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British Court Ruling Affects Who Counts as a Jew

5 years ago
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Last week, Mia and Luisita puzzled over whether or not labels are useful in defining who we are. This week, I'd like to ask whether our identity is determined fundamentally by what we do or by our blood.

Yeah, I know. That's heady, metaphysical stuff for snowy days late in December. But it's a question directly raised in a landmark decision by Britain's Supreme Court, which ruled last Wednesday that it was illegal for a state-funded Jewish school to base its admissions policy on whether or not the applicant's mother was Jewish.

The ruling concerns the highly sought after Jewish Free School in Northwest London. A boy referred to only as M was denied admission there because -- although he came from an observant Jewish family -- his mother (a convert) was not recognized as Jewish by the chief rabbi affiliated with this school. Jews have long been defined by a matrilineal test. And although it is often sufficient for the mother to convert to Judaism to count as a Jew, some more traditional movements within the religion do not always acknowledge the validity of conversions by more liberal movements.

On the face of it, this is a simple discrimination case. Because there is no separation of church and state in Britain, the government funds a certain number of so-called "faith schools" (whether Church of England, Roman Catholic, Muslim, Jewish, etc.). These schools are allowed to give priority to applicants who share the faith of the school.

But in this case, M's father sued the school, claiming that its policy amounted to racial discrimination. In June, the Court of Appeal ruled in his favor. The school appealed that decision, but the Supreme Court sided with the Court of Appeal in a 5-4 decision last week. Going forward, children who apply to one of the U.K.'s 50 Jewish schools will now have to take religious practice tests to ensure the schools are not discriminating against children on ethnic grounds.

The decision has split the Jewish community right down the middle. On one side, critics argue that even if the government was trying to settle an educational matter, the ruling ends up bearing on a fundamentally religious one. As an orthodox rabbi wrote last week in The Guardian: "Judaism is a state of being, it is an existential definition acquired at birth or through the visible sacrifice and commitment of conversion. It is not conferred on the basis of ticking boxes on a form. Nor for that matter does the inability to tick such boxes, due to lack of practice, mean that a born Jew is to lose his or her Jewishness." Simply put, Jews do not need secular jurists to tell them who is Jewish.

On the other hand, there are those who view the Supreme Court ruling as having saved the Jewish community from itself. For these more liberal currents within the religion, the ruling represents -- as another rabbi put it -- "a victory for common sense over discrimination. It was always indefensible that a Jewish school should refuse Jewish education to a Jewish child." In other words, the fact that this boy came from a family that believed in and practiced Judaism ought to be enough.

Which brings us back to identity: is it what you do -- or who you are -- that matters?

I can see both sides of this issue. Seen purely through the lens of legal discrimination, the ruling seems like a no-brainer to me. Of course you'd want to require the schools to be more inclusive. Can you imagine if taxpayer-financed schools started saying that they wouldn't admit blacks, or Latinos . . . or Caucasians? But I also appreciate why the Orthodox community in the U.K. sees this ruling as de-facto interference in how they go about defining their religion, which is -- and should be -- a private matter.

Which is why I'm glad that -- for the moment at least -- I can comfortably avoid this issue entirely. I'm a recovering Catholic married to a Jew with two children who proudly call themselves Jewish and have no concept that they are anything but. To the extent that I'm thinking about joining anything, I'm currently eying the lesbian and gay synagogue here in London (despite being neither lesbian, gay nor Jewish) precisely because it explicitly welcomes patrilineal Jews. In short, I'm so far out of the mainstream right now that none of this affects my lifestyle at all.

But if that changed -- and I decided to convert, or simply to step up our commitment to the religion, as we may do -- I'd hate to think that we'd be discriminated against simply because once upon a time I used to recite the Hail, Mary instead of The Shema.

And then this will all matter a great deal.

In the meantime, I'm happy to remain -- as one author put it -- more Jew-ish than Jewish.

Happy Chanukah.

Follow Delia on Twitter.

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