Friday, December 18, 2009

A defect in UK law

From THE JERUSALEM POST Dec. 16, 2009, by LESLIE WAGNER*:

The momentous decision by the narrowest of margins by the justices of the UK Supreme Court on Wednesday, that London's Jewish Free School (JFS), in refusing entry to the son of a Masorti convert, had breached the 1976 Race Relations Act, will reverberate, not just across the Jewish community, but in the legislature as well.

The facts are clear. The boy, known as M is the son of a Jewish father and an Italian Roman Catholic mother who converted to Judaism through the Masorti/Conservative movement. The couple have since divorced and M lives with his father. He wished to go to JFS, the oldest and largest Jewish school in Europe.

The school is under the religious guidance of the chief rabbi, Lord Jonathan Sacks, and when there is an over-demand for places, preference is given to halachic Jews over others. Lord Sacks ruled that M was not halachicly Jewish, and therefore was not eligible. M's father appealed to the school's panel, which turned him down. He then appealed to the courts which at the lower level turned him down, but at the Court of Appeal he found support. At this point JFS, the United Synagogue, the chief rabbi and the Board of Deputies appealed to the highest court, the Supreme Court which has now delivered its verdict.

The judgment is a remarkable document. It begins with a quote from Deuteronomy, as the basis of the laws against intermarriage, refers later to famous converts, such as Ruth, Onkelos and Rabbi Akiva, and throughout shows the greatest respect for Judaism and Jewish law.

"Jewish law has enabled the Jewish people and the Jewish religion to survive throughout centuries of discrimination and persecution. The world would be a poorer place if they had not" is how one of the justices put it.

THE JUDGES knew that they were handling a very hot potato. As the president of the court himself put it, the court "has not welcomed being required to resolve this dispute." The fact that nine out of the 11 Supreme Court justices heard the case, an extremely high proportion, indicates its significance. That they were split more or less down the middle five to four indicates its complexity. The president of the court, Lord Justice Phillips, supported the decision of the Court of Appeal that the JFS action breached race legislation. His deputy, Lord Hope, did not.

The case hinged on whether Jews are a religious group or an ethnic group. If they are the former, then the race legislation does not apply. If the latter, then it does. The majority decided that Jews were both!

More precisely, they accepted that the chief rabbi's and the school's decision was made solely on whether M was Jewish as defined by religious criteria. However, as Judaism, uniquely, defines religious status through descent, rather than affirmation, this makes Jews an ethnic group as defined by the legislation and case law. We are Jews because our parents were Jewish, whether we believe or practice any Jewish principles or not. Converts can join this group, but they don't change the essential nature of the group.

The irony is that while the authenticity of M's conversion was the cause of the case, it was irrelevant to the ruling. All denominations within Judaism use descent as the key principle, and according to the court's ruling it doesn't matter whether they follow matrilineal or patrilineal descent.

In UK law, it makes Jews an ethnic group and disallows any discrimination between one Jew and another, and of course between Jew and non-Jew.

In making their ruling the justices were aware of the delicacy and implications of their decision. The majority, while stating that the logic of the argument of their interpretation of the law meant that the school had breached the race relations legislation, this did not mean that those involved were "racist." As one of the justices said, "The chief rabbi and the governors of JFS are free from any moral blame. That they have fallen foul of the 1976 act does not involve any reprehensible conduct on their part, for it is accepted on all sides that they acted on sincerely and conscientiously held beliefs. Their motives are unimpeachable... The grounds on which the rejection of M was made may well be considered perfectly reasonable in the religious context, but... they amount to ethnic grounds under the legislation."

This theme, that the outcome is an unintended consequence of legislation produced more than 30 years ago in a different context, recurs throughout the judgment, and is mentioned by 8 of the 9 judges. Indeed the president of the court, Lord Phillips, as early as the ninth paragraph states :"There may well be a defect in our law of discrimination."

The decision will have a major impact on how Jewish schools choose their pupils. Religious criteria will need to be introduced and the danger is that those from less religious homes, the very children who would benefit from Jewish schooling, may lose out. But for how long, remains to be seen. The justices have given Parliament the biggest possible hint that the law needs to be changed, and the legislature needs to rise to the challenge.

*The writer is a former chancellor of the University of Derby and vice chancellor of Leeds Metropolitan University. He authored the report on the future of Jewish schools for the Jewish Leadership Council in the UK. He made aliya with his wife, Jennifer, at the end of last year and lives in Jerusalem

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(Verbatim) Court judgements:

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