Who Is A Briton?

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To the delight of Jew-haters everywhere, a British Court has in effect deemed Judaism a racist religion. As a result, the blogosphere swarmed with invective about how the Jews had been exposed as imposing, in the words of one jolly blogger, an “ethnic purity test.”

What happened is that the parents of a boy whose father is Jewish but whose mother underwent a non-halachic conversion brought a lawsuit against a North London Jewish school for not accepting the child as a student. Britain subsidizes religious schools and allows those with more applicants than seats to give preference to children within the schools’ respective faiths. The school at issue, the Jews’ Free School, or JFS, considers Jewish religious law to be the determinant of that status. The parents’ suit was denied by a lower court but that ruling was subsequently overturned by the British Court of Appeal.

The justices on that latter court concluded that basing school admissions on whether a student’s mother is Jewish is “unlawful,” as it constitutes a “test of ethnicity which contravenes the Race Relations Act.” Or, as another blogger chose to put it, the child is “damaged goods” in Jewish eyes, “far to[o] ‘Un-Chosen’ to attend school with all the other little ‘Pure’ Jewish Kids.”

How the ladies and gentlemen of the Court of Appeal square their judgment of Jewish law as racially discriminatory with the fact that the very same law grants full Jewish status to anyone who accepts Jewish observance and undergoes conversion – regardless of color, national origin or ethnicity – is not known. In fact, it’s not hard to imagine an amusing Monty Python sketch built around that glaring inconsistency.

But even more disturbing than the Court of Appeal’s lack of lucidity is its disapproval of the right of a religion to define itself. To be sure, many religions consider anyone who chooses to self-identify as part of the faith to be members of their religious community. But Judaism is – and has always been – different. A child born to a Jewish mother who does not affirm Judaism is still a Jew in the eyes of Jewish religious law.

Not, though, one born to a non-Jewish mother, unless she had previously converted according to the standards of Jewish law.

The case, which the media has cast as Britain’s “Who is a Jew?” controversy, is now before the British Supreme Court, where the Court of Appeal decision was brought by the school.

To be sure, whatever Britain’s highest court may decide, no secular tribunal can attenuate believing Jews’ embrace of the heritage for which their ancestors lived, and for the preservation of which many of them died. The question, though, remains: Will the British Supreme Court recognize Judaism’s uniqueness – and the right of Jews and Jewish institutions to embrace it without censure?

And will people like the parents of the boy at issue come to understand that what they are taking as personal insult is simply fealty to Jewish law?

“How dare they [school officials] question our beliefs and our Jewishness?” fulminated David Lightman, a widely quoted father of a non-halachically Jewish child (not the boy at issue). “I find it offensive and very upsetting.”

No doubt he does, and that is unfortunate. But the school’s policy is not intended to hurt him or his child. It is simply a declaration of respect for Judaism’s millennia-old religious tradition.

There are, as it happens, many “Progressive” Jewish schools in England. Parents whose children are viewed as Jewish by non-Orthodox Jewish clergy but not by halacha can avail themselves of those institutions. But the Mr. Lightmans of the Isles seem intent on demanding that their fellow Jews who consider halacha sacrosanct abandon their principles.

Back to the high justices, though. As they consider the case before them, part of what they might mull is the fact that in Britain, as in most countries, there are two paths to citizenship. According to the British Home Office, a foreign national can be naturalized by undergoing a prescribed process and ceremony; and citizenship is automatically granted to anyone “born in the United Kingdom on or after 1 January 1983 if at the time of your birth one of your parents was: a British citizen; or legally settled in the United Kingdom”

One is a citizen, then, it seems, by simple virtue of having been born to a Briton.

Might that seem, in some eyes, a tad racist?

Call it the “Who is a Briton?” question.

© 2009 AM ECHAD RESOURCES

[Rabbi Shafran is director of public affairs for Agudath Israel of America.]

All Am Echad Resources essays are offered without charge for personal use and sharing, and for publication with permission, provided the above copyright notice is appended.

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16 Responses

  1. pc says:

    Fair point by Rb Shfran, according to the British judges, every country in the world is racist as they grant citizenship and all its benefits automatically to citizen’s children.

    In this case, the father recognises that the mother requires conversion, except that he is of the opinion that a reform conversion is a valid conversion. Why then does the judges argument not equally apply to the father’s position?

    pc :-)

  2. Sabba Hillel says:

    Thematic Giant:

    Actually, the point is that the mother is not Jewish according to halacha Jewish law), as a result of which the child is not Jewish. The school explicitly states in its rules that it follows the law as specified by the halacha under the jurisdiction of Chief Rabbi Sacks. The article pointed out that the court declareed, in effect, that it recognized as valid the school’s determination that the mother was not Jewish, but declared that rejecting the student because of that was not legal.

    In effect, it ruled that the Jewish definition of “who is a Jew” is not legal.

  3. Ben Joseph says:

    Thematic Giant:

    You said “Under British law, Judaism is a religion, since discrimination against non-Jewish students is legal. So, unless the court has redefined the word ethnic to mean hereditary, the question “is your mother Jewish” is a religious, not ethnic, question.”

    Actually, that’s not quite accurate. Judaism is covered by the race relations act, along with the Sikh community. That is to say, Jews are protected from discrimination (for example in the work place) through the laws concerning race. Other religions are not protected in the same way, which is why new laws concerning religion were necessary to protect Muslims, Hindus etc.

    If you read the court ruling online you will see that this question of race is directly connected to that of ethnicity, in the courts eyes. The appeal court ruling is here

    This is the challenge of ‘faith schools’ in the State sector – there will always be a set of compromises. The notion of faith and religion is far more complex than than the State is probably able to legislate for and does not equip the court with a sufficiently nuanced definition of what it means to identify as and be identified as a Jew, but within the parameters of existing laws the judgement is certainly justifiable.

  4. Reuben Friedman says:

    Thematic Giant,

    The court agrees that the ‘maternal-Jewish’ test is a religious test. What the court is saying is that this particular test is *also* an ethnic test. The court maintains that a test that is both a religious test *and* an ethnic test is unlawful due to the ethnic-test element.

    The courts are saying that the law provides a faith-school with a dispensation to discriminate only in as far as ‘religion’ is concerned; but, as soon as this religious discrimination *also* becomes ethnic discrimination, no matter that no harm is meant, it still is unlawful.

  5. Thematic Giant says:

    Here’s a concise summary of my above argument: which ethnicity is JFS discriminating against?

  6. Sammy Finkelman says:

    The United Kingdom has had for some time what can strike many of us as a peculiar understanding of what membership in religion means, and it is hard to get a grasp of it. This is not really a departure from previous British law – it’s just been extended from provisions in wills to school admissions. It seems to consider the matter of someone’s religion very personal – it is the faith, or belief or practice that somebody has, rather than any kind of official membership or acceptance by others. In other words they are treating the concept of Jewish or “of the Jewish faith” which may be the term used like we might treat the concepts of religious, non-religious, frum, secular, dati, chiloni, Orthodox, Reform left wing, right wing, centrist and so on.

    I learned this from the book “Tears and Laughter in an Israeli Courtroom” by Schnor Z. Cheshin (Jewish Publication Society, 1959 Third Impression 5722 1962) The last of the 5 sections of the book is about wills – and not just in Israel, but all over and almost throughout Jewish history, starting from Yaakov Avinu.

    Now in recent times, people put clauses in wills denying benefits to members of thehir family who married non-Jews. This means, of course you have to define who is a Jew. In the first case, Hodgson v. Halford (1879) ii ch. D. 959, the British court held that it was perfectly proper to leave property only to adherents of a religion.

    But in a 1940 case, Blaiberg, Blaiberg and Another v. De Andia Yrarrzaval (Marquise) and Another (1940) i All E.R. 632 and then in the case of Barnett Samuel, for which Cheshnin doesn’t give the citation but which he says went up to the House of Lords, they took another tack. In the first case a court ruled that the expression “not of thee Jewish faith” was neither clear nor self-explanatory (and that any provision in a will that limits a beneficiary’s rights had to be expressed in simple and unmistakeable language.)

    In the second case, the lower court first ruled for the person who contested the provision (The will had said his daughter would get money only if she married a Jew who was also “of Jewish parentage” The lower court claimed to have difficulty in applying that – not to the plaintiff but as a general rule and if you couldn’t decide it for all possible cases the clause was void. It took Judaism, in other words, as a matter of faith and belief only. The Court of Appeals upheld the will, saying the condition the testator applied was a matter of religion in both cases and the condition had been violated. But the Law Lords reversed.

    Each of the five judges wrote a different opinion but all reversed and the opinions were later published in a book “which was to serve as a guide and preecedent for judges in future cases relating to wills and legacies.”

    They totally missed the point that Jewishness is not at all in most cases self-defined, except maybe for the case of apostates, who leave Judaism and convert.

    So what we have now is that school is trying to come up with tests for being Jewish. (The ruling has still got to go to the new UK Supreeme Courtt which has reeplaced the House of Lords, so it is onmly that school righht now)

    They came up with a religious practice test – whidch apparently applies to the child not the parents – maybe they don’t want it to apply to the parents. It is point system which gives points for things such as synaggue attendance on Shabbos and acts of Tzedakah – and then they have got these problems such as how do you prove that someone went to shul on Shabbos since you can’t keep written reecords – but maybe you can drop a card in a box. I don’t know why that’s a problem – couldn’t there be a measure as to whether generally or not a child attends shul.

    The problem may lie in the use of the word “faith” which is written into the 2006 law which says preference in admission *can* be given to applivants within their own faith using criteria – any criteria – laid down by a designated religious authority. The idea that there are mitvzos that children must be taught that are incumbent upon some people but not on others – it’s not there – because this law was written for Protestants and Catholics and Moslems, which don’t have anmy special obligastions for anybody. Or close to that.

  7. Thematic Giant says:

    Mr. Rueben,

    I believe that my point still stands. Here is a quote from a NY Times article on this subject:

    “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 court is saying that determining Judaism by the mother’s status as a Jew is racist. That is impossible. Judaism is either a religion or an ethnicity. Under British law, Judaism is a religion, since discrimination against non-Jewish students is legal. So, unless the court has redefined the word ethnic to mean hereditary, the question “is your mother Jewish” is a religious, not ethnic, question. Discriminating against children who have blonde mothers would also not be racist, since being blonde does not determine ethnicity.

    Of course, if Judaism did actually discriminate against any ethnicity, then the court would be fully justified in denying state funds to Jewish schools. But since Judasim so obviously does not discriminate on racial grounds, the ruling seems to reflect a broader disdain for religious principles.

  8. Southern Belle says:

    It is my understanding that the Christian religion is a faith-based religion, meaning that one merely has to accept it and practice it and is then identified with it (not getting into baptism etc) whereas Judaism is a law-based religion. There is a litmus test for one’s status as a Jew or non-Jew. It seems the court is superimposing a faith-based definition of religion onto the school’s admission practices rather than giving credence to the legally proscribed definition as practiced by members of that religion.

    And I agree with Mr. Cohen, the article should say ‘law’ and not merely ‘tradition.’ The difference is not lost on the less initiated — in fact, in the non-religious world the difference between the two terms is vast.

  9. Reuben Friedman says:

    Thematic Giant,

    The answer to your question is as follows;

    Faith-schools are indeed *permitted* under UK law to discriminate in favour of religion (where they are oversubscribed). They are *not* allowed to discriminate in favour of race.

    That is the law of the land.

    The school in question discriminated in favour of pupils who do not in practice keep religious Judaism at all. The courts do not see them as Jews in the ‘religious’ sense; their only claim to get into the school is because their mother is Jewish. The courts see that as an ‘ethnic’ test. It is therefore unlawful.

    The courts do not care whom Judaism counts as Jews. The court’s concern is to uphold the law of the land that is there to protect all minorities.

    Remember, in the USA publicly funded ‘faith schools’ do not exist.

  10. Ori says:

    Mr. Cohen, Rabbi Shafran is writing for a broad audience. His audience includes both gentiles and ignorant Jews. The distinction between d’Oraita, d’Rabannan, and customs would be lost on most of the audience. “Tradition”, which encompasses all three, is a better term.

  11. Thematic Giant says:

    Ben Joseph – It seems like the court does not have a problem with the JFS discriminating against non-Jewish students. What bothers the court is the school discriminating against a student whom the court considers to be Jewish. Discriminating against non-Jews is OK, but discriminating against self-proclaimed Jews is problematic. How does that make any sense? If Judaism is an ethnicity, then discriminating against any non-Jewish student is automatically racist (since it makes an ethnic determination by not accepting students excluded from the Jewish ethnicity). If having a Jewish school is not inherently racist, than deciding who is considered Jewish cannot be racist either.

    So what led the Court of Appeals to render such a foolish decision? It is clear, as Rabbi Shafran discussed, that the concept the court finds troubling is religious self-determination. The idea of a religion with immutable, eternal principles is a disturbing concept in the modern, anything goes society. The justices apparently had, not a legal, but a personal problem with a school that would dare to question someone’s religious (or ethnic!) affiliation. Individuals are the sole arbiters of their religious status; religion itself has no say in the matter. So, it would seem that Rabbi Shafran is correct. There is no way to simply frame this as “state-funded discrmination” issue, since religious ‘discrimination’ is apparently legal. The issue, then, is one of disdain for religious principles. I would have to agree with Rabbi Shafran on this one.

  12. Mr. Cohen says:

    Jewishness through matrilineal descent should not be referred to as “tradition.”

    It is derived from the Biblical Book of Exodus, chapter 21, verses 1 to 4, and the Biblical Book Of Ezra, chapter 10, verses 2 and 3.

    Jewishness through matrilineal descent is DeOraita [Biblical] not a “tradition.”

  13. Yehoshua Friedman says:

    That’s not a Python, it’s a rattlesnake.

  14. Ben Joseph says:

    Dear Rabbi Shafran
    I think this article is completely polemical and inaccurate. The decision made in the court was not a decision about whether Judaism is racist – but whether the specific entry requirements of a state funded school were discriminatory. That is, whether state funds should be used to fund an institution bound by the race discrimination laws present in the UK which defend the UK Jewish community from anti-semitism.

    Secondly, contrary to what you have written, there are not many Progressive Jewish schools in the UK – there are in the whole of the UK no non-Orthodox Jewish Day Schools for High School level (11-18 years old) except for the newly established JCOSS which does not open until September 2010.

    More to the point, this story has been running for weeks now in the UK and representations to a Higher court are still going on supported by the Board of Deputies and by most denominations of Jews.

    May I respectfully suggest you take some time in future to consider the facts before posting such an article.

  15. Ori says:

    Bob Miller: I rather doubt these judges are looking at (for example) exclusionary Muslim schools in the UK in the same way.

    Ori: Sorry, but that accusation does not make sense. Muslim schools are unlikely to exclude anybody, because Islam is a missionary religion. They want you to send your kid to learn to become a good Muslim, regardless of your own religion. The same would be true of Catholic schools.

    Probably the judges have a hard time understanding that Judaism is not missionary, and that according to Halacha the kid in question has no need to learn to act as a Jew.

  16. Bob Miller says:

    I rather doubt these judges are looking at (for example) exclusionary Muslim schools in the UK in the same way.