman of the board of governors at King David, a Jewish school in Liverpool, told the BBC that the ruling violated more than 5,000 years of Jewish tradition.

“You cannot come in and start telling people how their whole lives should change, that the whole essence of their life and their religion is completely wrong,” she said.

But others are in complete sympathy with M.

“How dare they question our beliefs and our Jewishness?” David Lightman, an observant Jewish father whose daughter was also denied a place at the school because it did not recognize her mother’s conversion, told reporters recently. “I find it offensive and very upsetting.”

Rabbi Danny Rich, chief executive of Liberal Judaism here, said the lower court’s ruling, if upheld, would help make Judaism more inclusive.

“JFS is a state-funded school where my grandfather taught, and it’s selecting applicants on the basis of religious politics,” he said in an interview. “The Orthodox definition of Jewish excludes 40 percent of the Jewish community in this country.”

Here is the Jewish Free School's new admissions policy:

UPDATE ON JFS ADMISSION ARRANGEMENTS FOR SEPTEMBER 2010

In view of the recent Court of Appeal ruling, JFS will no longer be able to give priority according to Jewish status.  Instead, the School will give priority to those who meet a religious practice test based on guidelines from the Chief Rabbi.  The basis of that test has now been agreed with the Schools Adjudicator. Those applicants wishing to be considered as priority applicants for available places will need to obtain a certificate establishing religious practice, based on the child's synagogue attendance, Jewish education and/or family communal activity.  This includes siblings and external applicants for Sixth Form places.  The form of that certificate can be seen by clicking here.  It will be seen that only synagogue attendance as from 1 September 2009 will be relevant.  Applicants are strongly advised to contact a synagogue as soon as possible to establish what they need to do to be able to demonstrate attendance and get the certificate signed.

The School wishes to make it clear that it is making this change only because it is advised that legally it has no option in the light of the judgement of the Court of Appeal but to abandon the principle of giving priority to those children who are Jewish according to the religious principles stated by the Chief Rabbi.  The School very much hopes that the Supreme Court will allow its appeal, so enabling the School to revert to the admission policy which the School considers to be appropriate, proportionate and necessary for it as an Orthodox Jewish school: that is, to give priority to those children who are Jewish according to religious principles stated by the Chief Rabbi, irrespective of the extent to which the applicants and their families practise their Judaism.  It should be noted that the certificate of religious practice does not confirm that the child is Jewish in accordance with Jewish law.

[Hat Tip: Dr. Gershon Mendel.]

Comments

[rabbidw]

This is the problem with mixing chutch and state. In England and Israel. He vwho pays the piper has the right to make the rules.

[Hometown Postville]

It can be debated and debated by those who think they have the mortal power to do so, but in the end only G-d in his infinite wisdom will have the privelege of picking and choosing. His plan is beyond our human comprehension.

[critical_minyan]

just like the halachic definition of death is being challenged by science, the concept of who is genetically jewish is anachronistic as well.
it is illogical that someone whose mother is jewish is 100% jewish, but someone whose father is jewish is not jewish at all. Both should be 100% or 50% jewish.
As peoples histories are stored digitally, and science's ability to read dna to look back in time, the ancient halachic definition will be perceived to be dated. In 200 years people will be able to say, they are 5% jewish, or that since their mothers, mothers, mothers, mother was jewish they are 100% jewish, even though they never practiced, but somone whose mother wasnt jewish but father is a rabbi, is not jewish at all.
it will be another rude awakening, leading to additional isolation.

[R]

critical, that is how Judaism works. You are Jewish because of your mother, but what tribe sort of speak you belong to is to do with your father. Muslims go according to the father.
In some ways it shows Judaism as being an equal religion. Which is probably what it is meant to be. The Rabbis have changed alot of this and made the women into subordinates, but the truth is without the women they will not have Jewish kids. The women still hold everything in Judaism, which may be why they like to condemn and attack them whenever they can.
Another problem with this outcome is that it is based on how you practice your religion and in Judaism it isn't the be all and end all to go to shul. If you don't have an eruv and are disabled you can forget shul going on a Shabbat.
It'll suddenly open the doors to them asking what hechsher you will eat and what sort of kipah you wear and then after that whether you wear a white shirt on shabbat. It'll open the gates to the ultra orthodox non ethical government funded schools to get away with what they have been doing for years and be seen as ok.

Were the family in this case practicing Judaism? Even the mother? And does this mean JFS never allowed those who converted reform into their schools? I think maybe this ruling was a bit ridiculous and they could have made it better.
I would also wonder after all this if the parents would still want their child in the school?
For the court to say this was purely racial is also absurd. Of course it's racial. The whole point of a Jewish school is racial.

[rabbidw]

Again, no secular court can rule on the halachic question of who is a Jew? What the appeals court said is that since you are taking GOVERNMENT money, the GOVERNMENT can then tell you who you have to accept. That is the danger of mixing Church and State.

[Yochanan Lavie]

Jew Are You? (apologies The Who)

Who are Jews?
Who, who, who, who?
Who are Jews?
Who, who, who, who?
Who are Jews?
Who, who, who, who?
Who are Jews?
Who, who, who, who?

I woke up in a mezuzah doorway
A rabbi knew my name
He said "You can go schluff at home tonight
If you can take out a siddur and pray"

I staggered back to the Beit Midrash
And the breeze blew back my kipah
I remember throwin' sefarim around
And leachin' out some klippot

Well, who are Jews? (Who are Jews? Who, who, who, who?)
The Brits wanna know (Who are Jews? Who, who, who, who?)
Tell me, who are Jews? (Who are Jews? Who, who, who, who?)
'Cause they really wanna know (Who are Jews? Who, who, who, who?)

I took the tube back out to Gateshead
Back to the Beit Din
I felt a little like a gei in dred
Wanting to be counted in a minyan

I stretched back and I schuckled
And looked back on my busy day
Eleven hours in the kollel
Hashem, there's got to be another way

Well, who are Jews? (Who are Jews? Who, who, who, who?)
Oy, who are Jews(Who are Jews? Who, who, who, who?)
Oh Tell me, who are Jews? (Who are Jews? Who, who, who, who?)
Oh Who the fuck are Jews? (Who are Jews? Who, who, who, who?)

Who are Jews?
who are who are who are Jews x11

Who are Jews?
Nu, nu, nu, nu?
Who are Jews?
Nu, nu, nu, nu?
Who are Jews?
Nu, nu, nu, nu?
Who are Jews?
Nu, nu, nu, nu?

The Brits really wanna know (Who are Jews? Who, who, who, who?)
They really wanna know (Who are Jews? Who, who, who, who?)
C'mon rabbi who are Jews? (Who are Jews? Who, who, who, who?)
Oy, I really wanna know (Who are Jews? Who, who, who, who?)

I know there's a place called JFS
Where they have a strict admission
I need it like a lokh in kup
I only feel a nocturnal emission

I spit out like a shaygitz
Yet still received my bris
How can I measure up to anyone now
After such a chumrah as this?

Well who are Jews? (Who are Jews? Who, who, who, who?)
tell me who are Jews? (Who are Jews? Who, who, who, who?)
oy, they really wanna know? (Who are Jews? Who, who, who, who?)
tell, tell me who are Jews? (Who are Jews Who, who, who, who?)

C'mon, c'mon who? (Who are Jews? Who, who, who, who?)
Oy vey, Who the fuck are Jews? (Who are Jews? Who, who, who, who?)
Who are Jews? (Who are Jews? Who, who, who, who?)
Oh, tell me who are Jews (Who are Jews?, ooo?)

They really wanna to know
Oh, they really want to know
C'mon tell me who are Jews, Jews, Jews?
Who are Jews?

[Neo-Conservaguy]

Awesome. Where's my guitar? Time to slam it hard... Whooooooooo are Jews, Who who who who....

[Guillermo DaGoy]

And maybe the Anglican church would have a point in saying only those individuals who are of a Anglo-Saxon mother qualify for school there

[Ben]

Chief Rabbi Sachs and entire Ortho establishement both in England and Israel are morally corrupt.

[Dr. Dave]

The fact is that the rabbis had to figure out what to do with children of Jewish women who had been raped (often pillaged as well) by non-Jews throughout our history.

Rather than abandon them, they were automatically taken to be Jewish.

As one could not at the time ascertain paternity as well, puported children of a Jewish man were not afforded the same status.

A baby coming from a Jewish female obviously had at least one Jewish parent. The same could not be proven (at the time)of a child coming from a gentile mother.

[Barry]

All nations differentiate between nationals and non-nationals. I, as a British subject, am not allowed to settle or work in the USA or have my children enrolled in the US public school. Likewise a US citizen is similarly 'discriminated' against should he wish to use the British National Health System. Such differentiation or discrimination between nationals and non-nationals within a particular nation is perfectly lawful and proper. Although a person can acquire nationality by naturalization, most people acquire nationality by from their parents.
Prior to the Enlightenment, Jews were not seen as nationals of the lands they happened to live in. They were seen as nationals of Judea in exile. So for example in medieval mind, Rashi was not a Frenchman but a Jew and therefor foreign. Jews were seen in law as having a corporate identity separate from that on the gentiles in whose lands they lived whose loyalty was neither expected or wanted. It therefore seemed to the medieval mind as reasonable to deny Jews, rights reserved for a Frenchman in France as it now seems reasonable to deny non US nationals those rights reserved for US nationals in the USA.
With the coming of the Enlightenment, the gentile attitude to the Jews within their lands changed. Jews were no longer to be seen as a foreign nation living within others land. Their loyalty to the nation they lived in was now both demanded and expected. The legal recognition of the Jews as a separate corporate entity based on their foreign 'nationality' was ended together with the disabilities arising from the recognition of that corporate identity whether the Jews liked it or not (and most Rabbis did not seeing that it undermined Jewish national identity). It therefore became improper when discussing a citizens rights and duties to distinguish between Jews and non Jews. The only factor of importance is whether a person is a citizen or not. For citizens there must be equality before the law.
As Clermont-Tonnerre stated before the French National Assembly in 1789
"But, they say to me, the Jews have their own judges and laws. I respond that is your fault and you should not allow it. WE MUST REFUSE EVERYTHING TO THE JEWS AS A NATION and accord everything to Jews as individuals. We MUST withdraw recognition from their judges; they should only have our judges. We MUST REFUSE legal protection to the maintenance of the so-called laws of their Judaic organization; they should not be allowed to form in the state either a political body or an order. They must be citizens individually. ... It is repugnant to have in the state an association of non-citizens, and a nation within the nation."
In the JFS case, the old entry criteria reflected a separate Jewish National identity in addition to that of British National identity by using descent and naturalisation (both national criteria) as entry criteria. No British court will recognize the legitimacy of that additional national identity on its territory because the idea of equality before the law does not allow it anymore than it would allow a golf club to restrict membership to Jews recognized as such the Chief Rabbi. You cannot reintroduce a legally enforce corporate Jewish National identity by the back door. As Clermont-Tonnerre stated you must not have a nation within a nation and that we must refuse everything to the Jews AS A NATION.
There are great benefits to be had from the 'emancipation' of Jews and legal equality. As the JFS has found out, their are disadvantages as well.

[Jakes]

I don't think the oft-cited citizenship/naturalization argument applies to who is a Jew. The case in question involves a mother who converted in a liberal denomination. So she did in fact attempt to gain "citizenship"- just not an authority that is recognized universally. Frankly there is no Jewish authority that can guarantee one's status. If you become a citizen of the US, you're recognized as a citizen for the entire government.

Besides, one can inherit citizenship from either one of his parents, there is no requirement in any developed country I am aware of that only the mother be a citizen.

[Susan]

I don't see how a secular court has any authority in deciding religious matters. Not who is a Jew, nor who is an Anglican, nor whether a Muslim woman should wear a headscarf, nor what hecsher I should accept, etc.

[Shmarya]

Please.

The school takes state funds.

If the school were wholly private, you might have a point.

[Reader]

Jews should finally figure out which god they serve.

[Chicago Sam]

Amazing ... I would like to know where the Chief Rabbi stands on this issue? From what I have read (and PLEASE correct me if I am wrong), he has said NOTHING. Here is a man who endorses interfaith dialogue with Christians and Muslims, but says nothing about Intra-faith dialogue ... Go figure . . .

[Chicago Sam]

I am curious: Is the school in question a Haredi or Chabad school?

[Chicago Sam]

Just for the record, originally patrilineal descent was the standard in ancient Israel; matrilineal descent came much later ...

[Shmarya]

No. It's a state-funded community day school that is basically MO.

[robert burrell]

Thanks to teh poster way up top who made me google eruv and scratch my head for a few minutes.

Dr. Dave, the definition may as you claim have been written to protect the offspring of rape many, many moons ago. I find it hard to think that that's the entire story here, though.

Regardless, there's a test for that now.

If the school doesn't like being subject to UK law, it should give back any funds given it for the past 7 years (or whatever the fiscal statute of limitations is) for a start. Until then, you take the money from the state, you subject yourself to the state.

[Barry]

It makes no difference whether the school is public or private. It is just as unlawful in the UK to restrict private school pupils to ethnic Jews as it is to restrict a private old age home to ethnic Jews or a golf club to ethnic Jews. It would be unlawful to restrict school pupils to Israelis but would not be unlawful to restrict pupils to ivrit speakers. You can restrict by practice but not by nationality or ethnicity

[Barry]

Dr Dave, the fact that a child of a Jewish mother and non Jewish father is considered Jewish by halacah has nothing to do with rape.

The principles of Halacha involved are no different from that of Roman Law or English Common Law. (These principles have been greatly modified in modern society as they are deemed prejudicial to women and illegitimate children and have to a great extent been forgotten).

Every person is born with a particular legal status be it family or clan. That status always follows that of the person’s mother however it is most important to remember that the status of the mother depends on whether she is married or not.

When a woman is given away to a man in lawful marriage, her former status ends and she assumes the status of her husband. She even takes on his name. Under the old laws, her change of status even means than on the death of her father, she does not inherit from him as in law she is not deemed anymore to be part of that family or clan.

So a child born to lawfully married parents will take on the clan or family status of his parents. Strictly speaking it is incorrect to state that the status of a legitimate child follows his father. Rather the status of a child follows his mother however her status changed to that of her husband on marriage so that the end result is that the child has the status of his father.

If however a woman is not married to the child’s natural father, then her clan or family status remains as it was and the child takes on this status. The child is deemed in law not to be related to its natural father. Under the old law, the father had no obligation to that child, and that child would not inherit from the natural father and the natural father could not inherit from the child. The father was as a stranger to the child. That mother however would be able to inherit from her father (whose family or clan she remained a member of), something her married sister could not.

So, Elizabeth II became queen of England, not because she was the natural daughter of George VI but rather because she was the natural daughter of King’s lawful wife.

From what I have stated above, it follows that the status of a child depends on whether you recognize the child’s parents’ marriage to be legitimate.

If a Roman man marries a Jewish woman, then the above principles suggest that the woman assumes the Roman’s family or clan status and a child of that union is a Roman. That indeed is the position in Roman law because it recognizes marriages between Roman men and Jewish women as being legitimate.

However the Torah absolutely prohibits the marriage of Jewish women to gentiles. Any such ‘marriage’ is meaningless and void. It therefor follows in Jewish law (and contrary to Roman Law), that the status of the Jewish mother is not changed to Roman by the ‘marriage’ but remains Jewish and any child born will be Jewish. The Mishnah considers such a child a mamzer however the Gemarah does not.

Turning to marriage between Jewish men and Gentile women, things get interesting. The Torah does not prohibit Jewish men marrying gentile women. Accordingly if a Jewish man married a Roman woman, the marriage would be considered legitimate according to both Roman and Jewish Law, she would become Jewish automatically be marriage (without the need to convert) and children born of that union would be considered Jewish.

It therefore follows that according to Torah Law, the child of a Jewish father married to a non Jew would be Jewish whilst the child a Jewish mother would also be Jewish since she could not legally marry the non Jewish father. That is the current position under Islamic Law as regards Muslims.

However some time before the Mishnaic Period, the Rabbis prohibited what was formerly allowed. They forbade the marriage of Jewish men to Gentile women. Accordingly a Jewish man could no longer change the status of a gentile woman to Jewish by marriage and any child born of that union would be considered gentile.

So now any ‘marriage’ contracted between a Jew and Gentile is deemed in Jewish law as invalid and accordingly incapable of changing a womans existing status status whether she is a Jew or a gentile. .

Nowadays in modern society (except in Israel), the question of how you determine Jewishness is of no relevance because modern societies no longer distinguish between Jews and non Jews in matters of law and laws have been passed overturning the disabilities arising for married women and illegitimacy. The question is pure academic. In Israel it remains an issue because one’s national and personal status depends on the definition.