MELANIE PHILLIPS ON THE UK SUPREMES’ IGNORANCE OF JUDAISM
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An illiberal and ignorant judgment
Wednesday, 16th December 2009
So the Supreme Court has ruled against the JFS after all, which it has found guilty of racial discrimination. This judgment, handed down today, was the seminal case brought against the JFS, an Orthodox Jewish secondary school in London, by a parent whose child had been refused admission to the school on the grounds that the child was not recognised by orthodox Jewish precepts to be Jewish. This was because he had been born to a mother whose conversion to Judaism had been conducted under the auspices of the Masorti movement, a conversion which is not recognised by the Orthodox Jewish authorities which govern the JFS as having any status in Jewish religious law.
To those outside Judaism, the issue is arcane, complex and doubtless baffling. It probably does not affect anyone else because of the unique conflation in Judaism of religion and ethnicity. The ruling is nevertheless of very great and worrying significance because it tells us that a) Britain is no longer a liberal society and b) that it has now become an inhospitable place for Jews. This is because, stripped down to its essential core, what this ruling does is prevent Orthodox Jews from giving preference in their schools to Orthodox-recognised Jewish children; and more fundamentally still, it tells Jews that the state will not accept their own decision about who is or is not a member of their own community but uniquely stigmatises them for doing so.
There is a long-running and bitter argument between the Orthodox and progressive wings of the Jewish community (which include the ‘Masorti’, ‘Reform’ and ‘Progressive’ movements) over precisely these issues of personal status, with progressives constantly fighting to wrestle the power to determine such issues away from the Orthodox. Some of these progressives will undoubtedly be jubilant about today’s ruling. But wiser progressive leaders, such as the head of the Reform movement Tony Bayfield, have previously expressed concern about the lower courts’ ruling against the JFS precisely because he understands the central issue here which goes way beyond the internal community battle – that it is illiberal and coercive to deprive Jews of state acceptance of the right to decide for themselves who is or is not a Jew and to have instead the courts deciding such an issue.
The essence of the argument in this case revolved around the difficulty unique to Judaism of disentangling race and ethnicity on the one hand from religion on the other. There is no doubt that Jews are an ethnic or racial group. But they are also a religion, and these aspects are inextricably intertwined. So much all the judges understood.
But the majority failed to grasp that at the very core of the racial and ethnic bonds lies the religion. As they agreed, all wings of the community agree that Jewish identity is determined by descent or conversion. What the majority judges failed to acknowledge, however, is that the descent route – by which Judaism is transmitted through a Jewish mother – itself depends on the Jewishness of that mother’s line being defined by religious, not ethnic or racial, criteria. And the JFS criteria to determine who was a Jewish child was similarly determined by wholly religious criteria. Ethnicity or race – the only legal basis of the complaint of discrimination against the JFS – were wholly irrelevant.
The dissenting judges understood this seminal point very well. Lord Hope said it was ‘a complete misconception, in my opinion, to categorise the ground [for discrimination] as a racial one’ since it was ‘on religious grounds only’. Lord Rodger said the issue of ethnicity or race was totally irrelevant to the school for which all that mattered was whether the child’s mother ‘had converted under Orthodox auspices’.
But the majority, led by the President of the Supreme Court Lord Phillips, took the opposite view. Lord Phillips said in terms that the fact that the school had used a religious test of the child’s Jewishness was ‘irrelevant’ because Jewish identity also involved racial or ethnic origins – thus with extraordinary obtuseness missing the point altogether that religion, far from being ‘irrelevant’, was central to Jewish identity and thus to the JFS admissions criteria.
Lord Phillips thus appears to have laid down that religious criteria do not determine who is or is not a Jew. What astounding — and sinister – arrogance for a judge in an English court of law to presume to strip Judaism of its ability to define itself in religious terms.
He also used an invidious circular argument in reaching this conclusion. For in order to decide that this was a case of racial discrimination against a Jewish child, he identified this child as a Jew – in order to determine whether or not the child was a Jew for the purposes of admission to the JFS.
The absurdity and incoherence of this decision were illustrated by the chorus from the majority judges that they were not suggesting for a moment that the JFS was ‘racist’ or had anything other than the most noble of motives in practising racial discrimination. This is therefore surely the first case of non-racist, noble and elevated racial discrimination on record.
Further piquancy is added by the fact that Lord Phillips is himself (as he would doubtless define it) an ‘ethnic’ Jew, who chose only recently to reveal this identity to the world when he coyly ‘came out’ and acknowledged his ancestry for the first time – in an extremist London mosque, no less, when he chose publicly to welcome the encroachment of sharia law in England.
The most devastating conclusion of all, however, was delivered by the dissenting judge Lord Brown. He said:
The root question for the Court is simply this: can a Jewish faith school ever give preference to those who are members of the Jewish religion under Jewish law. I would answer: yes it can. To hold the contrary would be to stigmatise Judaism as a directly racially discriminatory religion. I would respectfully disagree with that conclusion. Indeed, I would greatly regret it.
The JFS case is the first major case the new Supreme Court has decided. It has marked it by stigmatising Judaism in Britain. Some achievement.
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