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Fighting A British Court’s Evil Decree

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On July 2 the UK Orthodox Jewish community was hit with a legal bombshell that has the potential, at its most extreme, to make organized Orthodox Jewish life in Britain all but impossible.

Jews’ Free School (universally referred to by its initials, JFS) is a Modern Orthodox secondary school under the authority of the chief rabbi. It is a school that prefers to take children from non-observant homes in order to draw them toward Judaism and strengthen their Jewish identity. The school’s Jewish and secular studies programs are excellent. It is because of the latter and sometimes despite the former that many non-observant parents send their children to the school.

Because JFS is what in America would be called a “public” school (it’s a “parochial” school that operates under the aegis of the state system, as do nearly all Church of England and Catholic schools), its admissions criteria involve giving first priority in admissions to children who are halachically Jewish, followed, if there are not enough Jewish children applying, by gentile children of Jewish descent and then gentiles with no Jewish forebears. But there are so many Jews currently enrolled at JFS that the school has had to turn away Jewish children due to lack of space.

A legal case was brought against JFS on behalf of a boy who was rejected for admission to the school because he is non-Jewish. His father is Jewish, his mother is not, though she did undergo a non-Orthodox conversion, which of course is not recognized by halacha.

The plaintiff lost in the high court, but an appeals-court verdict reversed the initial decision, declaring the boy had been racially discriminated against as an ethnic Jew. The judges ruled that halacha is merely theology – and is racist to boot, because it leads to discrimination against people the Torah considers non-Jewish but whom the judges consider Jews. Halacha, according to this ruling, cannot be used to determine who is a Jew.

In other words, the judges consider irrelevant to Judaism one of the most basic Jewish beliefs. Indeed, halacha was even compared to the racist doctrine of the Dutch Reformed Church in Apartheid South Africa. This in itself shows the intellectually and morally fatuous state of English “justice” if not its malevolence. A black person can never become white, but any gentile can choose to convert to Judaism and enter into the Jewish people – provided he or she does so by halachic means.

For the purposes of English law, one may be a Jew “ethnically” without regard to his or her religious practice or status. What the term “ethnic” actually means, in a legal sense, is vague, but seems somehow related to descent. If this is indeed the case, how much descent makes one an ethnic Jew? For example, what is the ethnicity of London mayor Boris Johnson, who has English, Russian, Turkish and Jewish forebears?

It is also unclear what the relationship is between Jewish ethnicity – as English law sees it – and the Jewish “faith.” Does one have to be Jewish ethnically to be of the Jewish religion? Would unconverted gentiles who practice Judaism or “do Jewish things” be considered Jewish? The court has said that Jews who do not practice Judaism are not of the Jewish faith but are Jews ethnically.

Needless to say, this is a legal battle that Christians and Muslims are also watching since it affects all religious groups and the nature and position of religion in the UK. Under this new legal principle, Christians and Muslims who do not practice their faith are not members of their faith communities. The vast majority of the English people are Anglican, yet since most are non-practicing, they are, according to the judges, not Anglican at all.

The ruling as it stands raises many questions about day-to-day Jewish life that need to be settled by the courts. Can a ketubah be used for determining any Jewish status? Can Orthodox synagogues use it as a criterion for membership? If halacha cannot be used to determine Jewish status in education, can it be used anywhere? Would batei din be forced to marry gentiles and issue ketubas to gentiles of Jewish descent? Could a non-Jew or a non-Orthodox Jew who knows the laws of shechita be denied a position as a shochet without it being deemed racist?

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